The power of judicial review enables the judiciary to determine the constitutional validity of legislative and/or executive actions, possibly making them subject to invalidation.

The power of judicial review by Tribunals was examined and decided by the Supreme Court in S.P. Sampath Kumar v. Union of India and in the subsequent case of L. Chandra Kumar v. Union of India. After the decision in Sampath Kumar case divergent views were taken by various benches of the Supreme Court. The matter was therefore referred to a seven judge bench of the Supreme Court in L. Chandra Kumar.

It was finally held that the vesting of power of judicial review upon Tribunals would not violate the basic structure of the Constitution provided such alternative mechanism is effective and a real substitute for the powers of High Courts. The following principles were laid down by the Supreme Court:

1. The jurisdiction of the High Courts under Article 226 and of the Supreme Court under Article 32 cannot be ousted by an alternative institutional mechanism as it would violate the basic structure of the Constitution.
2. In their supplementary capacity, however, Tribunals are competent to sit on judicial reviews of legislation/subordinate legislation and/or rules. However, this is subject to the limitation that such Tribunals, being creatures of a statute, are not entitled to entertain the vires of their parent statutes. Furthermore, any question of interpretation of a statutory provision or rule shall be heard by a bench consisting of at least one judicial member.
3. In cases wherein the vires of the parent act is in question, the relevant High Court must be approached directly. However, in all other cases, the Tribunals will act as the Courts of first instance for the areas of law for which they have been constituted.
4. All the decisions of the Tribunal will be subject to the jurisdiction of the High Court under Articles 226/227 of the Constitution of India before a Division Bench of the Court within whose territorial jurisdiction the concerned Tribunal falls.

Establishment of National Green Tribunal

The National Green Tribunal Act, 2010 (the Act) provided for the establishment of the National Green Tribunal (NGT) for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources, including enforcement of any legal right relating to the environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.

The Judgment passed by NGT

In Wilfred J. v. Ministry of Environment & Forests (Judgment dated July 17, 2014), the NGT held that the scheme of the Act grants NGT the power of judicial review in its limited scope so as to comprehensively decide the disputes, applications and appeals before it.

It was contended that the NGT, being a creation of a statute, is not vested with powers of judicial review to examine the constitutional validity/vires of a legislation – whether subordinate or delegated. The Principal Bench of the NGT examined the ambit of the jurisdiction of the NGT and concluded as follows.   

As per the Act, NGT is vested with three kinds of jurisdiction:

• Section 14 gives the NGT original jurisdiction over all civil cases where a substantial question relating to the environment (including enforcement of any legal right relating to the environment) is involved and such question arises out of the implementation of the enactments specified in Schedule I to the Act.
• Section 15 grants special jurisdiction to order relief and compensation to victims of environmental pollution; and restitution of property and environment damaged in such area.
• Section 16 grants the NGT appellate jurisdiction over orders passed by the authorities or bodies under clause (a) to (j) of Section 16.

In line with the Statement of Objects and Reasons of the Act, sections 14, 15 and 16 grant wide and unrestricted jurisdiction to NGT, free from any influence or control of the government or state organs, to entertain matters relating to the environment. In light of this, NGT observed that there is no indication of any legislative intent to divest NGT of its judicial review powers under any of the provisions of the Act or impose any restriction on the exercise and scope of the jurisdiction of NGT, by use of specific language or necessary implication.  

Conclusion

Though the Act does not provide for a specific provision dealing with the power of judicial review, the Act allows NGT to deal with substantial questions of law relating to the environment and their implementation. NGT can also deal with the grant and rejection of environmental clearances by Ministry of Environment and Forests.

In exercising these powers NGT would be required to deal with the notifications/memorandums passed by the government and if required to set aside such notifications/memorandums. NGT can also look into the vires of legislations and subordinate legislations (including notifications/memorandums); without these powers NGT would not be an effective body and would not be able to pass orders in the interest of justice. However, NGT cannot entertain a challenge to its own parent statute, i.e. the Act and the corresponding Rules. In view of this, it may be reasonably concluded that NGT is vested with  limited power of judicial review.

Since the challenge in the matter of Wilfred J. v. Ministry of Environment & Forests is pending before the Supreme Court in Civil Appeal Nos.7884-85 of 2014 titled Vizhinjam International Seaport Limited v. Wilfred J. & Ors. it remains to be seen how the Supreme Court deals with the judgment passed by NGT.