Nimli, Rajasthan: Citing recent court cases, including the National Green Tribunal’s (NGT) green lighting of the Great Nicobar projects, in which the judiciary has given orders that have put India’s environment and ecology in danger, former judge of the Supreme Court, Justice Deepak Gupta said that the judiciary is “stepping back” when it comes to the environment.Gupta was addressing journalists at the release of the report titled ‘State of India’s Environment 2026’, at the Anil Agarwal Environment Training Institute (AAETI) in Nimli, Rajasthan, on Wednesday, February 25. NGT experiment ‘not very successful’Gupta, who has given several important judgments pertaining to the environment including the famous Him Parvesh judgment of 2012 which invoked the polluter pays principle (which, in a first, ordered a company that established a cement and thermal power plant in Himachal Pradesh to pay a huge amount of Rs 100 crore as environmental compensation to affected villagers), said that the judiciary has a very important role to play in the protection of the environment. A problem is that most judges are not qualified to hear environmental matters though they pass orders on it, said Gupta, who headed the green bench in Himachal Pradesh for three years. There were a lot of cases, however, and this was how the National Green Tribunal was born, he said. The NGT, which is the apex green court of India, was formed in 2010 under the National Green Tribunal Act of 2010, for “effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources”. “By and large we can all agree that the experiment [the NGT] has not been very successful. It wasn’t because the experiment was wrong, but it is the men who have failed the experiment,” Gupta said.Former judge of the Supreme Court, Justice Deepak Gupta speaks at the Anil Agarwal Environment Training Institute (AAETI) in Nimli, Rajasthan, on Wednesday, February 25. Photo: Centre for Science and Environment (CSE)The role of the court is to develop jurisprudence. Unfortunately, what has now happened is that the court is more involved in deciding disputes. Instead it should be more involved in policies to ensure that the policies are constitutional, he said.“Judges have to be people who also care for the environment,” he said and added, “It’s not that if you’re a green judge, you don’t let anything be done; we also want progress but it has to be sustainable development”.“Putting it simply, if something cannot be reversed, or cannot be compensated, it is not sustainable development. A bad environment can never be good economics… it may be good business but it is not good economics. That is where courts must step in.”Procedure outranks the environmentThe Supreme Court and even the high courts used to be more active and took a proactive role in protecting the environment, he added.“Unfortunately that is not true anymore. We now have certain phrases which the court uses to justify environmental degradation…Procedure has become more important than the environment. Has the procedure been followed? Yes it has. But that is not where the court’s role finishes. The procedure may have followed but if the end result is an environmental disaster, the court is required to step in.The NGT’s recent order pertaining to the proposed projects on the Great Nicobar island is one example, Gupta said. And deciding to conduct compensatory afforestation in Haryana has become a joke, he commented.“Another is the Vantara case,” Gupta said. “To me it seems like a stage-managed case. It seems like the Vantara people got the writ petition filed… it seems to me. I may be wrong.” He pointed out that contrary to procedure, the Supreme Court took up the Vantara case immediately, asked for a report in a matter of a week, and then said that everything was “hunky dory”.“The gentleman who runs Vantara may have the best intentions in mind…But just because he is a rich kid does not mean that he should have every species in the world in his [zoo]. The court should have taken action immediately.”The Wire has previously reported on how numerous investigative news pieces have alleged, since 2024, that Vantara’s demand for non-native species of wildlife may have spurred illegal wildlife trade worldwide. However, Vantara, in a statement to The Wire, said that the allegations were “baseless” and “misleading”. Then, in September last year, the Supreme Court said that as per a report submitted in two weeks by the special investigation team it had appointed, animal acquisitions by the Reliance-owned zoo-cum-rescue-cum rehabilitation centre at Jamnagar, Gujarat, were as per “regulatory compliance”. The Court also said that they were “closing the matter” and “accepting the report”.However, the top court chose to not make the report – submitted in a sealed cover by the SIT – public: a move that experts have raised questions about.Business winning over the environment Another case that “disturbed” him was the Supreme Court’s order permitting overhead power lines from solar plants in the habitat of the Great Indian Bustard, he added. The bustard is a large, grassland-loving bird that is critically endangered and very few individuals now remain in India; one of the major causes for their deaths are collisions with overhead power lines.“A judge who is otherwise very liberal says that we are now developing a new jurisprudence that because solar power is a new energy that should be transmitted so we permit overhead lines…there could have been underground lines for this. So business interests won over the environment,” he said. Gupta also highlighted the importance of the Central Empowered Committee (CEC) and its current composition. “The CEC used to be very important, it was set up by the Supreme Court during the Godavarman case,” he said. The CEC then comprised of forest officials, bureaucrats, lawyers, and others. But now all the members are from the government and their reports tend to favour the government – which we also saw in a recent case, he added. If the expert report is not proper, then nothing can be done, he pointed out.The Wire has previously reported about how a group of 60 retired civil servants wrote to then Chief Justice of India B.R. Gavai in July 2025, raising concerns about the impartiality of the CEC which now comes under the aegis of the union environment ministry. National security, retrospective clearances“National security” is another phrase that is being used a lot now in court cases, he pointed out. Within 100 kms of the national border, the government can now set up projects without environmental clearance. But if you’re setting up a dam wherever it is, there has to be environmental clearance, he pointed out. “These are places where the court must step in. But we all get tripped by this ‘national security’ phrase,” he said.“Environment has taken a backseat. Courts are being very deferential to the government and we need judges who can stand up to this… there is good work too but this needs to be done.”Gupta also noted that the chief justice also has an important role to play in the process for he distributes the roster to other judges. The issue of ex post facto clearances is another concern, he said. “It is the honest tax payer who pays for this,” he said. In May 2025, the Supreme Court had quashed a 2017 notification and a 2021 Office Memorandum that allowed retrospective grants for environmental clearances. However, in November last year, a bench consisting also of the then Chief Justice B.R. Gavai had permitted environmental clearances to be granted retrospectively for projects initiated or expanded without approval under the 2006 Environmental Impact Assessment (EIA) notification again.The other sad part is that the court does not give a quick hearing in some cases. The case of the Mirzapur thermal power plant is a prime example of this, said Gupta. This was in context of the court having delayed the hearings related to a petition filed by Debadityo Sinha to stop the operation of the Adani-run plant as it would endanger biodiversity in the eight hectares of forests of Mirzapur in Uttar Pradesh.“There is also an over-reliance on evidence given by the government, and reports submitted by the government,” he added, highlighting the importance of treating the government and the petitioner equally. The lack of this in recent times “worries me a lot”, he said. “The government then has an upper hand. It is better to be weighted in favour of the citizen, and not the government.”He also added that when one is a judge, they need to know at what pace to move with regards to hearings and judgments.“We need sensitivity. The judiciary, sadly, is stepping back when it comes to the environment,” Gupta said.