By 2:1, SC recalls ban on post facto green nod

The Supreme Court on Tuesday recalled its May 16 judgment that had prohibited the Centre from granting retrospective environmental clearances to projects found violating environmental norms.

By a 2:1 majority, a Bench of Chief Justice of India BR Gavai, Justice Ujjal Bhuyan and Justice K Vinod Chandran revived the legal mechanism that allowed ex post facto ECs for projects that had commenced or expanded without prior approvals under the 2006 Environmental Impact Assessment (EIA) notification.

“If the judgment under review (JUR) is not recalled, it will have serious consequences in terms of demolition of projects which are either completed or about to be completed in the near future and which are of vital public importance constructed out of the public exchequer. If JUR is continued to operate, thousands of crores of rupees would go waste,” the CJI said in his judgment supported by Justice Chandran.

The three judges delivered three separate verdicts on nearly 40 petitions seeking review/modification of the May 16 Vanashakti judgment by a Bench of Justice AS Oka (since retired) and Justice Ujjal Bhuyan that had barred the Ministry of Environment, Forests and Climate Change (MoEFCC) and the authorities concerned from granting retrospective environmental clearances to projects violating environmental norms.

While CJI Gavai and Justice Chandran recalled the May 16 verdict and ordered the matter to be placed before an appropriate Bench for reconsideration of the issues afresh, Justice Bhuyan dismissed the review petitions.

Citing Delhi smog, Justice Bhuyan, however, rejected the review petition and stuck to the original verdict against retrospective environmental clearance.

“I would like to painfully observe that the deadly Delhi smog reminds us everyday about the hazards of environmental pollution. (The) Supreme Court, as the highest constitutional court of the country, has the duty and obligation under the Constitution of India and the laws framed thereunder to safeguard the environment.

“It cannot be seen backtracking on the sound environmental jurisprudence that has evolved in this country, that too, on a review petition filed by persons who have shown scant regard for the rule of law,” wrote Justice Bhuyan in his dissenting verdict.

Criticising the CJI’s verdict, Justice Bhuyan said, “The review judgment is an innocent expression of opinion. It overlooks the very fundamentals of environmental jurisprudence. Precautionary principle is the cornerstone of environmental jurisprudence. ‘Polluter pays’ is only a principle of reparation. Precautionary principle cannot be given a short shrift by relying on the polluter pays principle. The review judgment is a step in retrogression.”

Justice Bhuyan held that retrospective clearances were unknown to environmental law. He said “there is no concept of ex post facto environmental clearance in environmental law”, describing the very idea as “an anathema, a curse devoted to evil, to environmental jurisprudence”.

Noting that the right to live in a pollution-free atmosphere was a part of the fundamental right to life, the Supreme Court had on May 16 struck down a 2017 notification and related Office Memoranda (OMs) issued by the Central Government allowing retrospective environmental clearances to projects in violation of norms.

“We hold that the 2017 notification and the 2021 OM, as well as all circulars, orders and notifications issued for giving effect to these notifications, are illegal and hereby struck down. We restrain the Central Government from issuing circulars, orders, notifications, OMs providing for grant of ex post facto environmental clearance in any form or manner,” a Bench of Justice Oka (since retired) and Justice Bhuyan had said.

The top court had restrained the Centre from issuing any such notification in future even as it said clearances already granted would continue to operate.

“We therefore make it clear that hereafter the Central Government shall not come out with any version of the 2017 notification which provides for grant of ex-post facto environmental clearance. We have also set aside the 2021 Office Memorandum (OM),” it had said.

“Under Article 21 of the Constitution, the right to live in a pollution free environment is guaranteed. In fact, the 1986 Act has been enacted to give effect to this fundamental right… Therefore, even the Central Government has a duty to protect and improve the natural environment,” it had emphasised.

However, in his majority verdict, the CJI on Tuesday said the top court “found that in the 2013 notification as well as the 2021 Office Memorandum, the scheme was to permit grant of environmental clearance on the imposition of heavy penalties.”

On October 9, the CJI-led Bench had reserved its verdict after hearing senior advocates Kapil Sibal, Mukul Rohatgi and others as also Solicitor General Tushar Mehta, representing various industries and the Government, seeking review/modification of the May 16 judgement.