SC by 2:1 majority recalls verdict barring post-facto green clearances, Justice Bhuyan dissents

The Supreme Court, by a 2:1 majority, on Tuesday recalled its May 16 judgment that had prohibited the Centre from granting retrospective environmental clearances (ECs) to projects found violating environmental norms.

A Bench comprising Chief Justice B R Gavai, Justice Ujjal Bhuyan and Justice K Vinod Chandran delivered three separate verdicts on a batch of nearly 40 review and modification pleas filed against the Vanshakti judgment.

The May 16 verdict by a Bench of Justice A S Oka, since retired, and Justice Ujjal Bhuyan had barred the Ministry of Environment, Forests and Climate Change (MoEFCC) and the authorities concerned from granting retrospective ECs to projects which are found in violation of environmental norms.

CJI Gavai and Justice Chandran recalled the May 16 verdict and placed the matter before an appropriate Bench for reconsideration of the issues afresh.

“Public projects of Rs 20,000 crore will have to be demolished if the clearance is not reviewed. In my judgment, I have allowed the recall. My judgment has been criticised by my brother..Justice Bhuyan,” the CJI said.

Justice Bhuyan delivered a strong dissent, holding that retrospective clearances are unknown to environmental law.

He maintained that “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.”

The CJI said the court had “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.”

The detailed judgement is awaited.

On October 9, a Bench headed by the CJI had reserved the verdict after hearing several senior advocates, including Kapil Sibal, Mukul Rohatgi, and Solicitor General Tushar Mehta, appearing for various industrial and infrastructural entities as well as government bodies, in favour of the review or modification of the impugned judgement.