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Supreme Court Slams Illegal Environmental Clearances as Gross Violation
Supreme Court Declares Retrospective Environmental Clearances Unlawful
Context: In a landmark judgment, the Supreme Court on Friday declared the grant of ex post facto (retrospective) Environmental Clearances (ECs) by the Centre as a “gross illegality.” A Bench of Justices A.S. Oka and Ujjal Bhuyan, responding to a plea by NGO Vanashakti, restrained the Union government from granting such clearances to regularise illegal constructions.
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Background
- The Environment Impact Assessment (EIA) Notification of 2006 mandates prior Environmental Clearance (EC) before any construction, expansion, or operation of projects that could impact the environment.
- However, in March 2017, the Ministry of Environment, Forest and Climate Change (MoEF&CC) issued a notification allowing violators a “one-time” window to apply for EC after starting or expanding operations—essentially permitting ex post facto EC.
- A 2021 Office Memorandum (OM) later formalised this regime with a Standard Operating Procedure (SOP) for handling violations.
- This regime was challenged by the NGO Vanashakti, among others.
- The Court struck down the Centre’s 2017 notification, the 2021 Office Memorandum (OM), and all related circulars and orders, terming them illegal and arbitrary.
- It emphasised that such clearances undermine environmental law and must be strictly curtailed.
Supreme Court Judgment Highlights
Delivered by Justices Abhay S. Oka and Ujjal Bhuyan, the Court:
- Struck down both the 2017 notification and 2021 OM, declaring them illegal and arbitrary.
- Restrained the Union government from issuing any similar future notifications or regularising illegal constructions via retrospective ECs.
- Clarified that ECs already granted under these instruments will not be revoked.
Key Legal and Constitutional Reasoning
- Violation of Environmental Jurisprudence:
- Ex post facto ECs contradict the precautionary principle, a cornerstone of Indian environmental law.
- The EIA process is preventive, not corrective—clearance must be obtained before initiating a project.
- Violation of Article 21 and 14:
- Article 21 (Right to life) includes the right to a clean and healthy environment.
- Article 14 (Right to equality) was violated since law-abiding proponents were treated the same as violators.
- Judicial Precedents Upheld:
- Common Cause v. Union of India (2017): Rejected retrospective approvals in the mining sector.
- Alembic Pharmaceuticals v. Rohit Prajapati (2020): Held ex post facto ECs as fundamentally flawed.
- Condemnation of “Crafty Drafting”: The Centre used ambiguous language in the 2021 OM to mask retrospective clearance, but the Court saw through the attempt to protect illegal constructions.
- Polluter Pays Principle Reaffirmed: Even without ECs, violators must compensate for environmental damage and pay penalties under the Environment (Protection) Act, 1986.
Implications
- Environmental Governance Strengthened: Reinforces the mandatory nature of prior ECs and deters future violations.
- No Legal Immunity for Past Violations: Government cannot offer amnesties through administrative orders.
- Possible Delays in Project Implementation: Especially for industries that began work without due process.
- Reassertion of Sustainable Development: The Court emphasised that “development cannot be at the cost of the environment.”
