NEW DELHI: On Tuesday, the Supreme Court agreed to review over two dozen petitions challenging its May 16 ruling that invalidated the Centre’s decision to grant retrospective clearances to projects in violation of environmental regulations.
The May 16 ruling, written by former Justice A S Oka, directed the Ministry of Environment, Forests and Climate Change (MoEFCC) and relevant authorities to cease issuing retrospective environmental clearances, emphasizing that every individual has the fundamental right to live in a pollution-free environment.
Notably, 25 companies, including the public sector Steel Authority of India Ltd, have petitioned for a review, modification, or clarification of the judgment.
One petitioner, M/S Kumar Organic Products Limited, represented by advocate Gopal Jha, is seeking clarification regarding the status of environmental clearance applications submitted under the March 14, 2017, notification, which are still awaiting approval prior to the May 16 judgment “for reasons beyond the control of the applicants.”
A special bench, including Chief Justice B R Gavai and Justices Ujjal Bhuyan and K Vinod Chandran, has issued notices on the review petitions and scheduled a hearing for October 7 at 2 pm.
“We are considering the review (petitions)… it is upon them to identify errors apparent in the records… fortunately or unfortunately, we have to decide,” the Chief Justice remarked when some lawyers contested the petitions.
The ruling bench made strong statements regarding a previous petition submitted by the NGO Vanashakti, asserting, “The Union Government, like individual citizens, has a constitutional obligation to safeguard the environment.”
However, the earlier bench declared that the retrospective environmental clearances granted under the 2017 notification and the 2021 office memorandum (OM) would not be disturbed for now.
Certain companies are now requesting permission to obtain environmental clearances, arguing that they were not at fault for the delays in receiving them.
The ruling stated that it “must strongly oppose” the Centre’s efforts to undertake actions “that are entirely prohibited by law.”
“Cleverly, the term ex post facto has been omitted, yet the provision effectively allows for such clearances. The 2021 OM has been issued in defiance of this court’s decisions….”
Therefore, the bench declared the 2021 office memorandum (OM) and associated circulars to be “arbitrary, illegal, and contrary to the Environment (Protection) Act, 1986, and the Environmental Impact Assessment (EIA) Notification, 2006.”
The Centre has been restricted from providing directives for granting ex post facto clearances in any form or for regularizing acts that contravene the EIA notification.
“Article 21 of the Constitution guarantees the right to a clean environment. The 1986 Act was enacted to uphold this fundamental right… Thus, the Central government is equally responsible for protecting and enhancing the natural environment,” the court stated.
The ruling identified that these measures unlawfully permitted the regularization of projects violating environmental norms.
Referring to the March 14, 2017, MoEFCC notification, the bench clarified it applies to projects that commenced work on-site, exceeded production beyond the limits of environmental clearance, or modified production without necessary clearance.
“This court has already determined that the concept of ex post facto or retrospective environmental clearances is wholly incompatible with environmental jurisprudence and the EIA notification,” it noted.
Violating the requirement to obtain prior environmental clearance must be dealt with severe consequences, the bench emphasized.
“In matters concerning the environment, courts must take a stringent stance on violations of environmental laws. It is the responsibility of Constitutional courts to do so,” the bench stated.
The OM was deemed an infringement of fundamental rights, specifically under Article 21, which guarantees the right to a pollution-free environment and health.
The bench rejected the OM, questioning, “Can development come at the expense of the environment? Protecting and improving the environment is essential to the concept of development.”
The Supreme Court further asserted that courts should take a firm stand against such actions.
“As stated earlier, the OM pertains to project proponents fully aware of the EIA notification who deliberately chose to ignore it, proceeding with construction, continuation, or expansion of projects. They have displayed a blatant disregard for the law and their duty to protect the environment,” it remarked.
