New Delhi: In a big jolt to the Union government, the Supreme Court Friday restrained it from granting ex-post facto environmental clearance to mining and other development projects or regularising actions that contravene the 2006 Environment Impact Assessment (EIA) notification, underlining that the “conservation of environment and its improvement is an essential part of the concept of development”.
A bench of Justices Abhay S. Oka and Ujjwal Bhuyan issued the directive while striking down a 2017 centre’s notification that permitted environmental clearance to projects where work had commenced without obtaining the prior approval for a six-month period between March and 2017.
The apex court even declared a 2021 office memorandum, issued in pursuance of the 2017 notification, to be illegal. The 2021 spelled out a standard operating procedure (SOP) for dealing with violation cases.
The 2006 notification mandates prior approval from the Union environment ministry for all projects falling in eco-sensitive zones.
However, the court clarified that post-facto permissions given under the 2017 notification and 2021 shall not be disturbed and will remain “unaffected” despite its ruling.
On its decision to restrain the Centre from giving any post-facto approvals in future, the bench said those who did not obtain prior clearances in compliance with the 2006 EIA notification had committed “gross illegalities” knowingly. And, since they were not illiterate persons, but were companies, real estate developers, public sector undertakings, or mining industries, there could not be any equity in their favour.
“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,” the bench said.
The Supreme Court judgment came on a clutch of petitions, including one by Mumbai-based NGO Vanashakti, challenging the 2017 notification that announced a one-time window amnesty to grant approvals for projects where work had started without prior environment clearance.
On 2 January, the apex court granted an interim stay on the operation of the office memorandum.
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Understanding the case
While the amnesty scheme under the March 2017 notification was applicable for six months, from March to September 2017, four years later, in 2021, the ministry, citing compliance with a National Green Tribunal (NGT), also issued an office memorandum. This, Vanashakti argued, allowed for the clearance of applications even after the expiry of the amnesty window.
Furthermore, the window for applying for post-facto approval, initially for a period of six months, was eventually extended till completion of 30 days after 14 March 2018.
Vanashakti questioned the validity of the notification as well as the office memorandum, arguing that the two counteracted the 2006 EIA notification that expressly calls for a “prior environmental clearance”. And, this condition was not open to modification, the NGO said, pointing out that the phrase “prior environmental clearance” appeared 34 times in the notification. This repetition stressed the mandatory nature of the requirement.
In its defence, the Centre said the six-month window for violators was to deal with violation cases not covered by the 2017 notification. It was introduced as there was no existing procedure under the 2006 notification for dealing with projects that began without prior clearance. It denied that there was dilution of the requirement for a prior approval or that the notification and OM made retrospective clearance a norm. Instead, it was a separate and independent regulation to handle ongoing violations, it explained.
But favouring environmental protection, the court said the 2017 notification protected only those projects and activities that were in violation as of 14 March 2017. Hence, the notification did not stipulate post-facto environmental approval for projects that commenced or continued after the cut-off date.
What the court said
In the court’s opinion, the 2021 office memorandum was brought in to do something that was not permissible under the 2017 notification. Moreover, the memorandum, the court observed, was issued nearly 15 years after the 2006 EIA notification. Therefore, all project proponents were fully aware of the stringent requirements under the ElA notification.
So, essentially, it opined, the 2021 memorandum sought to protect violations of the EIA notification that continued to take place for 15 years and also benefit violators who acted with full knowledge of the consequences of breaching the EIA notification.
It further added, “Those who violate the law regarding obtaining prior EC are not only committing gross illegality, but they are acting against the society at large. The violation of the condition of obtaining prior EC must be dealt with heavy hands.”
“In environmental matters, the Courts must take a very strict view of the violations of the laws relating to the environment. It is the duty of the Constitutional Courts to do so.”
The ruling also referred to the current pollution scene in the country to question the issuance of the 2017 notification and the 2021 office memorandum, delving into the right to a pollution-free environment in the context of Article 21 right which guarantees the right to live with dignity.
Noting that the 1986 Environment Protection Act was enacted to give effect to this fundamental right, the court reminded the Centre of its duty to protect and improve the natural environment.
Given that large-scale destruction of the environment has drastic consequences on human lives in the country, the court declared the memorandum as violative of the fundamental rights of all persons that are guaranteed under Article 21.
The bench said, “Conservation of environment and its improvement is an essential part of the concept of development. Therefore, going out of the way by issuing such OMs to protect those who have caused harm to the environment has to be deprecated by the Courts, which are under a constitutional and statutory mandate to uphold the fundamental right under Article 21 and to protect the environment. In fact, the Courts should come down heavily on such attempts.”
(Edited by Sanya Mathur)
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