New Delhi: The Supreme Court has, in a setback to the Centre, partially quashed a four-year-old government notification that permitted the extracting of earth for linear projects such as roads and pipelines without environmental clearance, saying it was introduced in a “tearing hurry” during the Covid-19 lockdown.
The notification — which provided environmental clearance exemption for carrying out “extraction or sourcing or borrowing of ordinary earth for linear projects such as roads, pipelines etc” — was issued without inviting objections or opinions to it through the publication of prior notice, the court noted. According to the government, this requirement was dispensed with because the notification listing out the exemption was issued in public interest.
However, the top court in its order pronounced Thursday said the Centre had failed to provide reasons for coming to the conclusion that the notification was issued in public interest due to which it did not invite public views to its proposal.
A bench of justices Abhay S Oka and Sanjay Karol felt the government showed “undue haste”, which the judges failed to understand why, in issuing the notification during the “nationwide lockdown”.
“At that time, the work of linear projects, such as roads, pipelines, etc., had come to a grinding halt. So, there was no tearing hurry to modify the EC (environmental clearance) notifications,” the bench observed in its order pronounced on 21 March.
That the government dispensed with the requirement of issuing a public notice to invite suggestions and objections to its move also violated citizens’ Article 21 (right to liberty) rights, the court further said.
This provision of the Constitution guarantees a right to live in a pollution-free environment and in turn the citizens too have a duty to protect and improve the environment, the court said. Hence, it is important for citizens to participate by allowing them to raise objections to a proposed notification, it added.
The top court made the observations as it rejected an appeal filed against the National Green Tribunal’s December 2020 order that had asked the Centre to revisit its 28 March 2020 notification.
This notification modified the Union Ministry of Environment and Forest’s (MoEF) original notification on environmental clearance (EC) that was issued in September 2006 under the Environment (Protection) Act (EPA). The original notification stated that prior approval from the MoEF would be needed before any construction work for a new project or activity listed in a scheduled forest area is proposed.
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The modified notification
In January 2016, an MoEF notification provided for exemption from obtaining EC for specific categories of projects — dredging and desilting of dams, reservoirs, weirs, barrages, river and canals for the purpose of their maintenance, upkeep and disaster management.
The notification was amended in March 2020 when a new notification set out 13 activities that would not require prior EC. This included the dredging and desilting of dams activity introduced in 2016 notification.
Two of the activities were challenged in the Supreme Court. These were extraction or sourcing or borrowing of ordinary earth for linear projects, such as roads, pipelines etc., and dredging and desilting of dams, reservoirs, weirs, barrages, river and canals for the purpose of their maintenance, upkeep and disaster management.
A minor modification was carried out in August 2023, while appeals were pending in the Supreme Court. These changes added a rider to the two activities facing legal challenge. It said that prior EC would not be needed provided they comply to standard operating procedures (SOP) outlined by the government.
The Centre defended the March 2020 notification, saying it was necessitated in view of the insertion of new provisions in the Mines and Minerals (Development and Regulation) Act, 1957. Under the new section, 8B, of MMDR Act, the successful bidder of a mining lease shall be “deemed to have acquired all valid rights, approvals, clearances, licenses and the like vested with the previous lessee for a period of two years”.
Therefore, it was argued that exemption granted to the two activities cannot be said to be arbitrary, and will be subject to SOP issued from time to time.
‘Drastic decision without any application of mind’
The Supreme Court was not satisfied with the Centre’s explanation and quoted the preamble of the EPA to say that the apparent objective of the law is to provide protection to the environment and improve it.
The bench perused the Centre’s affidavit filed before the NGT, which, it observed, gave no reasons to support its contention that the March 2020 notification was issued in public interest and hence there was no requirement to seek public objections to it.
Under the EPA rules, the MoEF has to consider public opinions before issuing a notification. It followed this procedure when it issued the first notification in January 2006 on environmental clearance.
Taking note of this, the bench said there “is no reason to dispense with this important requirement before publishing the impugned notification”.
It said this “drastic decision” was taken “without any application of mind.” Since no reasons were given to bypass the procedure, the court held the decision-making process “has been vitiated”.
As citizens are major stakeholders in environmental matters, their participation, the SC said, cannot be prevented by “casually exercising the power”.
The bench also cited the January 2006 notification to talk about the importance of EC that was meant to minimise damage to the environment while implementing certain projects.
It further said if the exception is sought to be carved out, then it must be specific. However, there is no specification for the exception for “extraction or sourcing or borrowing of ordinary earth for linear projects, such as roads, pipelines, etc.”
This exception does not quantify the ordinary earth, which can be extracted and exempted from EC nor does it specify the area that can be used to extract ordinary earth, the bench said.
“It is also not provided that only that quantity of ordinary earth, which is required to implement the linear projects, is exempted. Importantly, “linear projects” have not been defined,” it held.
Calling the phrase “linear projects” vague, the bench also pointed out that no process for excavation has been set out.
Thus, it said, this exemption is completely unguided and blanket, which is arbitrary and violates Article 14 of the Constitution, dealing with the equality clause.
Apart from committing illegality by not complying with the rules under EP, the court said the “exemption granted without incorporating any safeguards is completely unguided and arbitrary”.
“Grant of such blanket exemption completely defeats the very object of the EP Act,” it declared.
The bench, however, did not render any opinion on the exemption from EC given to dredging and desilting activities mentioned in the March 2020 notification. It said that this exemption was part of the January 2016 notification, but the petitioners had not challenged it and, instead, questioned the March 2020 notification in which this exception was simply reiterated.
(Edited by Gitanjali Das)
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