Supreme Court bars Centre from granting retrospective environmental clearances

New Delhi: The Supreme Court on Friday declared the concept of ex post facto or retrospective environmental clearance completely alien to environmental jurisprudence and the environmental impact assessment notification.

A bench of Justices Abhay S Oka and Ujjal Bhuyan held that the 2017 notification and the 2021 office memorandum as well as all circulars, orders and notifications issued for giving effect to these notifications are illegal.

The court said the conservation of the environment and its improvement is an essential part of the concept of development.

"Therefore, going out of the way by issuing such orders 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,” the bench said.

Striking down such orders, the court restrained the central government from issuing circulars, orders, OMs or notifications providing for grant of ex post facto environmental clearance in any form or manner or for regularising the acts done in contravention of the environmental impact assessment notification.

The court, however, clarified environmental clearances to projects already granted till date under the 2017 notification and the 2021 office memorandum would remain unaffected.

The court's judgment came on a plea by NGO Vanashakti which challenged validity of orders regularising projects which were started with environmental clearance.

Ex post facto as per dictionary meanings can be summarised as having retrospective effect or force; from a thing done afterwards; retroactive or affecting something that has already happened.

In its 41-page judgment, Justice Oka on behalf of the bench said, in environmental matters, the courts must take a very strict view of the violations of the laws.

"It is the duty of the Constitutional Courts to do so.... Can there be development at the cost of environment? Conservation of environment and its improvement is an essential part of the concept of development," the bench said.

The court pointed under Article 51A of the Constitution, even the central government has a duty to protect and improve the natural environment.

In its observations, the bench said, "It is not possible to understand why the central government made efforts to protect those who committed illegality by not obtaining prior environmental clearance in terms of the Environment Impact Assessment Notification, 2006 (EIA notification)".

The court pointed out as the EIA notification was eleven years old when the 2017 notification was issued, there was no equity in favour of those who committed such gross illegality of not obtaining prior clearance.

The bench said the persons who acted without prior EC were not illiterate persons.

“They were companies, real estate developers, public sector undertakings, mining industries, etc. They were the persons who knowingly committed illegality,” the bench said.

The bench made it clear that hereafter, the central government would not come out with a new version of the 2017 notification which provided for the grant of ex-post facto EC in any manner.

"Under Article 21 of the Constitution, the right to live in a pollution free environment is guaranteed," the bench emphasised.

The court noted, at least for a span of two months every year, the residents of Delhi suffocate due to air pollution and the AQI level is either dangerous or very dangerous, and they suffer in their health.

“The other leading cities are not far behind. The air and water pollution in the cities is ever increasing. Therefore, coming out with measures such as the 2021 OM is violative of fundamental rights of all persons guaranteed under Article 21 to live in a pollution free environment. It also infringes the right to health guaranteed under Article 21 of the Constitution,” the bench said.