Supreme Court judge says ex post facto clearance goes against environmental law

NEW DELHI: Supreme Court judge Ujjal Bhuyan, who gave a dissenting verdict on Tuesday on the issue of retrospective environmental clearances (ECs), said such approvals are unknown and "anathema" to environmental law as they are contrary to both the precautionary principle as well as the need for sustainable development.

CJI B R Gavai and Justice K Vinod Chandran ordered the recall of the May verdict and placed the matter before an appropriate bench for reconsideration of the issues afresh.

Strongly dissenting, Justice Bhuyan, who described the review judgment as a "step in retrogression", referred to the air pollution in the national capital and said that the "deadly" Delhi smog reminds us every day about the hazards of environmental pollution.

"There is no concept called ex post facto EC in environmental jurisprudence. It cannot be countenanced. It is an anathema. This is because it is detrimental to the environment and could lead to irreparable ecological degradation," he wrote in his 96-page verdict.

He opined, it is unfortunate that a false narrative is being created pitting environment against development.

"It is a completely untenable binary in as much as ecology and development are not adversaries. Both are part of the constitutional construct of sustainable development. At the cost of repetition, it is reiterated that there is no antinomy between development and environment," he added.

Justice Bhuyan said the Supreme Court, as the highest constitutional court of the country, has the duty and obligation under the Constitution and the laws framed thereunder to safeguard the environment.

"It cannot be seen backtracking on the sound environmental jurisprudence that has evolved in this country, that too, on a review petition filed by persons who have shown scant regard for the rule of law," he said.

Justice Bhuyan said the review judgment is an "innocent expression" of opinion and overlooks the very fundamentals of environmental jurisprudence.

"Precautionary principle is the cornerstone of environmental jurisprudence. Polluter pays is only a principle of reparation. Precautionary principle cannot be given a short shrift by relying on the polluter pays principle. The review judgment is a step in retrogression," he said.

The May 16 verdict by a bench of Justice A S Oka, since retired, and Justice Bhuyan had barred the Ministry of Environment, Forests and Climate Change (MoEFCC) and the authorities concerned from granting retrospective environmental clearance (EC) to projects that are found in violation of environmental norms.