Legalising illegality: Post-facto environmental clearances

India is the fifth most polluted country in the world (World Air Quality Report, IQAir, 2019). Its natural resources and biodiversity are fast dwindling. Weak environmental governance is the primary reason behind this. This is exemplified by the issue of post-facto clearances which the Ministry of Environment and Forests has attempted time and again to allow, with the objective of giving industries leverage to operate, despite violations of the law of the land. The 2020 Draft EIA Notification continues down this trajectory. ‘In decisions relating to post facto clearances, the judgements of the Supreme Court have overlooked principles/precedents that the SC itself has applied/relied on in other cases.

Polluting industries in Ankleshwar industrial area, Gujarat, operating for about a decade without an Environmental Clearance (EC), were ordered by the National Green Tribunal to close and their ECs were revoked. The tribunal declared that the Circular of the Ministry of Environment and Forests on the basis of which the attempt had been made to legalise their operations was “void, ab-initio,” further declaring that, “we have no hesitation in holding that ex-post facto process of obtaining ECs…was just a farce, stage-managed, wrong and impermissible under the Law and suffered from illegality, which is incurable in any manner.”

The Supreme Court in its decision on the case (Alembic Pharmaceuticals, judgement delivered on April 1, 2020), agreed with NGT’s assessment, also stating that “the administrative circular is contrary to the EIA Notification 1994, which has a statutory character. The circular is unsustainable in law.” It, however, gave a clean chit to the defaulting industries, doing so through a questionable application of the principle of proportionality. Proportionality is intended to be a ‘principle of justice,’ to serve as a check on administrative actions and ensure that they do not excessively violate fundamental rights. When infringement of rights outweighs the interests intended to be pursued by an administrative or legislative measure, it can be considered excessive and unconstitutional. This principle, with foundations in the Aristotelian concept of justice, has become the mainstay of the protection of human rights across the world. A particularly rich and well-articulated jurisprudence on the principle has emerged from courts in Europe.

The interpretation of the principle of proportionality in the judgement of the Supreme Court can put environmental rule of law in jeopardy in regard to post-facto clearances. The judgement has overlooked the application of the SC’s own jurisprudence on proportionality and the structured four-part proportionality test, grounded on Justice Barak’s conceptualisation and the formulation used by the German Federal Constitutional Court, i.e. that a measure restricting a right must serve a legitimate purpose and be a suitable means for furthering it. There must not be any less restrictive but equally effective alternative and the measure must not have a disproportionate impact on the right-holder. The legitimate goal must “be of sufficient importance to warrant overriding a constitutionally protected right or freedom and also that such a right impairs freedom as little as possible” (Aadhar case, 2018).

Indeed, in its role as guardian of fundamental rights, the Supreme Court has time and again recalled its long history of employing a proportionality analysis in cases dealing with the right to life and other fundamental rights, even when not calling it as such. In an environmental context, where people’s life and health are at risk, a review of impacts on the fundamental rights to life and health guaranteed by the Constitution is a key aspect of proportionality. Local communities, the first sufferers, have to live with serious impacts of pollution and environmental degradation, very often across generations. Further, as pollution and environmental harm do not remain confined to man-made borders, impacts are often felt across state and international borders as well, with thousands, even millions, being affected. These are some of the impacts that an Environmental Impact Assessment is meant to investigate, in order to mitigate adverse consequences as far as possible and put in place remedial measures, including an Environmental Management Plan.

Ankleshwar, where the industries under scrutiny in the Alembic Pharmaceuticals case are located, is a highly polluted area. The Central Pollution Control Board’s Comprehensive Environmental Pollution Index report reveals that water, air and soil parameters in and around the Ankleshwar industrial area are among the most critical. Pollution from Alembic Pharmaceuticals alone impacted crop production by up to 50% and contaminated the only source of drinking water. This was corroborated by the Gujarat Pollution Control Board when it tested the water in the area nine years after the unregulated operation of the plant. It also found that the industry did not have a functioning effluent treatment plant.

A decade later, when the case reached the Supreme Court, it acknowledged the unlawful establishment and operation of the industries. Compensation was ordered, which, however, was in no way commensurate to the harm done to the environment and the local population. It does not adequately compensate for the harm and suffering inflicted upon people. To achieve sustainable development, stringent and deterrent measures need to be taken against polluters, as well as administrative authorities that enable industries to operate unlawfully. Environmental Impact Assessments are a key mechanism by which adverse impacts on the environment can be minimised, managed and addressed. They must be conducted properly and Environmental Clearance should be granted only after a full review of EIA reports and the Environmental Management Plan. India’s obligations under international environmental law also require this.

The future of environmental governance looks bleak considering that the 2020 Draft EIA Notification also intends to allow post-facto clearances. This growing pattern of post-facto clearances will reduce the environmental clearance regime to a mere formality

(The writer is Assistant Professor, Environmental Law, Jindal School of Environment and Sustainability, O P Jindal Global University, Sonipat)