New Delhi: The Supreme Court on Friday invalidated a 2021 Office Memorandum (OM) issued by the Centre that allowed retrospective environmental clearances to projects in violation of norms, declaring it unconstitutional and unlawful.
A bench of Justices Abhay S Oka and Ujjal Bhuyan ruled that the Centre’s directive to regularise such violations was “arbitrary, illegal, and contrary” to the Environment (Protection) Act, 1986, and the Environmental Impact Assessment (EIA) Notification, 2006.
The judgment came in response to a plea filed by the environmental group Vanashakti. The court criticised the government for attempting to indirectly allow what had already been ruled out by law. “Cleverly, the words ex post facto have not been used, but without using those words, there is a provision to effectively grant ex post facto EC,” the bench noted. “The 2021 OM has been issued in violation of the decisions of this court.”
The bench categorically stated that the concept of retrospective environmental clearance is “completely alien” to India’s environmental framework. “There is already a concluded finding of this court that the concept of ex post facto or retrospective EC is completely alien to environmental jurisprudence and the EIA notification,” the court said.
Referring to the March 14, 2017 notification of the Ministry of Environment, Forest and Climate Change (MoEFCC), the bench said it targeted projects that had started operations, expanded beyond approved limits, or altered their production without prior clearances. Such measures, the court said, enabled the “regularisation of actions in violation of environmental laws,” which cannot be allowed.
Justice Oka, writing the judgment for the bench, observed, “This court in several decisions has held that the right to live in a pollution free atmosphere is a part of the fundamental right guaranteed under Article 21 of the Constitution of India.”
The court pulled up the Union Government, stating, “The Union Government, as much as individual citizens, has a constitutional obligation to protect the environment.” It added that courts must adopt a stringent stance on environmental violations.
“Can there be development at the cost of the environment?” the bench asked. “Conservation of environment and its improvement is an essential part of the concept of development.”
Highlighting the real-world consequences of environmental degradation, the court cited the annual rise in air pollution levels in Delhi and other cities. “At least for a span of two months every year, the residents of Delhi suffocate due to air pollution. The AQI level is either dangerous or very dangerous,” the judgment said.
While invalidating the OM and related circulars, the court clarified that environmental clearances already granted under the 2017 and 2021 guidelines would not be disturbed at this stage.