Environment (Protection) Act, 1986 – EIA Notification 2006 – MoEFCC’s 2017 Notification established process for grant of ex post facto or retrospective Environmental Clearance (EC) – Ex post facto EC is illegal – In violation of law laid down by the Court – Writ petitions and appeals accordingly allowed:
Held: Under EIA Notification 2006, construction of new projects or activities, expansion or modernisation of existing projects or activities cannot be undertaken with prior EC – 2017 Notification sought to protect project proponents who committed gross illegality by commencing construction, operation or process without obtaining prior EC – Common Cause, Alembic Pharmaceuticals, and Electrosteel Steels followed – Very concept of grant of ex post facto EC is illegal – Even as a one-time measure illegal – EIA Notification was eleven years old when 2017 Notification issued – No equity in favour of those who committed such gross illegality – 2017 Notification struck down. [Paras 17, 18] EIA Notification 2006 – 2021 Office Memorandum issued by MoEFCC – EC granted under 2021 OM regularises the illegality done by commencing construction or commencing the project without prior EC – In substance, what is provided is grant of ex post facto EC – Completely prohibited under the law – OM struck down:
Held: MOEFCC issued 2021 OM in purported compliance of National Green Tribunal’s order to prepare a Standard Operating Procedure (SOP) for grant of EC in cases of violation – Meaning of ex post facto considered – In effect, EC granted under 2021 OM regularises illegality done by commencing construction or commencing project without prior EC – In substance, what is provided is grant of ex post facto EC – Prohibited under Common Cause and Alembic Pharmaceuticals – Even though words ex post facto not used – OM is completely arbitrary and illegal – 2021 OM does something which was not permissible under the 2017 Notification – Deprecate such effort on part of Central Government. [Paras 29, 30]
Constitutional law – Article 21 – Right to live in a pollution-free environment – Right to health – Infringed by 2021 OM – Article 51A(g) – Even the Central Government has duty to protect and improve the natural environment – Arbitrary action violative of Article 14:
Held: Right to live in a pollution-free environment guaranteed under Article 21 – Measures such as 2021 OM violate this right – Also infringes on right to health guaranteed under Article 21 – OM deals with project proponents who have consciously flouted EIA Notification – Shown scant respect to the law and their duty to protect environment – Action is completely arbitrary – Violative of Article 14 – Article 51A(g) – Even the Central Government has a duty to protect and improve the natural environment. [Paras 32, 33] Environmental law – Relief – Central Government restrained from issuing granting ex post facto EC in any form or manner – Ex post facto ECs already granted not to be disturbed: Held: Central Government restrained from issuing circulars/orders/OMs/ notifications providing for grants of ex post facto EC in any form or manner or for regularising acts done in contravention of the EIA Notification – ECs under the 2017 Notification and the 2021 OM remain unaffected – Clarified. [Paras 35, 36]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Harshit Anand, Hony. Associate Editor (Verified by: Shibani Ghosh, Adv.). Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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