Summary
Writ petitions and appeals challenging the MoEFCC notification of 14 March 2017 and Office Memorandum of 7 July 2021 which permitted environmental clearance (EC) to be granted to projects that had begun without prior EC. The Supreme Court held that ex post facto EC is alien to environmental jurisprudence and the EIA Notification 2006, that the 2021 OM in substance granted retrospective EC despite avoiding the words, and that both instruments violated Articles 14 and 21, the Environment (Protection) Act and binding precedent; they were struck down, with ECs already granted left undisturbed.
Issues
- Whether the 2017 notification permitting ex post facto environmental clearance for projects in violation of the EIA Notification 2006 was legal.
- Whether the 2021 Office Memorandum (SOP for violation cases) amounted in substance to a regime of ex post facto environmental clearance and was therefore illegal.
- Whether the Central Government was bound by its undertaking before the Madras High Court that the 2017 notification was a one-time measure.
- Whether environmental clearances already granted under the 2017 notification and the 2021 OM should be disturbed.
Provisions considered
- Section 3, Environment (Protection) Act, 1986Section 3(1) empowers the Central Government to take measures for protecting and improving the environment and abating pollution; clause (v) of Section 3(2) covers restricting areas where industries or processes may not be carried out or may be carried out subject to safeguards. The Court held the EIA Notification 2006 was issued under these powers, whereas the 2021 OM did not refer to any power under the Act or Rules and protected violators instead of the environment. (¶¶ 13, 13.1, 16.1, 29)
- Rule 5(3)(d), Environment (Protection) Rules, 1986Rule 5(3)(d) empowers the Central Government, after considering objections, to impose prohibition or restrictions on the location of industries and the carrying on of processes or operations in an area, including a complete prohibition. The EIA Notification 2006 requiring prior EC was issued under this clause. (¶¶ 14, 14.1)
- Section 15, Environment (Protection) Act, 1986Commencing a project requiring EC without it attracts penalty under Section 15; the Court held that payment of the penalty does not regularise the project, so construction or operation undertaken without prior EC must be stopped and demolished even after the penalty is paid. (¶¶ 27, 29)
- Articles 14, 21 and 51A(g), Constitution of IndiaThe right to live in a pollution-free environment and the right to health are part of Article 21, and Article 51A(g) casts a duty, which binds the Central Government too, to protect and improve the environment. Measures like the 2017 notification and 2021 OM that protect violators and add to pollution infringe Article 21 and, being arbitrary, Article 14. (¶¶ 1, 20, 32, 33, 34)
Held
- Without prior EC, construction of new projects or expansion or modernisation of listed projects entailing capacity addition cannot be undertaken; the EIA Notification 2006 uses the word 'prior' at multiple places and lays down the entire procedure for its grant. (¶¶ 14.2, 16.3)
- It is a concluded finding of the Court in Common Cause and Alembic Pharmaceuticals that the concept of ex post facto or retrospective EC is completely alien to environmental jurisprudence and the EIA notification; an EC comes into force not earlier than the date of its grant. The Court has in particular cases permitted ex post facto EC only under Article 142 on peculiar facts. (¶¶ 15.1, 16.2, 17, 18, 18.1)
- The 2017 notification, though recited as being for protecting the environment, in fact protected industries that violated the EIA notification; in view of the settled law even a 'one-time measure' or 'one-time relaxation' permitting ex post facto EC was illegal and infringed Article 21. The Central Government shall not hereafter issue any new version of it providing for ex post facto EC in any manner. (¶¶ 19, 20, 23)
- The statement of the Additional Solicitor General before the Madras High Court that the 2017 notification would be only a one-time measure was treated as an undertaking of the Central Government; the Government is bound by it and must comply with it in letter and spirit. Since paragraph 14 of the 2017 notification was never modified, projects commenced after 14 March 2017 were never protected by it. (¶¶ 21, 21.1, 21.2, 22, 30)
- The grant of EC under clause 11 of the 2021 OM, which permits completion of construction begun without prior EC or continuation of operations in completed projects, regularises an illegality with retrospective effect and is in substance an ex post facto EC, even though those words are carefully avoided; payment of compensation on the polluter-pays principle and remedial plans do not change this, as the violator must pay these in any event. The 2021 OM is therefore arbitrary and illegal, and was issued in violation of Common Cause and Alembic Pharmaceuticals and the undertaking given to the High Court. (¶¶ 26, 27, 28, 29, 30)
- Project proponents who, fifteen years after the EIA Notification 2006, proceeded without prior EC acted knowingly and against society at large; there is no equity in their favour, and constitutional courts must take a very strict view of violations of environmental law. Conservation of the environment is an essential part of development, and measures to protect such violators violate Articles 14 and 21 as well as the 1986 Act. (¶¶ 23, 31, 33, 34)
- ECs already granted under the 2017 notification and the 2021 OM should not be disturbed at this stage. (¶¶ 35, 36)
Result
Writ petitions and civil appeals allowed. The 2017 notification, the 2021 OM and all circulars, orders, OMs and notifications issued to give effect to them struck down as illegal. Central Government restrained from issuing any instrument providing for ex post facto EC in any form or regularising acts done in contravention of the EIA notification. ECs already granted under the 2017 notification and 2021 OM remain unaffected.