UNDERLINING THAT environment conservation is key to development, the Supreme Court Friday struck down and held as “illegal” a 2017 Ministry of Environment notification that allowed grant of environmental clearance (EC) to projects ex-post facto i.e., after commencement of work. It also struck down a 2021 Office Memorandum (OM) issued by the Ministry in pursuance of the 2017 notification. A bench of Justices A S Oka and Ujjal Bhuyan also restrained the Centre from issuing circulars/ orders/ OMs/ notifications providing for grant of ex-post facto EC or for regularising acts done in contravention of the 2006 Environment Impact Assessment (EIA) notification. The Supreme Court, however, clarified that environmental clearances already granted till date under the 2017 notification and the 2021 office memorandum “shall…remain unaffected.” The 2017 notification had offered a one-time amnesty window of sorts, and allowed approvals for projects where work had commenced without obtaining prior environment clearance under the 2006 EIA notification. The 2017 amnesty was applicable for six months between March 2017 and September 2017. In 2021, citing compliance of a National Green Tribunal order, the Ministry issued an OM spelling out a Standard Operating Procedure (SOP) “for dealing with violation cases”. Striking these down, the SC said, “As per paragraph 14 of the 2017 notification, provision for grant of ex-post facto EC was made only in relation to projects or activities which were in violation as of 14 March 2017. Therefore, grant of ex-post facto clearance was not permitted under the 2017 notification for projects and activities which commenced or continued after 14 March 2017.” The Supreme Court said the EIA notification is of 14 September 2006 and “when the 2021 OM was issued, it was nearly 15 years old. Therefore, all project proponents were fully aware of the stringent requirements under the ElA notification.” “The 2021 OM seeks to protect the violations of the EIA notification which have taken place or continue to take place 15 years after the EIA notification came into force. Thus, the 2021 OM seeks to protect violators who have acted with full knowledge of consequences of violating the EIA notification,” the court said. “Those who violate the law regarding obtaining prior EC are not only committing gross illegality, but they are acting against the society at large. The violation of the condition of obtaining prior EC must be dealt with heavy hands. In environmental matters, the Courts must take a very strict view of the violations of the laws relating to the environment. It is the duty of the Constitutional Courts to do so.” The SC said, “Under Article 21 of the Constitution of India, the right to live in a pollution-free environment is guaranteed. In fact, the 1986 Act has been enacted to give effect to this fundamental right. In 1977, fundamental duties of all citizens were incorporated in the Constitution which enjoined every citizen of India to protect and improve the environment as provided in Clause (g) of Article 51A. Therefore, even the Centre has a duty to protect and improve the natural environment.” The judgment said, “The 2021 OM talks about the concept of development”, and asked “can there be development at the cost of environment?” The bench said “Conservation of environment and its improvement is an essential part of the concept of development. Therefore, going out of the way by issuing such OMs to protect those who have caused harm to the environment has to be deprecated by the Courts which are under a constitutional and statutory mandate to uphold the fundamental right under Article 21 and to protect the environment. In fact, the Courts should come down heavily on such attempts.” The judgement came on a clutch of petitions, including one by Mumbai-based NGO Vanashakti, challenging the notification. The ruling also referred to the current pollution scene in the country to question the issuance of the motivation and the OM. “Today, in the year 2025, we have been experiencing the drastic consequences of large-scale destruction of the environment on human lives in the capital city of our country and in many 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. They suffer in their health. The other leading cities are not far behind. The air and water pollution in the cities is ever increasing,” it said. “Therefore, coming out with measures such as the 2021 OM is violative of fundamental rights of all persons guaranteed under Article 21 to live in a pollution free environment. It also infringes the right to health guaranteed under Article 21 of the Constitution,” it said.
