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Journalism of Courage
While Chief Justice of India BR Gavai and Justice K Vinod Chandran agreed to recall the judgment prohibiting the Centre from granting retrospective environmental clearances (ECs) to projects found violating environmental norms, Justice Ujjal Bhuyan sharply dissented from the majority view.
CJI Gavai and Justice Chandran, in separate concurring verdicts, recalled the May 16 judgment and placed the matter before an appropriate bench for reconsideration of the issues afresh. Justice Bhuyan, on the other hand, called the review judgment a “step in retrogression” in his contrarian view.
The May 16 verdict of an erstwhile Supreme Court bench struck down and held as “illegal” a 2017 Ministry of Environment notification that allowed grant of ECs 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.
Justice Bhuyan further noted that the review petition was filed by the Confederation of Real Estate Developers Association of India (a body of real estate developers) before the court, and the author of the 2017 notification and 2021 OM, i.e., the Ministry of Environment and Forests and Climate Change, did not file any review petition for review of the Vanashakti judgment.
“MOEF&CC has accepted the verdict of this Court in Vanashakti,” the judge said.
On October 9, a bench headed by the CJI had reserved the verdict after hearing several senior advocates, including Kapil Sibal, Mukul Rohatgi, and Solicitor General Tushar Mehta, appearing for various industrial and infrastructural entities as well as government bodies, in favour of the review or modification of the impugned judgment.
On May 16, a bench of Justices A S Oka and Bhuyan 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 bench, 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 office memorandum spelling out a standard operating procedure (SOP) “for dealing with violation cases”.
The erstwhile bench struck these down. The judgement came on a clutch of petitions, including one by Mumbai-based NGO Vanashakti, challenging the notification.
