SC By 2:1 Majority Recalls Verdict Barring Post-Facto Green Clearances, Justice Bhuyan Dissents

NEW DELHI: In a 2:1 majority ruling, the Supreme Court on Tuesday recalled its May 16 judgment that had prohibited the Centre from granting retrospective environmental clearances to projects contravening environmental norms. This gives fresh lease of life to stalled critical public infra projects.

The majority verdicts of Chief Justice B.R. Gavai and Justice K. Vinod Chandran underlined that if the May 16 judgment was not recalled, it woujd result in demolition of buildings and projects constructed out of public funds worth nearly `20,000 crore, including a 962-bed AIIMS hospital in Odisha and a greenfield airport in Vidyanagar, Karnataka.

A three-judge bench of Chief Justice Gavai, Justice Ujjal Bhuyan and Justice K Chandran delivered three separate verdicts on a batch of nearly 40 review and modification pleas filed against the ‘Vanshakti’ judgment.

With this recall, these projects now have a chance to be regularised under the now-revived 2017 notification and 2021 office memorandum, pending a final decision on their validity by the Supreme Court.

The May 16 verdict by a bench of Justice A.S. Oka, since retired, and Justice Bhuyan had barred the Union environment ministry and the related authorities from granting retrospective environmental clearances to projects which are found in violation of environmental norms.

Justice Bhuyan, in his dissenting verdict said such approvals are unknown and "anathema" to environmental law as they are contrary to both the precautionary principle as well as the need for sustainable development.

Dubbing the review judgment as a "step in retrogression", Justice Bhuyan referred to the air pollution in the national capital and said that the "deadly" Delhi smog reminds us every day about the hazards of environmental pollution.

"There is no concept called ex post facto EC in environmental jurisprudence. It cannot be countenanced. It is an anathema. This is because it is detrimental to the environment and could lead to irreparable ecological degradation," Justice Bhuyan said in his 96-page verdict.

The dissenting judge said it is unfortunate that a false narrative is being created, pitting environment against development.

"It is a completely untenable binary in as much as ecology and development are not adversaries. Both are part of the constitutional construct of sustainable development. At the cost of repetition, it is reiterated that there is no antinomy between development and environment," he added.

Justice Bhuyan said the Supreme Court, as the highest constitutional court of the country, has the duty and obligation under the Constitution and the laws framed thereunder to safeguard the environment.

"It cannot be seen backtracking on the sound environmental jurisprudence that has evolved in this country, that too, on a review petition filed by persons who have shown scant regard for the rule of law," he said.

Justice Bhuyan said the review judgment is an "innocent expression" of opinion and overlooks the very fundamentals of environmental jurisprudence.

"Precautionary principle is the cornerstone of environmental jurisprudence. Polluter pays is only a principle of reparation. Precautionary principle cannot be given a short shrift by relying on the polluter pays principle. The review judgment is a step in retrogression," he added.