SC restricts ‘retrospective’ environmental clearances
The Supreme Court on Wednesday quashed, with prospective effect, a 2021 Office Memorandum (OM) granting ex post facto environmental clearances to infrastructure projects, holding that the Union government cannot substantially alter protective environmental checks by issuing mere administrative instructions.“The 2021 OM is an administrative order, and envisages a perpetual regime for grant of environmental clearance to projects undertaken without prior environmental clearance. It substantially alters the nature of enquiry and criteria for grant of environmental clearance under the 2006 notification. It supplants an earlier delegated legislation [2006 notification] through an administrative instruction, which is impermissible in law,” the court noted in an 80-page judgment.
‘No parallel route’
An ‘amnesty’ measure cannot become a permanent, parallel route which circumvents the prior environmental clearance (EC) regime under the 2006 notification of the Environment Ministry. A valid amnesty measure should be used as a rare exception, must be finite in duration and confined to its class, a Bench headed by Chief Justice of India Surya Kant observed.
The court said the prior EC regime of the 2006 notification, spanning across various sectors such as highways, airports, real estate and township developments, and mining and resource extraction, was mandatory in nature.
The 2006 notification’s mandate could have only been amended through a subsequent and appropriate amnesty notification for select, deserving projects whose continuation was of “supervening public interest”, Justice Joymalya Bagchi, who authored the judgment, held.
The court barred the Centre from passing administrative orders to grant ex post facto clearances in the future. Justice Bagchi added that the present judgment would not, however, stand in the way of the top court granting ex post facto clearances in exercise of its plenary powers under Article 142 of the Constitution.
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