Supreme Court Decision on Ex Post Facto Environmental Clearance

The Supreme Court, in a 2-1 decision, recalled its earlier ruling that invalidated a Central government notification allowing environmental clearance (EC) for projects ex post facto, meaning after their commencement.

Judgment Overview

• The majority decision by Chief Justice of India B R Gavai and Justice K Vinod Chandran cited public interest and procedural flaws as reasons for the recall.
• Justice Ujjal Bhuyan dissented, emphasizing that the decision contradicts fundamental environmental jurisprudence.

Background

• The decision was initiated by a petition from CREDAI and applications by SAIL and the State of Karnataka, seeking a review of the May 16 ruling in the case of Vanashakti vs Union of India.
• The May 16 ruling had annulled a 2021 Office Memorandum related to the 2017 notification on ex post facto ECs.

Reasoning and Impact

• Public Interest: CJI Gavai argued that not recalling the judgment would result in demolishing projects worth nearly Rs 20,000 crore, which would be counterproductive to public interest.
• Legal Precedents: The majority ruling highlighted that previous Supreme Court judgments have permitted ex post facto ECs under exceptional circumstances.
• Procedural Flaws: The two-judge bench in the May 16 ruling should have referred the case to a larger bench due to existing judgments from equally authoritative benches.
• Environmental Considerations: The majority noted that demolishing projects could lead to more pollution, as they would likely be reconstructed after obtaining ECs.

Dissenting Opinion by Justice Bhuyan

• Justice Bhuyan emphasized that ex post facto ECs contradict the principles of environmental jurisprudence established in previous cases like Common Cause v. Union of India and Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors.
• He argued that the subsequent judgments in Electrosteel, Pahwa, and D. Swamy did not adhere to these precedents, rendering them per incuriam (in ignorance of binding precedent).
• Bhuyan cautioned against creating a false narrative of environment versus development, asserting that both must coexist under sustainable development principles.
• He criticized the review process as lacking sufficient particulars on project timelines and necessity for prior ECs.
• Justice Bhuyan stressed the need to uphold environmental jurisprudence and expressed concern about potential relaxation of environmental assurances.

Conclusion

The decision highlights the ongoing debate between development and environmental protection, emphasizing the need for a balanced approach that considers both legal precedents and public interest implications.