Allows Centre to frame amnesty schemes
New Delhi: Observing that protective environmental checks cannot be altered by issuing administrative orders, the Supreme Court on Wednesday quashed a 2021 office memorandum permitting the Centre and other authorities to grant retrospective clearances to projects that commenced without obtaining the green nod.
A bench comprising Chief Justice Surya Kant and Justices Joymalya Bagchi and Vipul M Pancholi, in its unanimous verdict, held that the judgment will apply prospectively, thus saving projects that got retrospective environment clearances (ECs) from demolition and other punitive measures.
The top court said the central government has ample power under Section 3 of the Environment (Protection) Act, 1986 to issue appropriate notifications formulating amnesty schemes with regard to such classes or categories of non-compliant projects sustaining which is necessary to subserve the larger public interest.
These projects include the AIIMS Medical College and Hospital building in Odisha, the Centre of Excellence for Cancer Diseases in Tamil Nadu, the Vijayapura Airport in Karnataka, slum rehabilitation projects and irrigation projects intended for drought-prone areas.
“We hold the 2021 Office Memorandum to be invalid and quash it with prospective effect. We do so using our powers under Article 142, taking into account two distinct reasons. First, considerable legal uncertainty prevailed regarding the validity of the impugned instruments and the processing and grant of ECs under them…
“Second, supervening public interest is involved in several projects which have already been undertaken or substantially progressed in reliance upon the prevailing regulatory position,” the bench said.
The top court, however, held that the Centre has the power to grant post-facto ECs through valid statutory notifications issued under Section 3 of the Environment (Protection) Act, 1986, and it cannot be done by issuing a mere administrative office memorandum (OM).
The court said in an “anthropocentric world” where man shapes nature to meet his wants, it is entrusted with the solemn duty to strike a balance between an existential right of all living beings both present and future to a pollution-free environment and an aspirational right to development of a sixth of the world’s population.
The top court said to discharge such onerous responsibility, there was a need to examine the issue through the prism of eco-centric proportionality which is best articulated in the Gandhian vision that says, “The world has enough for everyone’s need, but not enough for everyone’s greed”.
The apex court in its judgment spanning 80-pages said the 2021 OM is an administrative order and envisages a perpetual regime for grant of ECs to projects undertaken without a prior clearance.
Setting aside the OM, Justice Bagchi, who authored the verdict, said even otherwise, having “a perpetual amnesty scheme” applicable to all projects, fails to lay down any good criteria.
“It substantially alters the nature of enquiry as well as the criteria for grant of EC under the 2006 Notification. The 2021 OM thereby supplants an earlier delegated legislation through an administrative instruction, which is impermissible in law.
“Even otherwise, being a perpetual amnesty scheme applicable to all permissible projects, it fails to lay down an intelligible differentia for selection of projects for grant of post facto EC having rational nexus to supervening public interest and is thereby ultra vires the object of 1986 Act, namely preservation of environment through a balanced approach between precautionary principle and sustainable development,” the bench said.
It said the office memorandum does not satisfy the test of proportionality and reasonableness and is violative of Articles 14 and 21 of the Constitution.
“Thus, the 2021 OM is quashed but with prospective effect, keeping in mind the prevailing confusion with regard to validity of the impugned instruments and supervening public interest,” the bench said.
