SC pulls back May ruling on ex-post facto green clearances; orders fresh hearing
CJI Gavai and Justice Chandran withdraw May 16 ruling restricting retrospective ECs; Justice Bhuyan calls ex-post facto clearances a curse
A file image of the Supreme Court (Photo: @IANS)
New Delhi, Nov 18: The Supreme Court, by a 2:1 majority, has recalled its May-16 judgment that had stopped the government from giving retrospective (ex-post facto) environmental clearances to projects that violated environmental rules.
On Tuesday, a bench of Chief Justice B R Gavai, Justice Ujjal Bhuyan, and Justice K Vinod Chandran delivered three separate judgments while hearing around 40 review and modification petitions against the earlier Vanshakti judgment.
The May-16 verdict, delivered by Justice A S Oka (now retired) and Justice Ujjal Bhuyan, had barred the Ministry of Environment, Forests and Climate Change (MoEFCC) and other authorities from granting retrospective environmental clearances (ECs) to projects that were found violating environmental norms.
In the new decision, CJI Gavai and Justice Chandran decided to recall that May-16 verdict and said the matter should be placed before an appropriate bench to reconsider all the issues again.
The CJI explained the reason, saying, "Public projects of Rs 20,000 crore will have to be demolished if the clearance is not reviewed. In my judgment, I have allowed the recall. My judgment has been criticised by my brother... Justice Bhuyan."
On the other hand, Justice Bhuyan delivered a strong dissenting judgment. He said that retrospective clearances are unknown to environmental law, and insisted that "there is no concept of ex-post facto environmental clearance in environmental law," calling the idea "an anathema, a curse devoted to evil, to environmental jurisprudence."
CJI Gavai also said that the court had "found that in the 2013 notification as well as the 2021 Office Memorandum, the scheme was to permit grant of environmental clearance on the imposition of heavy penalties."
The detailed judgment from all judges is still awaited.
Earlier, on October 9, the bench headed by the CJI had reserved its verdict after hearing several senior lawyers, Kapil Sibal, Mukul Rohatgi, and Solicitor General Tushar Mehta, who argued on behalf of various industrial and infrastructure entities as well as government bodies, all seeking a review or modification of the earlier judgment.
PTI