The Supreme Court on Tuesday started hearing as many as 40 petitions, including those filed by the Confederation of Real Estate Developers’ Associations of India (CREDAI) and PSU SAIL, seeking a review, modification, or clarification of its May 16 judgment that barred the Centre from granting retrospective environmental clearances to projects found violating environmental norms.
A special bench led by Chief Justice B R Gavai and comprising Justices Ujjal Bhuyan and K Vinod Chandran took up the batch of petitions. Senior advocate Mukul Rohatgi, appearing for CREDAI, opened the submissions, strongly assailing the earlier verdict which he said left demolition as the “only way out.”
The May 16 verdict, authored by Justice A S Oka (now retired) and Justice Bhuyan, had set aside the post-facto environmental clearances granted to firms. The bench held that the right to live in a pollution-free atmosphere is part of the fundamental right, and retrospective regularisation of illegal projects violated environmental laws.
Rohatgi argued that the Centre is empowered to grant retrospective environmental clearances (EC) on payment of penalty and that this aspect had been ignored by the earlier bench.
“The judgment says if there is no EC, then demolish it and rebuild after taking the EC. The court was of the view that if there was no prior EC then demolish everything,” he said, stressing that retrospective grant provisions were designed to save projects with other valid clearances.
When the bench questioned if the government could similarly “grant pardon in murder cases,” Rohatgi responded that even a murder convict is released after 14 years, noting that the policy should aim to reform, not punish. He added that demolishing existing structures would ironically generate more pollution.
He also argued that project proponents are sometimes unaware of the requirement of prior EC, in which case projects should not be doomed. The bench, however, reminded him, “Ignorance of law is not an excuse.”
Lawyers opposing the review emphasised that the petitioners must demonstrate an “error apparent on the face of the record” for the court to reopen its verdict. Senior advocate Kapil Sibal, appearing for a firm whose greenfield airport project faces demolition, said the activity is permissible under environmental law and deserves reconsideration.
The May 16 judgment arose from a plea by NGO Vanashakti, challenging post-facto environmental clearances. The court had come down heavily on the Centre’s 2021 Office Memorandum (OM) and related circulars, declaring them “arbitrary, illegal, and contrary to the Environment (Protection) Act, 1986 and the EIA Notification, 2006.”
The verdict restrained the Ministry of Environment, Forests and Climate Change (MoEFCC) from granting ex post facto clearances in any form. It also criticised the government’s attempt to “regularise” illegal projects, stating:
“Cleverly, the words ex post facto have not been used, but without using those words, there is a provision to effectively grant ex post facto EC. The 2021 OM has been issued in violation of the decisions of this court…”
One of the petitioners, M/S Kumar Organic Products Limited, represented by advocate Gopal Jha, has sought clarification on how applications for environmental clearance filed under the March 14, 2017 notification, but still pending as of May 16, will be treated.
The CJI, responding to some lawyers objecting to the review pleas, remarked, “We are considering the review petitions… it is for them to point out errors apparent on the face of the records… fortunately or unfortunately, we have to decide.”
The bench will continue hearing the matter on Thursday. The outcome of this review will be closely watched by both industry players and environmental groups, given its potential impact on large-scale infrastructure and real estate projects across the country.
