The Supreme Court on Thursday reserved its verdict on a batch of around 40 petitions seeking modification or review of its May 16 judgment, which had struck down the Centre’s decision to grant post-facto environmental clearances to projects found to be in violation of green norms.
A bench comprising Chief Justice B.R. Gavai, and Justices Ujjal Bhuyan and K. Vinod Chandran heard detailed arguments from senior lawyers representing industrial entities, government bodies, and environmental groups.
The original May 16 ruling, delivered by a bench of Justice A.S. Oka (since retired) and Justice Ujjal Bhuyan, had barred the Ministry of Environment, Forest and Climate Change (MoEFCC) and other authorities from granting retrospective clearances to violators of environmental laws.
Justice Oka, who authored that judgment, held that the right to live in a pollution-free atmosphere is part of the fundamental right to life, and consequently set aside post-facto environmental clearances (ECs) granted to firms in violation of environmental norms.
The verdict also declared the 2021 Office Memorandum (OM) and related circulars “arbitrary, illegal, and contrary to the Environment (Protection) Act, 1986 and the Environmental Impact Assessment (EIA) Notification, 2006”. However, it protected certain ex-post facto clearances already granted under the 2017 notification and the 2021 OM from immediate disturbance.
Senior advocate Kapil Sibal, opening the arguments for the petitioners, contended that the May 16 ruling contained “an apparent error” as it failed to consider the legal sources of power under which the impugned Office Memorandums were issued.
“The Office Memorandum was passed in pursuance of the NGT’s order. There are two sources of power referred to in it. This was not pointed out to the earlier Bench,” Sibal submitted, citing Sections 3 and 5 of the Environment (Protection) Act, 1986 and directions of the National Green Tribunal (NGT).
He argued that the intent of the Office Memorandums was not to condone violations, but to impose proportional penalties and ensure compliance.
“If the project is impermissible, it is to be closed. If it is permissible but not environmentally sustainable, it can still be shut down. This is the principle of proportionality,” he said.
Acknowledging the gravity of environmental degradation, Sibal added, “Environment is a very big issue in the country. It is creating havoc. As an officer of the court, I must say this. But there cannot be a finding that the source of power was absent.”
Solicitor General Tushar Mehta, appearing for SAIL and a government entity constructing an AIIMS hospital and medical college, argued that the May 16 judgment ignored binding precedents and notifications.
“There is an error apparent on the face of the record,” he said, pointing out that SAIL had been operating mines since the 1990s, when ECs were not required, and later complied with post-2017 requirements.
He submitted that environmental regulation should embody proportionality rather than absolute prohibition, adding that the 2017 and 2021 notifications aimed to balance environmental compliance with equity and public interest.
Senior advocates Gopal Sankaranarayanan, Sanjay Parikh, and Anand Grover opposed the review pleas, asserting that granting retrospective clearances would amount to “encouraging lawlessness”.
“How can a violator be allowed to get the post-facto EC for the projects which are in violation of green norms,” one of the lawyers argued.
The bench engaged actively with both sides. At one point, the CJI remarked wryly, “You break the law and then get it regularised,” prompting Sibal to respond, “I am a sufferer myself. Look at Shimla… I have lived there for eight years.”
The CJI also questioned how the law should treat projects like AIIMS and cancer hospitals, asking the environmental counsel, “Do you want them to be demolished?”
Chief Justice Gavai clarified that the court was not examining the merits of the Office Memorandums at this stage, but only whether the May 16 judgment warranted review.
“We are not considering the OMs on merits. We are just seeing whether the judgment needs review or not,” he said.
The bench also noted issues with how previous judgments and notifications were interpreted, observing, “We have developed a habit of not relying on lawyers in the Supreme Court. Lines are read out of context, paragraphs are read out of context.”
The court has now reserved its verdict on the review petitions. The outcome will have far-reaching implications for infrastructure, mining, and industrial projects across the country, many of which face closure or demolition due to the May 16 ruling.
