The Supreme Court on Wednesday verbally expressed concerns about the government’s decision to grant environmental clearances to development projects after they had already begun, holding that it may allow harmful projects to continue until the state intervenes, Live Law reported.
A bench of Chief Justice Surya Kant and Justices Joymalya Bagchi and Vipul Pancholi was hearing a batch of writ petitions challenging its November decision to approve the policy. The judgement had reversed the court’s May ruling that disallowed such clearances.
During the hearing on Wednesday, the court verbally observed that if environmental sanctions were to be considered non-negotiable, it would hold the authorities duty-bound to stop projects that had not been cleared.
“If we say prior consent is not negotiable then anything done without prior consent, you are duty bound to stop,” Bagchi said.
Bagchi said that in contrast, the policy that allows for retrospective environmental clearances would allow projects to continue until the state identifies and closes them.
He highlighted that laws are made uniformly but “they are not applied uniformly” and questioned whether the intended “cleansing effect” would be achieved with uneven implementation.
However, he also highlighted that recalling retrospective approvals wholly would mean a “complete road block to anything without prior consent”.
The court will hear the matter further next week, Live Law reported.
In a 2:1 decision in November, the court recalled its May judgement that had declared post-facto approvals illegal. The majority of the bench said that the earlier judgement would have required the demolition of several buildings and public projects that had been approved through post-facto clearances over the years.
BR Gavai, the chief justice at the time, had said that several of the projects were worth more than Rs 20,000 crore and that destroying them now would cause more environmental harm than good.
The May judgement had restrained the Union government from granting post-facto clearances in any form to regularise illegal constructions.
The court had struck down a 2017 notification and a 2021 Office Memorandum that allowed the government to grant post-facto environmental clearances, calling these and related circulars and orders illegal and arbitrary.
However, the bench had clarified at the time that environmental clearances already granted under the 2017 notification and the 2021 Office Memorandum would remain valid.
During the hearing on Wednesday, one of the petitioner’s argued that mandating prior environmental clearance was not just a formality but a substantive safeguard, Live Law reported.
“The principle of ‘polluter pays’ must not be diluted into a regime of ‘pollute and pay’,” the petitioner’s lawyer contented. “That would be a dangerous path.”
On the other hand, Additional Solicitor General Aishwarya Bhati defended the office memorandum arguing that it does not provide for post-facto environmental clearance or regularisation of past violations.
Instead, the purpose was to bring projects that are operating outside environmental assessment norms under the scrutiny of experts, Live Law quoted Bhati as saying.
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