New Delhi: Is the Modi government trying to legitimise industries set up illegally along India’s coastline? Earlier this month, the Bombay High Court put brakes on an attempt by the Union Ministry of Environment, Forests & Climate Change (MoEFCC) to provide ex-post facto clearance to projects that have begun operations along the coastline without ever obtaining mandatory prior clearance from the government under India’s coastal zone management rules.
A division bench of the Bombay High Court has, in an order issued on May 7, imposed an interim stay on the environment ministry’s offer of legitimising illegal projects. On February 19, the ministry had issued an ‘office memorandum’ laying down a procedure to grant ex-post facto clearance to projects which could have begun construction or operations without obtaining clearance under the Coastal Regulation Zone (CRZ) Notification 2011.
“… we restrain the respondents from granting any permission/clearance on the basis of the office memorandum under challenge till August 31, 2021, or until further orders, whichever is earlier,” ordered the bench comprising Chief Justice Dipankar Gupta and Justice GS Kulkarni.
The decision to allow ex-post facto clearances was taken by Modi government despite the fact that neither CRZ 2011 nor CRZ 2019 bestow unlimited powers upon it to grant retrospective clearances. Moreover, the ministry also issued the order through a mere office memorandum overriding the provisions of an official gazette notification.
A query has been emailed to the environment ministry on behalf of NewsClick as to why a procedure pertaining to ex-post facto CRZ clearances was issued through an office memorandum and not by amending the gazette notification of 2019 pertaining to CRZ regulations. No response had been received from the ministry at the time this article was published. This article will be updated as and when the ministry sends its response.
The office memorandum was legally challenged in the high court through a public interest litigation (PIL) by a Mumbai-based public trust Vanashakti. It was alleged in the PIL that granting of ex-post facto clearances is in defiance of the environmental concepts of precautionary principle and sustainable development. Surprisingly, the ministry has, in the memorandum it issued in February, justified such clearances “for the purpose of protecting and improving the quality of the coastal environment and abating coastal environmental pollution”.
Also read: Modi Govt Tweaks Green Law to Allow Coal Extraction Sans Final Forest Clearance
In issuing the office memorandum, the ministry has relied upon an April 2020 judgement of the Supreme Court whereby directions had been issued upon certain pharmaceutical industries, which had not obtained prior clearances, to pay compensation instead of being shut down. However, the division bench of Bombay High Court, in its order, found this line of argument by the ministry as quite unusual.
“We also find that the said office memorandum refers to the decision of the Supreme Court dated April 1, 2020, in Civil Appeal No.1526 of 2016 (Alembic Pharmaceutical Limited Vs. Rohit Prajapati), since reported in 2020 SCC OnLine SC 347. Quite unusually, the Government despite being bound by the ratio decidendi of such decision, has elected to follow the directions contained in the said decision which were issued under Article 142 of the Constitution,” the high court bench stated in its order.
The petitioner had also argued that the central government was merely following the directions issued by the apex court in the Alembic Pharmaceutical Limited matter instead of going by the rationale on the basis of which the judgement had been issued. The PIL also stated that the environment ministry has violated the rationale of another Supreme Court verdict issued in August 2017 in the matter of Common Cause versus Union of India, a case pertaining to illegal mining in the state of Odisha.
“The apex court verdicts in the matters related to Alembic and Common Cause basically emphasise that environmental considerations work on precautionary principle and that if the likely impact of an activity on the environment is not known or assessed through a prior assessment, then massive irreparable damage will continue to be caused to our natural resources which will therefore be unsustainable and impact the lives of future generations. The concept of post facto clearances is therefore alien to the concept of environmental jurisprudence,” said Zaman Ali, legal advisor to Vanashakti.
Also read: Did BJP Govt in Goa Allow Vedanta to Process Iron Ore Despite Supreme Court Ban?
In the Alembic case, the apex court had upheld a verdict by the National Green Tribunal which had held that ex-post facto clearances are contrary to law established by the government of India. In their verdict issued in April 2020, the bench comprising Justices DY Chandrachud and Ajay Rastogi had stated:
“The reason why a retrospective EC [environmental clearance] or an ex post facto clearance is alien to environmental jurisprudence is that before the issuance of an EC, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment. An EC can be issued only after various stages of the decision-making process have been completed. Requirements such as conducting a public hearing, screening, scoping and appraisal are components of the decision-making process which ensure that the likely impacts of the industrial activity or the expansion of an existing industrial activity are considered in the decision-making calculus.”
The bench had further stated that ex-post facto clearances not only go against the principles of environmental jurisprudence and sustainable development but also condone industrial activities carried out prior to obtaining clearances besides creating a situation where there are no conditions to safeguard the environment. Similarly, while hearing upon cases of illegal mining activities in the state of Odisha in the Common Cause petition, an apex court bench had ruled that industrial activities are dependent and subordinate to environmental clearances.
“There is no concept of a retrospective EC and its validity effectively starts only from the day it is granted. Thus, the EC takes precedence over the mining lease or to put it conversely, the mining operations under a mining lease are dependent on and ‘subordinate’ to the EC,” a bench of Justices Madan B Lokur and Deepak Gupta had ruled.
The union environment ministry has informed the Bombay High Court that no clearances, whatsoever, have been granted in ex-post facto manner on the basis of the office memorandum. The high court has fixed June 30 as the final date of hearing of the case.
“A validity of post facto approvals is as much a legal matter as it is that of social legitimacy. The government has increasing turned the design of environment regulation away from precaution towards institutionalising the acceptance of illegality. This practice may be able to give a clean chit to illegal project operations, but cannot undo the injustices and harm that have been allowed to persist. The Bombay High Court’s final judgment in this case will need to consider whether the regulatory practice of post facto approvals is legal, ethical and whether it will be able to deliver environmental justice,” said Kanchi Kohli of the Delhi-based think-tank Centre for Policy Research.
Also read: NITI Aayog Studying How Judges Can Help Economics Beat Environmental Concerns