Retrospective green nod: SC strikes down Centre's order, opens window for exception, Pg1

Key Highlights:

• The Supreme Court ruled that the Centre can grant retrospective environmental clearance for projects in "public interest" under the Environment (Protection) Act, 1986, but not through administrative office memorandums.
• The bench, led by Chief Justice of India Surya Kant, struck down the Centre’s 2021 Office Memorandum which provided a perpetual regime for post-facto environmental approvals.
• The ruling clarified that the Centre retains the power to issue "narrowly tailored amnesty notifications" as an exception to the 2006 Environmental Impact Assessment (EIA) Notification.
• The Court's decision will apply prospectively, meaning existing retrospective clearances granted under the 2017 Notification or 2021 Office Memorandum will remain valid unless individually challenged.
• This judgment followed a recall of an earlier 2025 verdict in Vanashakti vs Union of India that had struck down the 2017 Notification and 2021 Office Memorandum.

EP Act.jpg

Detailed Insights:

• The Supreme Court emphasized that the 2021 Office Memorandum was an administrative order that impermissibly supplanted delegated legislation and failed the test of proportionality and reasonableness.
• The Court linked the invalidation of the 2021 Office Memorandum to violations of Articles 14 (equality before law) and 21 (right to life and personal liberty) of the Constitution.
• The ruling referenced the Jan Vishwas Act 2023, noting that its decriminalization of regulatory contraventions reinforces the Central government's power under Section 3 of the Environment (Protection) Act, 1986, to formulate conditional amnesty schemes.
• Previous Supreme Court decisions in Common Cause (2017) and Alembic Pharmaceuticals (2020) had held that ex-post facto clearances were alien to environmental jurisprudence, but the current bench clarified these were in specific statutory contexts.
• The Vanashakti vs Union of India case initially struck down the 2017 Notification and 2021 Office Memorandum, but this was later recalled by a 2-1 majority, citing public interest and legal flaws.
• Justice Ujjal Bhuyan dissented in the recall of the Vanashakti judgment, stating it overlooked fundamentals of environmental jurisprudence.

Key Concepts Involved:

• Environment (Protection) Act, 1986: Umbrella legislation empowering the Central Government to protect and improve the environment, enacted after the Bhopal Gas Tragedy.
• Office Memorandum (OM): An administrative instruction or order issued by government departments for internal communication, policy clarification, or procedural changes.
• Retrospective Environmental Clearance (Ex-post facto EC): Environmental approval granted after a project has already commenced construction or operation without prior mandatory clearance.
• Jan Vishwas Act 2023: Legislation aimed at decriminalizing minor offenses across various Central Acts by replacing imprisonment with monetary penalties to promote ease of living and doing business.
• Articles 14 and 21 of the Constitution: Article 14 guarantees equality before the law, while Article 21 protects the right to life and personal liberty, which includes the right to a healthy environment.