The split Supreme Court verdict by a 2:1 majority on November 18 last to allow post-facto environmental clearance to infrastructure projects, on the plea that demolishing errant structures would tantamount to “throwing valuable public resources in the dustbin,” is a slap in the face of the Environmental Protection Act 1986 and its successive amendments. While Justice BR Gavai and Justice K Vinod Chandran ruled in favour of those who created infrastructure violating environment norms, Justice Ujjwal Bhuyan’s dissenting voice reminded people of the Delhi smog and its lethal outcomes. The 2017 verdict that has now been recalled was against allowing retrospective environment clearances because the dangers for such a plea is that the real estate giants will first build after riding roughshod over environment laws and later seek condonation via the post-facto environment clearance route. Knowing how weak the implementation of all acts and rules are in India, the builders and construction lobby would use this to their advantage and give a wide berth to environmental concerns.
Justice Ujjwal Bhuyan was part of a two-judge bench that had passed a verdict in 2017 against a central government notification allowing retrospective environmental clearances. The latest judgment follows a review petition moved by a developers’ group – Confederation of Real Estate Developers of India (Credai), Steel Authority of India and the Karnataka Government. Interestingly review petitions have had less than 0.1 percent success in the Supreme Court but this one, controversial as it succeeded in its mission. Naturally the November 18 verdict has drawn flak from environmentalists who argue that the 2017 ruling runs counter to Sections 6 and 25 of the Environment Protection Act and the Environmental Impact Assessment Act (2006) formulated by the Central Government. These sections prohibit certain industries and operations in specific areas and make environmental clearance mandatory before a project starts. Retrospective approvals with penalties, no matter how heavy, only regularises the by-passing of laws. Instances of heavy landslides in Uttarakhand and Darjeeling in recent times which resulted in deaths and destruction are harsh reminders of what happens when nature is extracted beyond a point. That the Supreme Court would place capital above the environment only goes to show how the judiciary is increasingly tilted to what pleases the government of the day rather than towards the ecology.
This judgment could have far reaching effects especially in eco-sensitive, bio-diverse regions such as those in India’s North East where attempts are being made to establish extractive industries such as coal and limestone mining which requires that forests are mowed down without any plans for eco-restoration. Think East Jaintia Hills where mines abandoned for decades are yet to be reclaimed and restored. The water bodies that are poisoned are yet to be detoxified despite studies that certify that the waters are unusable. Forests are reservoirs that sustain the catchments which provide us the elixir of life – water. Why is it so difficult for the judiciary to see beyond the capitalistic lenses? Also has the November 18 judgment taken cognisant of the different regions of the country and their being located in seismic zones where any adverse intervention could result in unprecedented human disasters? India is not just a country with a single geography but vastly different topography. The Supreme Court order is a gross oversight.
