SC: Environment law cannot countenance notion of ex post facto clearance

The Hon’ble Supreme Court, on 1st April 2020, Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors. pronounced that environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development.

The Hon’ble Supreme Court observed that:

Section 3(1) of the Environment Protection Act 1986 is an enabling provision for the Central Government to undertake all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. (Para 20)

For an action of the Central government to be treated as a measure referable to Section 3 of the Environment Protection Act 1986 it must satisfy the statutory requirement of being necessary or expedient “for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environment pollution”. (Para 21)

The reason why a retrospective EC 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. Allowing for an ex post facto clearance would essentially condone the operation of industrial activities without the grant of an EC. In the absence of an EC, there would be no conditions that would safeguard the environment. Moreover, if the EC was to be ultimately refused, irreparable harm would have been caused to the environment. (Para 23)

Environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development. (Para 23)

Penalties must be imposed for the disobedience with a binding legal regime. The breach of having operated without environmental clearances in the past without ordering a closure of operations cannot be left unattended by legal consequences. The amount should be used for the purpose of restitution and restoration of the environment. (Para 39)

Copy of judgment: Judgement_01-April-2020

-Adv. Tushar Kaushik

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