Citing Delhi's Smog, Justice Bhuyan's Dissent Warns Against Allowing Post-Facto EC; Says Court Shouldn't Backtrack

In his dissent opposing the move to reconsider the Court's 2024 Vanashakti judgment, Justice Bhuyan of the Supreme Court made a pointed reference to Delhi's air quality crisis, saying that the situation is a reminder that environmental regulations should not be diluted.

The Vanashakti ruling (by bench of Justices AS Oka (since retired) and Justice Bhuyan) had barred the grant of ex post facto environmental clearances, holding that ECs must always be obtained before starting construction or expansion. 

"Before parting with the record, I would like to painfully observe that the deadly Delhi smog reminds us everyday about the hazards of environmental pollution. Supreme Court as the highest constitutional court of the country has the duty and obligation under the Constitution of India and the laws framed thereunder to safeguard the environment," Justice Bhuyan wrote.

Justice Bhuyan said that "the court cannot be seen backtracking on the sound environmental jurisprudence that has evolved in this country, that too, on a review petition filed by persons who have shown scant regard for the rule of law."

The dissent came in review petitions filed mainly by real estate developers who had commenced construction without the required EC and sought protection under a 2021 Office Memorandum issued by the Ministry of Environment, Forest and Climate Change. That memorandum attempted to create a pathway for regularising projects that had violated the EIA rules. The majority judgment - by Chief Justice of India BR Gavai and Justice K Vinod Chandran- in review relied on earlier two-judge bench rulings to reopen Vanashakti and allow limited post-facto regularisation in select cases.

Justice Bhuyan refused to accept this approach. He held that the earlier rulings relied upon were per incuriam, meaning they ignored binding precedent, and therefore could not be used to dilute the Vanashakti conclusions.

Prior EC is non negotiable

Justice Bhuyan grounded his analysis in the scheme of the Environment Protection Act of 1986 and the EIA Notifications of 1994 and 2006. While the 1994 notification did not expressly use the word prior, it clearly prohibited the commencement of listed projects without an EC. The 2006 notification made this requirement explicit and mandatory.

“What was implicit in 1994 was made explicit in 2006,” he observed, adding that no project could begin construction, expansion or modernisation until prior clearance was obtained.

He stressed that environmental regulation is built around pre-decisional safeguards such as scientific appraisal, public hearing and environmental impact studies. These, he said, cannot be carried out after damage has already been caused.  

Common Cause and Alembic are the binding law

Justice Bhuyan relied heavily on two earlier Supreme Court rulings. In Common Cause v. Union of India(2017), the court held that prior EC is mandatory and that retrospective clearances are alien to the EIA framework. In Alembic Pharmaceuticals Ltd vs Rohit Prajapati and others(2020), the court declared that ex post facto EC is in derogation of environmental principles and could cause irreparable harm.

"Thus, from a combined reading of Common Cause and Alembic the ratio is crystal clear: there is no concept called ex post facto EC in environmental jurisprudence. It cannot be countenanced. It is an anathema. This is because it is detrimental to the environment and could lead to irreparable ecological degradation," he wrote.

Justice Bhuyan opined that the mere fact that in Common Cause, and Alembic, the Court had allowed the defaulting projects to continue, in exercise of its special powers under Article 142 due to the peculiar facts, cannot be held to mean that the precedents allowed post-facto ECs as a precedent.

He contrasted these binding rulings with a later trio of decisions in Electrosteel Steels Limited v. Union of India and Others(2021), Pahwa Plastics Private Limited and Another v. Dastak NGO(2023), and D. Swamy v. Karnataka State Pollution Control Board(2022) and Others which allowed limited ex post facto regularisation. Justice Bhuyan held that these three judgments ignored the earlier binding law and therefore “went on a tangent”.

2017 window was one time; 2021 OM invalid

The dissent dealt with the 2017 Notification issued by the Environment Ministry which provided a six month window for regularising pre existing violations. This window closed in September 2017 and was extended only once, following directions of the Madras High Court. The Union government, through the Additional Solicitor General, had assured the High Court that this was a one time measure.

Justice Bhuyan noted that the Centre has never withdrawn or contradicted this assurance.

He held that the 2021 Office Memorandum, issued four years after the closure of the 2017 window, was contrary to the statutory scheme. "The 2021 OM goes against the very grain of, rather is contrary to the statutory 2017 Notification, and therefore has no legal force. The 2021 OM is per se illegal and invalid and was rightly set aside in Vanashakti."

Illegal construction cannot be justified

The dissent rejected the argument that demolishing illegal projects would create more dust and pollution than allowing them to stand. Justice Bhuyan said such reasoning cannot be entertained from those who began construction without complying with mandatory legal requirements.

“It does not lie in the mouth of law violators to advance such justification to sustain the illegality which goes to the root,” he wrote. Justice Bhuyan pointed out that the Ministry itself did not file any petition seeking review of the Vanashakti ruling, though it supported other review petitioners.

Courts must not retreat from environmental protections

Justice Bhuyan invoked the global principle of non regression, which bars countries from weakening existing environmental protections. He warned that permitting ex post facto ECs would reverse decades of progress since the Stockholm Conference of 1972 and the Rio Conferences of 1992 and 2012.

“The precautionary principle is the cornerstone of environmental jurisprudence. Polluter pays is only a principle of reparation. Precautionary principle cannot be given a short shrift by relying on polluter pays principle. The review judgment is a step in retrogression,” he held.  

Finding no ground under the Supreme Court's review jurisdiction, Justice Bhuyan held that the petitions deserved outright dismissal. While noting that some individual cases might merit limited clarifications if applications were filed during the valid 2017 window, he said such concerns did not justify reopening the settled principle that prior EC is mandatory.