NEW DELHI/HYDERABAD: In a significant unanimous verdict, the Supreme Court on Wednesday quashed the Centre’s 2021 Office Memorandum (OM) that created a mechanism for granting retrospective environmental clearances (ECs) to projects that had commenced work without obtaining prior environmental approval.
A bench comprising Chief Justice Surya Kant and Justices Joymalya Bagchi and Vipul M Pancholi, however, gave some leeway to the government, holding that the judgment would apply prospectively and that projects granted environmental clearance earlier would remain undisturbed. These include Telangana project such as the Palamuru-Rangareddy Lift Irrigation Scheme, Seethamma Sagar and the Gouravelli Reservoir.
However, the construction of new projects should be taken up only after obtaining the environmental clearances now. It may be noted that the Telangana government is proposing to construct barrages at Tummidihatti and on Krishna in erstwhile Mahbubnagar.
“Starting any project without prior environmental clearance is against the rules. Even if the government wishes to frame a rule allowing clearance to be granted later, it must issue a formal notification under the law; this cannot be done merely through an office memorandum,” the bench said in its judgment.
In 2021, the Centre had issued an OM providing for environmental clearances to be granted to projects that had already commenced work without obtaining prior approval.
Quashing the OM, the court held that such a major change in the regulatory framework could only be made through a legal notification and not through an administrative order.
The bench reaffirmed that obtaining prior EC is the governing rule under the environmental framework and that projects cannot ordinarily commence operations and seek approval later.
It held that the 2021 OM was violative of Articles 14 and 21 of the Constitution, as it failed the tests of proportionality and reasonableness.
“No further applications for ECs under the 2017 notification and 2021 OM will be entertained, and the Central government is restrained from issuing future administrative orders for post-facto ECs,” the bench said.