SC recalling its Vanashakti verdict right way forward
A three-judge bench of the Supreme Court took a balanced view while nixing a smaller bench’s six-month-old Vanashakti verdict, which had barred the Union government from granting post-facto environmental clearances to development projects. Through a 2017 notification and a 2021 office memorandum, the government had cleared projects that had either commenced, expanded, or operated without prior approval, which was mandated under the Environmental Impact Assessment Notification, 2006. While a two-judge bench had struck down the government’s workarounds as illegal, a three-judge bench led by Chief Justice B R Gavai recalled that verdict by a 2:1 majority. CJI Gavai and Justice Vinod Chandran formed the majority, while Justice Ujjal Bhuyan penned a strong dissent. Justice Bhuyan was part of the earlier bench along with Justice Abhay S Oka, whose judgement was quashed.
CJI Gavai agreed with the petitioners that completed or nearly-complete public projects worth ₹20,000 crore would have to be demolished if the Vanashakti verdict were to hold ground. They include a Steel Authority of India plant, a 962-bed medical college and hospital in Odisha, a new airport at Vijayanagar in Karnataka, and large effluent treatment plants. Going by the Vanashakti order, these projects had to be razed and environmental clearances secured afresh before reconstruction. Such mindless demolition would not just result in a waste of public money but also more pollution, the CJI observed.
Justice Bhuyan disagreed with the CJI’s view, framing it as an innocent expression of opinion, adding that it overlooks the fundamentals of environmental jurisprudence. “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 judgement is a step in retrogression,” he wrote.
On balance, it makes little sense to pit environment against development in a developing country like India. The two are complementary aspects of the constitutional construct of sustainable development, as Justice Bhuyan pointed out. Yet, the Vanashakti judgement froze major ongoing projects instead of levying hefty penalties, as prescribed by coordinate two-judge benches in other cases. Delhi’s smog is an extreme example of environmental pollution; replicating its solutions across the country would hold back national growth. Green jurisprudence must be respected, but it should not come at the cost of sustainable development.