Ex post facto environmental clearance is illegal as it undermines the fundamental right to a pollution-free environment and contravenes established environmental laws.

JUDGMENT :

ABHAY S. OKA, J.

1. Part IV-A of the Constitution of India containing fundamental duties as set out in Article 51A was incorporated in the Constitution by the 42nd Amendment Act with effect from 3rd January 1977. Clause (g) of Article 51A provides that it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures. This Court in several decisions has held that the right to live in a pollution free atmosphere is a part of the fundamental right guaranteed under Article 21 of the Constitution of India.

2. The world changed rapidly after World War II. From the late 1960s and early 1970s, slowly there was a realisation about the drastic consequences of the destruction of environment and pollution of various kinds. In June 1972, at Stockholm, the United Nations Conference on Human Environment was held. In the said conference, several decisions were taken by the world community to protect the environment.

3. In our country, it took fourteen years thereafter for the legislature to come out with a law for protection and improvement of the environment. The Environment (Protection) Act, 1986 (for short, ‘the 1986 Act’) was brought into force with effect from 19th November 1986. As can be noticed from several orders of this Court and the High Courts, the progress of implementation of the 1986 Act has been very slow.

4. The 1970s and 1980s saw growth of industrialisation in our country. The activities such as mining, gas exploration, thermal power plants, petroleum refining industries, various other industries, building and construction projects, such as, highways started growing.

5. Again, it took twenty years after the 1986 Act came into force to exercise the power under sub-section (1) and clause (v) of sub-section (2) of Section 3 of the 1986 Act read with clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986 (for short, ‘1986 Rules’) for coming out with the Environment Impact Assessment Notification, 2006 (for short, ‘the EIA notification’). The EIA notification was issued on 14th September 2006. It provided that the projects or activities mentioned in clause (2) thereof shall require prior Environmental Clearance (for short, ‘the EC’) from the concerned regulatory authority. The concerned regulatory authority in the Central Government is the Ministry of Environment Forests and Climate Change (for short, ‘the MoEFCC’) for matters falling under Category ‘A’ in the Schedule, and at the State level, the State Environment Impact Assessment Authority (for short, ‘the SEIAA’) for the matters falling in Category ‘B’. In the Schedule, Categories ‘A’ and ‘B’ were incorporated setting out industries and other development work. The entire controversy in this group of petitions is about ex post facto grant of EC.

6. On 14th March 2017, a notification was issued by the MoEFCC. The said notification is hereafter referred to as ‘the 2017 notification’. The said notification was made applicable to the projects or activities that have started the work on site, expanded the production beyond the limit of the EC, or changed the production mix without obtaining EC. The 201