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Supreme Court Rejects Ramesh's Plea on Retrospective Clearances
In a pointed dismissal that underscored the sanctity of its prior judgments, the on Thursday rebuffed a filed by Congress leader and Rajya Sabha MP Jairam Ramesh challenging the government's practice of granting retrospective environmental clearances to projects commenced without prior approvals. A bench comprising Chief Justice Surya Kant and Justice Joymalya Bagchi questioned the petition's purpose, terming it an "indirect" attempt to review the Court's verdict that revived such clearances. The bench went further, asking if the plea was filed "for media publicity" and warning of "exemplary costs." Ramesh's counsel promptly withdrew the petition, permitted with liberty to pursue remedies in accordance with law. This episode highlights ongoing tensions in environmental jurisprudence between regulatory compliance and pragmatic project salvation.
The Genesis of Post-Facto Environmental Clearances
The controversy traces back to the , issued under the . This cornerstone regulation mandates that certain categories of projects—spanning mining, infrastructure, real estate, and industrial expansions—obtain prior environmental clearance (EC) from authorities like the or . The process involves public consultation, environmental impact studies, and mitigation measures to prevent irreversible ecological damage.
However, widespread violations emerged, with projects often commencing groundwork sans clearance, leading to regularization pleas. To address this, the Central Government issued a 2017 Notification and a 2021 Office Memorandum (OM), permitting ECs—approvals granted retrospectively upon payment of penalties and compliance demonstration. Critics, including environmentalists and opposition leaders like Ramesh, decried this as legitimizing illegality, undermining deterrence, and violating constitutional environmental mandates under Articles 21 (right to life) and 48A (directive on environmental protection).
Ramesh's petition invoked , arguing the mechanism was unlawful, detrimental to public health, and a governance failure. It specifically targeted a fresh OM allegedly issued post the judgment, but the Court saw through what it perceived as a collateral attack.
Judicial Rollercoaster: From May Ban to November Revival
The saga's judicial arc began with the landmark , judgment in the Vanashakti case. A quashed the 2017 Notification and 2021 OM as "illegal and arbitrary," holding post-facto ECs antithetical to EIA principles. The Court restrained the Union Government from granting such approvals in any form, deeming unauthorized constructions illegal. Notably, it clarified that extant clearances under the impugned instruments would remain valid, softening immediate disruption.
This ruling rattled stakeholders. The filed a , highlighting chaos: thousands of projects, including public infrastructure worth over Rs 20,000 crore, faced demolition. Demolishing them, argued CREDAI, would exacerbate environmental harm through debris, emissions, and lost green opportunities.
On
, a three-judge bench—then-CJI B.R. Gavai, Justices Ujjal Bhuyan, and K. Vinod Chandran—allowed the review by a 2:1 majority. The majority recalled the May judgment, reviving the post-facto mechanism. CJI Gavai emphasized proportionality:
"several of these projects were worth more than Rs 20,000 crore and that destroying them now would cause more environmental harm than good."
Justice Chandran concurred. However, Justice Bhuyan dissented vehemently, asserting no review grounds existed and that
ECs remained "alien to environmental jurisprudence."
This revival formed the fulcrum of Ramesh's writ, which the recent bench refused to unsettle.
Jairam Ramesh's and the Hearing
Filed in , Ramesh's petition under sought to quash the revived notifications and the alleged new OM, reiterating that retrospective clearances flout EIA 2006 and constitutional ethos. It positioned the cause of action as post-judgment governmental action, sidestepping direct review.
During Thursday's hearing, the CJI-led bench pierced this veil.
"At the outset, for what purpose has this been filed? You are very well aware that now a three-judge bench has taken a view,"
CJI Surya Kant remarked, referencing the November verdict. Counsel argued the challenge targeted notifications upheld in compliance with the judgment.
The bench retorted: “How is this writ maintainable? The government has issued a notification in compliance with a Supreme Court judgment. By challenging it, you are indirectly seeking a review of that judgment. How is it possible?”
Escalating, the CJI quoted: “If you are aggrieved by the judgement, then you know your remedy. How can you seek a review of a judgement in a ?” and “Why did you not file a review? You are just raising all these grounds in writ. In a writ, how can you seek a review of a judgement and if you do then be ready to face exemplary costs.”
The pointed query— “Have you filed this for media publicity?” —sealed the tone. Sensing futility, counsel withdrew, and the bench dismissed as withdrawn, granting liberty for lawful remedies.
Legal Underpinnings: Writ Maintainability vs. Review Petitions
This ruling pivots on remedial hierarchy. empowers direct SC access for fundamental rights enforcement, but not as a subterfuge for reviewing settled judgments. Reviews under and are confined to errors apparent, new evidence, or discovery of fraud—none invoked here effectively.
The bench invoked
and judicial finality, preventing
"indirect filing a
"
via writs. Precedents like
Rupa Ashok Hurra v. Ashok Hurra
(2002) limit
post-review, reinforcing this bar. Environmentally, it balances
principles from
(
) against equity in
M.C. Mehta
cases.
Critics may see it as procedural pedantry enabling env dilution, but it upholds institutional integrity.
Implications for Environmental Jurisprudence
The decision sustains post-facto ECs, prioritizing economic pragmatism. Rs 20,000 crore projects—roads, metros, housing—avert demolition, aligning with "sustainable development" in . Yet, Justice Bhuyan's dissent echoes concerns: it erodes prior approval's preventive ethos, potentially spiking violations.
Penalties under revived OMs (escalated post-judgment) aim deterrence, but efficacy depends on enforcement. Recent Aravalli clearance rows underscore stakes.
Ramifications for Legal Practitioners and Stakeholders
For env lawyers, strategize cautiously: Writs risk costs for collateral attacks; pursue reviews or larger benches. Real estate counsel gain leverage for regularization. Developers/infra firms breathe relief; activists pivot to monitoring/penalties.
Public interest litigators note judicial fatigue with "publicity" pleas, urging substantive grounds. MoEFCC compliance teams must navigate upheld notifications meticulously.
Looking Ahead
This rebuff cements the revival, barring easy reversals. Ramesh may review or cure, but odds slim sans new facts. It signals SC's resolve: Challenge boldly, but procedurally. In env law's evolving landscape, it tilts toward continuity over chaos, challenging advocates to innovate within bounds. As India balances growth and green imperatives, such rulings will shape jurisprudence profoundly.
