Background
Environment (Protection) Act, 1986
Enacted after the 1984 Bhopal Gas Tragedy.
Provides the Central Government with broad powers to protect and improve the environment.
Section 3 empowers the Central Government to issue notifications and take measures for environmental protection.
Environmental Impact Assessment (EIA) Notification, 2006
Issued under Section 3 of the Environment (Protection) Act, 1986.
Mandates prior Environmental Clearance (EC) before the commencement of specified developmental projects.
Based on the precautionary principle and sustainable development.
2021 Office Memorandum (OM)
Introduced a Standard Operating Procedure (SOP) allowing projects that had begun without prior EC to seek retrospective (ex post facto) environmental clearance.
Constitutional Principles
Article 14
Equality before law.
Prohibits arbitrary executive action.
Article 21
Right to life includes the right to a clean and healthy environment, as recognised by judicial interpretation.
Doctrine of Proportionality
Government action must be reasonable.
Restrictions or exemptions should be proportionate to the objective sought.
Jan Vishwas (Amendment of Provisions) Act, 2023
Provision
Decriminalised several minor offences across 42 laws.
Under the Environment (Protection) Act:
Violation of prior environmental clearance requirements changed from a criminal offence to a civil liability.
Concern
Reduced criminal deterrence against environmental violations.
Greater reliance on administrative enforcement and monetary penalties.
Highlights of the Supreme Court Judgment
2021 OM Quashed
The Court struck down the 2021 Office Memorandum with prospective effect.
Existing clearances granted under the OM remain valid unless separately challenged.
Administrative Order Cannot Override Law.
The Court held that an administrative instruction cannot replace or dilute the EIA Notification, 2006, which has the force of delegated legislation.
The mandatory prior clearance requirement cannot be relaxed through an executive memorandum.
Violation of Constitutional Principles
The Court found the OM:
Violative of Article 14 (Equality before Law).
Violative of Article 21 (Right to Life and Healthy Environment).
Reason:
It applied uniformly to all violators without any rational classification or public interest test.
No Blanket Amnesty
The Court rejected the creation of a perpetual mechanism for regularising illegal projects.
Such a blanket amnesty weakens environmental governance and encourages violations.
Narrow Exception Permitted
The Government may still issue:
A notification (not an administrative memorandum),
Under Section 3 of the Environment (Protection) Act, 1986,
Only in exceptional circumstances involving supervening public interest.
Conditions for Future Retrospective Clearances
Any future amnesty scheme must:
Be issued through a statutory notification.
Be narrowly tailored.
Identify projects through an intelligible differentia.
Demonstrate genuine public interest.
Satisfy the test of proportionality.
Include accountability measures against officials responsible for violations.
Significance
Reinforces the Precautionary Principle and Sustainable Development.
Strengthens the rule of law in environmental governance.
Clarifies the limits of executive power vis-à-vis delegated legislation.
Emphasises constitutional protection of the environment under Articles 14 and 21.
Conclusion
Supreme Court’s decision is an important milestone in enhancing environmental governance in India as it has closed down the avenue for administrative action to grant retrospective environmental clearances in a blanket manner. Though there has been a limited exception carved out by the Court in cases of public interest, it has confirmed that environmental regulations cannot be undermined by way of executive orders. The success of the judgment would depend upon its implementation.
