Justice Bhuyan warns against diluting environment laws, cites Delhi smog in SC dissent

Guwahati: Justice S.G. Bhuyan of the Supreme Court issued a sharp dissent on the move to reopen the Court’s 2024 Vanashakti judgment, cautioning that weakening environmental safeguards would be dangerous at a time when Delhi’s air quality continues to deteriorate.

He said the toxic smog enveloping the national capital serves as a daily reminder of the consequences of ignoring environmental protection. The Supreme Court, he stressed, carries a constitutional obligation to uphold environmental jurisprudence that has evolved over decades.

The original Vanashakti verdict, delivered by a bench comprising Justice A.S. Oka (now retired) and Justice Bhuyan, had categorically prohibited ex post facto environmental clearances, ruling that no construction or expansion project could begin without first obtaining an Environmental Clearance (EC).

Justice Bhuyan Opposes Reopening of the 2024 Verdict

The latest review petitions, filed mainly by real estate developers who started building without ECs, sought protection under a 2021 Office Memorandum (OM) issued by the Ministry of Environment, Forest and Climate Change (MoEFCC). That OM attempted to create a mechanism to regularise violations of EIA norms.

The majority view in the current review, authored by Chief Justice of India B.R. Gavai and Justice K. Vinod Chandran, relied on earlier two-judge bench decisions to justify reopening Vanashakti and permitting limited post-facto regularisation in specific cases.

Justice Bhuyan rejected this approach entirely. He called the earlier decisions “per incuriam” for overlooking binding precedent, and said the Court must not retreat from established environmental principles merely because violators seek leniency.

Prior EC Is Mandatory, Not Optional, Judge Emphasises

Justice Bhuyan based his dissent on the framework created by the Environment Protection Act, 1986, and the EIA Notifications of 1994 and 2006.

He noted that the 1994 notification implicitly barred construction without EC, while the 2006 notification made the requirement explicit.

He argued that environmental regulation relies on pre-decisional procedures such as scientific assessments, public hearings, and environmental impact studies. These steps, he said, cannot be retroactively applied once damage has already occurred.

Common Cause and Alembic Judgments Are Binding

Justice Bhuyan anchored his reasoning in two landmark rulings:

• Common Cause v. Union of India (2017)
  Held that prior EC is mandatory and retrospective approval has no place in the legal framework.
• Alembic Pharmaceuticals Ltd. v. Rohit Prajapati (2020)
  Declared ex post facto ECs are contrary to core environmental principles and potentially harmful to the ecosystem.

He said these judgments leave no ambiguity: ex post facto ECs do not exist under Indian environmental law.

He also clarified that the Supreme Court’s decision in Common Cause and Alembic to allow defaulting projects to continue under Article 142 was purely case-specific and cannot be treated as permission to grant ex post facto clearances.

By contrast, later judgments in Electrosteel Steels (2021), Pahwa Plastics (2023), and D. Swamy (2022), which allowed limited ex post facto regularisation, failed to follow binding precedent and “went on a tangent,” he said.

2017 Regularisation Window Was One-Time; 2021 OM Invalid

Justice Bhuyan examined the 2017 one-time regularisation window introduced by the Environment Ministry, which allowed violators six months to apply for retrospective clearance. This window closed in September 2017 and was extended only once after the Madras High Court’s intervention.

The Centre itself assured the High Court that the window would not be reopened.

Justice Bhuyan noted that the government never withdrew this commitment. Therefore, he held that the 2021 OM, issued four years later, contradicted the statutory scheme and was rightly struck down in Vanashakti.

‘Illegal Construction Cannot Be Justified’

He dismissed the argument that demolishing illegal structures would create more dust and pollution. Such reasoning, he said, cannot be used by those who violated the law in the first place.

“It does not lie in the mouth of law violators to advance such justification,” he wrote, adding that the Environment Ministry itself had not sought a review of the Vanashakti judgment.

Courts Must Not Move Backward on Environmental Protection

Drawing from the global principle of non-regression, Justice Bhuyan warned that allowing ex post facto ECs would undo decades of progress since the Stockholm (1972) and Rio (1992, 2012) environmental conferences.

He emphasised that the precautionary principle, not the polluter-pays doctrine, forms the backbone of environmental law.

Calling the majority view “a step in retrogression,” he concluded that the review petitions lacked merit and deserved outright dismissal. He added that only those who had applied within the lawful 2017 window could seek limited clarifications, but such exceptions did not justify reopening the settled rule that prior EC is non-negotiable.