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'Ex Post Facto' Environmental Clearance Unsustainable In Law
In the case of Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors., the Supreme Court bench comprising of Justice D Y Chandrachud and Justice Ajay Rastogi set aside the National Green Tribunal (NGT) direction for closure of the industries, and directed them to pay Rs 10 crores compensation each.
The case pertained to the following industries which were engaged in the manufacture of pharmaceuticals and bulk drugs at the industrial area of Ankleshwar in Gujarat:
- Alembic Pharmaceuticals
- Unique Chemicals
- Darshak Pvt. Ltd. and Nirayu Pvt. Ltd.
The bench stated that the direction for closure was disproportionate and allowed the resumption of operations by the industries on condition of payment of the compensation.
The Apex Court upheld the 2016 order of National Green Tribunal setting aside a circular issued by Ministry of Environment and Forests which envisaged the grant of post facto ECs.
The Court agreed with the NGT's finding that the circular was unsustainable in law. The circular allowed industries which had commenced operations without obtaining EC in terms of the Environment Impact Assessment notification of 1994 to obtain the same by an extended date in 2003.
In this regard, the bench followed the decision of the Court in Common Cause vs Union of India, which held that ECs cannot be granted post-facto.
The Court directed the defaulting industries to pay compensation by refering to the powers under Article 142 of the Constitution of India.
The amount should be deposited with GPCB and it shall be duly utilised for restoration and remedial measures to improve the quality of the environment in the industrial area in which the industries operate
In conclusion, the Hon'ble Court held that the concept of 'ex post facto' Environmental Clearance (EC) is against the fundamantal principles of environmental jurisprudence.
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