The case of Fatima vs Union of India raised significant environmental concerns surrounding the issuance of ex post facto environmental clearances¹.

I. KEY ISSUES:

1. The kernel of the issue is whether Environmental Clearances (“EC”) which are imperative for certain projects/ activities can be issued ex post facto i.e., post project or post commencement of project?
2. Whether the Ministry of Environment, Forest, and Climate Change (“MoEF”) could issue notifications, such as the Standard Orders (“SO”) and Office Memorandum (OM), General Statutory Rules (“GSRs”) (being collectively referred to as “Instruments”), to allow ex post facto clearances under the Environment Protection Act, 1986 (“EPA”) without contradicting the Environmental Impact Assessment (“EIA”) Notification 2006 and Coastal Zone Regulation (“CRZ”) 2011 requirements?

II. THE CORE FACTS IN A NUTSHELL:

1. The MoEF issued Office Memorandums dated (i) 19^th February 2021 bearing number F.No.19-27/2015-IA.III (Regulatory framework to deal with violations for non-procurement of prior CRZ clearance) and (ii) 7^th July 2021 bearing number F.No.22-21/2020-IA.III (Standard Operating Procedure (“SOPs”) for identifying and managing violations under EIA) that effectively allowed for ex post facto environmental clearances, impacting projects already in violation of EIA and CRZ requirements.
2. Writ Petition (MD)No.8866, Writ Petition No.18829 of 2021 and Writ Petition (MD) No. 11757 of 2021 have been filed under Article 226 of the Constitution of India for calling the records of OMs dated 19^th February 2021, and 7^th July 2021& quashing the same. Whereas the Contempt Petition No.56 of 2022 has been filed under Section 11 of the Contempt of Courts Act, 1971 seeking to punish the MoEF for willful disobedience and non-compliance of the Order of this Hon’ble Madaras High Court dated 13^th October 2017. The Hon’ble Supreme Court is also in seizin of the matter in a Special Leave Petition (C) Diary no.33840/2023.

III. COURT’S OBSERVATION:

1. Ex Post Facto Clearances Unlawful: The Hon’ble Court ruled that ex post facto clearances violate the statutory requirement for ‘prior’ environmental clearance under the EIA and CRZ. The OM does not pass the muster in the instant legal drill. However, the Hon’ble Madaras High Court moulded the relief taking into account various attendant circumstances. The EPA, 1986 does not forbid ex post facto EC, however it is significant to note that there is no enabling provision for giving ex post facto EC. . The OM are executive instructions. That there can be only two kinds of projects/ industries i.e., those which are ‘prohibited’ and those which are ‘permissible’. The logic is, if it is prohibited, the question of applying for prior EC does not arise at all. In other words, only those industries which are not prohibited can apply for prior EC. Therefore, ‘otherwise permissible’ is not a third category. The categories remain binary.² When projects commence operation without applying for prior EC that creates an allusion that there is a third category. Thus, not applying for prior EC is clearly a violation as essential determining factor such as distance from forest, wildlife corridor, ground water table, etc would have been altered by the time ex post facto application is taken up.Limitations on Government Power: The Hon’ble Madras High Court held that the power to issue notifications is available under Sections 3 and 5 of the EPA, 1986 but the point is threefold i.e., One, it should be for environment protection, two, is earlier EIA notification and CRZ notification, 2011 mandate ‘Prior EC’ and that project proponents commencing without EC is clearly a violation / breach and it provides certain S O P and ground for ex post facto EC. Third, Hon’ble Supreme Court has repeatedly held that ex post facto clearance should be resorted to as an exception. Be that as it may, the underpinning philosophy is, this power can be used only for protecting the environment and abating environment pollution³. It is evident that it cannot be used for nullifying the 2006 EIA Notification which makes prior permit essential⁴Prospective Nullification of OMs: The Hon’ble Madras High Court held that the OMs neither protect environment nor abate environmental pollution. If ex post facto EC applications are taken up, even if EC is not given i.e., even if ex post facto EC applications are rejected, the damage to environment would have happened and many a times, it can be an irreversible damage which can lead to human catastrophes and environmental/ natural disaster, therefore the OMs deserve to be set side. The Hon’ble court struck down the SOP and OMs but allowed existing applications to be reviewed on a case-by-case basis by applying the doctrine of Prospective Overruling.

IV. CASE ANALAYSIS:

1. Upholding Environmental Integrity: By rejecting ex post facto clearances as a norm, the Hon’ble Madras High Court sets an impactful precedent by reinforcing the intent of environmental legislation, aiming to prevent environmental harm before it occurs.
2. Judicial Emphasis on Prior Permission: The Hon’ble Court placed reliance on the following Supreme Court Judgments in Pahwa Plastics⁵ as well as in Alembic⁶, wherein the Hon’ble Court has held that ex post facto EC should not be permissible as a standard practice and the same may be resorted to only in exceptional circumstances.
3. Judicial Review and Accountability Mechanism : The Judgment upholds the legislative intent which is in conscience with the international commitments of India for upholding the Principles of Sustainable Development. It categorically showcases that Executive Rules must be in harmony with the legislative’s intent i.e., Protection of Environment before an irreparable loss has been caused. In essence the Hon’ble Madras High Court uploads the polluter pays principle by holding the project proponents accountable for environmental destruction.
4. Interfering with the OM prospectively: Doctrine of prospective overruling initially confined to Constitution, subsequently it has been made applicable to other areas of law. The quashing aside of the OM is applicable prospectively, if applications for ex post facto EC had already been made, the same shall be carried to its logical end undeterred by the order. Albeit, the Hon’ble Madras High Court allowed the Government of Tamil Nadu to apply for ex post facto EC in one of their IT Tower projects on the ground that they had been built at huge costs by ploughing public money.

V. CONCLUSION

This decision, by striking down provisions that allowed retrospective clearances, serves as a precedent for stringent environmental regulation and could deter similar governmental attempts to dilute procedural safeguards. It reflects to India’s commitment to Sustainable Development Goals and Principles as enshrined in the International Treaties such as the Rio Declaration and emphasizes that regulatory compliance should precede project implementation. Additionally, the present decision underscores the positive emphasis of Courts on environmentally conscious and sustainable development practices.

Footnotes

1. 2024 SCC OnLine MAD 4514

2. Paragraph 26 (ii)at page 39 of the Order dated 30^th August 2024 in the matter of Fatima vs. Union of India, & Ors.(W.P.(MD)Nos.8866 and 11757 of 2021 and W.P.No.18829 of 2021 and Cont.P.No.56 of 2022).

3. Ibid- 1, Paragraph 26 (i)at page 39.

4. Ibid- 1, Paragraph 26 (ii)at page 40.

5. Pahwa Plastics Pvt. Ltd. vs. Dastak NGO and Others (2022 SCC OnLine SC 362)

6. Alembic Pharmaceuticals Limited vs. Rohit Prajapati (2020 17 SCC 157)

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