By Md Zeeshanuz Zaman*

Introduction to the Concept of Ex Post Facto Law

The Indian government set up the National Committee on Environment Planning and Coordination, whose principal task was to devise policies on environmental issues and advise the concerned ministry in 1972.  In 1980, the Impact Assessment Division was established, which was entrusted with the responsibility of environmental appraisal of projects. The first subordinate legislation that had a major impact on these enviro-legal issues was the Environment Impact Assessment (hereinafter referred to as “EIA”) notification of 1994. This stipulated that for every building, expanding or modernizing projects, an Environmental Clearance (hereinafter referred to as “EC”) would be mandatory. The notification was amended and replaced in the year 2006, following which, the environment ministry has recently in March last year, released the draft EIA of 2020. The recent draft has attracted criticism for stimulating the scope for ex post facto environmental clearances.

Merriam-Webster dictionary defines ex post facto law as “a law that retroactively alters a defendant’s rights especially by criminalizing and imposing punishment for an act that was not criminal or punishable at the time it was committed, by increasing the severity of a crime from its level at the time the crime was committed, by increasing the punishment for a crime from the punishment imposed at the time the crime was committed, or by taking away from the protections (as evidentiary protection) afforded the defendant by the law as it existed when the act was committed.”

Analysis of the Ex Post Facto Clause 

Clause 22 of the draft EIA 2020 authorizes a project or an activity to continue its operations without obtaining environmental clearance. The project can apply for clearance at a later point in time. This was also a matter of concern during the EIA 2006 regime, as the government had issued several Office Memoranda, thereby validating the ex post facto ECs. Such measures did not go down well and the National Green Tribunal in the case of S.P. Muthuraman v. Union of India declared the Office Memoranda as ultra vires the Environment Protection Act 1986 and the notification of 2006. Following which, appeals were filed before the Hon’ble Supreme Court of India against such order, and the Apex Court had upheld the observation made by the Learned Tribunal concerning such ECs.

On 14th May 2002, a circular was issued by the Ministry of Environment and Forests, which extended the time limit for obtaining ex-post-facto ECs and thereby empowered the defaulting industries to obtain clearance at a later stage. In 2016, around 313 industrial units were found to be flouting major environmental laws. Subsequently, the National Green Tribunal directed the immediate closure of all such units and struck down the EC procedure that had been adopted from 1998 to 2002 as it granted ex-post facto ECs to over 300 chemical units which had been operating all this while across India.

Recently, in 2020, the Principal Bench of the National Green Tribunal declared the environmental clearance issued to Kaleshwaram Lift Irrigation Project to be unlawful since the clearance obtained was ex post facto.

From a close perusal of the draft, it can be well perceived that the ex post facto provision will expedite the legitimization of many projects which are antithetical to the environment and will empower the industrialists to evade the initial regulatory protocols. The cardinal aim of mandating the procurement of an EC has been vitiated. The environment now lies completely vulnerable and there is every possibility of exploitation under the garb of promoting industrial development.

Relevant Judicial Decisions and the Environmental Concern

There have been several past instances where the judiciary has expressed strong disapprobation and has censured the government for the application of ex post facto provisions in environmental issues. In the landmark case of Common Cause v. Union of India, the Apex Court had observed that: “The grant of an ex post facto environmental clearance would be detrimental to the environment and could lead to irreparable degradation of the environment… The concept of an ex post facto or a retrospective EC is completely alien to environmental jurisprudence including EIA 1994 and EIA 2006. We make it clear that an EC will come into force not earlier than the date of its grant.“

In the case of Alembic Pharmaceuticals Ltd v. Rohit Prajapati, the Supreme Court had held that “The concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA notification dated 27 January 1994…. Allowing for an ex post facto clearance would essentially condone the operation of industrial activities without the grant of an EC. In the absence of an EC, there would be no conditions that would safeguard the environment. Moreover, if the EC was to be ultimately refused, irreparable harm would have been caused to the environment. In either view of the matter, environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development.“

The aforesaid judicial decisions substantiate the contentions that have been placed against the legitimacy of ex post facto environmental clearances. It is vividly perceptible that such a provision has been incorporated to subvert and nullify the previous decision of the National Green Tribunal, which has also been subsequently appealed before the Apex Court. 

Although Clause 22(1) lays down multiple ways by which cognizance of any violation can be made, the ex post facto provision is bound to impede such cognizance. Numerous mega-projects are being sanctioned at an alarming rate which often leaves behind a colossal impact on the biodiversity of the place. Such irreversible damages are mostly left uncompensated. The curtailment of appraisal procedures will lead to rampant licensing of projects even on non-compliance with environmental regulations. 

Conclusion

The draft EIA of 2020 has evoked strong condemnation from several environmental groups and has received over 1.7 million objections, comments, and suggestions. On the other hand, a certain section of stakeholders has opined that the condonation of a delay in obtaining an EC would foster industrial growth and has supported the present draft on such grounds. It is discernible that the government has to cater to the varying demands of the people, which can only be achieved through sensible governance. In conclusion, it can be stated that developmental projects cannot be propelled at the cost of ecological degradation. It is thus an obligation on the government to undertake due caution in its decisions and actions to boost development and at the same time ensure a sustainable environment.

*Md Zeeshanuz Zaman is a fifth year law student at Department of Law, University of Calcutta.