Alembic Pharmaceuticals Ltd. Versus Rohit Prajapati and Others 2020 SCC OnLine SC 347
News Report by: Yatish Kumar Goel, Advocate www.gcsl.in
The order of the Supreme Court of India, on April 1, 2020, is significant as it upholds the principles of environmental law which conflict with the direction that the Indian government’s Ministry of Environment, Forest and Climate Change (MoEFCC) seeks to take.
“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. It is, as the judgment in Common Cause holds, detrimental to the environment and could lead to irreparable degradation,” noted a bench of Justice Dhananjaya Y. Chandrachud and Justice Ajay Rastogi.
The SC order was in a case related to three industrial units – Alembic Pharmaceuticals Limited, United Phosphorous Limited and Unique Chemicals Limited – involved in the manufacture of pharmaceuticals and bulk drugs at the industrial area of Ankleshwar in Gujarat that operated for several years without valid environment clearances.
The court noted that from the material placed on the record by the industries, it becomes evident that all three abdicated the responsibility of obtaining timely consents and authorisations from the GPCB (Gujarat Pollution Control Board) and the functioning of the three factories without a valid EC would have had an adverse impact on the environment, ecology and biodiversity in the area where they are located. The SC order noted that Ankleshwar in Gujarat, the area where the three industrial units are located, has consistently shown critical levels of air pollution.
According to the Comprehensive Environmental Pollution Index (CEPI) prepared by the Central Pollution Control Board, which looked at environmental quality at 88 industrial clusters across the country, Ankleshwar has consistently shown critical levels of pollution over the years.
The court held that while some of the environmental damage caused by the operation of the industrial units would be irreversible, however, to the extent possible, some of the damage can be corrected by undertaking measures to protect and conserve the environment. Though the apex court decided against the closure of operations of the industries, it held that it “cannot be oblivious to the environmental degradation caused by all three industries units that operated without valid ECs” and directed the three companies to deposit compensation of Rs 100 million (Rs 10 crores) each with the GPCB to be used for the purpose of restitution and restoration of the environment in the industrial area.
The bench observed a retrospective or an ex post facto environment clearance is “alien to environmental jurisprudence” because, before the issuance of an EC, the statutory notification (EIA notification 2006) warrants careful application of mind and a study into the likely consequences of a proposed activity on the environment.
“An EC can be issued only after various stages of the decision-making process have been completed. Requirements such as conducting a public hearing, screening, scoping and appraisal are components of the decision-making process which ensure that the likely impacts of the industrial activity or the expansion of an existing industrial activity are considered in the decision-making calculus,” the Supreme court bench held, adding that 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 bench noted.
The SC invoked Article 142 of the Indian constitution for this order which allows it to pass an order for doing complete justice in any cause or matter pending before it.