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The Delhi High Court bench led by Chief Justice DN Patel today issued notice in a petition by a student challenging the Ministry of Environment, Forests and Climate Change's (MOEFCC) decision to prescribe a procedure for granting retrospective environmental clearance to projects.

Shukla has moved Court against an office memorandum passed to this effect dated July 7, 2021 stating that the same is passed without jurisdiction, is in contravention of the Environment (Protection) Act, 1986, the Environment Impact Assessment (EIA) Notification 1994 and EIA Notification 2006, and undermines the rights of people under Articles 21 and 48-A of the Constitution.

The petitioner, one Nishtha Shukla points out that it is not only beyond the jurisdiction of the government to uproot the provisions of a subordinate legislation through an office memorandum, but the procedure is also likely to result in serious environmental degradation by giving violators an opportunity to "regularize their operations" by obtaining ex post facto approvals. 

She presses that restrictions placed via the requirement of an Environmental Clearance before the initiation of any project, forms the very backbone of environmental jurisprudence of the country - as currently, the opportunity to obtain such clearances for projects that have already begun does not exist and is not envisaged in law. 

She also points out that the present law and subordinate legislations, i.e. the Environment (Protection) Act, 1986, the Environment Impact Assessment Notifications of 1994 and 2006 are based on the precautionary principle, which again, the issued office memorandum seeks to overhaul completely. 

Shukla, a 3rd year student of Vastukala Academy, School of Architecture, Guru Gobind Singh Indraprastha University, states that the move is also in the teeth of various judgments of the Supreme Court of India, including Common Cause vs Union of India, Alembic Pharmaceuticals Ltd vs Rohit Prajapati & Ors, etc. 

The Bench of Chief Justice DN Patel and Justice Jyoti Singh gave the Central government time till March 29 to file its response.

The petition, filed by student Nishtha Shukla through Advocates Chirag Jain and Shobit Shukla, adds that,

The OM vests ‘Central Sectoral Expert Appraisal Committees’ or state-level bodies with the discretion to conduct public hearing, which again is in direct contravention of the EIA notification 2006 which requires all projects except for the ones mentioned therein to have a mandatory public hearing process.

The said communication had earlier been challenged before the Madurai bench of Madras High Court which had stayed it in July.1

In this backdrop Shukla has sought a writ of mandamus/certiorari to quash the impugned office memorandum.

Cause Title: Nishtha Shukla vs Union of India