But the directive from the bench, headed by Chief Justice K G Balakrishnan, came with a rider — all fresh cases examined by the FAC will be considered by the SC-appointed Central Empowered Committee (CEC). Then, a final nod will come from the apex court based on the CEC’s recommendations, said the bench also comprising Justice Arijit Pasayat and Justice S H Kapadia.

This order came in the face of strong criticism by Additional Solicitor General Vikas Singh who questioned the court’s decision to decide on clearances in forest and environment matters. “There is no provision in the Constitution for a judicial emergency, where courts should decide such matters,” he said. “Even in a situation of Emergency in a democracy, it’s the Centre which takes over the functioning of the state’s administration,” he argued.

Arguing that the judiciary should restrain itself from entering the domain of the Executive, Singh emphasized that courts have “absolutely no business” to deal with forest matters. These are purely policy decisions and executive decisions, he pointed out.

“As of today, there is no such grave emergency which would make courts to intervene. More so, when forest cover actually has gone up,” he submitted pointing to the bench the World Forest Report that showed India’s forest cover stood at 22.3 per cent unlike other Asian parts where it is merely 18.9 per cent.

“Things have actually been improving in this country not because courts have been monitoring it but primarily because of the Forest Conservation Act,” the ASG claimed asking: “Why (should) the functioning of FAC be stalled as there has been no valid case for imposing the stay?”

FAC is the highest Government-appointed advisory body that is responsible for all clearances related to any diversion of forest land for purposes like laying of roads, water/sewerage pipelines, power projects, dams etc.

The Ministry of Environment and Forests (MoEF) has been on a collision course with the Supreme Court on appointment of three “non-official” members to this seven-member committee headed by the Director General of Forests. The court ordered the CEC to suggest names for non-official members after CEC objected to the Government appointees.

Strongly resisting this, the Ministry argued that the FAC is part of a statutory regulatory process. It also objected to the nine names proposed by the CEC — these included Belinda Wright, Bittu Sehgal and other activists — saying these were not experts but “enthusiastic laypersons” and didn’t meet qualification guidelines issued in 2004. Instead, the Ministry suggested its own list including a botany scientist and two retired Indian Forest Service officers.

The court today laid down the road ahead for future clearances without explicitly vacating the stay. Dividing all pending projects into broadly “four categories”, the court said that after the FAC reports on fresh projects seeking clearances, these will go to the CEC for consideration and the CEC will finally place its report before the apex court for clearance.

As for projects cleared by FAC after September 15, 2006, these shall go back to FAC “for their views”. The CJI ordered that projects in “parks and sanctuaries” which were accorded sanction by the court “need not come back to the court.” And that the Environment Ministry could grant due sanction.

Amicus curiae, senior counsel Harish Salve, opposed the constitution of FAC with three non-official members. “Let it be constituted without those three members,” he told the Bench, which, however, did not accept his plea.