Contents
Introduction
India’s environmental governance framework—framed under the Environment (Protection) Act, 1986 and EIA Notification 2006—rests on prior approvals, yet recurring post-facto clearances expose regulatory dilution, ecological risks, and weakening of ex-ante environmental safeguards.
Legal Implications of Post-Facto Environmental Clearances
- Contradiction to “ex-ante” principle of EIA: The core rationale of the Environmental Impact Assessment is preventive environmental jurisprudence, enabling informed decision-making before project activities begin. Common Cause vs. Union of India (2017) and Alembic Pharmaceuticals (2020) held post-facto ECs as legally impermissible for activities requiring prior EC.
- Erosion of “Polluter Pays” and “Precautionary Principle”: These principles—integral to Indian environmental jurisprudence since Vellore Citizens’ Welfare Forum (1996)—become weak when violations can be “regularised” after the fact by paying fines.
- Normalising illegality: Post-facto ECs can legitimize unlawful constructions and industrial operations undertaken without mandatory permissions. This undermines:
- Article 21 (Right to clean environment)
- Public Trust Doctrine
- Credibility of the regulatory system
- Regulatory arbitrariness and judicial inconsistency: Reversing the Vanashakti (May 2025) ruling and reopening the legality of post-facto ECs risks inconsistent application and the perception of “regulatory backdoor entries”.
- Impact on federal environmental governance: State authorities, already burdened, may use post-facto clearances to bypass procedural rigour, weakening the National Green Tribunal’s deterrent role.
Ecological Implications
- Environmental damage becomes irreversible: Once construction, mining, deforestation, or industrial emissions begin, ecological impacts—groundwater contamination, habitat fragmentation, biodiversity loss—are often irreversible or expensive to remediate.
- Loss of cumulative impact assessment: Post-facto approvals negate Cumulative Impact Assessment, Strategic EIA, and Carrying Capacity Studies—critical in ecologically fragile zones such as:
- Western Ghats (Gadgil & Kasturirangan Reports)
- Aravallis
- Himalayan states prone to landslides
- Ineffectiveness of ex-post mitigation: Mitigation measures post-construction become “cosmetic”, not structural. A 2022 CAG Report observed that 40% of EIA conditions remain unmonitored, making post-facto compliance almost impossible to verify.
- Encouragement of environmental moral hazard: Industries may knowingly violate norms, expecting future “regularisation”—creating a pollution-friendly moral hazard.
Why Reversing the Vanashakti Ruling Must Remain an Exception
- Maintaining rule of law in environmental governance: Allowing post-facto ECs as a norm dilutes statutory procedures and violates the object of the EPA 1986 and EIA notification that explicitly mandate prior clearance.
- Avoiding discrimination between past and future violators: The argument of differential treatment—used by the majority judgment—is valid, but should be addressed by tightening legacy clearances, not reopening the path for fresh violations.
- Preserving India’s environmental credibility: India’s commitments under Paris Agreement, CBD, and SDG-13 and SDG-15 require strong domestic compliance mechanisms—not retrospective relaxations.
- Exceptional allowance only in extraordinary circumstances: Limited post-facto clearance may be acceptable when: Substantial public investments are already committed, no irreversible ecological damage has occurred and strict penalties and compliance audits accompany approval. But these must remain narrow, rare, and time-bound exceptions.
Conclusion
As highlighted in Ostrom’s institutional governance insights, sustainable environmental regulation demands robust, preventive frameworks; hence, post-facto clearances must remain rare exceptions to uphold ecological integrity and legal certainty.
