Supreme Court Verdict on Post-Facto Environmental Clearances

India, the fifth-largest economy globally, is also home to 14 of the 20 most polluted cities in the world (IQAir Report, 2023). Delhi’s Air Quality Index (AQI) often exceeds 400 in winter months, leading to severe public health crises. According to the Economic Survey 2022-23, pollution-linked ailments impose a 1.3% burden on India’s GDP annually, while the World Bank (2021) estimated that environmental degradation costs India $80 billion per year.

In this context, the Supreme Court’s landmark ruling on May 16, 2025, striking down the Ministry of Environment, Forest and Climate Change’s (MoEF&CC) 2017 notification and the 2021 Office Memorandum (OM) allowing post-facto environmental clearances, emerges as a judicial reaffirmation of India’s environmental conscience. The apex court declared such clearances “illegal,” reinforcing that sustainable development cannot be built on legal loopholes or institutional apathy.

Why the Supreme Court Struck Down the Centre’s Orders on Retrospective Environmental Clearances?

The Environmental Impact Assessment (EIA) Notification, 2006, mandates that projects must receive prior environmental clearance before any activity commences. However, the 2017 notification and the 2021 OM permitted ex-post facto clearances—a move the Court has now deemed contrary to law and constitutional morality.

Key Judicial and Legal Grounds:

1. Violation of EIA 2006: The EIA process involves four critical stages—screening, scoping, public consultation, and appraisal. Allowing clearances after project initiation defeats this purpose.
2. Alembic Pharmaceuticals v. Rohit Prajapati (2020): The Supreme Court unequivocally held that post-facto clearances are an “anathema” to environmental law and a derogation of the precautionary principle.
3. Common Cause v. Union of India (2017): The Court ruled that environmental clearance is not a mere formality and must precede any industrial activity.
4. Article 21 Violation: The verdict noted that ex-post facto clearances violated citizens’ right to a pollution-free environment and health, both recognized under Article 21.
5. Centre’s Contradictions: Despite promising in the Madras High Court that the 2017 notification was a one-time measure, the Centre extended this through the 2021 OM, approving over 100 violations, including coal, bauxite, and limestone mines.
   This series of evasive tactics led the Court to remark that the Centre “went out of its way to protect those causing environmental harm.”

What are the Constitutional Imperatives and Court’s Rationale?

India’s constitutional vision for environmental protection is robust and wide-ranging:

1. Article 21: Right to Life: Expanded through judicial interpretation, it includes the right to clean air, safe water, and a healthy environment. The Court reiterated, “We cannot allow environmental protection to become a post-facto penalty system.”
2. Article 48A and 51A(g): Environmental Duties: Directive Principles and Fundamental Duties impose both governmental and citizen obligations to “protect and improve the environment.” The judgment observed, “Even the Central Government has a duty to protect and improve the natural environment.”
3. Article 14: Equality Before Law: By offering amnesty to knowing violators, the government violated the principle of equality. Law-abiding project proponents were effectively penalized.
4. Pragmatic Constitutionalism and Judicial Responsibility under Article 142: While prior cases like Alembic and Electrosteel Steels allowed exceptions under Article 142, the Court clarified that such extraordinary powers cannot become the norm. While striking down the regime, the Court preserved clearances already granted under the 2017 and 2021 provisions, showing pragmatic restraint under Article 142, ensuring that ongoing operations are not disrupted overnight.
5. Environmental Jurisprudence Embraced: Citing its own precedents, including Vellore Citizens’ Welfare Forum v. Union of India (1996) and M.C. Mehta cases, the Court emphasized the Precautionary Principle and Polluter Pays Principle as foundational tenets of environmental law.

What is the Significance of the Verdict Across Sectors?

1. Restoration of Environmental Rule of Law: The Supreme Court reinforced the precautionary principle, public trust doctrine, and inter-generational equity, pillars of environmental jurisprudence. It invalidated post-facto clearances, restoring the legal authority of the EIA 2006 Notification—e.g., Sterlite and Goa mining cases.
2. Judicial Reinvigoration of the EIA Regime: By mandating prior environmental clearance, the Court strengthened public consultation and due diligence in project approvals. This empowers communities through mandatory public hearings, restoring transparency in decisions affecting local ecology.
3. Strengthening Institutional Accountability: The Court criticized the Centre for going “out of its way” to protect violators, calling it a breach of constitutional duties. This upholds Article 48A and 51A(g) of the Constitution, holding regulatory agencies like MoEFCC accountable to the rule of law.
4. Sectoral Impact and Economic Rationale: Industries such as mining, cement, steel, and real estate—beneficiaries of post-facto approvals—must now undergo stringent scrutiny. Over 100 illegal projects, including coal and iron ore mines, were regularized under the 2017–21 amnesty.
5. Public Health and Social Justice: The ruling acknowledges that 1.6 million deaths in 2019 were linked to air pollution (Lancet), affecting vulnerable groups. It integrates environmental protection with Article 21 (Right to Life), recognizing clean air and water as essential rights.
6. Reaffirming Economic and Ecological Sustainability: With 5.7% of India’s GDP lost annually to environmental degradation (World Bank, 2021), the judgment aligns economic planning with long-term ecological viability. It supports green growth over extractive, short-term gains.
7. Global Resonance and Climate Commitments: India’s EPI rank (180/180 in 2022) exposed governance gaps, but this verdict helps align with the Rio Declaration and Paris Agreement goals (SDG 13 & 15). It boosts India’s credibility in global climate forums like COP and G20.
8. Civil Society and Judicial Synergy: Praised by Sunita Narain, CSE, and PRS Legislative Research, the ruling echoes warnings by the 2021 Parliamentary Standing Committee against legalizing violations. It reflects a convergence of civil society vigilance and judicial activism.

What are the Challenges in Implementing the Ruling?

1. Weak Regulatory Capacity and Capture: Pollution Control Boards lack autonomy, funding, and expertise, making them vulnerable to industrial influence (Parliamentary Standing Committee, 2021). For instance, the CAG Report (2022) found that 40% of environmental clearance (EC) conditions were not monitored.
2. Legal and Institutional Fragmentation: Delays in updating the EIA Notification (pending since 2020) and overlapping mandates between MoEF&CC, NGT, and SPCBs create confusion. This fragmented regime undermines cohesive implementation—e.g., in the Vizag LG Polymers gas leak case.
3. Ineffective Penalties and Enforcement: Under the Environment Protection Act, 1986, maximum penalties often do not exceed ₹1 lakh, inadequate to deter corporate violators. Between 2017–2021, over 55 projects received approvals without due diligence, violating SC directives.
4. Public Consultation Erosion: Public hearings are often bypassed or manipulated, especially in tribal and rural areas, weakening democratic oversight. For example, draft EIA 2020 proposed exempting several projects from public consultation, triggering widespread protests.
5. Data Deficiency and Lack of Transparency: Environmental impact data is often inaccessible or outdated, undermining community and expert oversight. The absence of real-time monitoring systems impedes compliance audits and early-warning mechanisms.
6. Political-Economic Conflict: The push for “Ease of Doing Business” often clashes with environmental safeguards, leading to policy dilution. The EIA 2020 draft was widely seen as favoring industrial interests over ecological sustainability.
7. State-Centre Federal Tensions: States may invoke autonomy to dilute central norms, citing development imperatives. For instance, Andhra Pradesh and Odisha have bypassed MoEF&CC clearances for infrastructure and mining projects.
8. Judicial and Administrative Delays: Environmental litigation often suffers from protracted delays, weakening deterrence and eroding public trust. Many NGT orders face slow implementation, as seen in the Bellandur Lake pollution case in Bengaluru.

What can be the Way Forward?

1. Revamp and Codify the EIA Process: Finalize a transparent, participatory EIA framework that mandates early community engagement and prohibits post-facto clearances. For instance, Canada’s Impact Assessment Act ensures inclusive decision-making from project inception.
2. Strengthen Institutional Capacity: Reform and autonomise Pollution Control Boards by hiring experts in ecology, health, and economics, and increasing budgetary allocations. The ₹900 crore proposed in Budget 2023–24 is inadequate given the scale of enforcement needs.
3. Real-Time Digital Monitoring: Mandate Continuous Emission Monitoring Systems (CEMS), satellite surveillance, and platforms like PARIVESH to track compliance in real time. The upcoming NASA-ISRO NISAR mission can aid in detecting land-use and deforestation violations.
4. Citizen-Centric Participation: Make public hearings binding, accessible in local languages, and integrate mobile-based grievance redressal systems. This mirrors global best practices like the Aarhus Convention on environmental rights and public access.
5. Higher Penalties and Legal Deterrence: Amend the Environment Protection Act, 1986 to impose stiff financial penalties and criminal liability on repeat offenders. The UK’s Environmental Liability Directive serves as a model, making polluters pay for full restoration.
6. Judicial and Administrative Reform: Set up judicial monitoring cells and environmental benches as proposed by the Law Commission, and include ecological jurisprudence in NJA training. This ensures faster resolution of cases like the Bellandur Lake pollution case.
7. Fiscal and Green Budgeting Incentives: Integrate environmental performance into Union Budget allocations, and promote eco-friendly investments via green bonds and ESG-based tax incentives. Example: The EU Green Deal’s funding model promotes circular and low-carbon economies.
8. Learn from Global Frameworks: Align with international frameworks like UNEP’s Environmental Rule of Law and emulate models such as the US NEPA and EPA Superfund programs for preventive regulation and swift remediation of environmental damage.

Conclusion:
As the Supreme Court decisively declared: “Conservation of environment and its improvement is an essential part of the concept of development.” This landmark judgment restores the balance between environmental sustainability and industrial growth, reiterating that environmental protection cannot be post-script—it must be the prologue. In the words of Rachel Carson, whose Silent Spring inspired global environmental consciousness: “The more clearly we can focus our attention on the wonders and realities of the universe about us, the less taste we shall have for destruction.” India must now walk the path of development with caution, integrity, and foresight. Anything less would be a betrayal of both nature and future generations.