Supreme Court’s Verdict on Ex-Post-Facto Environmental Clearance
Context
In a landmark judgment, the Supreme Court of India invalidated the Union Government’s executive orders that sought to regularise environmental violations by granting ex-post-facto environmental clearances to projects that began operations without prior approval.
Key Dimensions
Background
- 2017 MoEFCC Notification: Allowed a six-month window for projects that bypassed prior EC to apply for clearance retrospectively.
- 2021 SOP: Operationalised the 2017 provision, enabling violators to continue operations through a “standard” route.
- Legal Challenge: These were seen as violating the Environment (Protection) Act, 1986, and EIA Notification, 2006, which mandate prior clearance.
Supreme Court’s Key Observations
- Declared 2017 & 2021 Measures Illegal: Held ultra vires the parent Act.
- Right to Clean Environment = Article 21: Reinforced its status as a fundamental right.
- Environmental Damage ≠ Monetary Penalty: Economic fines cannot substitute prior clearance.
- Criticism of Executive: Accused the government of “going out of its way” to protect violators.
- Precedents Cited: Common Cause v. Union of India (2017) — Ex-post-facto approvals unsustainable in law.
Legal Framework Reaffirmed
| Law/Provision | Relevance |
| Environment (Protection) Act, 1986 | Empowers government to enforce environmental safeguards, mandates prior EC |
| EIA Notification, 2006 | Structured assessment process including public consultation and prior approval |
| Article 21 (Right to Life) | Judicial interpretation includes right to a clean and healthy environment |
Implications of the Judgment
- Rule of Law Restored: Limits arbitrary executive powers.
- Boost to Environmental Governance: Strengthens role of regulatory bodies.
- Discouragement of Illegal Practices: Prevents rewarding of violators.
- Public Health Emphasised: Links environmental protection to urban health crises (e.g., Delhi pollution).
- Judicial Independence: Courts remain vigilant in upholding statutory and constitutional mandates.
Critique of Government’s Justifications
| Justification | Court’s Response |
| Economic Loss | Cannot override environmental laws |
| Fines as Substitutes | Punitive ≠ Substitutive; fines don’t restore environmental balance |
| Right to Employment | Must be balanced with ecological sustainability |
Lessons for Environmental Policy
- No Shortcuts: Prior EC must be non-negotiable.
- Institutional Strengthening: SEIAAs and Pollution Control Boards need capacity-building.
- Codification Needed: Judicially established norms against post-facto clearance should be legislatively embedded.
- Sustainable Development: Economic growth must not undermine long-term ecological well-being.
Way Forward
- Enhance Institutional Capacity: Skilled manpower, technology, and inter-agency coordination.
- Increase Transparency: Public access to EIA reports, approvals, and compliance data.
- Strengthen Public Participation: Ensure informed and inclusive consultations.
- Legal Reforms: Amend EIA Notification to expressly forbid post-facto approvals.
- Empower Judiciary and Regulators: Enable enforcement and restoration mechanisms.
Conclusion
The Supreme Court’s judgment is a decisive vindication of environmental justice and constitutional morality. It asserts that industrial growth cannot come at the expense of ecological integrity. The verdict is a clarion call for India to adopt sustainable development as a central pillar of policy — where law, environment, and public interest converge.
