Editorial 2: Green exception should not become the rule
Context:
The Supreme Court has reopened the debate on legality of post-facto environmental clearances, raising concerns about diluting environmental safeguards.
Introduction
India’s environmental governance is anchored in the Environmental Impact Assessment (EIA) framework, which ensures that development projects undergo scrutiny before execution. Over the years, successive governments have diluted EIA norms, allowing projects to seek ex-post facto (post-facto) clearances. The Supreme Court had previously termed such clearances “illegal”, but the issue has been referred to a larger bench, reopening the debate between development needs and ecological security.
Key Issues Highlighted in the Editorial
- Supreme Court’s Changing Position on Post-Facto Clearances
- In May 2025, a two-judge SC bench struck down the 2017 MoEFCC notification and 2021 OM that legitimized post-facto clearances.
- It held that allowing work to start without prior EC “systematizes violations” of EIA norms.
- On 19 November 2025, a three-judge bench recalled this judgment and referred the issue to a larger bench, citing concerns that projects worth ₹20,000 crore would otherwise face demolition.
- Justice Ujjal Bhuyan dissented, reiterating: “There is no concept of ex-post facto clearance in environmental law.”
Precautionary Principle & Environmental Jurisprudence
- The precautionary principle is part of Indian environmental law through:
- Vellore Citizens’ Welfare Forum vs Union of India (1996)
- Article 21 (Right to Life)
- Article 48A and 51A(g)
- The principle mandates that environmental harm must be prevented even without full scientific certainty.
- The Court has consistently used this principle to:
- halt destructive mining,
- protect forests and wildlife,
- regulate pollution,
- strengthen environmental clearances.
Why EIA Matters?
- Environmental Impact Assessment ensures:
- scientific evaluation of risks,
- public consultation,
- alternative analysis,
- transparency and accountability.
- UNEP (United Nations Environment Programme) identifies EIA as a core preventive tool for sustainable development.
- The 2017 and 2021 amendments weakened this framework by allowing developers to seek clearance after violating norms.
The “Public Interest” Argument and Its Risks
- CJI Gavai emphasized that certain exceptions may be necessary for:
- national security projects,
- essential healthcare services,
- critical connectivity for remote regions.
- However, expanding exceptions can undermine:
- climate adaptation goals,
- environmental rule of law,
- safeguards for indigenous communities,
- India’s commitments under Paris Agreement (2015) and Nationally Determined Contributions (NDCs).
- The challenge is to prevent “exceptional” situations from becoming routine shortcuts.
Development vs Environment: SC’s Caution
- The Court has repeatedly urged the government to avoid the simplistic development vs environment binary, noting that:
- long-term ecological damage reduces economic productivity,
- vulnerable communities suffer disproportionately,
- climate change intensifies natural disasters.
- Recent climate-related disasters (heatwaves, floods, landslides) show that ignoring environmental norms has direct livelihood and health consequences.
What the Bench Must Now Re-examine
- The larger bench must consider:
- Whether post-facto clearances violate Articles 21, 48A, 51A(g).
- Whether economic loss can justify environmental violations.
- Whether allowing retrospective approvals incentivises illegal project construction.
- How to reconcile urgent public-interest projects with environmental safeguards.
Conclusion
India’s environmental jurisprudence has consistently emphasized prevention, accountability, and the constitutional right to a clean and healthy environment. While certain exceptions may be justified for genuine public interest, they must remain strictly limited. The Supreme Court’s upcoming decision will significantly shape the future of environmental governance in India—balancing developmental imperatives with ecological integrity.