UPSC Editorial Analysis: Supreme Court, Environmental Jurisprudence & the Debate on Post-Facto Clearances

*General Studies-2; Topic: Government policies and interventions for development in various sectors and issues arising out of their design and implementation.*

Introduction

• India’s development pathway increasingly requires balancing rapid infrastructure growth with ecological protection.

• Over the years, successive governments have diluted environmental safeguards—particularly those related to Environmental Impact Assessment (EIA)—to fast-track development projects.

• The Supreme Court, however, has consistently upheld Article 21 (Right to Life) as including the Right to a Clean and Healthy Environment.

• The current legal debate centres on post-facto environmental clearance—a mechanism that allows a project to obtain green approval after construction or operation has already begun.

• A May 2024 Supreme Court verdict termed these clearances illegal, but a three-judge bench has now recalled the decision and sent the matter to a larger bench.

Background

• The Environmental Impact Assessment (EIA) regime was formalised in 1994, revised extensively in 2006, and further modified through periodic notifications.

• Over the past decade, several relaxations have been introduced: Exemption categories for project types. Post-facto approvals for projects that began without prior clearance. Dilutions in public hearing processes. Reduction in the role of expert committees.

• Exemption categories for project types.

• Post-facto approvals for projects that began without prior clearance.

• Dilutions in public hearing processes.

• Reduction in the role of expert committees.

• Critics argue these changes weaken the precautionary principle, a core principle in global environmental law.

Supreme Court’s Traditional Stance: Strengthening Article 21

• Article 21 has been interpreted expansively to include environmental protection.

• Key decisions shaping environmental jurisprudence: Subhash Kumar v State of Bihar (1991): Right to pollution-free water and air is part of the Right to Life. Vellore Citizens Welfare Forum v Union of India (1996): Integrated the precautionary principle and the polluter pays principle into Indian law. M.C. Mehta series (1980s–2000s): Established foundations for environmental governance on pollution, forests, vehicles, industries, and urban planning.

• Subhash Kumar v State of Bihar (1991): Right to pollution-free water and air is part of the Right to Life.

• Vellore Citizens Welfare Forum v Union of India (1996): Integrated the precautionary principle and the polluter pays principle into Indian law.

• M.C. Mehta series (1980s–2000s): Established foundations for environmental governance on pollution, forests, vehicles, industries, and urban planning.

The SC has repeatedly held that environmental safeguards cannot be subordinate to unregulated development.

The 2024 Verdict: Why the SC Termed Post-Facto Clearances “Illegal”

• In Vanashakti v Union of India, involving a petition by a Mumbai-based NGO, the Court struck down: A 2017 MoEFCC notification. A 2021 Office Memorandum.

• A 2017 MoEFCC notification.

• A 2021 Office Memorandum.

• These instruments created pathways for ex-post environmental approvals, enabling: Industries to begin excavation, construction, or operations before obtaining clearance. Regularisation of violations by paying penalties later.

• Industries to begin excavation, construction, or operations before obtaining clearance.

• Regularisation of violations by paying penalties later.

• The Court ruled: Post-facto approvals contradict the purpose of EIA. They “legalise the illegal”. They undermine public participation and environmental scrutiny.

• Post-facto approvals contradict the purpose of EIA.

• They “legalise the illegal”.

• They undermine public participation and environmental scrutiny.

• The verdict held such clearances unconstitutional, strengthening environmental checks.

Earlier SC Judgments Against Post-Facto Clearances

Common Cause v Union of India (2017)

• Court emphasised: Environmental clearance cannot be mechanical. Post-facto approvals can cause irreversible environmental damage. Violators must face penalties, not be rewarded.

• Environmental clearance cannot be mechanical.

• Post-facto approvals can cause irreversible environmental damage.

• Violators must face penalties, not be rewarded.

Alembic Pharmaceuticals v Rohit Prajapati (2020)

• SC struck down project expansions done without EIA approval.

• Held that: Post-facto approvals violate both statutory requirements and environmental ethics. Public hearings and screening are indispensable for informed decision-making.

• Post-facto approvals violate both statutory requirements and environmental ethics.

• Public hearings and screening are indispensable for informed decision-making.

These judgements reaffirm the precautionary principle and highlight the risk of normalising violations.

The Precautionary Principle as a Constitutional Norm

What the principle means:

• Projects must anticipate and prevent environmental harm before it occurs.

• Absence of full scientific certainty cannot justify delaying preventive action.

Why SC treats it as a constitutional requirement:

• Prevents irreversible ecological degradation.

• Ensures inter-generational equity.

• Upholds Article 21 as a guarantee of healthy living conditions.

Diluting EIA norms or allowing post-facto approvals weakens this foundational safeguard.

The Environment-Development Conflict: Government’s Justification

Governments argue:

• India needs rapid infrastructure expansion to support economic growth.

• Strict norms delay national security projects, hospitals, highways, border infrastructure, etc.

• Remote regions require urgent connectivity and infrastructure.

Examples where exceptions might be justified:

• Hospitals in underserved areas.

• Border roads to address geopolitical threats.

• Disaster-related reconstruction.

However, critics caution against turning exceptions into norms.

The SC’s Warning Against False Binaries

• SC has repeatedly warned that: Development vs environment is a false binary. Sustainable development must integrate ecological protection.

• Development vs environment is a false binary.

• Sustainable development must integrate ecological protection.

• Key rulings like Narmada Bachao Andolan (2000) emphasise balancing economic growth with environmental justice.

The future bench must therefore ensure development does not override environmental safeguards.

Why Strong Environmental Norms Matter More Than Ever

• India is one of the world’s most climate-vulnerable countries.

• Increasing: Extreme rainfall events Heatwaves Cyclones Land subsidence Biodiversity loss

• Extreme rainfall events

• Land subsidence

• Biodiversity loss

Weak environmental safeguards can worsen disaster risks, reduce climate resilience, and undermine India’s commitments under:

• Paris Agreement (UNFCCC)

• Nationally Determined Contributions (NDCs)

Strong EIA processes help:

• Prevent ecological degradation,

• Promote sustainable growth,

• Ensure long-term economic security.

Key Constitutional and Legislative Principles Involved

• Article 21: Right to a clean environment.

• Article 48A: Duty of the state to protect the environment.

• Article 51A(g): Duty of citizens to protect nature.

• EPA 1986: Parent law for EIA.

• Forest Conservation Act, Wildlife Protection Act, Air and Water Acts.

• Jurisprudence links these provisions with sustainable development, inter-generational equity, and public trust doctrine.

Way Forward

• Defining permissible exceptions

• Conditions under which exemptions can be allowed without compromising safeguards.

• Strict penalties for violators

• Post-facto clearance, if allowed at all, must involve heavy deterrence.

• Transparency and public participation

• Mandatory public hearings, Disclosure of project impacts, Independent expert appraisal.

• Mandatory public hearings,

• Disclosure of project impacts,

• Independent expert appraisal.

• Modernising EIA

• Use of satellite imagery, GIS, AI-based environmental monitoring.

• Strengthening regulatory capacity

• More personnel and expertise at Ministry of Environment, Forest and Climate Change (MoEFCC), State Pollution Control Boards (SPCBs), State Environment Impact Assessment Authorities (SEIAAs).

• Balancing public interest and ecological security

• The court must ensure that environmental protections remain central—not secondary—to development.

Conclusion

• The Supreme Court’s final verdict on post-facto environmental clearances will shape India’s ecological future.

• The Court’s long-standing jurisprudence under Article 21 emphasises that a clean environment is integral to life, dignity, and sustainable development.

Critically examine the challenges in balancing environmental safeguards with developmental imperatives in India. (250 Words)