Supreme Court Review of Retrospective Environmental Clearances
What the issue is about
Before starting any big construction or industrial project in India, a company must take prior environmental clearance (EC).
Some companies ignored this rule and started building without permission.
Later, the government tried to legalise these illegal projects by giving them retrospective (ex post facto) environmental clearances — meaning permission after the work was already done.
What the Supreme Court said earlier (May 16 judgment)
Delivered by Justice A.S. Oka (retired) and Justice Bhuyan.
Held that:
Retrospective ECs are clearly illegal,
The 2017 notification and 2021 Office Memorandum enabling them were unconstitutional,
The government engaged in crafty drafting to regularise illegal constructions,
Project proponents started construction without mandatory prior EC.
Reason: If you allow “permission afterwards,” then everyone will break the law first and legalise later.
Now
A three-judge Bench of the Supreme Court recalled its May 16 judgment which had declared the Centre’s grant of ex post facto (retrospective) environmental clearances (ECs) as “gross illegality” and an “anathema”.
Majority: CJI B.R. Gavai and Justice K. Vinod Chandran.
Dissent: Justice Ujjal Bhuyan.
Majority Reasoning
CJI Gavai said the May 16 ruling would have a devastating effect:
Large public and private projects would face demolition,
Thousands of crores of public money would be wasted,
Jobs affected.
Examples of stalled projects:
SAIL investment,
962-bed AIIMS hospital in Odisha,
Greenfield airport in Karnataka,
CAPF Institute of Medical Sciences in Delhi.
The majority held:
Ex post facto ECs should not be denied rigidly,
They may be granted in exceptional circumstances,
Demolition is not always in the public interest; penalties may suffice.
Dissent by Justice Bhuyan
Called the review judgment an innocent expression of opinion that ignored core principles of environmental jurisprudence.
Accused the Court of backtracking on environmental protection.
Stressed:
Retrospective ECs violate the precautionary principle,
Violate sustainable development,
Environment vs development is a false narrative; both must coexist.
Called retrospective ECs an anathema — “a thing devoted to evil”.
Prelims Practice MCQs
Q. Under the Environmental Impact Assessment (EIA) framework in India, which of the following projects generally require prior environmental clearance?
Mining projects above a specified capacity
Highway expansion projects
Large construction projects above notified built-up area
Nuclear power plants
Select the correct answer:
A. 1 and 2 only
B. 1, 2 and 3 only
C. 1, 3 and 4 only
D. 1, 2, 3 and 4
Answer: D
All four categories generally require prior EC under the EIA Notification 2006.
Q. Which of the following are TRUE about the Environmental Clearance requirement in India?
It is mandated under the Environment (Protection) Act, 1986.
It applies only to projects using forest land.
It requires an assessment of environmental impacts before project approval.
Select the correct answer:
A. 1 and 2 only
B. 1 and 3 only
C. 2 and 3 only
D. 1, 2 and 3
Answer: B
Statement 2 is incorrect — EC applies to many categories even without forest land.
Q. The principle that “the State holds natural resources in trust for the public” relates to:
A. Sustainable development
B. Precautionary principle
C. Public trust doctrine
D. Environmental democracy
Answer: C