Supreme Court’s Ruling on Retrospective Environmental Clearances: Explained

On May 16, 2025, the Supreme Court of India delivered a historic judgment declaring the Centre’s notifications and office memoranda allowing retrospective environmental clearances as unconstitutional. These provisions enabled industrial and infrastructure projects to begin operations without obtaining prior Environmental Clearance (EC) and later apply for it post-facto. The court held this practice illegal, citing it as a gross violation of environmental law, Article 21 (Right to Life), and Article 14 (Right to Equality) of the Constitution. This decision was a response to petitions filed by environmental NGO Vanashakti and others, challenging the legal validity of these retrospective mechanisms. The ruling is a significant move towards reinforcing environmental jurisprudence in India.

What Were Retrospective Environmental Clearances?

• Retrospective or ex-post facto environmental clearances allowed industries and infrastructure developers to begin construction or operations without first obtaining mandatory ECs.
• These were formalized under a 2017 Notification by the Ministry of Environment, Forest and Climate Change (MoEF&CC), offering a one-time six-month window to violators to apply for post-facto approval.
• A 2021 Office Memorandum (OM) followed, which created a Standard Operating Procedure (SOP) to systematize the process of such clearances even after the 2017 window closed.
• The Centre claimed this mechanism helped bring violators under the legal framework and ensured they paid penalties and followed environmental safeguards.
• These clearances violated the Environment Impact Assessment (EIA) Notification, 2006, which mandates prior EC before commencing any project.
• An expert committee under Dr. S R Wate was appointed to assess the violations, which met 47 times between 2017 and 2021.

Why Did the Supreme Court Strike Them Down?

• The court observed that allowing post-facto clearances undermines the purpose of the EIA framework, which exists to assess environmental and social impacts before project initiation.
• It held that such clearances violate Article 21, which guarantees the right to a clean and healthy environment, and Article 14, which ensures equal protection under the law.
• The court said knowingly violating the law and later seeking approval promotes impunity among industrial actors.
• Citing previous judgments like Common Cause (2017) and Alembic Pharmaceuticals (2020), the court emphasized that ex-post facto clearances are alien to environmental law.
• The court criticized the Centre for “crafty drafting” to mask these post-facto mechanisms and warned against any future attempt to introduce similar orders.

Where Did the Violations Occur?

• The violations spanned across sectors including real estate, mining, industrial manufacturing, and public sector undertakings.
• These projects operated across India, from metropolitan cities like Delhi, which already face critical pollution levels, to remote mining zones.
• Many of these projects were carried out by wealthy, powerful entities—not small or uninformed players—who consciously ignored the mandatory requirement for prior clearance.

When Did This Controversy Begin?

• The controversy began with the March 2017 notification, where the Centre first introduced the concept of retrospective ECs as a one-time regularisation measure.
• In 2021, the Centre institutionalized the mechanism with a formal SOP, extending the framework to ongoing violations.
• Environmentalists and legal experts began challenging these measures soon after, culminating in Vanashakti v. Union of India and related petitions.
• The Supreme Court’s final verdict came on May 16, 2025, marking the end of years of legal and civic activism.

Who Were Involved and What Were Their Roles?

• The key players in this issue were the Ministry of Environment, Forest and Climate Change (MoEF&CC), project proponents (companies, real estate developers, PSUs, mining industries), the Supreme Court of India, and civil society groups like Vanashakti.
• MoEF&CC issued the 2017 Notification and 2021 Office Memorandum, both of which attempted to regularize environmental violations through retrospective clearances.
• Project proponents were the beneficiaries of these policies, having started projects without obtaining ECs and then applying post-facto for regularisation.
• Vanashakti, an environmental NGO, filed petitions challenging the validity of these measures, citing that such actions were illegal and unconstitutional.
• The Supreme Court bench, led by Justice Abhay S. Oka and Justice Ujjal Bhuyan, delivered the landmark judgment, declaring the retrospective clearance regime arbitrary, unconstitutional, and illegal.
• Political figures like Jairam Ramesh, former Environment Minister, hailed the judgment as a damning indictment of the government’s environmental stance, stating it contradicted India’s international commitments to sustainable development.

How Did the Retrospective Clearance Regime Work?

• The 2017 Notification was framed as a one-time amnesty providing violators six months to apply for clearance. However, this window did not ensure genuine environmental scrutiny.
• An expert appraisal committee was formed to review such cases. But the essential steps of the EIA process—like public hearings, baseline data collection, environmental impact assessments, and site inspections—were often skipped or diluted.
• The 2021 Office Memorandum institutionalised the regime through a Standard Operating Procedure (SOP) to handle violations occurring after 2017. The government claimed it was necessary to prevent environmental harm through demolition and ensure violators paid compensation under the “polluter pays” principle.
• However, the court found that this was essentially a parallel compliance pathway, contradicting the preventive and precautionary foundation of environmental law.

What Is the Significance of the Supreme Court’s Verdict?

• The judgment reinforces the sanctity of the EIA Notification, 2006, which mandates prior environmental clearance and cannot be diluted by retrospective mechanisms.
• It upholds Article 21, affirming that the right to a pollution-free environment is a fundamental right.
• It establishes that development cannot come at the cost of ecological degradation, echoing the principles of sustainable development.
• It sends a strong signal against regulatory evasion, warning industries and government authorities against creating backdoor entries to bypass environmental law.
• The decision marks a judicial assertion of environmental accountability, strengthening checks on executive overreach and reaffirming constitutional and statutory obligations towards environmental protection.

What Are the Limitations and Challenges?

• Although the court struck down the retrospective clearance regime, it allowed existing ECs already granted under the 2017 and 2021 orders to remain unaffected. This permits past violators to escape consequences, weakening the impact of the ruling in some respects.
• Undoing ecological damage already done by projects that operated without EC is practically impossible. Destroyed ecosystems, polluted rivers, and degraded air quality often cannot be reversed.
• The lack of accountability for decision-makers and project proponents who enabled or benefited from these illegalities is a critical gap.
• The court did not mandate penalties or restoration costs for past violations, which some experts argue could have strengthened environmental governance.
• Ensuring effective enforcement of the verdict will require vigilance from civil society, pollution control boards, and state-level agencies, who often lack adequate resources or political will.

What Are the Way Forward Measures?

• Strict Enforcement of EIA 2006: All future projects must strictly comply with the Environment Impact Assessment (EIA) Notification, 2006, ensuring prior environmental clearance through full adherence to the established procedure—screening, scoping, public consultation, appraisal, and monitoring.
• No New Post-Facto Mechanisms: The Centre has been clearly restrained by the Supreme Court from introducing any future notifications, office memoranda, or circulars that allow for retrospective environmental clearances in any form.
• Institutional Reforms in MoEF&CC: There is a pressing need for transparent governance in the Ministry of Environment, ensuring that all policy formulations respect judicial pronouncements and uphold constitutional mandates.
• Accountability of Violators: Mechanisms must be put in place to penalize violators, even if their projects have been allowed to continue. This includes applying the “polluter pays” principle more stringently and ensuring that environmental compensation is collected and used effectively.
• Environmental Restoration Plans: Projects that operated illegally must be asked to submit and implement environmental restitution and restoration plans to minimize the damage they caused.
• Independent Monitoring Agencies: Establish independent oversight bodies to monitor and audit environmental compliance across states, with powers to take prompt action against violations.
• Public Awareness and Participation: Strengthening public involvement in the EIA process is essential. Local communities must be informed and empowered to participate meaningfully in public hearings and environmental decision-making.
• Judicial Oversight and Fast-Track Benches: The judiciary must continue to exercise active oversight on environmental matters and consider the creation of fast-track green benches for timely resolution of compliance issues.
• Integration with Climate Commitments: All environmental governance reforms must align with India’s global climate change commitments, especially under the Paris Agreement, by promoting low-carbon, sustainable infrastructure and development practices.

Conclusion

The Supreme Court’s verdict striking down retrospective environmental clearances is a milestone in India’s environmental jurisprudence. It sends a clear message that environmental compliance is non-negotiable and cannot be sacrificed at the altar of economic expediency. By reinforcing the principle of prior environmental clearance, the court has upheld the integrity of the EIA process and protected the right to a clean environment as a fundamental constitutional guarantee. However, much remains to be done. Future violations must be deterred, past damages addressed, and environmental governance strengthened at all levels. This judgment is not just a legal precedent—it is a call to action for sustainable and legally sound development in India.

Practice Question: How does the Supreme Court judgment on retrospective clearances reinforce the principles of environmental justice and rule of law? (250 words)