Source: TH
Subject: Environment
Context: The Supreme Court has recalled its May 16, 2025 Vanashakti judgment that banned the granting of ex post facto (retrospective) environmental clearances (ECs).
About SC Recalls Ban On Ex-Post Facto Green Clearances:
What Was the Vanashakti Ruling (May 16, 2025)?
- The two-judge Bench (Justice A.S. Oka & Justice Ujjal Bhuyan) held that granting retrospective environmental clearances violates the precautionary principle, which requires environmental harm to be prevented before it occurs.
- It struck down the 2017 MoEFCC notification and 2021 OMs, noting that they enabled regularisation of illegal projects that had bypassed prior environmental approvals.
- The Court said the Centre used “crafty drafting” to sanitise violations, allowing industries to construct first and seek legal cover later, undermining environmental governance.
- It directed the government not to issue any future notifications or circulars permitting ex post facto ECs, ensuring strict enforcement of the Environment Protection Act.
- The verdict emphasised that retrospective ECs are a “gross illegality” and an “anathema to environmental jurisprudence”, weakening constitutional environmental protections.
What Are Ex Post Facto Green Clearances?
- Meaning:
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- These are after-the-fact environmental approvals granted to projects that began construction, expansion, or operation without acquiring the mandatory prior EC under EIA 2006 rules.
- Key Features:
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- They regularise projects already in violation of environmental norms, effectively converting an illegal act into a legal one after paying compensatory charges.
- Such approvals involve penalty-based compliance, including fines and restoration measures, which serve as corrective—not preventive—mechanisms.
- Intended for rare, exceptional situations, they are often misused as routine escape routes for non-compliant developers.
- They are commonly invoked in large infrastructure, mining, industrial, and real-estate projects where delays could cause significant financial losses.
- Critics argue they undermine the precautionary principle and encourage developers to start projects illegally, knowing they can regularise violations later.
Recent Verdict Recalling the Ban:
- Majority View:
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- The majority recalled the May 16 judgment, holding that its continuation would cause “devastating consequences”, including demolition of vital public projects and wastage of crores of public money.
- They argued that retrospective ECs may be allowed in exceptional circumstances, accompanied by heavy penalties, to balance environmental protection with developmental needs.
- The judges highlighted that the matter involves complex constitutional-ecological issues and therefore must be reconsidered by a larger Bench for clarity and uniformity.
- Dissenting View:
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- Justice Bhuyan rejected the recall, insisting the original judgment must stand because retrospective clearances reward illegal behaviour and erode environmental accountability.
- He termed ex post facto ECs “an anathema, a curse devoted to evil”, warning that the Court was diluting decades of strong environmental jurisprudence.
- Citing Delhi’s toxic smog, he stressed that the precautionary principle cannot be compromised, especially when pollution has become a daily public health threat.
Why Was There a Ban on Ex Post Facto Clearances Earlier?
- Retrospective approvals violate the precautionary principle, which mandates that environmental safeguards must operate before—not after—damage occurs.
- Allowing post-facto approvals encourages illegal constructions, as developers may knowingly avoid prior ECs expecting later regularisation.
- Such approvals weaken the rule of law, undermining the mandatory requirement of prior clearance under the EIA 2006 framework.
- Environmental harm caused during illegal construction or operation is irreversible, and retrospective approvals merely legitimise the damage already inflicted.
- They pose public health risks, as air, water, and soil pollution generated during unregulated phases directly impact citizens, especially vulnerable groups.
- Under Article 21, a clean environment is part of the right to life, and retrospective ECs diminish this constitutional guarantee by permitting post-hoc legalisation of pollution.
Way Ahead:
- Retrospective approvals, if ever granted, must involve strict penalisation, restoration mandates, and long-term ecological compensation to deter future violations.
- Strengthen monitoring through pre-approval compliance audits, satellite-based surveillance, and automated alerts to prevent projects from starting illegally.
- Introduce environmental restoration bonds, where violators must deposit funds upfront to cover ecological repair, ensuring accountability.
- Make EC violations, penalties, and corrective actions publicly accessible, enabling transparency and empowering local communities to monitor compliance.
- Streamline prior EC approvals to reduce delays, ensuring industries are not incentivised to bypass the process for quicker project execution.
- Policy reforms must uphold sustainable development, balancing economic progress with inter-generational equity and long-term ecological integrity.
Conclusion:
A balanced environmental regime must protect ecological integrity without paralysing essential public infrastructure. Retrospective clearances, if ever allowed, must remain exceptional and coupled with strict deterrent penalties to prevent misuse. Ultimately, India’s environmental jurisprudence must uphold both constitutional environmental rights and responsible, sustainable development for future generations.
