Supreme Court slams door on post-facto environmental approvals

Defends citizens’ right to clean air and water in face of pollution-linked health emergencies

On May 16, the Supreme Court barred the central government from granting post-facto environmental clearances, a practice that allowed projects to be legalised after construction began. Justice Abhay Shreeniwas Oka stressed that compliance is mandatory and violations will have consequences. The Court struck down the 2017 notification and 2021 Office Memorandum, reaffirming that the 2006 EIA Notification requires prior clearance without exception.

In a landmark judgment on May 16, the Supreme Court of India decisively barred the central government from granting post-facto or retrospective environmental clearances, an often-criticised practice that allowed industries and developers to legalise projects even after construction had begun. Justice Abhay Shreeniwas Oka, delivering the judgment, left no room for ambiguity, environmental compliance is mandatory, and violations will carry real consequences.

By striking down the 2017 notification and the 2021 Office Memorandum that permitted such after-the-fact approvals, the Court reaffirmed a cornerstone of India’s environmental governance, the Environment Impact Assessment (EIA) Notification of 2006 mandates prior clearance, without exception.

Long-awaited course correction

The verdict follows petitions filed by environmental group Vanashakti and others challenging the Centre’s efforts to enable retrospective clearances. “This judgment is a critical step because it stops the Government of India from granting post-facto clearances, which were never permissible under the EIA Notification or the Environment Protection Act,” Debadityo Sinha, Lead for Climate & Ecosystems at the Vidhi Centre for Legal Policy, tells Media India Group.

Sinha says that environmental clearance is a comprehensive process involving ecological impact assessment, public consultation, and sustainable planning.

“When projects start without clearance, this entire process is bypassed, rendering environmental safeguards meaningless,” adds Sinha .

The Supreme Court’s latest ruling builds on earlier decisions firmly rejecting ex-post facto approvals. In Common Cause versus Union of India (2017), the Court called retrospective clearances “alien to environmental law.” Similarly, in Alembic Pharmaceuticals versus Rohit Prajapati (2020), it declared such approvals unconstitutional and unsustainable.

“Over the last five to six years, the Supreme Court and National Green Tribunal have consistently rejected post-facto clearances. Yet, the government continues to enable them, especially in the construction sector,” Chandra Bhushan, CEO of iForest, tells Media India Group.

Bhushan cautions, however, that the ruling’s impact depends on enforcement.

“We cannot demolish hundreds of illegal projects overnight, but we must impose punitive measures and hold violators accountable. That is the only way forward,” he says.

The Court’s consistent stance is evident in landmark cases like Pahwa Plastics versus Dastak NGO (2022), where units operating without clearance were ordered to shut down, and Electrosteel Steels Ltd versus Union of India (2021), which invalidated retrospective approvals.

Projects such as the Char Dham highway expansion and the Koodankulam Nuclear Plant faced backlash for commencing construction without proper clearances, resulting in environmental damage. The Supreme Court repeatedly underscored the precautionary principle environmental impacts must be assessed before projects begin, not after. Retroactive clearances violate this principle and invite irreversible harm.

To illustrate, the Court highlighted real-world ecological damage caused by lenient enforcement, citing Delhi’s pollution crisis and violations in Gujarat, Odisha, and Haryana.

Public trust betrayed

While the Supreme Court tightens environmental oversight, the Ministry of Environment’s EIA Draft 2020 appears to move in the opposite direction. Marketed as a tool for improving transparency and efficiency, the draft instead proposes alarming dilutions of environmental safeguards.

Public consultation, a cornerstone of environmental governance has been weakened, with exemptions expanded to sectors like highways, irrigation and offshore mining. The draft allows any project deemed “strategic” by the government to bypass public scrutiny entirely. Compliance monitoring has been relaxed, with reports now required annually instead of biannually.

The provisions in the draft risk undermining decades of hard-won environmental protections. The draft also proposes extending mining clearances validity from 30 to 50 years and allows environmental assessments based on data from just a single non-monsoon season.

Perhaps most worrying is the provision allowing land levelling without clearance, which could cause significant disruption to sensitive hilly and tropical ecosystems. The draft also exempts inland waterway dredging from EIA requirements moves critics say prioritise fast-tracking infrastructure over ecological safety.

Policy tilts away from ecology towards economy

Industrial lobbies have long advocated retrospective clearances combined with fines as a pragmatic solution. The government appeared to agree until judicial intervention forced a course correction.

But the draft includes penalties where violators self-reporting pay 1.5 times the estimated ecological damage and economic benefit, while those caught by authorities pay double. However, critics argue this effectively monetises environmental harm.

“This turns environmental damage into a cost of doing business. It undermines the very purpose of prevention and the government’s constitutional duty to protect the environment,” adds Sinha.

A Constitutional imperative

The Supreme Court grounded its judgment not only in environmental law but also in constitutional rights. It held that retrospective clearances violate Article 21, which guarantees the right to life including a clean and healthy environment, and Article 14, which ensures equality before the law.

The bench criticised the Centre’s “clever drafting” designed to circumvent earlier court orders. It also reminded the government that its assurance of a one-time exception for retrospective approvals was a broken promise.

Despite the ruling’s significance, experts caution that enforcement will be the true test.

“Judgments alone do not change reality. We are a vast country, so while the message has gone loud and clear, the government must work with state governments, pollution control boards, and other institutions to ensure enforcement. Currently, there is hardly any monitoring, once a project is cleared, no one checks if conditions are met. Our state pollution control boards, designed in the 1970s, and our two-decade-old clearance system are outdated. It’s time to rethink and reform environmental governance in India using satellite monitoring, AI and empowered institutions fit for the 21st century,” says Bhushan.

India’s worsening pollution, especially in urban centres like Delhi, demands much more than new rules, it requires a fundamental overhaul of how environmental policies are implemented and enforced.

The Supreme Court has firmly shut the door on retrospective environmental clearances, affirming that the right to a clean environment cannot be retrofitted after the fact. However, whether this moment heralds real transformation depends on the resolve of policymakers, regulators and citizens alike.

For too long, the balance has favoured ease of doing business over environmental justice. It is time to reset that balance and see sustainable development not as an obstacle, but as the foundation for India’s future.