The national capital is suffocating. The air is unbreathable. It is toxic to humans, plant life and animals. In the list of the top 100 most polluted cities in the world, a staggering 83 are in India. Children in Delhi lose years of lung function before they turn 10. Farmers in Punjab and Haryana inhale carcinogenic particles every winter. Urban populations witness hospital wards overflowing with patients with respiratory conditions and toddlers on nebulisers. Environmental safeguards are, therefore, not an academic point. Their non-enforcement results in a lived nightmare for millions.
In this context, the recent decision of the Supreme Court allowing post-facto environmental approvals is shocking. In a scenario where the central and relevant state governments have abandoned citizens to their own devices, brazenly smothering protests, the SC was the last bastion of hope. Last week, this sentinel on the hill, as it is often called, delivered the ruling that left many stunned. In the long and chequered history of environmental jurisprudence in India, few moments have felt as unsettling.
Prior to the judgment in question, on May 16, the Court had barred any post-facto environmental clearances in Vanashakti vs Union of India, stating that the concept of post-facto clearances itself is outright illegal. Thereafter, the Confederation of Real Estate Developers of India filed a petition seeking review of the Vanashakti judgment and on November 18, the three-judge bench of the SC (in a 2:1 verdict) recalled the judgment. The bench held that retrospective environmental clearances may be granted, but only for “permissible activities” as defined in the relevant regulatory framework.
This judgment does not merely open a procedural back door. It threatens to erode the edifice of environmental governance painstakingly built over decades. In a country battling the world’s worst pollution indicators, where children breathe poison and rivers covered in toxic foam gasp for life, this ruling risks becoming the straw that finally breaks the camel’s back.
Let us be clear: Environmental clearance is not a clerical formality. It is a constitutional guarantee. It flows from Article 21, the right to life, a right repeatedly interpreted by the Supreme Court itself to include the right to clean air, clean water, and a healthy environment. The purpose of prior environmental clearance is simple: Prevention is better than a post-mortem because the consequences are often irreversible. You do not regulate toxic emissions after communities have breathed them in. And you certainly do not allow violators blanket amnesty to pollute first and seek forgiveness later.
Yet, this judgment does precisely that. It extends a legal sanctuary to those who have disregarded environmental norms, bypassed statutory procedures, and often caused irreversible harm. It legitimises the illegitimate. It rewards the wrongdoer. And in doing so, it sends a chilling message to the honest: “Compliance is optional; violation is profitable.”
The last decade has seen a systematic and deliberate dilution of our environmental laws. The ruling regime makes no secret of the fact that it considers environmental law to be an inconvenience to be navigated. The Court should have kept this context in mind while delivering this judgment.
Here are five examples: The first and perhaps the most infamous example, the Draft Environmental Impact Assessment Notification 2020 (along with an Office Memorandum of 2021), attempted to institutionalise post-facto clearances. It legitimised industries operating illegally without prior approval by allowing them to obtain clearance later with minimal penalty. It also reduced the frequency of compliance reporting, curtailed public participation, and expanded the list of industries exempt from environmental impact assessment (EIA). The SC’s current judgment dangerously echoes this framework that was widely criticised as anti-environment.
Second, the amendments to the FCA redefined what constitutes “forest land”, effectively excluding vast stretches of land that were earlier protected under judicial interpretation. Large areas that were once safeguarded by the historic T N Godavarman Thirumulpad vs Union Of India (1996) suddenly fell outside the definition. The amendment also allowed strategic and linear projects, that is, roads, railways, and security infrastructure, to bypass earlier safeguards in forest-rich areas, especially in the Northeast and tribal regions. This has opened the floodgates for the diversion of forests without rigorous scrutiny.
Third, over the years, key sectors including coal mining, oil and gas exploration, and certain categories of construction have been granted exemptions or placed in lower regulatory brackets. For instance, projects classified under “B2” categories require no EIA, no public hearing, and minimal environmental oversight. This has enabled a range of mining and industrial activities to bypass the most important safeguard — public consultation.
Fourth, the CRZ Notification 2018 significantly weakened protections for fragile coastal ecosystems. It allowed construction closer to shorelines, opened ecologically sensitive coastal zones for tourism infrastructure, and relaxed norms for commercial development. India’s coasts, already battered by erosion, rising sea levels, and cyclones, were effectively handed over for commercial exploitation at a time when global climate risks demand increased protection, not deregulation.
Fifth, environmental and forest clearances have been routinely fast-tracked through rubber-stamp expert committees, many of which meet virtually, examine dozens of proposals in a single sitting, and clear projects with minimal field verification. Data over the last decade shows that over 95 per cent of all projects receive approval, turning a safeguard mechanism into a clearance factory. Public hearings, once a cornerstone of environmental democracy, have been curtailed or undermined, reducing affected communities to mere spectators in decisions affecting their survival.
The previous judgment banning post-facto clearances had clearly observed that “the very concept of grant of ex-post facto EC is illegal” and that “coming out with measures such as the 2021 Office Memorandum is violative of fundamental rights of all persons guaranteed under Article 21 to live in a pollution free environment”.
Future generations may well look back and ask us what we were doing when their constitutional right to a healthy environment was being dismantled.
The writer is a Member of Parliament, Rajya Sabha and an advocate of the Supreme Court
The last decade has seen a systematic and deliberate dilution of our environmental laws. The Court should have kept this context in mind while delivering this judgment. (Illustration: C R Sasikumar) 
Share
