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The Supreme Court of India has firmly rejected the practice of granting ex post facto environmental clearances (EC), a decision with profound implications for environmental protection and regulatory oversight within the country. This ruling, arising from a synthesis of landmark cases, effectively closes existing loopholes that allowed projects to commence operations without obtaining prior environmental approvals, a practice that had become increasingly prevalent despite its inherent conflict with the principles of sustainable development and environmental jurisprudence. The court's decision reaffirms the primacy of proactive environmental impact assessment and public participation in project planning, ensuring that environmental considerations are integrated into development decisions from the outset, rather than being addressed as an afterthought. The judgment underscores the importance of upholding the integrity of the Environmental Impact Assessment (EIA) notification, which mandates prior EC for specific industrial projects, safeguarding the environment and the rights of communities affected by development activities. By unequivocally prohibiting post-facto EC, the Supreme Court has sent a strong message to project proponents and regulatory authorities alike: environmental compliance is not optional, but a fundamental requirement that must be adhered to at all stages of project development. This decisive action aims to prevent irreversible environmental damage, promote transparency and accountability in environmental governance, and foster a culture of responsible development that balances economic growth with environmental sustainability.
The legal basis for the Supreme Court's ruling is deeply rooted in two significant cases: Common Cause v. Union of India & Ors. and Alembic Pharmaceuticals v. Rohit Prajapati. In the Common Cause case, delivered on August 2, 2017, the court explicitly stated that ex post facto or retrospective EC is incompatible with environmental law, including the EIA notification of 1994 and 2006. The court reasoned that allowing such clearances undermines the core principles of environmental protection and renders the EIA process meaningless. Paragraph 125 of the judgment clearly articulates that an EC is effective only from the date it is granted, highlighting the importance of prior assessment and approval. Furthermore, Paragraph 108 noted that the availability of ex post facto EC incentivized mining companies to disregard the EC requirement, treating it as an optional formality that could be rectified later. Despite this clear pronouncement, the Central Government continued to permit ex post facto EC through a 2017 notification, which the court ultimately challenged. The 2021 Office Memorandum (OM) attempted to reinstate a system that had already been deemed unlawful by the court in both the Common Cause and Alembic Pharmaceuticals cases. The Alembic Pharmaceuticals case further solidified the court's stance against post-facto EC. The case examined a circular dated May 14, 2002, which permitted ex post facto EC, assessing its legality in light of the EIA Notification from January 27, 1994, which unequivocally required prior EC for the establishment and expansion of certain industrial projects. The court concluded that the 2002 Circular violated the 1994 EIA Notification, which explicitly stated that projects "shall not be undertaken... unless it has been accorded environmental clearance." This unambiguous language made it clear that EC must precede any on-ground execution of the project. The court emphasized that ex post facto EC contravenes the fundamental principles of environmental law and could cause lasting damage to the environment, echoing the concerns raised in the Common Cause case.
The Supreme Court's decision in Alembic Pharmaceuticals v. Rohit Prajapati elaborated on the rationale behind the requirement for prior environmental clearance. The court explained that the prior EC process entails a comprehensive evaluation of potential environmental impacts, encompassing public hearings, screening, scoping, and review, all of which must occur before any permission is granted for a project. Allowing post-facto clearance would effectively circumvent these crucial safeguards, potentially leading to significant environmental harm if EC were ultimately denied. The court further asserted that the May 14, 2002 circular was not protected by Section 3 of the 1986 Act, which aims to protect and improve the environment. Instead, the circular weakened the requirement for prior EC under the 1994 Notification, thereby undermining environmental protection efforts. The Supreme Court's consistent rejection of post-facto EC underscores its commitment to upholding the integrity of environmental regulations and ensuring that environmental considerations are given due weight in development decisions. While the court generally opposed post-facto EC, it did, in exceptional circumstances, exercise its powers under Article 142 of the Constitution to allow such clearances in specific cases with unique facts, such as Alembic Pharmaceuticals and Electrosteel Steels Ltd. v. Union of India and Ors. Article 142 empowers the Supreme Court to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. However, it is important to note that these instances were limited and based on the specific circumstances of the cases, and do not establish a precedent for widespread post-facto EC. The court's overarching objective remains to ensure that environmental regulations are strictly enforced and that projects adhere to the requirement of obtaining prior EC before commencing operations.
The broader implications of the Supreme Court's ruling are far-reaching. By unequivocally prohibiting post-facto EC, the court has effectively strengthened the regulatory framework for environmental protection in India. This decision is likely to lead to increased scrutiny of project proposals, more rigorous environmental impact assessments, and greater public participation in the decision-making process. Project proponents will now be compelled to prioritize environmental compliance from the outset, ensuring that projects are designed and implemented in a manner that minimizes environmental harm. The ruling also sends a clear message to regulatory authorities, emphasizing the importance of enforcing environmental regulations effectively and holding violators accountable. The consistent and resolute stance taken by the Supreme Court against post-facto EC is expected to deter project proponents from attempting to circumvent environmental regulations and will foster a culture of environmental responsibility. In addition to strengthening the regulatory framework, the Supreme Court's decision is likely to have a positive impact on environmental quality. By preventing projects from commencing operations without prior environmental approval, the court is helping to safeguard ecosystems, protect biodiversity, and mitigate pollution. This will contribute to improved air and water quality, reduced deforestation, and enhanced environmental sustainability. The ruling also has implications for the rights of communities affected by development projects. By ensuring that environmental impact assessments are conducted before projects are approved, the court is helping to protect the rights of communities to a healthy environment and to participate in decisions that affect their lives. This is particularly important for marginalized communities who are often disproportionately affected by environmental degradation.
Furthermore, this judgment reinforces India's commitment to international environmental agreements and sustainable development goals. As a signatory to various international conventions on environmental protection, India has a responsibility to implement national laws and policies that align with these commitments. The Supreme Court's decision on post-facto EC demonstrates India's dedication to upholding its international obligations and promoting environmental sustainability. However, the effective implementation of the Supreme Court's ruling will require concerted efforts from various stakeholders, including the government, regulatory authorities, project proponents, and civil society organizations. The government must ensure that environmental regulations are clear, consistent, and effectively enforced. Regulatory authorities must be empowered to monitor project compliance and take appropriate action against violators. Project proponents must adopt a proactive approach to environmental management, integrating environmental considerations into all stages of project development. Civil society organizations must continue to play a crucial role in monitoring environmental compliance, raising awareness about environmental issues, and advocating for stronger environmental protection measures. In conclusion, the Supreme Court's verdict prohibiting post-facto environmental clearances marks a significant milestone in India's journey towards environmental sustainability. The decision strengthens the regulatory framework for environmental protection, promotes transparency and accountability in environmental governance, and fosters a culture of responsible development. By upholding the integrity of the Environmental Impact Assessment (EIA) notification and ensuring that environmental considerations are integrated into development decisions from the outset, the Supreme Court has reaffirmed the importance of protecting the environment for present and future generations. The long-term impact of this ruling will depend on the collective efforts of all stakeholders to effectively implement and enforce environmental regulations, ensuring that economic growth is balanced with environmental sustainability and social justice. This landmark judgment serves as a powerful reminder that environmental protection is not merely a legal obligation, but a moral imperative that requires the unwavering commitment of all members of society.
Source: Supreme Court Verdict: No More Post-Facto Environmental Clearances in India