SC order on retrospective environmental clearances a step forward but gaps remain: Experts
Supreme Court
's decision barring the government from granting retrospective environmental clearances but warned that loopholes in environmental laws still exist, and citizens must stay alert to protect their constitutional rights. In a landmark ruling on Friday, the apex court said the government cannot grant retrospective environmental clearances in the future.
The court made it clear that projects started without mandatory prior
environmental clearance
cannot be legalised later. It added that violators who knowingly ignored the law cannot be protected.
The judgement came in response to petitions filed by the NGO Vanashakti and others, challenging two government office memorandums issued in July 2021 and January 2022 which had created a system to grant environmental clearance to projects that began operations without prior approval under the Environment Impact Assessment (EIA) Notification, 2006.
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Stalin D, Director of Vanashakti, told PTI that citizens must now ensure the court's directions are followed.
"The judgement clearly says the government cannot try and provide a safe haven for violators. So, we have to ensure that our constitutional framework is not violated in any way."
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"One more very pertinent thing in that order is that the people who violated this are not illiterate persons. They are educated, well connected, rich people who knew that they were engaging in a violation, which needs to stop now," he said.
Prakriti Srivastava, a retired Indian Forest Service officer, said while it is a good order, knowing the history of environment ministry and project proponents, they will find a way around.
She said post-facto approvals mean the damage is already done before clearance is granted.
"Will these stop and the ministry obey the SC orders? Let's wait and watch Though knowing the record of MoEFCC, they give two hoots for SC orders and may blatantly disregard them," she added.
Himanshu Thakkar, Coordinator of the South Asia Network on Dams, Rivers and People, said the decision is welcome but should have come earlier. He also raised concerns about enforcement.
"This is welcome, but the directions could have come sooner. It shows that our system is very slow to react."
"Secondly, where is your credible monitoring system to ensure that this doesn't happen? The third thing is there is a bypassing of the law happening. For example, land acquisition is allowed, even when environment clearance is not there. If you have already acquired land, you are creating impacts, displacing people, you are making the project fait accompli," Thakkar said.
"So, the Supreme Court also needs to put down more stipulations that you cannot acquire land without environmental clearance because once you acquire the land, then you get the right over the land and you can do what you want to do with it, which is again movement towards irreversibility. So, these kinds of loopholes are still there," he said.
Debadityo Sinha, Lead - Climate and Ecosystems at the Vidhi Centre for Legal Policy, said the very purpose of the EIA process is to evaluate alternatives, assess environmental and social impacts and enable public consultation before any project receives approval. It is a fundamental safeguard that ensures development does not come at the cost of ecological integrity."
"Granting post-facto Environmental Clearance undermines this entire framework, allowing projects to bypass due diligence and legal scrutiny. It effectively opens the floodgates for unsustainable, poorly planned developments, often in ecologically sensitive areas, where such projects would never have passed scrutiny in the first place. This not only sets a dangerous precedent but incentivises illegal construction in the hope of regularisation through backdoor clearances," he said.
Sonam Chandwani, Managing Partner at law firm KS Legal and Associates, said the Supreme Court's decision may shake up the existing system but is not a cure-all.
"By killing ex post facto approvals, it puts companies on notice that you start without clearance and you are gambling with your entire project with no retroactive bailouts. Smaller firms, less equipped for legal warfare, might fall in line, seeking clearances upfront to avoid ruin. Activists and communities gain a stronger edge to hold violators accountable, as courts now have a clearer mandate to reject post-facto fixes," she said.
Guman Singh, Coordinator of Himalaya Niti Abhiyan, said they had opposed the government's move to allow retrospective environmental clearances.
He said the Supreme Court's decision clearly reinforces that environmental laws cannot be diluted to legalise illegal projects and promotes ecological accountability.
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