Introduction
India’s rapid industrialization and chronic infrastructure challenges have placed immense strain on its ecosystems and natural resources. To address the environmental risks posed by large-scale development, the Environmental Impact Assessment (EIA) Notification, 2006 was introduced as a critical legal mechanism. Its purpose: to ensure that projects with potentially significant environmental consequences undergo thorough scrutiny before they are granted approval.
However, over time, a troubling trend emerged. Several developers began bypassing these legal requirements, proceeding with projects without the necessary clearances, and subsequently seeking retrospective (ex-post facto) environmental approvals to regularize their activities. This practice not only undermined the intent of environmental safeguards but also eroded public trust in regulatory institutions.
The legality of such retrospective clearances came under sharp scrutiny in the landmark case of Vanashakti v. Union of India. Environmental activists and concerned citizens challenged the validity of these ex-post facto permissions. In a decisive ruling, the Supreme Court held that the 2017 government notification enabling retrospective environmental approvals was invalid from the outset. It further struck down the 2021 Office Memorandum issued by the government to continue the practice, invoking the precautionary principle as a core tenet of environmental governance.
This article traces the historical context of environmental clearance practices in India, unpacks the legal reasoning adopted by the Supreme Court, and explores the broader implications of this judgment for environmental regulation, policy reform, and the path toward sustainable development.
Legal Background
In India, environmental clearance is a mandatory precondition for initiating projects likely to have significant environmental impacts. This regulatory requirement is rooted in the principle of precaution, aimed at ensuring that developers account for potential ecological consequences before commencing operations.
The legal framework for environmental clearance was formalized through the Environmental Impact Assessment (EIA) Notification, 2006, issued under the Environment (Protection) Act, 1986. This notification required project proponents to undergo prior scrutiny through a structured appraisal process. The rationale was to enable informed decision-making based on environmental risk assessments, thereby mitigating irreversible harm.
However, over time, a significant loophole emerged. Several developers bypassed this mandatory clearance by starting operations without prior approval, relying instead on the possibility of securing retrospective environmental clearances later. This practice effectively undermined the regulatory regime.
In response, the Ministry of Environment, Forest and Climate Change (MoEFCC) issued Office Memoranda in 2017 and 2021, institutionalizing the process of granting post-facto clearances. These memoranda allowed projects already underway—without prior environmental clearance—to apply for regularization. Proponents argued that these measures facilitated ease of doing business by addressing bureaucratic delays in the clearance process.
However, the retrospective approval mechanism sparked considerable controversy. Environmentalists and legal scholars criticized it as a dilution of the precautionary principle, which lies at the heart of environmental jurisprudence in India. The NGO Vanashakti, among others, challenged the validity of such clearances, arguing that they effectively rewarded non-compliance and eroded the integrity of the EIA regime.
This led to a series of public interest litigations (PILs) questioning the legality and constitutionality of post-facto clearances. These matters eventually reached the Supreme Court of India, which was tasked with navigating a delicate balance: promoting economic development and industrialization on one hand, and upholding constitutional and statutory environmental safeguards on the other.
Supreme Court’s Ruling & Key Legal Arguments
In Vanashakti v. Union of India, the Supreme Court delivered a landmark judgment that categorically struck down the government’s practice of granting retrospective environmental clearances, deeming it violative of both constitutional and environmental legal principles. The Court’s reasoning rested on multiple pivotal grounds:
1. Reassertion of the Precautionary Principle
The Court reaffirmed the precautionary principle, a foundational tenet of Indian environmental jurisprudence, which mandates that environmental harm must be prevented rather than remedied after it occurs. By allowing clearances after project initiation, retrospective approvals reverse this logic—shifting the regulatory posture from preventive to curative, thereby enabling potentially irreversible ecological damage. The Court emphasized that environmental protection must begin before any project activity, not after.
2. Protection of Constitutional Rights
The ruling drew upon the constitutional guarantees enshrined in Article 21 (Right to Life) and Article 14 (Right to Equality). The Court reasoned that these rights implicitly include the right to a clean, safe, and healthy environment, and the right to an equitable regulatory framework. By allowing hazardous projects to proceed without prior scrutiny, the retrospective clearances violated these rights—disempowering citizens and skewing regulatory enforcement in favor of violators.
3. Consistency with Statutory Mandates
The Court held that the retrospective clearances were ultra vires the EIA Notification, 2006, which explicitly mandates prior environmental clearance as a prerequisite for project initiation. The Office Memoranda of 2017 and 2021, which enabled post-facto approvals, directly contravened this legal mandate. The Court emphasized that such executive instruments cannot override the statutory scheme or judicial precedents that uphold procedural safeguards for environmental protection.
4. Corporate Accountability and Legal Certainty
The judgment also tackled the issue of corporate accountability, warning against the dangerous precedent of post-facto regularization. The Court criticized the tendency of corporations to initiate operations in anticipation of leniency, stating that such practices incentivize non-compliance and render environmental safeguards toothless. It underscored the necessity for developers to comply with environmental norms from the outset and held that retrospective approval mechanisms erode both deterrence and accountability in environmental governance.
Conclusion
The Supreme Court’s ruling against ex-post facto environmental clearances marks a decisive shift toward enforcing accountability in environmental governance. By rendering it legally impermissible for industries to seek retroactive approvals, the Court closed a dangerous loophole that had allowed developers to bypass regulatory scrutiny. By grounding the ruling in constitutional rights to health and a clean environment, the Court emphasized the ecological dimension of Article 21 and underscored the centrality of environmental protection in India’s development model. Importantly, it also advanced the public trust doctrine, asserting that environmental resources are held in trust by the state for the benefit of all citizens—not for arbitrary or opaque decision-making.
Moreover, the judgment enhances public participation and transparency in environmental decision-making. It grants environmentalists, civil society, and affected individuals greater standing and visibility, ensuring that decisions impacting ecosystems are not made behind closed doors but through inclusive, accountable processes. While the ruling is a critical milestone in India’s journey toward sustainable development, it also highlights the need for continued judicial oversight, stronger institutional frameworks, and policy reforms to reinforce environmental protection as a core component of governance.
In essence, this judgment sets a benchmark—not only for responsible industrial growth within India—but also as a model for balancing economic development with ecological stewardship in jurisdictions around the world. It is a step forward in ensuring that progress does not come at the irreversible cost of our planet’s future.