THE CONTEXT: The Environment Impact Assessment (EIA) Notification, 2006, under the Environment (Protection) Act, 1986, mandates prior ECs for projects with significant environmental impacts, involving screening, impact assessment, public hearings, and expert appraisal. In March 2017, the MoEF&CC issued a notification allowing a six-month window for industries to seek retrospective Environmental Clearances (ECs) for operations that commenced without clearance, expanded beyond permitted limits, or altered their product mix.
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- A 2021 OM further streamlined this process through a Standard Operating Procedure (SOP), regularizing the handling of violations. These measures, applied to over 100 projects (e.g., Singareni Collieries, UltraTech Cement), sparked legal challenges, culminating in the Supreme Court’s 2025 ruling, which cited violations of constitutional mandates and environmental jurisprudence.
THEORETICAL FRAMEWORK: ENVIRONMENTAL RIGHTS AND THE RULE OF LAW
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- The ruling is grounded in the Precautionary Principle, which prioritizes preventive environmental measures, and the Polluter Pays Principle, holding violators accountable for remediation.
- The Supreme Court’s interpretation of Article 21 includes the right to a healthy environment, as established in Subhash Kumar vs. State of Bihar (1991).
- The Shreya Singhal vs. Union of India (2015) judgment emphasized procedural fairness in regulatory actions, relevant to the Court’s critique of the 2017 notification’s lack of transparency.
- Globally, the Rio Declaration (1992) underscores prior assessments, guiding India’s EIA framework. The Court’s rejection of retrospective clearances aligns with environmental jurisprudence, ensuring rule of law and public trust.
CURRENT SCENARIO: THE SUPREME COURT’S RATIONALE
The Supreme Court’s May 16, 2025, judgment declared the 2017 notification and 2021 OM illegal for:
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- Violating Article 21: Retrospective ECs undermine the right to a pollution-free environment by condoning illegal operations, as seen in projects causing air pollution in Delhi (AQI 400+, CPCB, 2025).
- Breaching Article 14: Equal treatment under law is compromised when violators gain economic benefits without prior scrutiny, unlike compliant projects.
- Contradicting Precedents: Common Cause vs. Union of India (2017) and Alembic Pharmaceuticals vs. Rohit Prajapati (2020) ruled ex-post facto clearances as antithetical to EIA Notification, 2006.
- Misleading Undertaking: The Centre’s 2017 assurance to the Madras High Court that the notification was a one-time measure was violated by the 2021 OM, which routinized violations.
- Crafty Drafting: The 2021 SOP avoided explicit “ex-post facto” terminology but effectively regularized illegal projects, undermining transparency.
GLOBAL PERSPECTIVE: COMPARATIVE ENVIRONMENTAL GOVERNANCE
Globally, retrospective clearances are rare:
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- European Union: The Environmental Impact Assessment Directive (2014/52/EU) mandates prior assessments, with fines up to €10 million for violations (EU Commission, 2024).
- Australia: The Environment Protection and Biodiversity Conservation Act (1999) prohibits retrospective approvals, ensuring compliance through audits (Australian EPA, 2024).
- Brazil: The National Environmental Policy Act (1981) requires prior licensing, with violators facing project suspension (IBAMA, 2025).
POLICY FRAMEWORK IN INDIA: EXISTING PROVISIONS
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- EIA Notification, 2006: Mandates prior ECs under the Environment (Protection) Act, 1986, with a four-stage process.
- Environment (Protection) Act, 1986: Empowers MoEF&CC to penalize violations, but lacks retrospective provisions.
- National Green Tribunal (NGT) Act, 2010: Adjudicates environmental disputes, as seen in its 2021 order prompting the 2021 OM.
- Forest (Conservation) Act, 1980: Complements EIA for forest-related projects, ensuring ecological balance.
GOVERNMENT INITIATIVES AND PROGRAMS:
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- National Clean Air Programme (NCAP, 2019): Targets 20–30% pollution reduction by 2025, impacted by illegal projects.
- Green India Mission: Promotes afforestation, undermined by retrospective ECs for mining.
- NGT Orders: Directed SOPs for violations (2021), but lacked legal backing post-SC ruling.
- Climate Change Action Plan (2025): Commits to stricter EIA enforcement, post-ruling.
CHALLENGES IN POLICY IMPLEMENTATION:
1. Institutional Capacity: Only 500 environmental inspectors nationwide (CPCB, 2025) limit monitoring.
2. Corporate Influence: Industry lobbying (e.g., UltraTech Cement) pressures relaxed norms, as noted by PV Jayakrishnan (2025).
3. Public Awareness: Low environmental literacy (30% rural awareness, TERI, 2025) reduces public participation.
4. Inter-Ministerial Coordination: Conflicts between MoEF&CC and Ministry of Mines delay reforms.
5. Global Compliance: Aligning with UNFCCC and CBAM requires stricter enforcement, challenging current capacity.
THE ISSUES:
1. Legal Ambiguity: The EIA Notification, 2006, lacks provisions for retrospective ECs, creating regulatory confusion, as seen in the 2017 notification’s misuse.
2. Enforcement Gaps: Weak monitoring allowed 112 projects to gain ECs under the violation category (MoEF&CC, 2021–2025), undermining compliance.
3. Stakeholder Exclusion: Public hearings, a core EIA component, are bypassed in retrospective clearances, violating participatory governance.
4. Economic Bias: The Centre’s rationale of avoiding economic losses (e.g., Mahanadi Coalfields) favored violators, compromising equity.
5. Environmental Degradation: Projects like coal mines exacerbated pollution, with India’s CO2 emissions rising 6% annually (IEA, 2025).
6. Judicial Overburden: With 50 million pending cases (NJDG, 2025), environmental litigation delays justice, as seen in the prolonged challenge to the 2017 notification.
7. Global Criticism: India’s lax environmental policies risk trade penalties under the EU’s Carbon Border Adjustment Mechanism (CBAM, 2026).
THE WAY FORWARD:
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- Legislative Reforms: Amend the EIA Notification, 2006, to explicitly prohibit retrospective ECs, with penalties up to ₹100 crore for violations. Introduce a Green Compliance Act to codify prior assessments and public hearings, ensuring rule of law. Align with Alembic Pharmaceuticals (2020) to uphold environmental jurisprudence.
- Strengthened Monitoring: Deploy AI-powered Environmental Surveillance System under CPCB to monitor project compliance in real-time, targeting 90% accuracy (IIT Delhi, 2025). Establish 1,000 regional monitoring units by 2027 to enhance institutional capacity. Integrate satellite imagery, as used in Australia’s EPA, for proactive enforcement.
- Public Participation: Mandate digital public hearings for all Environmental Impact Assessments (EIAs), with translations in 22 scheduled languages, aiming for 80% rural engagement (TERI, 2025). Launch a Green Citizen Portal for real-time reporting of violations, promoting participatory governance. Partner with NGOs to promote awareness and ensure social inclusion.
- Capacity Building: Train 5,000 environmental officers and 500 NGT judges in EIA compliance by 2028 via the Indian Forest Service Academy. Develop a National Green Skill Academy under NCAP, targeting 1 million skilled professionals by 2030, boosting human resource development. Include climate law in judicial training, aligning with judicial capacity building.
- Corporate Accountability: Imposing a Green Cess on violators, with funding allocated for remediation (₹50,000 crore by 2030, as per MoEF&CC estimates). Mandate ESG (Environmental, Social, Governance) reporting for all listed companies, inspired by EU’s CSRD (2024), ensuring corporate social responsibility. Delist non-compliant firms from SEBI, reinforcing economic accountability.
- International Collaboration: Advocate for a UNEP Prior Assessment Protocol at COP30, building on India’s Paris Agreement leadership. Negotiate bilateral green compliance agreements with the EU and Australia, reducing CBAM risks, enhancing tech diplomacy. Join OECD’s Environmental Policy Committee for best practices, strengthening global competitiveness.
- Restorative Justice: Create a National Environmental Restoration Fund to rehabilitate degraded sites, funded by violator penalties. Implement community-led afforestation in affected areas, inspired by Brazil’s Amazon Fund, ensuring ecological restoration. Compensate affected communities, upholding social justice.
- Periodic Parliamentary Oversight: Standing Committee on S&T, Environment & Forests to table an annual “EC Compliance and Enforcement Report” akin to the CAG.
- Real-Time Compliance Dashboard: Expand OCEMS to 100 % Red & Orange units; link pollution exceedances to automatic penalty invoices (QR-coded for traceability).
THE CONCLUSION:
The Supreme Court’s decision serves as a clarion call for upholding environmental integrity and the rule of law. It emphasizes that economic development must not come at the expense of environmental degradation and that adherence to due process is non-negotiable.
UPSC PAST YEAR QUESTION:
Q. How does the draft Environment Impact Assessment (EIA) Notification, 2020 differ from the existing EIA Notification, 2006? (2020)
MAIN PRACTICE QUESTION:
Q. The Supreme Court’s 2025 verdict invalidating ex-post-facto environmental clearances recalibrates the balance between environmental justice and economic development in India. Critically examine.
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