Why is it in News?
- A three-judge Bench of the Supreme Court has recalled its May 16, 2025 judgment that had declared retrospective/ex-post facto environmental clearances as “gross illegality”.
- Majority (CJI B.R. Gavai & Justice K. Vinod Chandran) held that allowing the earlier judgment to operate would have devastating economic consequences.
- Justice Ujjal Bhuyan dissented, warning the Court is “backtracking on sound environmental jurisprudence”.
Relevance :
- GS 3: Environment & Ecology (EIA, environmental governance, precautionary principle)
- GS 2: Judiciary & Governance (judicial review, balance between environment–economy, Article 21)
- GS 3: Infrastructure & Industry (impact on projects, regulatory compliance)
What are Environmental Clearances (ECs)?
- Statutory requirement under Environment (Protection) Act, 1986 & EIA Notification 2006.
- Mandates prior environmental approval before construction, expansion, or operation of certain projects.
- Ensures:
- Environmental Impact Assessment (EIA)
- Public consultation
- Mitigation measures
- Compliance monitoring.
What are Ex Post Facto ECs?
- ECs granted after a project has already started/been completed, violating the “prior approval” principle.
- Considered legally questionable because:
- Violates the precautionary principle.
- Undermines sustainable development norms.
- Rewards non-compliance.
The May 16, 2024 Judgment (Now Recalled)
- Bench of Justice A.S. Oka & Justice Ujjal Bhuyan.
- Held that:
- Ex post facto ECs are an “anathema” and “gross illegality”.
- Violates Article 21 (right to clean environment).
- Projects constructed without EC must face strict consequences.
- Would have impacted:
- Large real estate, infrastructure, industrial projects.
- Thousands of crores of investment.
The November 2025 Review Judgment (Recall Order)
Majority View (CJI Gavai + Justice Chandran)
- Allowing the May 16 ruling to stand would cause “devastating economic impact”.
- Thousands of crores of investment would be wasted; projects would become illegal overnight.
- Review allowed primarily on economic & practical grounds, not on legal reinterpretation.
- Stressed need to balance environmental protection with economic stability.
- Suggests that procedural lapses should not destroy completed projects if rectification is possible.
Minority View (Justice Ujjal Bhuyan)
- Strong dissent; called the recall “pained backtracking on environmental jurisprudence”.
- Argues:
- Precautionary principle, polluter-pays, inter-generational equity are being diluted.
- Granting ex post facto ECs rewards violators and encourages non-compliance.
- The judiciary’s role is to protect environmental rule of law, not facilitate retrospective regularisation.
- Points to Delhi smog as a daily reminder of environmental degradation.
- Says the majority is overlooking “fundamentals of environmental law”.
Key Issues Raised by the Case
1. Precautionary Principle vs. Economic Considerations
- Precautionary principle requires prior approval; retrospective permission undermines it.
- Majority prioritised economic stability.
- Minority prioritised environmental sanctity.
2. Separation of Powers
- Whether courts can effectively validate retrospective permissions that dilute statutory requirements.
3. Environmental Rule of Law
- Recall signals a potential softening of strict judicial scrutiny of environmental compliance.
4. Governance Implications
- Encourages laxity by developers expecting post-facto regularisation.
- Raises concerns about regulatory capture and weak enforcement.
Implications
Short-Term
- Relief for construction/real estate/industrial sectors.
- Prevents mass demolition or halting of ongoing commercial activity.
Long-Term
- Weakens deterrence against environmental violations.
- Could reduce the effectiveness of the EIA regime.
- Raises doubts about India’s commitment to sustainable development jurisprudence.
Conclusion
- The case is a classic environment vs. economy conflict.
- Reflects movement from strong judicial environmentalism (Oka–Bhuyan approach) to pragmatic judicial balancing (Gavai–Chandran approach).
- Highlights the institutional tension between environmental rule of law and economic governance.
