A dismantling of the base of environmental regulation

On November 18, 2025, in CREDAI vs Vanashakti, by a 2:1 majority, the Supreme Court docket of India reviewed and recalled its judgment from Could this yr, the place it had declared notifications allowing individuals to safe ex put up facto environmental clearances (ECs) as unlawful. The unique judgment was hailed as a landmark second, as a uncommon occasion of the Court docket grounding its rhetoric in enforceable self-discipline. However the Court docket has now asserted, with a powerful dissent from Justice Ujjal Bhuyan, that its earlier ruling misinterpreted binding precedents and failed to understand that retrospective ECs might, in some conditions, additional the reason for public curiosity.

Our instant response would possibly properly be to ask how? To reply this, the Court docket employs an entirely round logic. Because the then Chief Justice of India, Justice B.R. Gavai put it, to thoroughly deny retrospective clearances undermines public welfare as a result of it may properly compel authorities to halt or tear down accomplished tasks that had begun with out prior permission. Thus, the unlawful act is, by itself, became a justification. The actual fact of a violation — of a challenge unlawfully commenced with out an EC — winds up forming the rationale for granting the very clearance that the regulation requires upfront. In different phrases, the principles develop into fungible, to accommodate a fait accompli.

Additionally learn | The dismal state of India’s environment

An undoing of a reasoned judgment

For someplace nearing half a century, the Supreme Court docket has spoken in hovering phrases about the precise to a clear and wholesome atmosphere. By way of quite a few judgments, it has situated this promise inside Article 21 of the Structure of India’s assure of a proper to life. It has cited the precautionary precept — which requires the state to undertake protecting measures even when scientific proof about an environmental threat is unsure — as a binding norm. It has additionally acknowledged that ecological degradation burdens each the current and future generations. It has enunciated a proper in opposition to the harms of local weather change, and it has appealed to ideas of intergenerational fairness and sustainable growth as constitutional objectives.

So grandiose have these pronouncements typically been that this physique of regulation is seen as one of many Court docket’s extra progressive feats. However summary doctrines take us solely to date. They serve little objective if they don’t seem to be meaningfully utilized to actual world violations.

Worse nonetheless, they collapse totally when the Court docket undoes its personal fastidiously reasoned judgments. That’s exactly the concern with the judgment in CREDAI. It turns non-compliance from an offence into an argument, and dismantles, within the course of, the foundations of environmental regulation.

At its core, India’s environmental legal guidelines mandate prior EC for sure industrial and growth tasks of specified sizes and kinds.

This requirement, instilled by the Atmosphere Affect Evaluation (Notification) of 2006 has been watered down not less than twice over. In 2017, the Ministry of Atmosphere, Forest and Local weather Change issued a notification allowing those that had commenced work on web site with out an EC or expanded manufacturing past the restrict of the EC, to use for and safe a retrospective licence inside six months from March 14, 2017. In 2021, the Ministry issued what it described as an “Workplace Memorandum” and instituted a “Customary Working Process” permitting tasks in violation of the regulation, the place the window accessible beneath the 2017 order to use couldn’t be availed, to be regularised, by paying penalties and prices.

The idea of the unique ruling

The Court docket’s authentic ruling, authored by Justice A.S. Oka, struck down each the 2017 and 2021 notifications. In doing so, the judgment returned to first ideas and located the controversy throughout the lengthy arc of India’s environmental jurisprudence. It traced the trajectory from the Stockholm Convention of 1972 to the enactment of the Atmosphere (Safety) Act, 1986, after which to the Environmental Affect Evaluation (EIA) frameworks of 1994 and 2006, every measure constituting a constructing block in a regime that goals at stopping hurt moderately than condoning and regularising violations.

The decision noticed the insistence on a previous EC as no procedural formality. Then again, it insisted that this fashioned a central pillar in our statutory design. The EIA regime requires public hearings, scientific research, skilled appraisal and conditional approvals earlier than a challenge begins, as a result of the thought is to stop irreversible hurt. A previous EC ensures that challenge viability is assessed contemplating ecological limits. It ensures that financial momentum doesn’t predetermine environmental outcomes.

The unique judgment additionally drew upon long-standing selections, together with the decision in Frequent Trigger vs Union of India (2017), the place the Court docket held unequivocally that retrospective clearances are “detrimental to the atmosphere and will result in irreparable degradation of the atmosphere,” and the M.C. Mehta circumstances, which asserted that even the renewal of a mining lease required earlier approval. The logic was clear: if the regulation calls for scientific scrutiny first, however development proceeds sans such examination, the consequence can’t be a backdated validation of the illegality.

Equally important was Justice Oka’s account of the Union Authorities’s personal conduct. Earlier than the Madras Excessive Court docket, the State’s attorneys gave a categorical enterprise that the 2017 notification permitting ex put up facto clearances was a one-time measure. That assurance was recorded and relied upon by a constitutional discussion board. Subsequently, one would assume the federal government would bind itself to its solemn dedication. However because the 2021 memorandum demonstrated, it was solely too eager to liberalise compliance even additional, permitting even those that had not submitted purposes in the course of the allotted time to hunt retrospective validation.

Regrettably, the evaluation judgment appears past all this. It frames for itself a slender query: would implementing prior scrutiny inconvenience those that have already violated the regulation? In so asking, it shifts the goalposts from precept to expediency, marking, as Justice Bhuyan factors out, a transparent retrograde step.

The dissenting opinion additionally lays naked the varied different inconsistencies within the majority’s strategy. It factors to the chief justification for repelling predated ECs: the concept our legal guidelines are constructed to anticipate hurt moderately than accommodate it. Changing prior scrutiny with backdated lenience dismantles the guardrails that the Court docket itself helped assemble over a long time.

If the actual fact of a violation turns into grounds for erasing its penalties, any incentive to conform disappears. Undertaking proponents shall be joyful to proceed with out an EC, safe within the information that the federal government, aided by the court docket, will assist normalise their lapses by the fee of fines moderately than the imposition of any critical penalties. In impact, what’s rewarded is illegal conduct with a declaration that the sheer scale of the wrongdoing compels the regulation to bend.

An additional weakening of accountability

The evaluation judgment’s implications for environmental governance are stark. First, it hollows out the EIA course of. A way of fait accompli attaches itself to the necessities of public participation, skilled appraisal and scientific analysis. Scrutiny turns into ceremonial. Second, compliance is handled as voluntary. The state’s regulatory hand weakens, and enforcement loses its deterrent pressure.

However, in the end, essentially the most troubling consequence of the judgment is the sign it sends. We live in a time of intensifying local weather change and ecological fragility. However India’s high court docket desires to dilute the already-flailing instruments to make sure accountability. For an establishment that has lengthy prided itself on pioneering environmental safety, the evaluation marks a decidedly disquieting step backwards.

The Court docket will now need to reassemble to listen to the challenges anew. When it does so, it’ll do properly to keep in mind that the validity of the 2 notifications is just not the one factor at stake right here, but in addition the credibility of India’s rule of regulation.

Suhrith Parthasarathy is an advocate practising within the Madras Excessive Court docket

Revealed – December 04, 2025 12:16 am IST