SC Strikes Down Retrospective Environmental Clearances

The Supreme Court of India invalidated government-issued notifications and office memorandums that allowed retrospective or ex-post facto environmental clearances to industrial, mining, and infrastructure projects that had commenced operations without prior mandatory environmental approvals.

Key Highlights of the Judgment:

• The Supreme Court ruled that projects which began without obtaining prior Environmental Clearance (EC) cannot be retrospectively regularised.
• The Court struck down the:
  • 2017 Notification: The 2017 notification allowed retrospective ECs. It introduced as a “one-time opportunity” for six months allowing post-facto clearance.
  • 2021 Office Memorandum (OM) and the subsequent 2022 memorandum: These expanded the framework, effectively institutionalising a system of regularisation for violators.
• The memorandums violated the fundamental requirement of priorclearance — a term emphasised 34 times in the 2006 Notification — and weakened environmental protections. The Court declared these instruments “illegal” and directed that no similar provisions should be issued in the future.
• All future retrospective clearances are prohibited.
• Court’s Observations:
• There are no equities in favour of those who committed gross illegalities without obtaining prior environmental clearances.
• The violators were not unaware or uninformed; rather, they included companies, real estate developers, mining firms, and public sector undertakings.
• The 2021 OM was held to be a “craftily drafted” attempt to create a retrospective legal regime for environmental compliance, which the Court found arbitrary and illegal.
• The Court strongly emphasized that development cannot come at the cost of environmental degradation, stating:

“Conservation of environment and its improvement is an essential part of the concept of development.”

Legal and Constitutional Basis:

• The Court invoked Article 21 of the Constitution, which guarantees the right to life, noting that environmental protection is an integral component of this right.
• Under Article 21 of the Constitution, the right to live in a pollution free environment is guaranteed. In fact, the 1986 Act has been enacted to give effect to this fundamental right Therefore, even the Central Government has a duty to protect and improve the natural environment.
• It relied on previous landmark judgments:
  • Common Cause (2017)
  • Alembic Pharmaceuticals (2020)
• Key-Supreme Court Observations (importance of the EIA process)
• In TN Godavarman Thirumulpad v Union of India (1997), the Court recognized the right to a clean environment and the need for EIA before starting projects in forest areas.
• In MC Mehta v Union of India (1996), the Court stressed the necessity of EIAs for projects affecting water bodies.
• In Centre for Environmental Law v Union of India (2018), the Court reiterated the importance of EIA procedures and public consultations.