Can Courts Be Rigid In Barring Post-Facto Environmental Clearances Absolutely? Supreme Court Asks In Vanashakti Review

A bench comprising Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi was hearing a writ petition filed by NGO Vanashakti challenging the legal framework permitting ex post facto environmental clearances.

The matter arises from the Court's earlier decision recalling its own order that had prohibited retrospective environmental approvals.

During the hearing, Senior Advocate Gopal Sankaranarayanan for Vanashakti submitted that legislation or delegated legislation could not permit ex-post facto environmental clearance under Section 3 of the Environment Protection Act.

Justice Bagchi noted that while an office memorandum may not amend the Environmental Impact Assessment notification which provides for prior environmental clearance for projects and has a legislative character, there may be appropriate cases where the degree of environmental harm is not so high as to undermine sustainable development, making limited regularisation justifiable.

“So there may be appropriate cases, for example, that the degree of environmental harm is not so high to the extent of sustainable development which may be achieved. In such cases, a notification for post facto sanction may be given”, he said.

“Another is an exercise of building a road, building a hospital, building a public utility service. In these situations, an ex post facto approval yields to a higher public interest of health, which is a very important compelling requirement in environmentally challenged world”, he highlighted.

Sankarnarayan clarified that he is not making an argument that the legislature is completely devoid of such power but contended that it cannot be done under Section 3 of the Environment Protection Act, which empowers the Central Government to take measures that promote environmental protection and not to create a framework for regularising violations.

“The legislature will definitely have the power in given cases to make such exceptions. It is my submission that it will not exercise section 3 for that purpose. it can exercise any other power. This section could not have been used for a blanket ex post facto clearance saying all projects all mines are welcome”, he said.

He argued that such a framework undermines the rule of law by placing compliant project proponents at a disadvantage compared to those who begin activities first and seek approval later. He contended that blanket ex post facto clearance violates Articles 14 and 21 of the Constitution.

Justice Bagchi highlighted that environmental regulation often involves competing considerations. Referring to the clearing of large tracts of rainforest in Indonesia for palm oil cultivation as an alternative to mineral oil contributing to climate change, he noted that such trade-offs fall within the domain of expert and legislative decision-making and courts generally defer to legislative wisdom unless constitutional limits are crossed.

Justice Bagchi also noted that India's contribution to global pollution was less than ten percent and that even strict national compliance with environmental standards may not prevent outcomes such as rising sea levels caused by inaction elsewhere. He said this creates a paradox that requires an institutional perspective on environmental legislation.

“The domesticity becomes really a paradox. You restrain and restrict and discipline the operation in a particular nation state, to the extent that it ensures and adheres to environmental wrongs or to international standard that was accepted by non-regression principles, it still does not stop global warming. It still does not stop raising of sea levels because of indolent and indifferent action throughout the world, and in this situation, we need to institutional perspective of these legislations”, he highlighted.

Justice Bagchi said post-facto clearance regimes coupled with polluter-pays costs and regulatory conditions could act as checks on illegal continuation of environmentally harmful activities.

“An ex post facto plan can be a good check to illegal continuation of mining or other damaging activities affecting environment by saddling them with punitive costs”, he said.

However, Sankarnarayanan highlighted that that in practice, penalties are often modest and public resources are expended in preparing regularisation frameworks.

He further pointed out that after the decriminalisation of offences under Environmental Protection Act, effective deterrence depends on strong monetary sanctions, failing which well-resourced project proponents may treat violations as a calculated business risk.

Sankarnarayanan emphasised that the only legal window currently available for seeking post-facto clearance was the notification dated March 14, 2017, which allowed half-constructed projects without prior clearance to apply within six months, as extended till 2018 by Madras High Court.

He argued that the 2017 notification was conceived as a one-time amnesty scheme but was being treated by the government as continuing till 2026. According to him, the July 7, 2021 standard operating procedure was meant only to operationalise cases that had already entered the 2017 window but was being used as a fresh gateway for regularisation after the Madras High Court had struck down the regime and no appeal had been filed.

He argued that Section 3 of the Environment Protection Act permits only measures that promote environmental protection and cannot be used for blanket regularisation of violation projects. He contended that the impugned framework violated Articles 14 and 21 of the Constitution.

“If your lordships were to opine that ex post facto clearance is ok without the safeguards of it being one of and without having high penalties which are more than 100% at least 200%, 300%, so that people are shocked into realising that “we are not going to run this risk, we cannot slip a few to some officer who gives the clearance. I will make sure to make the payments in the forms and get my clearance like the next man who did the legal thing.” Unless all those safeguards are there, it is a violation of Article 14. It's absolutely arbitrary to say that look just go and set it up and then come and make an application and there is a good chance we will make it through”, Sankaranarayanan argued.

Referring to figures placed by the Ministry of Environment, Forest and Climate Change on affidavit, he said 417 violation cases had been granted environmental clearance under the 2017 notification, 514 were under consideration at the State level and none had been rejected. He added that 366 clearances had also been granted under the standard operating procedure dated July 7, 2021, which was being used as a backdoor route for fresh regularisations.

The arguments in the case will continue today.

Case no. – W.P.(C) No. 1394/2023 Diary No. 50009 / 2023

Case Title – Vanashakti v. Union of India