Sustainable development: Retrospective clearances threaten rule of law

The Supreme Court’s recall of its May 2025 ruling this week could reopen the door for retrospective environmental clearances (ECs) and marks a significant milestone in India’s environmental regulation. In earlier cases, such as Common Cause vs Union of India, it was made clear that a prior EC was mandatory. In Vanashakti vs Union of India, the court again ruled out post-facto ECs. Now, the Bench led by Chief Justice of India B R Gavai has recalled that decision, noting that the earlier order risked causing large financial losses, derailing major public projects, and creating uncertainty among developers. But these practical concerns cannot replace the constitutional foundations on which India’s environmental governance rests. The right to clean air and a pollution-free environment is a fundamental right, repeatedly affirmed by the court itself. Ex post-facto clearances weaken the precautionary principle which is the core idea that environmental harm must be avoided before it occurs and this risks turning environmental review into a formality rather than a safeguard. This concern is particularly relevant today, when prolonged air pollution episodes, groundwater depletion, deforestation, and climate impacts already impose enormous health and economic costs.

 

The legal framework strengthens this position. Paragraph 2 of the 2006 Environment Impact Assessment (EIA) Notification requires a prior EC, making retrospective approvals legally and ethically untenable. The Ministry of Environment, Forests, and Climate Change (MoEFCC) granted over 500 environmental clearances in 2024 alone, illustrating the volume of projects that depend on rigorous environmental scrutiny. Diluting this by normalising violations by builders who began work without permission, often without even disclosing basic project details, risks embedding systemic non-compliance. Justice Ujjal Bhuyan dissented and noted that post-facto clearances were inconsistent with the requirement for mandatory prior environmental approval under law, and observed that later judgments allowing such clearances departed from this settled position. He also pointed out that the argument that demolition would cause pollution could not justify non-compliance, as the consequences flowed from construction undertaken without prior approval.

 

Going forward, the way out is not retrospective leniency but strengthening compliance. First, ECs must remain strictly prior to starting a project. The discipline of obtaining permission before starting construction is the backbone of environmental regulation. Second, the government must improve administrative capacity through speeding up EC processing on platforms like PARIVESH (Pro Active and Responsive Facilitation by Interactive and Virtuous Environmental Single-window Hub), ensuring timely public hearings and building stronger expert appraisal committees so that delays do not push developers toward shortcuts. Third, transparency and disclosure must improve. Many violations involve incomplete or misleading project information. Real-time monitoring and mandatory public disclosure can help. Finally, penalties for violators must be imposed to compensate for ecological damage under the “polluter pays” principle to deter future breaches. As the matter will be heard further, it offers hope that the court will re-establish clarity and reaffirm that environmental protection cannot be waived for convenience. Sustainable development is not a hurdle; it is the only lawful path that respects both citizens’ rights and India’s environmental future.