Context:
The editorial discusses the Supreme Court’s reviewed judgment (2023) in CERC v. Varnashakti, where the Court recalled its earlier May ruling that declared retrospective post-facto environmental clearances (ECs) illegal. The reviewed judgment now permits post-facto ECs, which the author argues undermines India’s environmental protection regime, dilutes accountability, and weakens constitutional guarantees under Article 21.
Key Highlights
- Background of the Case
- In May 2023, a 3-judge Bench declared post-facto ECs illegal, stating:
- They violate environmental jurisprudence.
- They undermine public safety.
- They contradict past precedents.
- In November 2023, the Court reversed itself, now allowing post-facto ECs, subject to penalties and compliance conditions.
- Original Judgment’s Reasoning
- Environmental rule of law requires:
- Prior assessment
- Prevention of irreversible harm
- Precautionary principle compliance
- The Court held that permitting industries to operate first and seek permissions later makes environmental compliance meaningless.
- Traced legal evolution from:
- 1972 Stockholm Conference
- Environmental (Protection) Act, 1986
- EIA notifications (1994, 2006) emphasizing prior approvals.
- Concerns With the Reviewed Judgment
- Court now permits industries who operated illegally (without prior EC) to apply retrospectively and regularize violations.
- This undermines the deterrence value of environmental law.
- The author terms it a categorical retreat from the principle that prevention must precede industrial activity.
- The change allows violators to:
- Pay penalties,
- Regularize environmental breaches,
- Continue operations — weakening the idea of irreversible environmental harm.
- Government’s Role
- 2017 notification introduced a post-facto clearance route, described as “one-time” at the time.
- However, subsequent government memoranda (2021) attempted to widen these exemptions.
- Judiciary had previously resisted such dilution; the new judgment now aligns with these administrative relaxations.
- Environmental Impact
- Makes the entire preventive regulatory architecture weak.
- Encourages industries to begin operations illegally, then seek clearance.
- Reduces incentives for compliance and weakens the right to a clean environment, part of Article 21.
Relevant Prelims Points:
- Environmental Impact Assessment (EIA): A prior-environment-clearance process assessing ecological impacts of projects.
- Environment (Protection) Act, 1986: Umbrella legislation empowering the Centre to issue notifications such as EIA 1994/2006.
- Precautionary Principle: Preventive approach under Indian environmental jurisprudence; derived from global conventions.
- Polluter Pays Principle: Requires violators to bear remediation costs.
- Key Judgments:
- Vellore Citizens Welfare Forum v. Union of India (1996) → Recognised Precautionary & Polluter Pays.
- A.P. Pollution Control Board v. Prof. M.V. Nayudu → Emphasized scientific decision-making.
- Post-facto EC: Permission granted after activity begins — generally seen as legally unsound.
Relevant Mains Points:
- Constitutional Angle:
- Article 21 includes right to clean environment.
- State’s duty under Article 48A, citizen duty under Article 51A(g).
- Judicial Responsibility:
- Courts must strengthen environmental accountability, not relax wrongful acts.
- Retrospective approvals contradict environmental rule-of-law principles.
- Regulatory Concerns:
- Weakens deterrence: industries may risk non-compliance.
- Encourages environmental degradation due to institutional laxity.
- Undermines scientific appraisal processes under EIA.
- Governance Issues:
- Environmental regulation already suffers from institutional capacity gaps.
- Diluted EC regimes weaken monitoring, transparency, and people’s participation.
- Way Forward:
- Strengthen ex-ante environmental scrutiny.
- Prohibit post-facto clearances except under unavoidable emergency circumstances.
- Increase public participation in EIA hearings.
- Enhance judicial consistency to reinforce environmental rule of law.
- Improve accountability of project proponents through strict penalties and criminal liability for repeated violations.