The Supreme Court heard a crucial plea challenging government notifications that allowed industries to seek environmental clearance after starting operations. The case could redefine whether retrospective EC violates Article 21 and India’s core environmental principles.
The Supreme Court on Wednesday heard an important environmental law matter in which challenges government measures permitting retrospective, or ex post facto, environmental clearances (EC) to industrial projects that had commenced operations without prior approval.
The case is being heard by a Bench comprising the Chief Justice of India, Justice Joymalya Bagchi and Justice Vipul M. Pancholi.
The petitions question the validity of two government measures — a March 14, 2017 notification and a July 2021 office memorandum — which opened a window for industries operating without prior environmental clearance to seek post-facto approval.
Senior Advocate Gopal, appearing in the matter, submitted that the challenge relates to
“Two notifications, the first being the 14 March 2017 notification permitting ex post facto environmental clearance (EC).”
He explained that the 2017 notification created a one-time six-month window allowing project proponents who had started operations without prior EC — whether “accidental or deliberate” — to apply for clearance. According to him, the competent authority would examine each case on merits and either grant or reject the EC.
He emphasized that the scheme was strictly time-bound and that after expiry of the six-month period, no fresh applications could be entertained under the notification. Reiterating his argument, he said the 2017 notification introduced
“a one-time, pro-tem window permitting applications for ex post facto environmental clearance (EC).”
He further pointed out that before the Madras High Court, the then Additional Solicitor General had clearly stated that the measure was “temporary,” “exceptional,” and “not to be repeated.” He argued that after April 13, 2018, no statutory or executive framework existed permitting fresh ex post facto EC applications.
Referring to the second measure, Senior Advocate Gopal submitted that the July 2021 notification was merely an office memorandum issued following a nudge from the National Green Tribunal. According to him, it only served as a Standard Operating Procedure (SOP) to guide the process and did not reopen the six-month window created in 2017.
He further argued that a two-judge Bench had properly relied on earlier Supreme Court decisions such as Common Cause v. Union of India, Alembic Pharmaceuticals Ltd. v. Rohit Prajapati and Electrosteel Steels Ltd. v. Union of India. Though the judgments in D. Swamy and Pawa Plastics were not separately discussed, he submitted that these had already been examined by the Madras High Court.
He argued that across precedents, the Supreme Court had recognised that while prior environmental clearance is the general rule, ex post facto clearance may be granted in rare and exceptional cases, sometimes by invoking Article 142 of the Constitution.
After reviewing case law, he said the Court had previously concluded that where shutting down an industry would cause greater harm than regularising it, and where pollution norms are met, ex post facto approval may be justified.
He referred specifically to findings in D. Swamy, where while examining an order of the National Green Tribunal (Southern Zone), the 2017 notification was upheld as a valid statutory instrument issued under Sections 3(1) and 3(2)(v) of the Environment (Protection) Act read with Rule 5(3)(d) of the Environment (Protection) Rules. According to him, this recognised the legal competence of the Central Government to frame such a regime.
Senior Advocate Gopal further submitted that a three-judge Bench had mistakenly treated the SOP as approved, whereas in reality it merely gave effect to earlier judicial pronouncements. He suggested that he may have to argue the matter either before the present Bench or seek reference to a five-judge Bench.
Referring again to Common Cause, he argued that in that case the Court had suspended mining operations of leaseholders lacking EC and allowed them to resume only after obtaining clearance and paying compensation, while rejecting retrospective validity.
However, he contended that the judgment did not completely bar ex post facto clearance in principle, although a later three-judge Bench had held that Common Cause could not be relied upon as a supporting precedent.
Reading from Shoe Nadan v. Union of India, he quoted:
“We must concede that no reasons appear to have been given by the review bench for allowing the review petition and directing rehearing of the appeal. The question is, does this introduce any informity in the order of the review bench? There can be no doubt that the review bench was not legally bound to give reasons for the order made by it. The epics.”
He then raised broader constitutional questions before the Court:
“If a larger bench examines the merits of the matter, would that effectively become an intra-court appeal? When a larger bench is formed for review, is it permitted to go beyond the narrow question of whether the review should be allowed? In such a review, can the bench express any opinion on the substantive merits of the case?”
During the hearing, Additional Solicitor General Aishwarya Bhati submitted that the Union government was ready for final arguments. However, Senior Advocate Gopal expressed difficulty in proceeding immediately, stating that he was unable to further assist at that stage and that the matter had been pending for nearly two years.
The Chief Justice responded that the Bench would deal with all issues, including the composition of the judgment and the merits. When another counsel representing a hospital mentioned that he had invested about Rs 300 crore in an 11,000-bed project and requested accommodation on Friday, the Chief Justice firmly observed,
“At least this much respect we will expect from the lawyer. We fixed the date after consulting.”
Other counsels opposing ex post facto clearances argued that it was impermissible to ignore the Madras High Court judgment. They submitted that their objections were both substantive and procedural.
They pointed out that three relevant judgments governed the issue and that decisions in S.P. Mutraman and Alembic were not properly considered. According to them, these judgments clearly hold that post-facto approval cannot be granted.
Another counsel stressed that the requirement of prior environmental assessment must not be diluted. He argued that while this Court may exercise powers under Article 142 in individual cases of genuine hardship, such exceptional relief cannot change the governing legal principle.
He submitted that such case-specific observations do not constitute the ratio of a decision and should not be treated as laying down a general rule.
Continuing his submissions, one counsel argued that the Environment (Protection) Act, the Rules, and Article 21 of the Constitution do not permit ex post facto clearances.
He submitted that any person seeking to alter the environmental status quo bears the burden of proving that no adverse impact is caused. Granting post-facto EC, he argued, runs contrary to the right to life under Article 21.
Counsel for the petitioner Vanashakti further placed the issue in an international context, referring to the Stockholm Conference as the foundational global event that inspired India’s key environmental laws — the Water Act, the Air Act and the Environment Protection Act.
He highlighted that Principle 4 of the Stockholm Declaration institutionalised sustainable development, the precautionary principle and the need for impact assessments. He pointed out that the Environmental Impact Assessment (EIA) framework was adopted in 1994 under Section 3 of the Environment (Protection) Act, applying the precautionary principle.
The case raises significant constitutional and environmental questions on whether retrospective environmental clearances can be permitted as a policy measure or whether they dilute the core requirement of prior assessment under Indian environmental law.
The Supreme Court’s eventual ruling is expected to have far-reaching consequences for industries, environmental governance and the interpretation of Article 21 in the context of sustainable development.
Case Title:
VANASHAKTI Versus UNION OF INDIA W.P.(C) No. 1394/2023 PIL-W
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