Balancing Environment and Development Imperatives – SC Recalls Verdict on Ex Post Facto ECs

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• The Supreme Court, by a 2–1 majority, recalled its (May 16, 2025) judgment that had declared retrospective (ex post facto) Environmental Clearances (ECs) as illegal and anathema to environmental law.
• The majority—CJI B.R. Gavai and Justice K. Vinod Chandran—held that the earlier ruling would cause massive economic losses and hinder critical public infrastructure.
• Justice Ujjal Bhuyan dissented strongly, calling the recall a “retrogression” and a violation of the precautionary principle.

Background

• A bench led by Justice A.S. Oka (now retired) and Justice Bhuyan held that ex post facto ECs are illegal.
• The court had struck down a 2017 notification and 2021 office memorandum (OM) of the Union government, which in effect recognised the grant of ex post facto ECs.
• The government was accused of “crafty drafting” to regularise illegal constructions.

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Grounds for Recall (Majority Opinion)

• Public interest and economic costs:
  • CJI Gavai emphasized devastating consequences if the earlier verdict continued.
  • For example, 24 Central projects worth Rs. 8,293 crore and 29 State projects worth Rs. 11,168 crore were stuck.
  • Major projects impacted – AIIMS Odisha (962-bed), Vijayanagar greenfield airport, SAIL investments, common effluent treatment plants.
  • Demolition of such projects would mean wastage of nearly Rs. 20,000 crore and cause livelihood loss.
• Legal precedents ignored earlier:
  • The earlier ruling overlooked co-equal bench decisions that allowed post facto ECs in exceptional circumstances. For example, Electrosteel Steels Ltd (2021), Pahwa Plastics (2022), D. Swamy (2022).
• As per judicial discipline:
  • A coordinate bench must refer to a larger bench if it disagrees.
  • The earlier verdict was therefore per incuriam (judicial error).
• Penalties as deterrence:
  • 2017 and 2021 rules imposed heavy penalties, ensuring – polluter pays principle, deterrence against illegal constructions.
  • The majority held that retrospective ECs plus penalties can achieve compliance without demolition.
• Pollution paradox:
  • Demolishing large structures may cause more pollution – debris, reconstruction emissions
• Hence, recall is seen as protecting environmental interest indirectly.

Minority Opinion – Justice Ujjal Bhuyan’s Strongest Dissent

• Violation of environmental jurisprudence:
  • Ex post facto ECs violate – precautionary principle (core of environmental jurisprudence), sustainable development.
  • He termed retrospective ECs “anathema”, i.e., a thing devoted to evil.
• Per Incuriam logic reversed:
  • Earlier cases Common Cause (2017) and Alembic Pharma (2020) held that ex post facto ECs are impermissible and contrary to law.
  • Therefore, Electrosteel, Pahwa, and D. Swamy was per incuriam, not the earlier judgment.
  • Critique of ‘false environment vs development’ narrative: He rejected the idea that environment and development are adversaries. Warned the Court is “backtracking on sound environmental jurisprudence”.
• Rule of law and accountability:
  • Builders who violated EC norms should not be rewarded.
  • Review petitions lacked details such as dates of construction, whether EC was originally required.
  • Therefore, the review should have been dismissed.
• Delhi smog reminder: Highlighted Delhi air pollution as an example of environmental degradation, and the court has constitutional duty to protect the environment.
• Precautionary vs polluter pays principles: The precautionary principle cannot be diluted by relying on polluter-pays, which is only compensatory.

Challenges Highlighted in the Judgment

• Conflict between infrastructure development and environmental protection.
• Weak compliance culture among developers.
• Inconsistency in judicial precedents.
• Administrative lapses: Delayed EC processes.
• Environmental degradation: Air pollution and unsustainable practices.
• Risk of setting a lenient precedent encouraging violations.

Way Forward

• Establish clear, time-bound EC procedures: Avoid delays that prompt developers to proceed without ECs.
• Strengthen monitoring and penalties: Ensure real-time compliance, heavy penalties discouraging violations.
• Harmonise judicial precedents through a larger bench: To resolve contradictions on ex post facto EC validity, environmental principles.
• Promote sustainable infrastructure development: In line with precautionary principle, public interest, constitutional environmental duties.
• Strengthen EIA quality and transparency: Independent audits and public participation should be enhanced.
• Balance public interest with environmental safeguards: Critical public projects must comply with law while protecting ecology.

Conclusion

• The SC’s recall decision reflects a critical judicial balancing act between environmental protection and developmental imperatives.
• It underscores the need for robust EC processes, clear judicial guidance, and sustainable development that respects both environment and economic goals.
• The matter now being placed before the CJI may pave the way for a larger bench to finally settle the legal position on ex post facto environmental clearances.

Source: TH | IE