Balancing Environment and Development Imperatives Latest News
- 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.
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.
Balancing Environment and Development Imperatives FAQs
Q1: What concerns are associated with granting ex post facto Environmental Clearances (ECs) in India?
Ans: Ex post facto ECs violate the precautionary principle and undermine environmental jurisprudence.
Q2: What is the SC’s reasoning for recalling its earlier judgment on retrospective ECs?
Ans: The Court justified the recall by citing massive public expenditure at risk, procedural errors in overlooking co-equal bench precedents.
Q3: How the principle of judicial discipline influenced the SC’s decision to revisit its earlier judgment?
Ans: The recall was grounded in judicial discipline as the earlier bench failed to follow or refer to conflicting co-equal bench rulings.
Q4: What are the key concerns raised in Justice Ujjal Bhuyan’s dissent?
Ans: He held that retrospective ECs dilute the precautionary principle, reward violators, create a false environment-vs-development binary.
Q5: Whether economic costs and public infrastructure considerations can justify retrospective environmental clearances?
Ans: They cannot legally justify ex post facto ECs if such clearances fundamentally violate constitutional environmental principles.
