The Supreme Court on Monday observed that the legislature should not be completely “denuded” from granting environmental clearances (EC) to development projects long after they have commenced work, particularly when such a decision leads to serving a higher public good such as establishment of a hospital or a public utility. The Supreme Court of India. (PTI)
Examining a challenge to two Central government orders of 2017 and 2021 providing for ex-post facto EC (granting clearance after commencement of project), a bench headed by Chief Justice of India (CJI) Surya Kant noted a classic paradox that while India contributes not even 10% to global warming, the burden of protecting environment is much more on courts, even as countries having a bad track record of having increased carbon footprints remain “indolent” and “indifferent”.
The court made the observations while hearing a batch of petitions led by non-profit organisation Vanashakti and others which held that while the legislature can grant exemptions for projects from the mandatory requirement of prior EC, the 2017 and 2021 notifications fall foul for giving a “blanket” exemption to all mining and development projects that commenced work without the green nod.
The bench, also comprising justices Joymalya Bagchi and Vipul M Pancholi said, “If the post-facto clearance is for a hospital or public utility, it leads to a higher public interest of serving the health of citizens. In such a scenario, we will take it that the legislature is not denuded from issuing a notification. How do you then challenge the legislation for serving the cause of health. Everything has to be seen from the aspect of greater public good.”
Comparing India’s position vis-a-vis other countries on carbon emissions, the court said, “In the domestic sphere, should constitutional courts be asked to freeze everything. It becomes a paradox when we are asked to stop an activity as it may lead to global warming. It does no good as it hardly helps to stop global warming as the rise in sea levels continues due to indolent attitude by other countries.”
It further added, “There is total indifference by other countries having carbon footprints which are incomparable to India. This does not mean courts remain oblivious to environmental concerns. But the crossing of the 1.5 degree centigrade global average temperature and the mean rise in temperature to 2 degree centigrade, the contribution of India is not even 10%.”
The comments from the court are significant as the matter has travelled to this court after two benches in the past took diametrically opposite views on the two notifications. In May 2025, a two-judge bench struck down the two notifications holding that prior EC rules the field. This was reversed by a three-judge bench in a review petition decided on November 18, 2025. It noticed that the May order will lead to massive demolition of projects worth over ₹20,000 crore, some of which include fully constructed hospitals, highways, greenfield airports and public utilities. This bench, by a 2:1 majority, had paved way for rehearing of the case as it noticed some top court judgments upholding post-facto EC were not examined by the earlier judgment.
Appearing for Vanashakti, senior advocate Gopal Sankaranarayanan said, “Legislature has wide powers to subserve other needs. The exercise of its power exists and so we do not argue that the Centre is denuded of the power to issue a notification. But this power cannot be used for granting ex-post facto EC for all operations. It violates the fundamental right to equality under Article 14 of the Constitution. What then happens to the diligent person who took EC to begin the project.”
The bench said, “The fault is not with the policy but of the institutional mechanism. In a particular case, if the degree of environmental harm is much higher, future remedies can be worked out. It may have to be done on a case to case basis. Where degree of harm is not so high, in such cases notification of ex-post facto EC is possible.”
The court said that in a given circumstance, what the legislature decides lies within the legislative domain. However, the court did raise a red flag on the 2017 notification sought to be extended by 2021 office memorandum (OM).
It said, “On the 2017 notification granting exemption from prior EC, why should it be read so rigidly or restrictively? It only permits project proponents to apply and not for granting sanction.” Sankaranarayanan said that invariably, all those who apply get EC.
The bench said that its observations should not be seen as compromising with environmental requirements but said that the legislature is required to see what best outcome is possible by balancing the environmental principles such as the ‘Polluter Pays’ principle by which imposing heavy penalties can be imposed.
Sankaranarayanan pointed out these penalties are nothing compared to the project cost and fails to act as a deterrent. He said that the Jan Vishwas (Amendment of Provisions) Act 2023 has de-criminalised violations under the Environment Protection Act 1986 allowing defaulters to escape with minor penalties.
The court agreed to continue the hearing of the case on Tuesday. Vanashakti pointed out that it has also filed a review petition against the November 2025 decision and sought its listing in open court with the present matters.