Post-Facto Environmental Clearance in India: Jurisprudential Drift or Doctrinal Consistency?

Post-Facto Environmental Clearance in India: Jurisprudential Drift or Doctrinal Consistency?

1. Introduction

The requirement of prior environmental clearance (EC) lies at the heart of India’s preventive environmental law regime. Yet, a growing body of litigation concerns projects that seek ex post facto or post-commencement clearances. This article critically analyses the legality and judicial treatment of such clearances, drawing upon leading Supreme Court and National Green Tribunal (NGT) decisions, statutory provisions, and administrative notifications. The analysis demonstrates that while the courts consistently denounce the practice in principle, they have fashioned a narrow window for exceptional regularisation—subject to strict safeguards, heavy penalties, and continued regulatory scrutiny.

2. Statutory & Policy Framework

2.1 Environment (Protection) Act, 1986

Section 3 empowers the Union Government to “take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment.”1 Although the Act is facilitative, its delegated legislation—particularly the Environment Impact Assessment (EIA) Notifications—creates a mandatory requirement of prior EC for specified activities.

2.2 EIA Notifications

  • 1994 Notification: Prohibited any listed project from being “undertaken… unless it has been accorded environmental clearance.”2
  • 2006 Notification: Retained the prior-EC mandate while refining processes of screening, scoping, public hearing and appraisal.
  • 2017 “Violation” Notification (S.O. 804(E)): For the first time provided a dedicated mechanism for considering projects that had commenced without EC, thereby institutionalising the possibility of post-facto regularisation subject to damage assessment, remediation plans and penalties.3

3. Conceptual Foundations

Indian environmental jurisprudence is animated by the precautionary principle, polluter pays, sustainable development, and the public trust doctrine. These principles, recognised as facets of the right to life under Article 21 of the Constitution, logically insist upon preventive scrutiny—rendering post-facto approvals prima facie incompatible with environmental rule of law.4

4. Judicial Evolution

4.1 Early Signals: Lafarge Umiam (2011) & Sterlite Industries (2013)

Although neither case squarely concerned post-facto EC, the Court emphasised procedural diligence and “ongoing” environmental governance. In Lafarge Umiam Mining the clearances were upheld because prior approvals existed and community participation was ensured.5 Sterlite reiterated deference to administrative expertise but imposed ₹100 crore compensation, foreshadowing the modern practice of monetary remediation.6

4.2 Doctrinal Condemnation: Common Cause (2017)

Justice Lokur, speaking for a three-judge Bench, held that post-facto EC “is detrimental to the environment and could lead to irreparable degradation” and is “anathema” to the 1994 Notification.7 The Court directed 100 % recovery of illegally mined ore, embedding the notion that economic benefits cannot legitimise prior illegality.

4.3 Apex Clarification: Alembic Pharmaceuticals (2020)

Building on Common Cause, the Court struck down the MoEF circular dated 14-5-2002 that had permitted ex post facto clearances, holding that it “substantially amends or alters” the statutory notification and hence was ultra vires.8 Nevertheless, closure of the three offending units was declined; instead, compensation and stringent compliance conditions were imposed, signalling a pragmatic turn.

4.4 Refinement & Nuance: 2021–2022 Trilogy

  • Electrosteel Steels (2021) reaffirmed that “environmental law cannot countenance” post-facto EC, yet observed that the 1986 Act does not expressly prohibit ex post approvals; any relaxation must be exceptional and consonant with the precautionary principle.9
  • Pahwa Plastics (2022) permitted continued operation of units employing 8,000 workers pending EC, emphasising economic disruption and prior Consents to Establish/Operate (CTE/CTO). The judgment reiterated that post-facto EC “should not be granted routinely,” but may issue where “denial would be more harmful.”10
  • D. Swamy (2022) echoed the same formulation, adding that defaulting industries “may be penalised… and the cost of restoration recovered.”11

4.5 NGT & High Court Interventions

Tribunal decisions such as Save Mon Region Federation (2013) and Sushil Bhatt v. Moon Beverages (2022) have consistently refused to condone procedural violations, often emphasising transparency and the commencement of limitation only upon public disclosure.12 Conversely, the Gujarat High Court in Emami Agrotech (2024) read Electrosteel as recognising statutory latitude for post-facto EC—illustrating the persisting doctrinal tension.

5. Parameters Emerging from Case Law

Synthesising the above jurisprudence, five cumulative conditions appear to guide courts while entertaining post-facto clearance requests:

  1. Site Legality: The project must be situated in a location otherwise permissible under prevailing land-use and conservation laws (EAC scrutiny in Common Cause, Para 149).
  2. Conformity with Pollution Norms: Ongoing operations should meet emission/effluent standards, as verified by SPCB/CPCB (Pahwa Plastics).
  3. Absence of Irreversible Damage: Where ecological harm is already irreparable, closure remains the default (Hanuman Laxman Aroskar insists upon full disclosure to avert such outcomes).
  4. Economic & Social Consequences: Courts weigh employment and supply-chain impacts, but only after environmental compliance is assured (Sterlite; Electrosteel).
  5. Penal & Remedial Measures: Heavy compensation, remediation plans, and prospective monitoring are mandatory (₹100 crore in Sterlite; graded funds under 2017 Notification).

6. Legality of Administrative Regularisation

The 2017 “Violation” Notification and subsequent Standard Operating Procedures attempt to codify a pathway for post-facto approvals. Yet, Vanashakti v. Union of India (2025) characterises these instruments as “regularising illegality” and calls their validity into constitutional question.13 Following Alembic, any executive instrument that dilutes the prior-EC mandate risks invalidation unless traceable to explicit statutory power under Section 3 read cum Rule 5(3) and satisfies the test of proportionality.

7. Critical Appraisal

7.1 Doctrinal Consistency

While courts proclaim a zero-tolerance stance, practical outcomes reveal a calibrated flexibility. This elasticity arguably preserves jobs and investments but may incentivise strategic non-compliance, thereby undermining the deterrent effect of the prior-EC regime.

7.2 Constitutional Dimensions

Article 21 jurisprudence compels the State to adopt a preventive—not curative—approach to environmental harm. Post-facto EC therefore sits uneasily with the fundamental right to a clean environment, unless bolstered by rigorous damage assessment and restoration.

7.3 Need for Legislative Clarity

Given divergent judicial readings, Parliament or the Union Government should clarify:

  • Whether Section 3 authorises retrospective regularisation at all;
  • The quantum and mode of environmental restitution;
    and
  • Time-bound compliance and sunset clauses to avoid perpetual amnesty schemes.

8. Conclusion

Indian courts have steadfastly recognised that post-facto environmental clearance is antithetical to precaution. Yet, in exceptional circumstances, they have carved out a jurisprudential safety valve, predicated on strict scrutiny, restitution, and proportionality. The emerging paradigm neither amounts to blanket prohibition nor unbridled permissiveness; rather, it reflects a delicate judicial effort to reconcile environmental imperatives with socio-economic realities. Robust statutory amendments and efficient administrative enforcement are indispensable to ensure that this safety valve does not degenerate into a systemic leak undermining India’s environmental constitutionalism.

References

  1. Environment (Protection) Act, 1986, s. 3(1)–(2).
  2. Environment Impact Assessment Notification, 27 Jan 1994.
  3. Ministry of Environment, Forest & Climate Change, Notification S.O. 804(E) (14 Mar 2017).
  4. M.C. Mehta v. Union of India, (1987) 1 SCC 395; Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647.
  5. Lafarge Umiam Mining (P) Ltd. v. Union of India, (2011) 7 SCC 338.
  6. Sterlite Industries (India) Ltd. v. Union of India, (2013) 4 SCC 575.
  7. Common Cause v. Union of India, (2017) 9 SCC 499.
  8. Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, 2020 SCC OnLine SC 347.
  9. Electrosteel Steels Ltd. v. Union of India, 2021 SCC OnLine SC 1247.
  10. Pahwa Plastics Pvt. Ltd. v. Dastak NGO, 2022 SCC OnLine SC 362.
  11. D. Swamy v. Karnataka State Pollution Control Board, 2022 SCC OnLine SC 1278.
  12. Save Mon Region Federation v. Union of India, NGT (2013).
  13. Vanashakti v. Union of India, Supreme Court (2025).
  14. Hanuman Laxman Aroskar v. Union of India, 2019 SCC OnLine SC 441.
  15. Emami Agrotech Ltd. v. Union of India, Gujarat HC (2024).