The Supreme Court has barred the Indian government from granting retrospective environmental clearances. Conceived as a one-time opportunity in 2017, ex-post facto environmental clearances became routine when the Union ministry of environment, forest and climate change notified a standard operating procedure for the identification and the handling of cases of violation in July 2021. Arguing that the move was consistent with the Environment (Protection) Act, 1986 and the ‘polluter pays’ principle, the ministry reasoned that denying developers an opportunity to regularise their projects would lead to demolition, which would also cause environmental damage. This not only set a dangerous precedent but also incentivised illegal construction in the hope of regularisation through back-door clearances. The apex court has thus hit the nail on the head by pointing out that the ministry’s logic goes against the fundamental principle of green jurisprudence, which lays down that development cannot come at the cost of the environment. However, between 2017 and the recent ban by the apex court, over 100 projects have already benefited from this escape clause. Besides this, the ministry also issued ‘terms of reference’ to at least 150 other projects that will allow them to bypass an environmental impact assessment.
The top court has, time and again, taken on the role of protecting the environment from the depredations of a rapacious State. For instance, last week, the court asked the Telangana government to restore the ruined acres of the Kancha Gachibowli forest where vegetation was cleared to build an information technology hub without an EIA. However, there are some legal loopholes that may still allow such predation on the environment to continue. For instance, in India, environmental clearance is not a mandatory requirement for land acquisition under the Land Acquisition, Rehabilitation and Resettlement Act, 2013. This is not all. Implementation of existing laws remains lax under an executive that is apathetic to the green cause. Worse, legal protection is being weakened by passing questionable legislations: in 2023, the Centre passed the Forest (Conservation) Amendment Act that allegedly dilutes the provisions of the Forest (Conservation) Act 1980. As such, conscientious civil society organisations and the courts remain the last hope for environmental protection. But this cannot be deemed as adequate given the apathy of the State and the people at large.