DC Edit | Need for Fair Policy After SC Nod to Green Violators

The three-judge panel of the Supreme Court recalled an earlier decision on retroactive environmental permits, marking a massive shift in the country’s green policy. The recall could allow the government to issue environmental permits to green law violators who have begun construction of projects in violation of ecological laws.

The issue pertains to the unanimous verdict of a two-judge bench headed by Justice AS Oka (now retired) and Justice Ujjal Bhuyan on May 16, 2025, banning the practice of granting de facto environmental clearances, a practice that the central government had implemented through the 2017 notification and the 2021 office memorandum.

The practice of post-expenditure approval allowed developers to start construction illegally and then seek retroactive approval by portraying their investments as fait accompli, making a mockery of the government’s initiatives to protect the environment.

The latest majority verdict by two of the three judges on the bench, including Chief Justice of India BR Gavai and Justice K. Vinod Chandran, supported the petitioners’ contention that the May 16 order would result in huge economic costs and recalled the earlier decision. With 24 major projects worth Rs 8.293 billion pending at the Centre, and another 29 projects worth Rs 11,168 Million remaining at the state level, the Chief Justice of India questioned whether their demolition would serve the larger public interest.

But in his scathing dissent, Justice Bhuyan wondered whether environmental control in India would remain a meaningful protection or be reduced to a simple procedural hurdle that could be overcome after the fact. He observed that retroactive approvals violated the precautionary principle, which has become a cornerstone of modern environmental law.

While the economic concerns expressed in the majority decision are understandable, the Supreme Court should have granted a limited postponement only as a one-time exemption to these projects. It is not desirable to have general approval of any actual violation. It is hard to believe that entrepreneurs who invest hundreds of millions of rupees are not aware of the legal and regulatory requirements. If they went ahead with the project despite knowing the state of the law, this would constitute a deliberate violation of the law and no tolerance should be shown to them.

According to the constitutional order, the Supreme Court only steps in if there is confusion in the interpretation of the law or if the law is contrary to the Constitution. Therefore, despite the two judgments of the Supreme Court, the Central government can still step in to frame a fair environmental policy that balances both ecological and economic concerns.

The Narendra Modi government should address the issue of retrospective approvals as it should not set an example to others. If developers are allowed to violate the law and get approval as a fait accompli, those responsible for accidents caused by high speed or drunk driving may also offer to pay compensation for their mistakes. If India wants vishwaguruThe government must ensure that its policies are friendly to people and also to Mother Earth.