Former Supreme Court judge Deepak Gupta says courts are no longer as proactive on environmental protection
Warns that procedure alone cannot justify projects that result in environmental disaster
Questions recent Supreme Court handling of Great Nicobar and Vanatara matters
Says sustainable development cannot include damage that cannot be reversed or compensated
“The Supreme Court of India and even the High Courts were once very active and took a proactive role in protecting the environment; unfortunately, that is no longer true.” Former Supreme Court judge Deepak Gupta made these remarks on February 25, 2026 at a session of the Anil Agarwal Dialogue 2026 at the Anil Agarwal Environment Training Institute (AAETI) in Nimli village, Alwar district, Rajasthan.
He said that courts today were increasingly invoking phrases that appeared to justify environmental degradation, with “linear development” being given greater weight than ecology. Referring to the recent orders on the Great Nicobar project and Vanatara cases, he said they appeared to have been “stage managed”, and questioned how the Supreme Court could have accepted them in the manner it did.
“In court cases, it is often asked whether procedure was followed. Yes, procedure was followed. But simply following procedure is not the court’s true role,” he said. “Even if procedure has been followed, but the end result is an environmental disaster, the court has an obligation to intervene.”
Citing a judicial order, he remarked: “‘Compensatory afforestation’ has become a joke.”
Justice Gupta said that expert reports placed before courts were not always reliable, and very few judges were able to look beyond them.
“I am of the view that bad environment cannot be good economics,” he said. “If the environment is compromised, no economic argument can justify it.” He drew a distinction between business interests and the economy, arguing that the latter is linked to the broader national interest, while commercial interests are often prioritised.
He cited the example of Rajasthan, where around 100 Great Indian Bustards remain. The debate over solar projects and whether power lines should be laid underground rather than overhead, he said, was not merely technical but also commercial in nature.
Justice Gupta recalled that even before the enactment of the Environment (Protection) Act, 1986, the Supreme Court had interpreted Article 21 of the Constitution — the right to life — to include the right to a clean environment.
Public interest litigation, he said, democratised access to the courts and expanded environmental rights. In the 1986 oleum gas leak case, the court evolved the “Doctrine of Absolute Liability”, holding polluters fully responsible. The Vellore Citizens’ Welfare Forum case recognised the precautionary principle, requiring assessment of potential environmental harm. The TN Godavarman Thirumulpad v. Union of India case, he added, strengthened forest protection, although concerns remain about long-term impacts of permitted felling.
“The judiciary’s function is to develop jurisprudence, not to decide where and what should be constructed,” he said. However, he acknowledged practical difficulties: many environmental cases are triggered by media reports that contain facts but lack solid evidence. “Moreover, not all judges are specialists in environmental matters, which is a major challenge.”
On the National Green Tribunal (NGT), established as a specialist environmental court, Justice Gupta said the experiment had not been entirely successful, though it could not be described as wrong. He called it a “human limitation” rather than a flawed idea.
He stressed that Green Benches should comprise judges who are sensitive to environmental concerns. “If damage cannot be reversed or compensated, it cannot qualify as sustainable development,” he said.
He noted that a previous ban on run-of-the-river dams in Himalayan states, based on an expert committee’s report, has since been lifted in Uttarakhand.
Justice Gupta said judges must have “a spine”. He pointed out that in the name of national security, construction is now permitted in Himalayan areas up to 100 kilometres from the border without environmental clearance, covering roughly 70 per cent of the region.
In cases such as the Mirzapur power plant and mining in Hasdeo Aranya, he suggested judicial intervention could have come earlier. Large investments, he said, do not automatically justify approval. “When I was a judge, I never allowed this to happen,” he said, warning that overreliance on government submissions while disregarding petitioners’ evidence was dangerous.
He concluded by saying that banning everything is not the solution, but neither is permitting irreversible damage.
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