The Supreme Court’s Vanashakti ruling allows projects without prior environmental clearance to seek ex post facto approval.
The judgment treats demolition as wasteful, prioritising economic loss over environmental uncertainty.
Ex post facto clearances contradict the precautionary principle embedded in Indian environmental law.
Environmental impact assessments are meant to precede, not follow, potentially harmful development.
Allowing post facto approvals risks legitimising a “pollute and pay” regulatory approach
The decision of the Supreme Court of India in Confederation of Real Estate Developers in India v Vanashakti and Another (‘Vanashakti’) has ex post facto environmental clearance created considerable stir. Reversing its previous judgment, the Court suspended the demolition of certain projects operating without any environmental clearance.
It held that the impugned projects must be allowed to apply for ex post facto (after the fact, or retroactively) environmental clearances, and that demolishing them without providing this opportunity would amount to a waste of public funds. Should such clearances be granted — that is, if the projects are held to be ‘permissible in law’ — they may continue after paying penalties. If the clearances are not granted — that is, if the projects are held to be impermissible under law — they must be demolished.
The judgment raises several issues, the most glaring of which concerns ex post facto environmental clearances. While delivering this decision, the Court categorically stated that although ex post facto clearances should not ordinarily be granted, they may be permitted in exceptional circumstances. Notably, the Court observed that ex post facto clearances are not prohibited under the extant environmental laws in India. In reaching this conclusion, it relied on a series of judicial decisions on the issue.
Like its predecessors, the judgment omits a detailed engagement with the precautionary principle. This principle forms a core part of Indian environmental law and underpins the legal framework governing environmental impact assessments. Accordingly, any adjudication on the legality of ex post facto clearances is incomplete without a consideration of the precautionary principle. This blog applies the principle to explain why ex post facto clearances are, in fact, impermissible under Indian environmental law.
A widely contested principle in international environmental law, the precautionary principle seeks to regulate situations of scientific uncertainty. In 1996, in Vellore Citizens Welfare Forum v Union of India, the Supreme Court adopted this principle. Taking a conservative approach, the Court held that any activity with the potential to cause or threaten serious or irreversible damage to the environment should not be permitted, even where scientific evidence of such damage is uncertain. In other words, the principle prohibits potentially harmful activities, particularly in situations of scientific uncertainty. The Court also held that the precautionary principle forms part of India’s environmental law.
More recently, in May 2022, in TN Godavarman Thirumulpad v Union of India, the Supreme Court provided further guidance on the application of the principle where environmental interests are weighed against economic interests. It noted that there may be situations where permitting an activity could cause irreparable environmental damage, while prohibiting it could result in irreparable economic loss. In such cases of doubt, even where evidence of environmental harm remains scientifically uncertain, environmental interests must take precedence over economic interests.
Environmental impact assessments (EIA) are a regulatory tool designed to govern development activities and prevent potential harm to humans and the non-human environment. New development projects, or expansions of existing projects, must undergo the rigours of the EIA process. Only after an environmental clearance has been granted may such projects be initiated.
One of the most important components of the process is the EIA report. Prepared by the project proponent, the report contains detailed studies on the potential impacts of the project on human beings and the non-human environment. The report is then opened for public comments. Once these comments are received, the proponent is required to respond to them, following which the relevant EIA appraisal committee takes a decision on the feasibility of the project. Based on the projected impacts identified in the report, the committee may either reject the project or approve it subject to specific measures aimed at mitigating adverse environmental impacts. An environmental clearance is thus granted or denied on the basis of scientific evidence presented in the EIA report.
Evidently, the purpose of the EIA process is to scientifically ascertain the impacts of a project on human and non-human components of the environment prior to its construction. Where the process is not followed, or where the EIA report fails to provide comprehensive and conclusive evidence of a project’s impacts, the project cannot be permitted. Thus, as rightly noted by the Supreme Court in an earlier decision, the EIA process embodies the precautionary principle: where an activity has the potential to cause or threaten environmental harm, it cannot be allowed until its impacts are scientifically ascertained. In other words, no developmental activity may commence without the completion of a comprehensive EIA.
Ex post facto environmental clearances are ultra vires (beyond the scope) Indian environmental law because they directly contravene the precautionary principle. Allowing such clearances enables project proponents to commence activities without obtaining prior environmental approval — that is, without first ascertaining the environmental impacts of the project. In such circumstances, scientific uncertainty regarding those impacts persists until an EIA is conducted. Thus, by permitting ex post facto clearances, the judgement is indirectly encouraging projects to begin without ascertaining their impacts. This stands in clear violation of the precautionary principle, which prohibits potentially harmful activities until their impacts have been scientifically established.
At this point, one might argue that the absence of a comprehensive EIA does not necessarily imply scientific uncertainty about a project’s impacts. This argument is often raised in relation to conventional projects such as dams, hospitals or industrial units. However, it overlooks the fact that the environmental impacts of a project may vary significantly depending on the ecological characteristics of the region in which it is located. Even conventional projects can have region-specific impacts owing to local ecological conditions. It is precisely this ecological variability that necessitates the conduct of EIAs prior to the commencement of any activity.
A final aspect of the Court’s judgment is its decision to permit the impugned projects to apply for ex post facto clearances upon payment of penalties for violations of the EIA process. In effect, this approach risks encouraging developers to initiate projects without obtaining prior environmental clearance, cause environmental damage, pay penalties for non-compliance, and subsequently seek approval regardless. While perhaps well-intentioned, this is a deeply problematic proposition, as it effectively signals a ‘pollute and pay’ approach to environmental regulation.
Kanika Jamwal is Doctoral Candidate, Faculty of Law, National University of Singapore. Views expressed are the author’s own and don’t necessarily reflect those of Down To Earth