New Delhi, May 17 (PTI) Policy experts on Saturday welcomed the Supreme Court's decision to bar the government from granting retrospective environmental clearances but warned that loopholes in environmental laws still existed, and said citizens must stay alert to protect their constitutional rights.
In a landmark ruling on Friday, the apex court said the government could not grant retrospective environmental clearances in the future.
The top court made it clear that projects started without mandatory prior environmental clearance could not be legalised later.
It added that violators who knowingly ignored the law could not be protected.
The judgment came in response to petitions filed by the NGO Vanashakti and others, challenging two government office memorandums issued in July 2021 and January 2022 that created a system to grant environmental clearance to projects that began operations without prior approval under the Environment Impact Assessment (EIA) Notification, 2006.
Vanashakti director Stalin D told PTI that citizens must ensure the court's directions were followed.
"The judgment clearly says the government cannot try and provide a safe haven for violators. So, we have to ensure that our constitutional framework is not violated in any way," he said.
"One more very pertinent thing in that order is that the people who violated this are not illiterate persons. They are educated, well connected, rich people who knew that they were engaging in a violation, which needs to stop now," he added.
Prakriti Srivastava, a retired Indian Forest Service officer, said while it was a good order, knowing the history of the environment ministry and project proponents, they would find a way around.
She said post facto approvals meant the damage was already done before clearance was granted.
"Will these stop and the ministry obey the Supreme Court's orders? Let's wait and watch. Though, knowing the record of MoEFCC (Ministry of Environment, Forest and Climate Change), they give two hoots for Supreme Court orders and may blatantly disregard them," she added.
Neelam Ahluwalia, founder-member of People for Aravallis, called the judgment a "very welcome and much-required step" for protecting forests and natural ecosystems across India.
"It is heartening to read the order and see our apex court uphold the 'right of people to live in a pollution free atmosphere as part of the fundamental right guaranteed under Article 21 of the Indian Constitution'. As people who believe that our natural ecosystems are our only security in the face of rising pollution, climate change, increasing temperatures, water scarcity etc, we will keep exercising our duty, as spelt out in Article 51A(g) of our Constitution, to protect and improve our natural environment including forests, lakes, rivers and wildlife," she said.
South Asia Network on Dams, Rivers and People co-ordinator Himanshu Thakkar said the decision was welcome but should have come earlier. He also raised concerns about enforcement.
"This is welcome but the directions could have come sooner. It shows that our system is very slow to react," he said.
"Secondly, where is your credible monitoring system to ensure that this doesn't happen? The third thing is there is a bypassing of the law happening. For example, land acquisition is allowed, even when environment clearance is not there. If you have already acquired land, you are creating impacts, displacing people, you are making the project fait accompli," he added.
"So, the Supreme Court also needs to put down more stipulations that you cannot acquire land without environmental clearance because once you acquire the land, then you get the right over the land and you can do what you want to do with it, which is again movement towards irreversibility. So, these kinds of loopholes are still there," Thakkar further said.
Debadityo Sinha, the climate and ecosystems lead at the Vidhi Centre for Legal Policy, said the EIA process' very purpose was to evaluate alternatives, assess environmental and social impacts and enable public consultation before any project received approval.
"It is a fundamental safeguard that ensures development does not come at the cost of ecological integrity," he said.
"Granting post facto environmental clearance undermines this entire framework, allowing projects to bypass due diligence and legal scrutiny. It effectively opens the floodgates for unsustainable, poorly planned developments, often in ecologically sensitive areas, where such projects would never have passed scrutiny in the first place. This not only sets a dangerous precedent but incentivises illegal construction in the hope of regularisation through backdoor clearances," he said.
Sonam Chandwani, managing partner at law firm KS Legal and Associates, said the Supreme Court's decision might shake up the existing system but was not a cure-all.
"By killing ex post facto approvals, it puts companies on notice that you start without clearance and you are gambling with your entire project with no retroactive bailouts. Smaller firms, less equipped for legal warfare, might fall in line, seeking clearances upfront to avoid ruin. Activists and communities gain a stronger edge to hold violators accountable, as courts now have a clearer mandate to reject post facto fixes," she said.
Guman Singh, coordinator of Himalaya Niti Abhiyan, said they had opposed the government's move to allow retrospective environmental clearances.
He said the Supreme Court's decision clearly reinforced that environmental laws could not be diluted to legalise illegal projects and promoted ecological accountability.