The Supreme Court’s decision to recall its May 16 order—one that categorically barred post-facto environmental clearances for projects begun without prior approval—fails to reckon with the deeper implications of its reversal. On Tuesday, the apex court cited massive investments and the potential demolition of public projects worth nearly Rs 20,000 crore as grounds to revive retrospective approvals. These concerns about wasted resources are understandable.
But the judgment risks reinforcing a dangerous perception: that scale, influence, or economic heft can make the law bend. It strengthens the cynical belief that powerful entities can flout environmental norms, confident that once enough money is sunk and jobs are created, violations will be forgiven under the guise of “post-facto regularisation”. What is at stake is not merely a set of projects, but the credibility of India’s environmental governance.
Why does Justice Ujjal Bhuyan’s dissent stand out?
Post-facto clearances undermine the very purpose of environmental assessment. The Environmental Impact Assessment process exists to evaluate risks before a project begins, not after damage has been done. When industries are allowed to start operations without approval, the harm—whether to forests, wetlands, acquifers, or local communities—may already be irreversible. A retrospective nod thus negates the essence of preacution.
Justice Ujjal Bhuyan’s dissent, therefore, stands out. He rightly warned that allowing ex-post-facto clearances enables polluters to “act first and seek forgiveness later”, a stance fundamentally at odds with India’s environmental jurisprudence and the constitutional duty to protect life and ecology.
The purpose of environmental assessments
Environmental assessments are meant to be preventive safeguards, not after-the-fact justifications. This is also the second recent instance where the Court has revisited an order without any change in facts, only in approach. In the JSW Bhushan Power case, the Court initially annulled the company’s resolution plan under the Insolvency and Bankruptcy Code and ordered liquidation.
It later recalled that order after JSW argued it had invested heavily, revived operations, and created 25,000 jobs—suggesting that undoing the plan would destroy livelihoods and sink capital. Such reversals risk legitimising a troubling pattern: commit the wrong, plead later. If normalised, this fosters a perception of dual standards—strict rules for ordinary actors, flexible ones for the powerful. India has seen this dynamic before.
In the early 2000s, Reliance Infocomm began offering full-mobility services on a limited-mobility licence. Despite regulatory objections, the sheer scale of users was invoked to retrospectively legitimise the operation through a new licensing framework. Yet the cancellation of telecom licences in the 2G case a decade later proved the opposite: the sector did not collapse. Instead, the clean-up created a more transparent, competitive market.
The issue is not whether investments and jobs matter—they do. The issue is whether the line of lawful conduct shifts depending on who crosses it. Judicial review is legitimate; shifting standards based on economic clout is not. The rule of law loses its moral force if it becomes negotiable for those with leverage.
The Supreme Court must affirm that laws apply evenly, that scale does not confer immunity, and that development cannot come at the cost of legal integrity. Striking this balance is essential if India is to meet both its growth aspirations and constitutional commitments. The Supreme Court has historically defended India’s environment so far; it must continue to be the guardian of environmental rule of law, not a facilitator of circumvention. Sustainable development requires stronger safeguards, not diluted ones.
