Supreme Court Recall on Retrospective Environmental Clearances (ECs): A UPSC Analysis

GS Papers Covered:

• GS2: Judiciary, Separation of Powers

• GS3: Environment, Environmental Governance, EIA

• Prelims: Environment Acts, Supreme Court Judgments, EIA Notifications

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🔍 Context

A three-judge Bench of the Supreme Court has recalled its own May 16, 2024 judgment that had declared the grant of ex post facto (retrospective) Environmental Clearances (ECs) as “gross illegality”.

The new judgment—by majority—allows retrospective ECs under certain conditions, reversing the strict stance earlier taken.

This judgment is significant because:

• It affects urban development, industrial projects, and environmental regulation.

• It highlights judicial review, environmental compliance, and policy impacts.

• It will influence questions in UPSC Prelims 2026 and UPSC Mains GS3 + GS2.

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🧩 Background: What are Ex Post Facto Environmental Clearances?

Under the EIA (Environmental Impact Assessment) Notification, 2006, major projects must get a prior environmental clearance.

Ex post facto EC = environmental clearance granted after a project has already started construction/operation.

The May 16 judgment had said:

• Retrospective ECs = illegal

• Violates precautionary principle

• Encourages environmental violators

But now the SC has changed its stand.

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⚖️ What Happened Now?—The Supreme Court’s Latest Decision

✔️ Majority View (CJI B.R. Gavai + Justice K. Vinod Chandran)

The majority recalled the earlier judgment.

Key points:

1. Retrospective ECs cannot be termed always illegal

   • They may be necessary in “exceptional” situations.

2. The May 16 ruling would have caused massive economic disruption:

   • “Thousands of crores of rupees would go to waste.”

3. The Court said retrospective ECs can be granted with safeguards, including:

   • Environmental compensation

   • Strict monitoring

   • Compliance within a timeline

4. Sudden invalidation of all ex post facto clearances would harm:

   • Industry

   • Real estate

   • Public projects

   • Labour and employment

❌ Minority View (Justice Ujjal Bhuyan)

A strong 97-page dissent.

Key points:

• Recalling the judgment is “backtracking on environmental jurisprudence”.

• Violators must not be rewarded.

• The ruling weakens:

  • Precautionary principle

  • Polluter pays principle

  • Sustainable development doctrine

• Delhi’s smog shows the consequences of lax environmental rules.

Justice Bhuyan was part of the original bench (Justice A.S. Oka + Bhuyan) that delivered the May 16 verdict.

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🧭 Why Does This Matter for UPSC?

UPSC consistently asks questions on:

• Supreme Court judgments

• Environmental laws

• EIA, ECs, clearance mechanisms

• Precautionary principle

• Sustainable development

• Polluter pays

This judgment links all of these.

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📘 UPSC PRELIMS 2026 NOTES

Important Concepts:

1. Environmental Impact Assessment (EIA)

2. EIA Notification 2006

3. Environmental Clearance (EC)

4. Precautionary Principle

5. Polluter Pays Principle

6. Sustainable Development

7. EIA Authority (SEIAA, EAC)

8. Judicial Review of Executive decisions

Possible Prelims Questions

Q. Consider the following principles:

1. Polluter Pays

2. Precautionary Principle

3. Sustainable Development

These principles form part of:

A. Environmental jurisprudence of the Supreme Court

B. National Green Tribunal Act

C. EPA, 1986

Answer: A (SC has repeatedly upheld these as part of environmental jurisprudence)

Q. Ex-post facto environmental clearance is:

(a) Explicitly allowed under EIA 2006

(b) Explicitly prohibited under Environment Act

(c) Permitted only under limited circumstances as per Supreme Court jurisprudence

(d) A violation of precautionary principle always

Answer: c

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📝 UPSC MAINS 2026—GS3 Answer Writing

Model Answer Framework

Q. Discuss the significance and implications of the Supreme Court’s recall of the judgment invalidating ex post facto environmental clearances.

Introduction:

• Explain what retrospective ECs are.

• Mention May 16 judgment & its reversal.

Body:

1. Judicial Reasoning (Majority View):

• Economic impact

• Administrative practicality

• Avoiding large-scale demolition

• Ensuring compliance with safeguards

2. Environmental Concerns (Minority View):

• Weakening environmental governance

• Violators being rewarded

• Ignoring precautionary principle

• Setting a negative precedent

3. Governance Implications:

• Balance between development & environment

• Need for a stricter regulatory mechanism

• Role of NGT & MoEFCC

• Need for better monitoring

Conclusion:

• SC’s decision highlights the complex relationship between environmental protection and economic development.

• India needs reforms in the EIA process to prevent misuse while ensuring sustainable growth.

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🧠 For Essay Paper (UPSC Mains)

Themes connected:

• Balancing environment and development

• Judicial activism vs judicial restraint

• Urbanisation and ecological sustainability

• Climate change governance in India

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🟢 Final Summary for UPSC Students

Aspect	Details
Topic	Retrospective Environmental Clearances
Judgment	May 16 ruling recalled
Majority View	Retrospective ECs allowed with safeguards
Minority View	Violates the precautionary principle
UPSC Coverage	GS2 + GS3 + Prelims
Key Takeaways	Judicial balancing act, EIA reform needs, and environmental governance