The Hindu Editorial Analysis
20 November 2025
Breaking the rules
(Source – The Hindu, International Edition – Page No. – 8)
Topic : GS 3 – Environment / EIA & Regulation
Context
Post-facto clearance should stay an exception, never the norm.
Introduction
The Supreme Court’s reconsideration of post-facto environmental clearances underscores persistent tensions between environmental protection and regulatory practice. While reaffirming the “EC first” principle, the Court has carved out a narrowly defined space for exceptional regularisation. This shift reflects the challenge of managing past violations without weakening the preventive framework central to India’s environmental jurisprudence.
Supreme Court’s Reversal on Post-Facto Environmental Clearances: Background and Core Issue
- The Supreme Court’s majority decision to reverse its May 2025 stay on post-facto environmental clearances highlights the difficulty of correcting long-standing misuse of environmental law.
- The debate also concerns the legality and form of the Environment Ministry’s notifications that had normalised exceptions.
- The Environment (Protection) Act, 1986 and the EIA Notifications (1994 & 2006) require prior environmental clearance (EC) before major construction or industrial work begins.
Earlier Judicial Position
- Judgments such as Common Cause (2017) and Alembic Pharmaceuticals (2020) held that post-facto ECs were impermissible wherever prior EC was mandatory.
- The Vanashakti (May 2025) ruling interpreted these cases as completely prohibiting post-facto ECs.
New Majority View
- The Court does not reject the foundational “EC first” rule.
- It identifies a very limited, exceptional space for post-facto regularisation, mainly when substantial resources have already been invested and penalties can be imposed.
- Relies on judgments like Alembic and D. Swamy to justify tightly restricted regularisation.
- The overall structure of the EC regime remains ex ante (preventive).
Limitations of Post-Facto Clearances
- A clearance issued after construction cannot fulfil the EIA’s purpose of assessing impacts before environmental harm occurs.
- Post-facto ECs only allow penalties, mitigation measures, or closure/demolition orders.
- They remain fundamentally at odds with India’s preventive environmental jurisprudence since the 1990s.
Concern About Discrimination
- Vanashakti struck down the 2017 notification enabling post-facto ECs but let existing post-facto ECs stand.
- The majority found this discriminatory because past violators received leniency while future violators would not.
- However, such transitional inequality is normal during regulatory clean-up and does not justify reviving an invalid process.
Way Forward
- The Court has reopened the legal question, indicating that limited post-facto regularisation is not completely unlawful.
- The Environment Ministry must treat post-facto ECs as rare exceptions, as they contradict the preventive framework of environmental law.
- Concerns about unequal treatment should be resolved by tightening legacy clearances, not by expanding post-facto approvals.
Conclusion
The judgment preserves the primacy of prior environmental clearance while permitting limited post-facto regularisation in rare, justified cases. Yet it emphasises that such approvals remain inherently inconsistent with the ex ante nature of the EIA regime. For long-term ecological governance, the Environment Ministry must ensure that post-facto ECs stay exceptional and strengthen oversight of legacy clearances.