Author(s): Khooshi Singh & Keerthi Umakanth
Paper Details: Volume 3, Issue 4
Citation: IJLSSS 3(4) 26
Page No: 288 – 294
ABSTRACT
The tussle between environment protection and economic development is not antique- and the 2020 Draft EIA notification is a fresh addition to this scuffle under the garb of legal mechanisms that safeguard biodiversity. In essence, Principle 21 of the Stockholm Declaration, in light of ‘Progressive Development’ developed the concept of Precautionary Principle however, the same is contracted with the Draft 2020 Notification despite similar intention but indifferent working modes. The paper throws light on the legal framework of the Draft Notification attempts to institutionalise ex-post facto clearance through Clause 22 where permits continuation of development projects without a prior Environment clearance, thus defeating the entire purpose of Environment Impact Assessment. The Paper critically examines and evaluates whether the 2020 Draft EIA Notification is a violation or is a blessing in disguise for the coming years in the light of development. The judicial perspectives have been taken into account in understanding the trajectory of environmental justice in contemporary times, Common Cause, D. Swamy, to name a few and whether the ecological and social costs balance out each other or whether one is achieved at the cost of the other, highlighting the legal and institutional gaps permitting environment degradation in the name of development especially in biodiversity areas that are often turning a blind eye to the forest dwellers, tribal and forest dependants who are the vulnerable communities, which in the Authors’ perspective, is a gross violation of the ‘holistic approach’ that needs to be considered when a new law is in place.
Keywords; Stockholm Declaration, EIA Notification, Biodiversity, Precautionary Principle,
Environment Degradation, Forest Dwellers, Progressive Development.
INTRODUCTION
It is undeniable that the environment is what sustains our existence, making it our responsibility to protect it. Unfortunately, as the time advances, environmental protection is addressed as an anti-development strategy, making its implementation more of show than substance. Further, it is undeniable that mega industries, plants, mines and other projects are required for the development of a nation, and their sustenance depends upon a compromise with the environment. Affirmatively. The constant debate between environment protection and development has made the procedure of Environment Impact Assessment a journey -from environmental justice to development compromise. Unfortunately, the priorities of environmental governance had shifted over the years. These controversies were met, regrettably, by the Government in the form of the EIA Draft Notification 2020 which had permitted ex post facto environmental clearances, where industries seek clearances after the initiation or substantial development of their projects.
Internationally, EIAs are efficient to evaluate the environmental consequences of developmental activities before they are carried out. However, the growing trend of ex post facto environmental clearances has sparked significant debate at both global and national levels. Ex post facto is a term of Latin origin which means “from a thing done afterward”[1] and from an environmental perspective, it means seeking environmental clearances retrospectively. In essence, ex post facto clearance can be understood as a practice of granting environmental clearance to developmental projects after them commencing their operations, with an ulterior motive of legalizing their previous environmental violations, thus, in all, going completely against the standard practice of seeking environmental approvals prior to starting a developmental activity because that way, all the illegal activities could now be placed under the veil of legal.
CONCEPTUAL FRAMEWORK
Environment protection is a non-negotiable and no amount of economic and social development can be allowed whereby nature’s balance gets distorted. With that in mind, environment clearance was birthed – as a practice wherein to promote or cause any developmental activity, a permit in the form of an environmental clearance was required to be sought with an agenda that such developmental activity is not at the cost of the environment. To grant the same a legal status, it was also incorporated into the Environmental Impact Assessment (EIA) Notification 2006. However, an abomination to the same stands the recent recognised practice of granting ex post facto clearances.
Environment Impact Assessment, as defined by UNEP is a tool that aids in identifying the environmental, social and economic impacts of a particular developmental activity before the first stone is laid out, so that the adverse environmental impacts are noted at an early stage and adequate steps are taken to reduce such adverse impacts.[2]
India has always been in the front line when it comes to inculcating and implementing international practices that stand out as extremely important. One such example of the same would be the Environmental Impact Assessment Notification 2006, issued by the Ministry of Environment, Forests and Climate Change, read with the Environment (Protection) Rules, 1986[3] that allows for developmental activities only after seeking the required permissions and licenses from the appropriate regulatory authority and in this case being, the Ministry of Environment Forests and Climate Change (‘MoEFCC’) for matters falling under Category ‘A’ in the Schedule, and with respect to the State level, the State Environment Impact Assessment Authority (‘SEIAA’) for the matters falling in Category ‘B’.
The Precautionary Principle has seen the light of the day due to the Stockholm Declaration. In essence, the principle simply acts as a guide to risky activities whereby one is warned against the harm hence, allowing him to take steps to prevent the risk[4]. Enshrined in Principle 15 of the Rio Declaration[5] and upheld by courts, the precautionary principle is a need for environmental jurisprudence, which mandates proactive measures to avoid ecological degradation. A contemporary example is that of COVID-19. India, noted how COVID was affecting its neighbour, China and chose to strictly implement the measures of Quarantine and the same practice was indeed successful to an extent in curbing the havoc caused due to the deadly virus. However, the same is not being followed with respect to Environment practices as one industry seeks the ex post facto clearance without any regard to the environment damage it has been causing all along and the same is being followed by an industry and so on – without any remedy only because, a Notification and an Office Memorandum allows for the same.
Internationally, it is the wealthier nations that are better positioned to adopt greener pathways, while lower-income countries struggle to reconcile immediate developmental needs with long-term environmental responsibilities.
LEGAL FRAMEWORK
The clause 22 of the EIA Draft Notification 2020 introduced a controversial provision that allows ex post facto environmental clearances[6]; meaning that projects which have begun operations without prior approval may later apply for regularization. This clause effectively shifts the burden of compliance from prevention to violation, as they enable the industries to operate without compliance. This approach marks a stark departure from the precautionary principle. Clause 22, undermines this principle by a permissive stance in the legal framework, where violations are not only tolerated but a form of compliance. It also dilutes transparency, as retrospective approvals would lead to misuse Thus, the shift from a precautionary to a curative process through Clause 22 contravenes India’s constitutional commitment under Article 21 thus, eroding the integrity of the EIA process as a preventive legal instrument along with violating sustainable development goals as there is no development activity being prevented despite it being harmful for the environment, further focusing more on remedies as the required permissions are being sought retrospectively.
CONSTITUTIONAL ANALYSIS
Environmental laws were formally incorporated into the domestic legal system through Article 253[7] that grants the Central Government the power to make laws for any part of India’s territory in order to give effect to treaty, agreement or convention with a view to foster respect to international law. In addition, Entry 13 and Entry 14 grants the right to participate in international conferences and implement decisions made thereat and Enter into treaties and agreements and further implement the same into domestic laws respectively.
Where the EIA Notification of 2006 straight up barred ex post facto clearance, the Draft EIA Notification of 2020 explicitly introduced the same for many strategic, linear and construction projects, defeating the whole purpose of conservation.
Any gross violation of life, whether pertaining to any form of life, calls for justice and where, the environment is being wronged, the Golden Triangle of Articles 14[8], 19[9] and 21[10] read with Article 48A[11] and Article 51A(g)[12] come into play, balancing the developmental and ecological needs with the end goal to ensure ‘social justice’.
Where, the State is the parent of the public, where the State is the Trustee – if such State itself is faced with a dilemma regarding choice of whether environment or development and the latter is chosen, giving rise to a clear economic bias over holistic development – it is a sad fact that the public Trust Doctrine no more stands still and has been further diluted, weakening the idea of ‘Participatory Governance’ which is an epitome of the Golden Triangle’s social justice component.
JUDICIAL APPROACH
The Judiciary has consistently opposed these clearances, claiming them to be unethical to environmental justice. In Common Cause v. Union of India[13], the Supreme Court held that environmental clearances granted after the commencement of operations were impermissible under law. It recognised that such practice defeats the purpose of EIA, designed to prevent harm. This principle was reinforced in Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Others[14],where the Court declared that such approvals promote a culture of fait accompli[15], allowing industries to proceed unlawfully and seek validation only when challenged. Similarly, in Sterlite Industries (India) Ltd. v. Union of India[16], the tribunal had ruled that even if economic interests are at stake, they cannot override statutory environmental safeguards without prior clearance. In Lafarge Umiam Mining vs Union of India[17], the court allowed mining with conditions, emphasized that public consultation and prior environmental clearance were non-negotiable. Thus, environmental clearance must precede execution, and any deviation constitutes a breach of both statutory obligation and Article 21[18], which guarantees the right to life and a healthy environment. The judiciary has thus positioned itself as a guardian of environmental integrity, standing firmly against such attempts.
There was a landmark shift in the case of Vanashakti v. Union of India[19], where the court had reinforced that ex post facto environmental clearances are deemed illegal in ordinary circumstances. The Court struck down the retrospective clearances, and emphasized that the right to a clean, healthy environment is a fundamental right under Article 21[20], and that retrospective approvals erode the foundation of this right. Nevertheless, the Court has clarified that while ex post facto clearances are not banned entirely, they may be considered in truly exceptional cases, like when all environmental conditions are satisfied and substantial livelihood is at stake. The retrospective approval remains an exception, not the rule. The recent judgement and associated injunctions send a powerful sign, environmental safeguards cannot be sabotaged under the guise of developmental urgency, and ex post facto clearances must be regulated and granted in exceptional cases, never at the expense of ecological integrity.
This case is a milestone which was not an easy gift, the history of ex post facto clearances is shaped by numerous judgements, presence of legal loopholes and the great damage caused to the environment, which is an awakening call for all of us.
FUTURE IMPLICATIONS
The ambiguous to and fro of judicial and statutory debate on ex post facto environmental clearances in India carries potential and significant implications for environmental governance, the rule of law along with sustainable development. The denunciation of these clearances retrospectively has been done by the Supreme Court in cases like Common Cause v. Union of India and Alembic Pharmaceuticals case have highlighted a principled commitment to the precautionary approach, emphasizing that environmental harms must be anticipated and assessed before project execution. However, despite clear judicial opposition, the executive’s tendency to regularize violations retroactively through office memoranda and draft EIA notifications continues to pose a major challenge. This regulatory leniency undermines environmental rule of law, dilutes public participation, and enables industries to treat environmental compliance as a postscript to economic activity.
The Judgement definitely was a milestone that instilled faith on government in the minds of the Public and serves as a precedent that cannot be ever forgotten.
The problems however, do not end here. The judgement is not a one-stop solution to all the environment problems. The lack of stringent enforcement mechanisms, institutional capacity, and transparent accountability measures that are still prevalent in the realm of environment matters allows for a culture of non-compliance, especially in sectors like mining, infrastructure, and hazardous waste. Another ongoing challenge lies in the conflict between economic urgency and ecological responsibility, particularly in developing regions where livelihoods and employment are often tied to projects launched without clearances. Balancing these competing interests demands not just legal consistency but stronger monitoring, real-time environmental data systems, and community-inclusive decision-making processes. Thus, while the judiciary has drawn a firm line against ex post facto clearances, India’s environmental governance still grapples with the systemic tensions between policy intent and practical enforcement.
Suggestively, the legislation shall explicitly ban the ex post facto environmental clearances and omit clause 22 to align with the rulings of the court as such ban would preserve the preventive nature of EIA. Ex post facto environmental clearances have defeated the precautionary principle of EIA and such allowances should be subject to exceptional circumstances with judicial oversight. The law must mandate cumulative impact assessments that analyse the environmental burden across multiple projects in a region. Additionally, in the near future, an autonomous environmental regulatory body must be established to ensure impartial oversight of EIA approvals to such industries.
[1]Ex-post facto, Merriam-Webster (Jun 18, 2025) https://www.merriam-webster.com/dictionary/ex%20post%20facto#:~:text=Ex%20post%20facto%20is%20Latin,in%20order%20to%20save%20face.
[2] What is Impact Assessment?, Convention on Biodiversity (Apr. 27, 2010) https://www.cbd.int/impact/whatis.shtml
[3] Ex-post Facto Environmental Clearance, AZB & Partners (Dec 31, 2022) https://www.azbpartners.com/bank/ex-post-facto-environmental-clearance/.
[4] Jose Felix Pinto-Bazurco, The Precautionary Principle 1 (2020), https://www.iisd.org/system/files/2020-10/still-one-earth-precautionary-principle.pdf
[5] Principle 15, Rio Declaration.
[6] Clause 22, EIA Draft Notification 2020.
[7] India Const. art. 253.
[8] India Const. art. 14.
[9] India Const. art. 19.
[10] India Const. art. 11.
[11] India Const. art. 48.
[12] India Const. art. 51.
[13] Common Cause v. Union of India, AIR 2018 SC 1665
[14] Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Others (2020) AIRONLINE SC 445 (Ind.)
[15] “something that has already happened or been done and cannot be changed”, Cambridge Dictionary.
[16] Sterlite Industries (India) Ltd. v. Union of India (2013) 4 SCC 575 (Ind.)
[17] Lafarge Umiam Mining v. Union of India (2011) 7 SCC 338 (Ind.)
[18] India Const. art. 21.
[19] Vanashakti v. Union of India (2025) INSC 718 (Ind.)
[20] India Const. art. 21.