Law and Environmental Accountability in India
In January 2026, senior Congress leader and former Union Environment Minister Jairam Ramesh filed a petition before the Supreme Court of India, challenging the legality of ex post facto (retrospective) environmental clearances. He argued that such clearances are bad in law, harmful to public health, and undermine the very foundations of environmental governance.
The petition comes against the backdrop of recent judicial developments, where the Supreme Court agreed to review and recall earlier judgments that had barred retrospective environmental approvals. These developments have reopened a long-standing debate on whether environmental violations can be “regularised” after the damage has already occurred.
Understanding Ex Post Facto Environmental Clearances
An ex post facto environmental clearance refers to approval granted after a project has already commenced operations or violated environmental norms without prior permission. In principle, India’s environmental regulatory framework-anchored in the Environment (Protection) Act, 1986-requires prior environmental clearance before any major industrial, mining, infrastructure or developmental activity begins.
However, in practice, several projects have proceeded without approvals and later sought retrospective clearances, often by paying penalties or submitting compliance reports. Critics argue that this practice converts environmental law from a preventive regime into a post-damage regularisation mechanism.
Jairam Ramesh’s Legal and Ethical Argument
Jairam Ramesh’s petition is grounded in three core arguments:
First, he contends that retrospective environmental clearances violate basic principles of environmental jurisprudence, particularly the precautionary principle and the polluter pays principle. Environmental law, he argues, is designed to prevent irreversible harm, not legitimise it after the fact.
Second, Ramesh highlights the public health consequences of such clearances. Projects that operate without prior scrutiny may cause damage to air quality, water sources, forests and biodiversity-impacts that cannot be undone merely through monetary penalties.
Third, he argues that allowing retrospective approvals rewards wilful defaulters. According to him, ignorance of law cannot be an excuse, and post-facto approvals provide an easy escape route for violators while eroding public trust in governance.
The Supreme Court’s Shifting Position
The controversy gained momentum after the Supreme Court, by a 2:1 majority, recalled its earlier judgment of May 16, 2025, which had explicitly prohibited retrospective environmental clearances. That earlier verdict had restrained the Ministry of Environment, Forests and Climate Change (MoEFCC) from granting post-facto approvals to projects violating environmental norms.
The recall came in response to multiple review and modification petitions filed by industries and project proponents, challenging the rigidity of the ban. Chief Justice B R Gavai and Justice K Vinod Chandran favoured reconsideration of the issue, while Justice Ujjal Bhuyan maintained a stricter stance against retrospective approvals.
This judicial divergence has created uncertainty in environmental regulation and prompted renewed scrutiny of the balance between development and environmental protection.
Environmental Governance and the Rule of Law
At the heart of this debate lies a fundamental question: Can environmental law be flexible without becoming arbitrary?
Environmental clearance is not a procedural formality but a substantive safeguard. It involves impact assessment, public consultation, expert appraisal and mitigation planning. When clearances are granted retrospectively, these safeguards lose meaning.
From a governance perspective, ex post facto approvals:
- Weaken deterrence against violations
- Undermine regulatory credibility
- Encourage “build first, legalise later” behaviour
Jairam Ramesh’s petition argues that governance loses legitimacy when laws are selectively enforced or retroactively diluted.
Link with Broader Environmental Concerns: The Aravallis Example
Ramesh’s confidence in approaching the Supreme Court was partly influenced by the Court’s recent decision to review its verdict on the redefinition of the Aravalli Range, one of India’s oldest and most ecologically sensitive mountain systems.
The Aravallis case demonstrated the Court’s willingness to correct itself when environmental consequences were inadequately considered. Ramesh argues that similar judicial vigilance is needed in the matter of retrospective environmental approvals, which have far-reaching ecological and social consequences.
Development Versus Environment: A False Dichotomy?
Supporters of retrospective clearances often argue that rigid environmental norms hinder economic growth, infrastructure development and investment. However, critics counter that this framing presents a false dichotomy.
Sustainable development, as recognised by Indian courts, requires inter-generational equity-development that meets present needs without compromising the future. Allowing projects to bypass environmental scrutiny undermines this constitutional and ethical commitment.
Moreover, environmental degradation often imposes hidden economic costs: healthcare burdens, loss of livelihoods, water scarcity and disaster vulnerability. These costs are rarely borne by project developers but are instead transferred to communities and future generations.
Implications for Environmental Democracy
Another critical dimension is public participation. Environmental clearance processes mandate public hearings and stakeholder consultations. Retrospective approvals effectively silence affected communities by denying them a voice before damage occurs.
This erodes the democratic character of environmental governance and marginalises local populations, particularly tribal and rural communities who depend directly on natural resources.
Conclusion
The challenge to ex post facto environmental clearances is not merely a legal dispute; it is a test of India’s commitment to rule of law, environmental justice and sustainable governance.
If retrospective approvals are normalised, environmental regulation risks becoming symbolic rather than substantive. Jairam Ramesh’s petition forces a critical reckoning: whether India’s environmental laws will function as preventive safeguards or as post-damage legitimising tools.
The Supreme Court’s eventual verdict will shape the future of environmental governance, determining whether ecological protection remains central to development or is subordinated to short-term expediency. In a climate-vulnerable country like India, this choice carries profound consequences.
UPSC Prelims Question
With reference to ex post facto environmental clearances in India, consider the following statements:
- Environmental clearance in India is primarily governed by the Environment (Protection) Act, 1986.
- Ex post facto environmental clearance means approval granted after a project has already violated environmental norms.
- The precautionary principle allows environmental damage to be regularised through monetary penalties.
Which of the statements given above are correct?
(a) 1 and 2 only
(b) 1 and 3 only
(c) 2 and 3 only
(d) 1, 2 and 3
UPSC Mains Question (GS–III)
Critically examine the concept of ex post facto environmental clearances in India.
Discuss their implications for environmental governance, public health, and the rule of law, in the context of recent Supreme Court interventions.
