Clearance in reverse: On top court, post facto clearances.
Supreme Court of India’s nod for post facto approval must not be read as support for amnesty schemes.
India’s environmental impact assessment (EIA) regime rests on a single sequencing rule: a project must be appraised before the pickaxe pierces the ground, not after the building is operational. The Supreme Court of India’s July 29 order, from a Bench led by the Chief Justice of India, Surya Kant, on post facto clearances, reaffirms that rule even as it hollows it out. By quashing the 2021 Office Memorandum while leaving the door open for the Centre to legalise violations through a statutory notification, the Court’s distinction between an administrative order and a notification, is effectively a fig-leaf — a procedural nicety dressed up as respect for environmental norms. The deeper problem that the judgment does not confront is the dissonance between the State-level appraisal machinery and the Centre’s law. When State EIA authorities, expert committees and pollution boards routinely discover violations only after a highway, port or steel plant is built, post facto clearance stops being an exception and becomes the design. Large projects are now appraised as a ‘ fait accompli’, their ecological cost weighed only once demolition would cost more than absolution. The Court reasons that governments may frame environmental amnesty schemes much as they do for tax defaults. But the logic that justifies regularising an unauthorised colony for electoral gain cannot be transposed onto works that carve into forests and floodplains. Environmental science exists as a discipline precisely to insist on interconnectedness — that plant, animal, human and microbial systems are bound together, and that damage to one propagates through all. A wetland is not an unregistered plot to be regularised on payment of a fee. Even the argument that these are hospitals and airports meant for public good cannot automatically justify the environmental cost.
Worryingly, that transactional logic now has legal cover. The existing retrospective clearances do exact a fine from those who bypassed the norms — but the Jan Vishwas amendments stripped away the threat of imprisonment for environmental lapses altogether, leaving only monetary penalties thus converting compliance into a ‘cost of doing business’ entry, which a well-capitalised proponent can budget for. The latest judgment does not examine this shift, but endorses its premise, treating environmental harm as a debt that can be settled after the fact. The Court insists that reducing violations to civil penalties does not weaken the precautionary principle. But a principle meant to prevent irreversible harm cannot be honoured by pricing the harm and collecting the cheque. The consequences are incidents of infrastructure projects getting flattened by serious monsoon activity. The Centre would be well advised to read this order not as a licence to multiply amnesty schemes, but as a mandate to repair the clearance apparatus.