Even as successive governments have diluted norms and rules established to ensure that developmental projects do not harm ecosystems or compromise human health, the Supreme Court has interpreted constitutional provisions, especially Article 21, to strengthen the guardrails. It has emphasised that a clean environment is essential to the Right to Life. In May, for instance, a two-judge bench of the Court struck down a 2017 notification of the Ministry of Environment and Forests and an Official Memorandum of 2021, which had systematised the violation of Environmental Impact Assessment (EIA) Rules — allowing developers to obtain green clearances after commencing work on a project. Responding to a petition by a Mumbai-based NGO, Vanashakti, the Court described post-facto environmental clearances as “illegal”. On Tuesday, however, a three-judge bench recalled this verdict. Chief Justice B R Gavai and Justice K Vinod Chandran directed that the issue be placed before an “appropriate bench”. Public projects worth Rs 20,000 crore will have to be demolished if the Vanashakti verdict is not reviewed, the Court said. Justice Ujjal Bhuyan struck a note of dissent. “There is no concept of ex-post facto clearance in environmental law,” he said.

Bhuyan was echoing the SC’s consistent defence of the precautionary principle. In Common Cause v Union of India (2017), for example, the Court had said that “the grant of an environmental clearance cannot be taken as a mechanical exercise” and ruled that “ex post-facto environmental clearance… could lead to irreparable degradation of the environment”. Three years later, in Alembic Pharmaceuticals v Rohit Prajapati, the SC explained the need for rigorous adherence to EIA. “The purpose of setting in place requirements such as public hearings and screening is to foster deliberative decisions,” it said.