Clearance in reverse: On top court, post facto clearances
The environmental impact assessment (EIA) framework in India operates on a fundamental principle: a project must undergo evaluation before any construction begins, not after it becomes operational. The Supreme Court of India's ruling on July 29, delivered by a bench led by Chief Justice Surya Kant concerning retrospective clearances, both upholds this principle and, paradoxically, undermines it. By invalidating the 2021 Office Memorandum while simultaneously permitting the central government to legalize breaches through a statutory notification, the Court's differentiation between an administrative directive and a formal notification appears to be a mere pretense – a procedural detail presented as respect for environmental standards. A more profound issue not addressed by the judgment is the inconsistency between state-level assessment mechanisms and federal law. When state EIA bodies, expert panels, and pollution control boards consistently identify violations only after major infrastructure projects like highways, ports, or steel plants are completed, retrospective approval ceases to be an exception and becomes the standard practice. Large-scale developments are now often assessed as accomplished facts, with their ecological costs considered only when demolition would be more expensive than granting absolution. The Court suggests that governments can introduce environmental amnesty programs, similar to those for tax defaults. However, the reasoning that justifies regularizing unauthorized settlements for political gain cannot be applied to projects that intrude upon forests and floodplains. Environmental science exists specifically to emphasize interconnectedness – that plant, animal, human, and microbial systems are interdependent, and harm to one spreads throughout the others. A wetland is not merely an unregistered piece of land that can be legitimized by paying a fee. Even the argument that these are public utility projects like hospitals and airports does not automatically justify the environmental damage incurred.
Alarmingly, this transactional approach now has legal backing. While existing retrospective clearances do impose penalties on those who bypassed regulations, the Jan Vishwas amendments entirely removed the threat of imprisonment for environmental offenses. This leaves only monetary fines, effectively transforming compliance into a 'cost of doing business' item that a well-funded developer can easily factor into their budget. The recent judgment does not scrutinize this significant shift but rather supports its underlying assumption, treating environmental damage as a debt that can be settled after the fact. The Court asserts that reducing violations to civil penalties does not weaken the precautionary principle. Yet, a principle designed to prevent irreversible harm cannot be upheld by simply assigning a monetary value to the damage and collecting payment. The real-world consequences are visible in infrastructure projects being destroyed by severe monsoon weather. The central government would be wise to interpret this order not as permission to create more amnesty schemes, but as a clear directive to reform the entire clearance system.