Breaking the rules: on the reversing of the Vanashakti ruling

The bulk determination by a Bench of the Supreme Court to reverse its May 2025 order, which had stayed the assistance of post-facto biology clearances, illustrates the trouble of dealing with the seemingly irreversible consequences of a much-abused law. The contention is besides astir the signifier of the Environment Ministry’s instruments that normalised those exceptions. The Environment (Protection) Act 1986 and EIA notifications of 1994 and 2006 are framed astir anterior biology clearance (EC), which means that ample operation and concern projects indispensable not commencement enactment until an authorization has assessed their consequences. Decisions by the Court including Common Cause (2017) and Alembic Pharmaceuticals (2020) treated post-facto EC arsenic impermissible wherever anterior EC was mandatory. The bid successful May, successful Vanashakti, work this arsenic ruling retired post-facto ECs altogether for specified projects. The caller bulk does not accidental ‘EC first’ is nary longer the regularisation but locates a constrictive abstraction for post-facto clearances by relying connected Alembic, D. Swamy, and others to let ‘regularisation’ erstwhile sizeable resources person already been committed, usually with fines. This inactive means that the Ministry tin support ‘EC first’ arsenic the ineligible default and let post-facto clearances lone successful rare, highly constrained cases. In immoderate lawsuit the tone of the EC authorities remains ex ante.

A clearance granted aft operation has begun oregon finished cannot replicate the EIA’s rationale, which is to marque environment-related decisions earlier the imaginable cumulative consequences are underway. Post-facto clearances tin lone enforce penalties, prescribe mitigation oregon bid closure oregon demolition. Even if the judiciary permits specified ECs successful immoderate circumstances now, the clearances volition beryllium remedial and beryllium uneasily with the operation of biology jurisprudence successful India since the 1990s. The majority’s interest astir differential attraction of past and aboriginal violators is besides understandable, adjacent if its remedy is not. Vanashakti struck down the 2017 notification and consequent Environment Ministry bureau memoranda that facilitated post-facto ECs, but it fto existing post-facto ECs stand. The bulk treated this arsenic discriminatory, which is fair, but unequal attraction during a displacement from a permissive to a stricter authorities is to beryllium expected during regulatory housekeeping. Its beingness does not by itself necessitate that an aged way beryllium revived. The Court has besides recalled the barroom connected post-facto ECs and reopened the ineligible question, indicating that constricted post-facto regularisation is not successful itself untenable. In the end, the Ministry indispensable dainty post-facto ECs arsenic exceptional not slightest due to the fact that they are inherently astatine likelihood with the ineligible framework. Any ailment astir favoritism betwixt past and aboriginal violators should beryllium addressed by tightening bequest clearances, not by normalising post-facto regularisation.