Ex-Post Facto Environmental Clearance: Supreme Court Signals Possible Reference to Constitution Bench

Case Overview

The Supreme Court of India has indicated that it is open to referring the issue of ex-post facto environmental clearance (EC) to a five-judge Constitution Bench if it finds reason to doubt a recent three-judge bench ruling delivered on November 18 last year.

The observation was made by a bench led by Chief Justice of India Surya Kant, along with Justices Joymalya Bagchi and Vipul M. Pancholi, while hearing a batch of petitions challenging the 2017 and 2021 notifications issued by the Ministry of Environment, Forests and Climate Change (MoEFCC).

These notifications allowed project proponents to seek environmental clearance after commencing construction or operations — a departure from the long-standing regime of prior environmental clearance.

Factual Background

1. The Notifications Under Challenge

The MoEFCC issued notifications in 2017 and 2021 permitting certain projects to obtain environmental clearance retrospectively.

Petitioners — including environmental NGOs Vanashakti and One Earth One Life — argue that such ex-post facto approvals violate the legal mandate of prior clearance under the Environmental Impact Assessment (EIA) framework.

2. Judicial Timeline

  • May 16 (Two-Judge Bench):
    The Supreme Court struck down the 2017 and 2021 notifications as unconstitutional. This decision effectively paved the way for demolition of projects that had sought ex-post facto EC.

  • November 18 (Three-Judge Bench, Review):
    On review, a 2:1 majority set aside the May 16 judgment and revived the challenge for fresh consideration.

    The majority consisted of then CJI B.R. Gavai and Justice K. Vinod Chandran. Justice Ujjal Bhuyan dissented, supporting the earlier ruling invalidating ex-post facto EC.

The majority reasoned that allowing the May 16 judgment to operate would require demolition of public infrastructure projects worth approximately ₹20,000 crore, including hospitals, airports, and effluent treatment plants.

Core Legal Question

Can environmental clearance legally be granted after a project has commenced operations, or does the statutory framework mandate prior approval as a precondition?

The present bench clarified that a reference to a Constitution Bench would arise only if it finds doubt regarding the correctness of the November 18 three-judge ruling.

Statutory Framework Involved

1. Environment (Protection) Act, 1986

The primary statute governing environmental regulation is the Environment Protection Act, 1986.

  • Section 3 empowers the Central Government to take measures to protect and improve the environment.

  • Section 5 authorizes issuance of directions, including closure or regulation of industries.

Environmental clearance norms flow from powers under this Act.

2. EIA Notification, 2006

The Environment Impact Assessment Notification, 2006 mandates prior environmental clearance for specified categories of projects before commencement.

The central argument of petitioners is that permitting ex-post facto EC contradicts the mandatory “prior” requirement embedded in the 2006 framework.

3. Jan Vishwas (Amendment of Provisions) Act, 2023

Petitioners also relied on the Jan Vishwas (Amendment of Provisions) Act, 2023, which decriminalised certain offences under the Environment Protection Act.

They argued that if violations are no longer criminal and ex-post facto EC is permitted, deterrence against environmental breaches would weaken significantly.

Constitutional Provisions Engaged

Article 21 – Right to Life

Environmental protection jurisprudence in India has evolved under Article 21. The Supreme Court has consistently held that the right to life includes the right to a clean and healthy environment.

Permitting retrospective clearance raises concerns about whether post-facto validation undermines this constitutional guarantee.

Article 14 – Equality Before Law

Petitioners argue that allowing ex-post facto EC benefits violators at the expense of compliant project proponents who obtained prior approvals, potentially violating equality principles.

Article 137 – Power of Review

The November 18 ruling emerged from the Court’s review jurisdiction under Article 137. Petitioners contend that the three-judge bench exceeded review limits by effectively neutralising precedents that had declared ex-post facto EC impermissible.

Article 145(3) – Constitution Bench Reference

If the present bench finds substantial questions of constitutional interpretation, it may refer the matter to a Constitution Bench of five judges.

Judicial Precedents on Ex-Post Facto Environmental Clearance

Several prior rulings are central to this dispute:

1. Common Cause v Union of India (2017)

In Common Cause v Union of India, the Court held that mining operations without prior EC were illegal and attracted penalties.

2. Alembic Pharmaceuticals Ltd. v Rohit Prajapati (2020)

In Alembic Pharmaceuticals Ltd v Rohit Prajapati, the Court categorically held that ex-post facto environmental clearance is alien to environmental jurisprudence and contrary to the precautionary principle.

This judgment is heavily relied upon by petitioners.

3. Lafarge Umiam Mining Pvt Ltd v Union of India (2011)

In Lafarge Umiam Mining Pvt Ltd v Union of India, the Court underscored the importance of sustainable development and prior environmental appraisal mechanisms.

Petitioners’ Arguments

Senior advocates Gopal Sankaranarayanan and Sanjay Parikh argued that:

  1. The three-judge review ruling diluted binding precedents that invalidated ex-post facto EC.

  2. Review jurisdiction cannot be used to effectively overrule earlier judgments.

  3. The majority ruling creates a legal hurdle by rendering prior precedents non-precedential.

  4. A larger bench is required to authoritatively settle the law.

They also argued that ex-post facto EC rewards violators and undermines deterrence, especially after decriminalisation amendments.

Union Government’s Position

The Union of India, represented by Additional Solicitor General Aishwarya Bhati, stated readiness to argue the matter on merits.

While the Centre did not file a review petition against the May 16 judgment, it participated in the review proceedings where the earlier decision was set aside.

The majority view in November emphasised the public consequences of demolition of infrastructure projects.

Doctrinal Tension

This case presents a structural tension between:

  • Precautionary Principle and Sustainable Development

  • Rule of Law vs. Economic Continuity

  • Environmental Deterrence vs. Public Infrastructure Preservation

The petitioners stress environmental constitutionalism.
The majority review ruling stressed practical governance consequences.

Why a Constitution Bench May Be Necessary

A reference may be warranted if:

  1. There is conflict between coordinate bench decisions.

  2. Substantial questions of constitutional interpretation arise.

  3. The scope of review jurisdiction requires clarification.

The present bench has stated that such a reference will depend on whether it doubts the correctness of the November 18 ruling.

Broader Implications

The outcome will shape:

  • The future of retrospective regularisation in environmental law

  • Enforcement under the Environment Protection Act

  • The deterrent effect of environmental compliance

  • The balance between infrastructure growth and environmental safeguards

If ex-post facto EC is upheld, regulatory enforcement may shift toward post-violation penalties.
If struck down, strict prior compliance will remain non-negotiable.

Conclusion

The Supreme Court’s openness to referring the issue to a Constitution Bench signals the gravity of the constitutional and environmental questions involved.

At stake is not merely the validity of two executive notifications. The real issue is whether environmental compliance is a precondition or a curable defect.

The Court’s eventual ruling will determine whether Indian environmental law continues to be anchored in precautionary constitutionalism or moves toward pragmatic regularisation.

The matter now stands as one of the most consequential environmental law disputes in recent years, potentially redefining the boundaries between executive flexibility and constitutional environmental guarantees.

Location: Pune, Maharashtra, India

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