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 Van...