Supreme Court sets 'public interest' test for ex-post facto environmental clearances

India's environmental governance framework is anchored in the Environment (Protection) Act, 1986, which empowers the Union government to regulate activities likely to harm the environment. The most operationally significant instrument under this framework is the Environmental Impact Assessment (EIA) Notification, first issued in 1994 and substantially revised in 2006, which mandates prior appraisal of projects before any construction or operation begins. The foundational logic is prospective: an independent expert body evaluates ecological costs before irreversible ground disturbance occurs, so that mitigation conditions can be imposed or the project refused altogether.

The constitutional basis for environmental regulation flows from Article 48A (Directive Principle requiring the state to protect and improve the environment) and Article 51A(g) (fundamental duty of citizens to protect the natural environment), read alongside the judicially recognised right to a clean environment as part of Article 21. The National Green Tribunal Act, 2010 created a specialised adjudicatory forum for environmental disputes, though the Supreme Court retains supervisory jurisdiction over matters of constitutional and statutory interpretation.

A persistent gap emerged over the years between the normative requirement of prior clearance and ground reality — mines, industrial plants, highways, ports, and other infrastructure projects were frequently found to be operational without valid clearances or in violation of clearance conditions. This gap gave rise to the contested practice of ex-post facto (or post facto) environmental clearance, where regularisation is sought after construction or operation has already begun, raising fundamental questions about the integrity of the EIA framework.