The debate over balancing development and the environment in India has been continuing for a long time. Large projects such as roads, dams, mining operations, thermal power plants, industrial projects and nuclear power plants are often presented as the foundation of economic development. However, assessing their environmental impacts and preventing potential harm before construction begins is also a mandatory legal requirement.
At such a time, the recent judgment of the Supreme Court is considered extremely important for environmental governance. The Court has struck down the Office Memorandum (OM) issued by the Central Government on July 7, 2021, which had provided a mechanism for obtaining environmental clearance for projects that had already commenced construction or operations without securing the mandatory prior environmental clearance.
The three-member Bench comprised Chief Justice of India Justice Surya Kant and Justices Joymalya Bagchi and Vipul M. Pancholi.
At its core, the judgment concerns the question of whether the executive can alter, through a mere administrative Office Memorandum, a legal framework that requires a project to obtain environmental clearance before it is commenced. The Supreme Court's answer is clear: a statutory framework cannot be diluted or replaced merely through an administrative order.
Under the Environmental Impact Assessment (EIA) Notification, 2006, projects covered by the notification are required to obtain prior environmental clearance before commencing construction or undertaking expansion. The purpose is not merely to obtain governmental permission. It is to assess in advance the potential environmental and social impacts of a project.
How many villages will be affected by a large dam? How much forest will be submerged? What will be the impact on river flows and biodiversity? How will a mining project affect groundwater and agricultural land? To what extent could an industrial project increase pollution? What are the environmental risks associated with a nuclear power project?
All these questions must be evaluated before a project begins. This prior assessment is at the very heart of environmental law.
If a project is allowed to begin first and environmental clearance is sought later, environmental impacts are often assessed only after damage has already occurred, or at a stage when stopping the project has become practically and politically difficult. Therefore, the principle of “construct first, obtain clearance later” weakens the preventive character of environmental law.
On July 7, 2021, the Ministry of Environment, Forest and Climate Change issued an Office Memorandum prescribing a procedure for projects that had commenced construction or operations without obtaining the required prior environmental clearance.
Critics argued that such an arrangement created an undesirable incentive for project proponents. If a company could start a project without obtaining prior clearance and subsequently obtain environmental clearance subject to payment of a penalty, compensation or compliance with certain conditions, the statutory framework based on prior approval would be weakened.
The Supreme Court has intervened precisely on this issue and struck down the 2021 Office Memorandum. The Court held that the statutory requirement of prior environmental clearance under the 2006 EIA regime cannot be altered merely through an administrative order.
The Supreme Court, however, did not hold that the Central Government can never create a mechanism for post-facto environmental clearance under any circumstances. The Court clarified that if such an arrangement is considered necessary in exceptional circumstances, it would have to be introduced through a statutory notification under Section 3 of the Environment (Protection) Act, 1986. A mere Office Memorandum cannot be used to alter the basic statutory environmental framework.
In other words, the Court has not completely eliminated the executive's power; rather, it has clarified the constitutional and statutory route through which that power must be exercised.
This distinction is extremely important. It means that if the Central Government wishes to introduce such a mechanism in a particular situation in the future, it will have to follow a transparent, statutory and legally valid procedure. A basic administrative order cannot be used to dilute the fundamental requirements of environmental law.
Environmental governance has repeatedly witnessed attempts to create mechanisms through which projects that have already violated rules can subsequently be regularised. This raises a serious question: is it fair to provide relief to a project that violated the law when compared with a project that complied with the law from the beginning and went through the lengthy process of obtaining environmental clearance?
That is why the Supreme Court's judgment goes beyond merely striking down an Office Memorandum. It sends a clear message to the system of governance that establishing a project in violation of environmental law cannot be treated as an ordinary administrative irregularity.
The significance of this judgment becomes even greater in a state like Madhya Pradesh, where major dams, mining projects, thermal power plants, industrial projects and proposed nuclear power projects have repeatedly generated environmental and social controversies.
In the case of nuclear power plants, environmental concerns are not limited merely to land use. Questions relating to water resources, biodiversity, thermal impacts, radioactive waste, disaster management, the safety of local communities and long-term environmental risks are equally important.
Similarly, large dams have multiple impacts involving forests, rivers, agricultural land, fisheries, wildlife and displacement. Mining projects can affect groundwater, forest areas, agriculture and local livelihoods.
If construction of such projects begins before environmental clearance is obtained and clearance is sought only afterwards, the entire concept of environmental impact assessment can be undermined.
Environmental clearance is often portrayed as an administrative obstacle to development projects. In reality, however, its purpose is not to stop development but to ensure that development takes place within environmental limits and in accordance with legal standards.
The Constitution of India also gives significant importance to environmental protection. Through judicial interpretation, Article 21, which guarantees the right to life, has been expanded to include the right to a clean and healthy environment. Article 48-A directs the State to protect and improve the environment and safeguard forests and wildlife.
From this perspective, environmental laws are not anti-development. They are a means of making development more responsible, sustainable and compatible with the interests of future generations.
In India, there is often a perception that once a project has commenced, shutting it down becomes difficult because substantial investment has already been made and employment and economic activity have become linked to it.
But if this argument is accepted, a person or company violating the law could ultimately gain an advantage over those who complied with the law from the beginning.
This is where the Supreme Court's judgment assumes particular significance. The Court has indicated that investment in a project cannot, by itself, become a licence to violate environmental law. The economic importance of a project may be significant, but compliance with environmental law is a prerequisite that comes before such considerations.
The judgment also carries a broader constitutional message for future governments.
Governments can formulate policies, issue administrative directions and establish procedures for development projects. But when a fundamental change is sought in an environmental protection regime established through a statutory notification, the procedure prescribed by law must be followed.
Therefore, if the Central Government wishes in the future to introduce post-facto environmental clearance or some form of “amnesty” for a particular category of projects, it will have to do so through an appropriate statutory notification. A mere Office Memorandum will not be sufficient.
This can strengthen both transparency and accountability in environmental administration.
Another important aspect of the judgment is that the Court has not applied it in a manner that would create sudden and widespread disruption in cases where environmental clearances had already been granted or projects were already underway. The impact of the judgment on environmental clearances granted on the basis of the 2021 Office Memorandum has therefore been dealt with separately.
The Supreme Court's judgment is undoubtedly significant, but the real test of environmental protection begins after the judgment.
The Central and State Governments, environmental ministries, Pollution Control Boards and other regulatory institutions must now ensure that no project begins construction or operations without obtaining the legally required prior environmental clearance.
Merely having laws on the books is not enough. Effective monitoring and enforcement are equally essential.
Local communities, Gram Sabhas, environmental organisations and affected citizens will also have an important role to play. Communities living in and around a project site often possess first-hand knowledge of its actual environmental impacts. Therefore, their participation in environmental decision-making and their access to relevant information must be strengthened.
The Supreme Court's judgment carries an important constitutional and policy message for India's environmental laws.
Environmental clearance is not a mere formality that can be completed after a project has already begun. Its very purpose is to ensure that the potential for environmental damage is assessed before harm occurs and that necessary safeguards are determined before the project commences.
The real success of this judgment in the coming years will depend on whether governments and project authorities treat it merely as a judicial directive or accept environmental accountability as an essential principle governing the entire development process.
The meaning of law is precisely this: development must not come at the cost of the environment; it must take place while safeguarding environmental justice and the rights of future generations.
Raj Kumar Sinha
Bargi Dam Displaced and Affected Union
