CRITICAL ANALYSIS OF EX POST FACTO ENVIRONMENTAL CLEARANCE APPROVALS UNDER THE ENVIRONMENT (PROTECTION) ACT, 1986 IN INDIA
AUTHOR – ADITI H S, STUDENT AT SCHOOL OF LAW, CHRIST (DEEMED TO BE UNIVERSITY)
BEST CITATION – ADITI H S, CRITICAL ANALYSIS OF EX POST FACTO ENVIRONMENTAL CLEARANCE APPROVALS UNDER THE ENVIRONMENT (PROTECTION) ACT, 1986 IN INDIA, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 6 (2) OF 2026, PG. 236-245, APIS – 3920 – 0001 & ISSN – 2583-2344.
Abstract:
In India, Environmental Clearance (EC) is a vital regulatory procedure that must be followed to ensure that development projects adhere to statutory environmental mandates. This paper critically examines the practice of granting ex post facto EC approvals in India under the Environment (Protection) Act, 1986 (EPA) and Environmental Impact Assessment (EIA) Notification, 2006. The concern is regarding the compliance mechanisms revolving around the environment preservation laws in India. The Draft EIA 2020 and the 7 July 2021, Ministry of Environment, Forest and Climate Change (MoEFCC) Office Memorandum (OM) were criticised for effectively allowing environmental clearances for already commenced projects. The retroactive regularisation of the projects is violative of the precautionary principle under the Statutory and Constitutional provisions, especially Article 21 and 14. The recent judgement of Vanashakthi v. Union of India has been a landmark case which tries to resolve the routine ex post facto ECs. Subsequently, striking down the validity of the notifications and OMs that directly or indirectly allowed for such clearances. This paper incorporates doctrinal and analytical research approach through analysing Constitution of India, EPA, EIA notifications, judicial decisions. Along with international norms, such as Sustainable Developmental Goals (SDGs), policies regarding environment and scholarly articles. It argues that retrospective approvals compromises integrity thereby having serious ecological and health impacts. The analysis is in the view that ECs should not be procured post facto unless there are extraordinary circumstances, that are further subject to strict court supervision. Finally, it proposes suggestions to the issues circumscribing compliance, integrity, and enforcement by reinforcing nexus between development and environment priorities.
Keywords: Environment (Protection) Act, 1986, Environmental Impact Assessment , Ex post facto environmental clearances, Precautionary principle, Sustainable Development Goals