The Supreme Court on Monday observed that the legislature should not be completely “disenfranchised” from granting environmental clearances to development projects long after they have commenced operation, especially when such a decision would serve a higher public good such as setting up a hospital or a public facility.
Considering a challenge to two central government orders in 2017 and 2021 mandating the EC retrospectively (granting clearance after the commencement of the project), a bench headed by Chief Justice of India (CJI) Suriya observed it was a classic irony that while India does not contribute even 10% to global warming, the burden of protecting the environment falls on the courts, even as countries with a poor record of increasing carbon footprints remain “lazy” and “indifferent”.
The court made these observations while hearing a batch of petitions led by non-profit organization Vanashakti and others, which held that while the legislature could grant exemptions to projects from the erstwhile EC’s mandatory requirements, the 2017 and 2021 notifications fall short of giving a “blanket” exemption to all mining and development projects that have commenced operation without green approval.
“If the subsequent approval is for a hospital or a public facility, it results in a higher public interest of serving the health of the citizens. In such a scenario, we will hold that the legislature is not deprived of issuing notification. How then can you challenge the legislation to serve the cause of health. Everything has to be seen from the side of the larger public interest,” the bench, also comprising Justices Joymalia Bagchi and Vipul M Pancholi, said.
Comparing India’s position with other countries on carbon emissions, the court said: “At the domestic level, should the constitutional courts be asked to freeze everything. It becomes contradictory when we are asked to stop an activity as it may lead to global warming. This does no good as it hardly helps in halting global warming as sea levels continue to rise due to the lax attitude of other countries.”
She further added: “There is complete indifference on the part of other countries that have carbon footprints that are incomparable to India’s. This does not mean that the courts remain oblivious to environmental concerns. But crossing the global average temperature of 1.5 degrees Celsius and the average temperature rise of 2 degrees Celsius, India’s contribution does not even reach 10%.”
The comments from the Court are important because the matter came to this Court after two Houses in the past took diametrically opposed views on the two Notices. In May 2025, a two-judge panel struck down the two notifications asserting that the former European Commission governed this area. This was overturned by a three-judge panel in a review petition decided on November 18, 2025. It noted that the May order would result in the mass demolition of projects worth more than $20,000 crore, some of which includes fully built hospitals, highways, new airports and public facilities. This body, by a 2:1 majority, paved the way for a reconsideration of the case as it noted that some of the Supreme Court rulings upholding the EC retrospectively had not been examined by the previous ruling.
“The legislature has wide powers to serve other needs. The exercise of its power is there and so we are not saying that the Center is deprived of the power to issue notification. But this power cannot be used to grant the EC retrospectively for all operations. It violates the fundamental right to equality under Article 14 of the Constitution. What then happens to the diligent person who took up the EC to start the project,” said Gopal Sankaranarayanan, a senior advocate, while appearing for Vanashakti.
The court said: “The fault is not the policy, but the institutional mechanism. In a particular case, if the degree of environmental damage is much higher, it is possible to arrive at prospective solutions. This may have to be done on a case-by-case basis. Where the degree of damage is not very high, in such cases it is possible to notify the European Commission retrospectively.”
The court said that in a certain circumstance, what the legislature decides falls within the legislative domain. However, the court raised a red flag over the 2017 notification which it sought to extend by the 2021 Office Memorandum (OM).
“Regarding the 2017 notification of granting exemption from the previous EC, why should it be read strictly or restrictively? It only allows project proposers to apply and not to grant sanctions,” she said. All applicants always get EC, Sankaranarayanan said.
The court said its observations should not be seen as compromising with environmental requirements, but said the legislature was required to see the best possible outcomes by balancing environmental principles such as the “polluter pays” principle through which severe penalties could be imposed.
Sankaranarayanan pointed out that these penalties do not compare to the cost of the project and do not constitute a deterrent. He said the Jan Vishwas (Sentencing Amendment) Act, 2023 has decriminalized violations under the Environment Protection Act, 1986, allowing defaulters to escape with minor penalties.
The court agreed to continue hearing the case on Tuesday. Vanashakti noted that she had also filed a petition for review of the November 2025 decision and requested to be brought into open court with the current matters.
