Relevance: GS-II (Governance) & GS-III (Environment/Conservation)

Context and Concept:

Indian courts have repeatedly said that prior environmental clearance must be taken before a project begins; giving retrospective or ex post facto approval defeats the law and the precautionary principle.

What “retrospective clearance” means

A listed project must first study impacts, hear the public, and get prior environmental clearance. When a unit starts construction or operates first and seeks permission later, that is retrospective clearance.

• It turns prevent into pardon.
  
• It rewards violators and punishes compliant firms.
  
• Damage can already be locked in—rivers diverted, trees cut, people displaced.
  

Constitutional and legal backbone 

• Right to life with dignity under Article 21 includes a clean and healthy environment.
  
• Core doctrines: precautionary principle, polluter-pays, and the public trust doctrine.
  
• Key instruments that require prior permission or consent:
  
  • Environmental Impact Assessment Notification, 2006 (prior clearance for listed activities).
    
  • Environment (Protection) Act, 1986 (standards, directions).
    
  • Forest (Conservation) Act, 1980 (prior forest diversion approval).
    
  • Wildlife (Protection) Act, 1972 (clearances near protected areas).
    
  • Coastal Regulation Zone notifications (regulated activities on the coast).
    
  • Water Act 1974 and Air Act 1981 (consent to establish and operate).
    
  • National Green Tribunal Act, 2010 (specialised forum for environmental disputes).
    

What courts have said 

• The Supreme Court has held that ex post facto environmental clearance is contrary to law and environmental governance: the entire purpose of prior appraisal, public hearing, and alternatives review is preventive. Penalties or later studies do not cure the original illegality.
  
• Some benches have shown limited leniency in very narrow fact situations (for example, minor expansions inside approved zones with no significant new impact), but they underline that this is not a licence to regularise violations.
  
• High Courts and the National Green Tribunal have repeatedly ordered closure, restoration, and compensation where units ran without prior permission.
  

Why “prior” must mean prior

• People first: public hearings done after a plant is built reduce participation to a ritual; affected families face a fait accompli.
  
• Nature first: once wetlands are filled or hillsides cut, restoration is costly and rarely complete.
  
• Markets first: honest firms that wait for clearances lose to violators; rule-of-law suffers.
  
• Administration first: allowing regularisation clogs regulators with amnesty work instead of monitoring and science.
  

What governments and regulators should do

• Zero tolerance policy: no new amnesty windows; violations trigger stop-work, restoration plans, and compensation.
  
• Time-bound appraisal: strict clocks for scoping, study, hearing, and decision—so firms are not tempted to jump the queue.
  
• Better studies, better data: require cumulative impact assessment, seasonal baseline, social impact assessment, and site alternatives, not just a checklist.
  
• Public-facing dashboards: publish applications, studies, hearing minutes, and decisions in local languages.
  
• Independent compliance audits: third-party verified monitoring with surprise inspections; non-compliance leads to closure.
  
• Restoration fund: upfront environmental damage deposit for high-risk sectors; forfeited on breach.
  

What industry should do

• Freeze land work until all prior permissions (environment, forest, wildlife, water, air, coastal) are in hand.
  
• Commission credible, multi-season studies; design to avoid and minimise before planning to mitigate.
  
• Build grievance redress and community benefit plans early; keep a restoration reserve in project finances.
  
• Disclose compliance online; invite third-party verification annually.
  

Key terms

retrospective clearance • ex post facto approval • precautionary principle • polluter-pays • public trust doctrine • prior approval • cumulative impact assessment • social impact assessment • mitigation hierarchy • consent to establish/operate • coastal regulation zone • forest diversion approval

Exam hook

Key takeaways

• Prior clearance is a constitutional and statutory requirement; retrospective approval is illegal in principle and undermines prevention.
  
• Narrow case-by-case relaxations do not dilute the default rule.
  
• Strong appraisal, transparent monitoring, and swift penalties create fairness for communities, nature, and compliant firms.
  

UPSC Mains question
“Retrospective environmental clearance flips prevention into pardon.” Discuss with constitutional principles, major statutes, and case law. Propose a governance model that speeds lawful approvals while deterring violations through restoration and compensation. (250 words)

UPSC Prelims question
Q. With reference to environmental governance in India, which of the following statements is correct?

1. The Environmental Impact Assessment Notification, 2006 requires prior clearance for listed projects.
   
2. Granting approval after construction has begun is consistent with the precautionary principle.
   
3. The Forest (Conservation) Act, 1980 mandates prior approval for diversion of forest land.
   Select the correct answer using the code below:
   

(a) 1 and 2 only 

(b) 2 and 3 only 

(c) 1 and 3 only 

(d) 1, 2 and 3
Answer: (c)

One-line wrap
Prevention, not pardon—that is the heart of India’s environmental law; keep clearances prior, public, and principled.