Saving the environment from ‘development’

On 19 May 2025, former government of India secretary E.A.S. Sarma wrote to the ministry of environment, forest and climate change (see his open letter below), urging it to review its decision to transfer nearly 130.75 sq km (13,750 hectares) of dense, biodiverse forest in the Andaman and Nicobar Islands for the Great Nicobar Island Development Project — without conducting an Environmental Impact Assessment (EIA).

Sarma’s appeal follows a landmark Supreme Court ruling on 15 May stating that the government cannot grant retrospective environmental clearances to projects that commenced without prior approval. The court struck down a 2017 notification and a 2021 office memorandum issued by the environment ministry, which had allowed post-facto environmental clearances.

The Supreme Court bench of Justices Abhay S. Oka and Ujjal Bhuyan declared both the 2017 government notification and the July 2021 office memorandum unconstitutional. These instruments had allowed projects that began illegally — in violation of the EIA notification, 2006 — to be retrospectively legitimised through a process of post-facto environmental clearance.

The petitions, filed by environmental advocacy group Vanashakti and others, challenged the legality of the 2021 Standard Operating Procedures (SOPs) issued by the government. These SOPs had provided a pathway for such violators to obtain backdated clearance after paying fines and implementing remediation plans.

Vanashakti had argued that the EIA notification of 2006 mentions the term ‘prior approval’ 34 times—underlining its absolute necessity. Any attempt to regularise violations after the fact, they said, violated the very premise of environmental law.

In its defence, the environment ministry claimed in a 2024 affidavit that the 2017 notification had only opened a six-month window (which closed in September 2017), and that the 2021 office memorandum was meant to accommodate later violations. But the court found this unacceptable.

Calling the right to a pollution-free environment a fundamental right, the top court ruled that the government’s effort to issue retrospective clearances via the 2021 office memorandum amounted to ‘legal sophistry’ and ‘a direct violation’ of both the Environment Protection Act, 1986 and the EIA Notification, 2006. The judgement bars the government from issuing any guidelines or orders that permit such retrospective approvals in the future.

The legal framework requiring environmental clearance was formally established in 1994. Although environmental impact assessments began in India in the late 1970s — initially for river valley projects at the behest of the Planning Commission — it wasn’t until the ministry’s 27 January 1994 notification, under the Environment Protection Act, that such approvals became legally binding. Before this, environmental clearance was merely an administrative recommendation.

The 2017 notification offered a six-month reprieve to violators, allowing them to seek backdated approvals. In 2021, the government formalised this approach further through an office memorandum and SOPs that applied to projects operating in violation of EIA, 2006. Under this mechanism, such entities could pay a fine and submit a remediation plan to obtain post-facto approval.

Even as the country was reeling under the first Covid lockdown in March 2020, government agencies fast-tracked approvals for 31 development projects, diverting 185 acres of dense forest. On 7 April 2020, the Standing Committee of the National Board for Wildlife (NBWL) convened a video-conference meeting and cleared the conversion of 2,933 acres of ecologically sensitive forest and wildlife buffer zones for development, ignoring a flurry of objections. This included the Lakhwar Multipurpose Project (300 MW) in Dehradun and Tehri Garhwal districts — a proposal later struck down by the NGT but revived through subsequent executive orders.

Such actions, critics argue, point to a systemic willingness to bypass environmental norms in favour of private interests. This, despite India being a signatory to the Paris Agreement and a committed stakeholder in the Sustainable Development Goals — particularly SDG 13 (Climate Action) and SDG 15 (Life on Land), both of which explicitly oppose retroactive legalisation of ecological damage.

By the time the Supreme Court stepped in to bar post-facto approvals, the Centre had already granted such clearances to over 100 violators. These projects spanned mining, real estate and industrial sectors — from coal, bauxite and iron ore extraction to breweries, cement plants, lime kilns and even gated townships and an airport.

Among the entities that benefited from this policy were: Singareni Collieries Company Ltd, Mahanadi Coalfields Ltd, JP Cement, Ultratech Cement, Ramco Cement, Bhushan Steel (Tata Steel), Steel Authority of India, Godrej Agrovet, Hindustan Copper, Lloyds Metals & Energy, Hindustan Marble, Artemis Hospital, Pushpawati Singhania Hospital, Space Towers, Hotel Leela Ventures — and even the Special Protection Group.

This judgement, say legal experts, is a turning point for environmental governance in India. It reinforces the rule of law, strengthens the legitimacy of the EIA process and sends a clear message — ecological compliance is non-negotiable.

Reacting to the verdict, Congress spokesperson and former environment minister Jairam Ramesh called it ‘historic’ and ‘a reaffirmation of sustainable development principles’.