How Four Decades Of Absolutist Environmental Laws Have Hindered India

The quashing operated only prospectively. Every clearance already granted under either instrument was left standing. Pending applications, including those rejected solely because of the earlier interim stay, were directed to be reconsidered rather than refused outright. No project was undone. Only the route for future relief was narrowed.

In July 2026, Vanashakti III quashed the 2021 Office Memorandum, while holding that a limited regularisation mechanism may still be created through valid delegated legislation.

In November 2025, Vanashakti II recalled that judgment. The Court found the issue needed reconsideration: the statute already carried the power to frame a limited regularisation mechanism, and striking down the existing framework without weighing the relevant precedents carried consequences of its own.

The first judgment, Vanashakti I, came in May 2025. It rejected post-facto environmental clearance, holding that letting projects proceed first and seek approval later would undermine the prior-clearance requirement and reduce environmental assessment to a formality.

The answer that came in July 2026 turns not on how much environmental harm a project caused, but on which government document was used to excuse it.

For fourteen months the Supreme Court ruled three times on the same question, reversing itself twice: can a project that broke ground without environmental clearance be regularised afterwards?

Fourteen months, three judgments on one question. Nothing already cleared was undone. Only the route for future relief narrowed.

Fourteen months, three judgments on one question. Nothing already cleared was undone. Only the route for future relief narrowed.

What The Court Actually Decided

The judgment opens on a proposition that deserves a second look. Justice Joymalya Bagchi writes: "In an anthropocentric world where man shapes nature to meet his wants… we need to examine the issue through the prism of eco-centric proportionality."

The Bench then described its own task: "The Bench is entrusted with the solemn duty to strike a balance between the existential right of all living beings, both present and future, to a pollution-free environment and an aspirational right to development of a sixth of the world's population."

The language is compelling. But that balance is exactly what the statutes have been trying to strike for four decades, through a long run of amendments. Parliament decides which activities need prior clearance, what safeguards apply and what follows from non-compliance. The judicial task is to interpret and enforce that framework in a given case, not to reset the underlying balance between development and environmental protection.

The Supreme Court itself said as much three decades ago. In Tarun Bharat Sangh v Union of India (1993), it held that where legislation has already been enacted to protect the environment, the Court need not be "oppressed by considerations of balancing the interests of economy and ecology", because the legislature has already struck that balance. Legal commentators have pointed back to it since the Vanashakti verdict, among them Ritwick Dutta in Down To Earth.

Vanashakti III's framing of 'eco-centric proportionality' appears to set that reasoning aside.

In Vanashakti III the Court took up eco-centric proportionality as its own instrument for weighing competing interests inside the environmental regulatory framework. Where legislation leaves a genuine constitutional question unresolved, that may be necessary. Where it does not, repeated judicial intervention tends not to settle anything. The Environmental Impact Assessment (EIA) framework is the case in point.

The 2006 EIA notification has been altered repeatedly through executive direction. More than 110 piecemeal changes have been made through office memorandums over five years.

The number alone does not establish that each change was unnecessary. But such heavy reliance on executive patching raises a more basic question. If the rules need constant correction to remain workable, is the problem individual violations, or the design of the framework itself?

This is where the debate has to move past the familiar choice between development and environmental protection. A more stable regime would do four things. It would distinguish serious environmental harm from procedural non-compliance. It would set out predictable conditions for lawful activity. It would impose real consequences for deliberate violations. And it would leave room to respond to lapses without shutting a project down.

Without that, projects get held up by paperwork even where the activity itself is environmentally permissible. And the executive is left issuing exceptions, clarifications and corrective orders to cover situations the original framework never anticipated.

Vanashakti III leans heavily on judicial proportionality. But the need for that balancing is itself partly a product of how the framework has evolved, through successive amendments, notifications and executive directions. The more exceptions the rules require, the more the balancing passes from the legislature to the executive, and finally to the courts.

The problem goes back to how these frameworks came about in the first place.

Stockholm, And The Statute That Ignored It

India's environmental policy took shape at a time when developed nations were rewriting global standards on sustainability. The Environment (Protection) Act, 1986 was enacted to give effect to the first United Nations Conference on the Human Environment, held in Stockholm in 1972, where Indira Gandhi was the only visiting head of government in attendance.

Developed nations championed that conference because of their own severe industrial pollution. Developing nations pushed back, arguing that poverty was the worst pollution of all and that environmental rules must not restrict their growth or their right to industrialise. Industrialisation reaches into ecosystems and into the livelihoods of the people who live in them. That much is unavoidable.

India called for sustainability rules to be calibrated rather than applied in blanket form. Its first environmental statute, the Wildlife (Protection) Act, followed within months of Stockholm. It carried none of the calibration the Indian government had itself asked for. It imposed an outright ban on industrial activity in any protected area, whatever the scale.

India's conservation model largely mirrors the American Yellowstone template: forests treated as pristine wilderness, local communities kept out. The historian Ramachandra Guha criticised this biocentric 'deep ecology' as an obscure subset of Western environmentalism. He called it 'fortress conservation', an American model transplanted to India with little regard for Indian culture or for the people who live off the forest.

The Act displaced tribal and forest-dwelling communities from land they had held for generations. It criminalised the traditional practice and community stewardship that had kept those forests standing.

The Water Act, 1974 and the Air Act, 1981 carried the same instinct in a different form. Both rely almost entirely on criminal prosecution rather than civil penalties. It is an all-or-nothing model: a small workshop and a multi-billion-dollar industry face the same exposure, and the courts fill up with disputes that could have been settled administratively.

Built To Prevent The Next Bhopal

The Bhopal gas tragedy of 1984 and the Oleum gas leak in Delhi the following year produced a hardening of domestic law, with doctrines such as absolute liability, blanket restrictions and stringent compliance requirements.

The Environment (Protection) Act, 1986, which came into force weeks before the Oleum judgment, gave the Centre unchecked power to regulate anything with environmental consequences. The mandate was to prevent the next mass-casualty disaster, not to calibrate risk.

Under the Act, the Central Pollution Control Board's effluent and emission standards set a uniform national floor that states may tighten but never relax. A factory in an economically backward state must meet the same minimum pollution thresholds as one in a highly industrialised state, whatever the local Pollution Control Board's capacity to enforce them.

The Public Trust Doctrine entered Indian law in M C Mehta v Kamal Nath, to stop a resort encroaching on a Himachal riverbed. It has since been read so widely that entire categories of natural resource are held off-limits to commercial use, with outright closure preferred over regulated use. An enterprise that causes environmental harm is fully liable for cleanup costs and damages, whatever its size or the developmental context of its region.

The delegated powers under the EPA produced restrictions of their own. The Coastal Regulation Zone Notification of 1991 imposed a single uniform rule across India's entire coastline, with no regard for local ecology, population density or economic activity. It had no defined clearance procedure and no monitoring mechanism. It needed more than 25 patch amendments before being consolidated into a fresh notification in 2011.

The Shailesh Nayak Committee found the notification too rigid to implement, and said centralised controls were needlessly restricting local fishers and critical infrastructure. That assessment fed into the revamped CRZ rules of 2019.

The EIA Notification of 1994, issued under the same delegated power, built its clearance system on the template of the United States' National Environmental Policy Act of 1969. The UN Environment Programme had exported that template worldwide, and India adopted it with little adaptation for a still-developing economy.

Corrections, Slow And In Fragments

In 1996 the Supreme Court's ruling in T N Godavarman extended the same absolutist logic to land itself, holding that 'forest' must carry its broadest dictionary meaning regardless of ownership. The eviction drives that followed displaced lakhs of adivasis from homes and livelihoods they had held for generations, with no framework yet in place to recognise their claims.

Corrections came, but slowly and in fragments. The Forest Rights Act of 2006 set out to correct the 'historical injustice' that followed Godavarman, recognising the land and resource rights of forest-dwelling communities long shut out by a conservation model built on separating people from nature.

The Forest Conservation Rules, 2022 diluted that framework. They moved the mandatory Gram Sabha consent requirement from the start of the clearance process to its final stage, eased the commercial diversion of 'deemed forests' through land-banking, and lowered compensatory afforestation standards.

When the Forest (Conservation) Amendment Act, 2023 was challenged, the Supreme Court declined to stay it in February 2024. Its interim order preserved the broad Godavarman definition of 'forest' pending final judgment, a narrower intervention than reversing the Gram Sabha dilution would have been.

The Jan Vishwas Act, 2023 replaced the EPA's five-year imprisonment clause with graded monetary penalties, easing one burden on doing business in India.

Earlier governments had moved the same way. The Vajpayee administration made a real attempt at rationalising these policies through amendments to the EIA framework, raising investment thresholds and exempting smaller industrial expansions from lengthy central approvals.

Amendments in 2002 exempted large-scale pipeline projects altogether from preparing exhaustive EIA reports, to fast-track energy infrastructure. The rigid 1991 CRZ rules were amended in the same period to permit categories of non-polluting infrastructure in coastal stretches that had faced blanket bans. The Biological Diversity Act, 2002 set up local Biodiversity Management Committees, moving away from a centralised bureaucratic veto over access to domestic resources.