The concept of an ex-post facto environmental clearance (‘EC’) has been debated under the Indian environmental jurisprudence. An ex-post facto EC essentially allows a project proponent to continue with its project without obtaining an EC prior to project commencement. The requirement of obtaining a prior EC is envisaged under the Environmental Impact Assessment Notification, 2006, issued by the Ministry of Environment, Forests and Climate Change, read with the Environment (Protection) Rules, 1986. Principally, the grant of ex-post facto EC goes against the ‘precautionary principle’ of environmental jurisprudence.

There has been a divergence of opinion regarding whether the grant of an ex-post facto EC is permissible under law. The SC has, in the Common Cause case^[1] and the Alembic Pharmaceuticals case^[2] categorically declined the grant of an ex-post facto EC, holding it to be alien to the environmental jurisprudence. On the other hand, in certain cases,^[3] the SC has recognized that the grant of an ex-post facto EC cannot be denied with ‘pedantic rigidity’. Recently, the SC has, in the case of D. Swamy v. Karnataka State Pollution Control Board,^[4] laid out the following principles in relation to the grant of ex-post facto EC but has also cautioned that grant of such ECs should not be a matter of routine –

i.     Ex-post facto ECs can be granted only in exceptional circumstances, having specific regard to the consequences of stoppage or closure of the operation of the establishment in question;

ii.    Before granting an ex-post facto EC, it is to be seen whether the establishment is in compliance with the pollution norms and other important rules and regulations;

iii.   The test to grant an ex-post facto EC is to see whether the adverse consequences of refusing to grant an ex-post facto EC outweigh the consequences of the regularisation of operation of the establishment by the grant thereof; and

iv.   The Court may impose exemplary penalty for not obtaining a prior EC even while granting an ex-post facto EC.

[1] Common Cause v. UOI & Ors., (2017) 9 SCC 499.

[2] Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors., (2020) 17 SCC 157.

[3] Electrosteel Steels Ltd. v. UOI, 2021 SCC OnLine SC 1247; Vanashakti v. UOI, 2021 SCC OnLine Bom 3360; Pahwa Plastics Pvt. Ltd. v. Dastak NGO, 2022 SCC OnLine SC 362.

[4] D. Swamy v. Karnataka State Pollution Control Board, 2022 SCC OnLine SC 1278.