TOP COURT’S GREEN GOVERNANCE, CAUSE FOR UNCERTAINTY

Why in the News?

• The Supreme Court of India has increasingly shifted from its traditional role of judicial review to issuing forward-looking, quasi-regulatory directions in environmental cases.
• This trend has emerged due to regulatory failure and administrative inaction, compelling the Court to step in through tools like continuing mandamus.
• Instead of merely correcting flawed regulatory processes, the Court has often substituted itself for environmental regulators, remaining involved over long periods.
• Such prolonged judicial management blurs the separation of powers and creates uncertainty for regulated entities, the executive, and affected communities.
• The approach risks weakening institutional accountability by allowing the state to abdicate its regulatory responsibilities, necessitating a recalibration where the Court disciplines regulators back into effective governance and then steps aside.

Rulings and Shifts in Judicial Approach

Eco-Sensitive Zones (ESZs)

• June 2022: The Supreme Court mandated a minimum 1 km ESZ around all protected areas nationwide.
• April 2023: The direction was diluted, exempting areas where the Environment Ministry had already notified ESZs, after States cited practical implementation difficulties.

Diesel Vehicle Restrictions

• December 2015: The Court banned registration of private diesel cars and SUVs above 2,000 cc in the Delhi–NCR.
• August 2016: The ban was lifted, replaced with an environmental compensation charge (1–2% of ex-showroom price).
• 2025: The Court initially ordered no-coercive action against owners of petrol and diesel vehicles older than 15 and 10 years respectively, but later narrowed the protection to vehicles below Bharat Stage-IV standards.

Firecracker Regulations

• The Court periodically imposed near-total bans on firecrackers in the NCR to address air pollution.
• These bans were later relaxed during festivals, permitting limited categories such as “green crackers”, citing enforcement challenges and public order concerns.

Judicial Response to Regulatory Gaps

• Weak enforcement, delayed notifications, poor monitoring, and ad hoc exemptions by authorities created regulatory vacuums.
• Instead of compelling regulators to discharge statutory duties, the Court often assumed a direct regulatory role.

Shift from Legal Principle to Consequence-Based Reasoning

• May 2025 (Vanashakti v. Union of India): The Court held that ex post facto environmental clearances violate core environmental principles such as the polluter pays principle and the precautionary principle.
• November 2025 (Review): The ruling was recalled, with the majority citing concerns over disruption to ongoing commercial activities.
• This reflected a pattern where the Court announces broad doctrinal positions first and later manages their practical fallout, reinforcing its tendency toward governance rather than adjudication.

The Issue of Expertise

Reliance on and Contestation of Expertise

○ As the Court issues forward-looking environmental directives, expertise has both supported and complicated its interventions.

○ In the Aravalli matter, the Court (November 20 order) adopted a uniform definition of “Aravalli hills and ranges” to regulate mining, based on a committee’s findings.

○ Within weeks, the order was kept in abeyance and a new committee proposed, after concerns arose about unintended legal and regulatory consequences.

Limits of Uniform Rules

○ In the ESZ case, a uniform 1 km buffer initially appeared decisive and administratively neat.

○ Resistance emerged when stakeholders highlighted ecological diversity and varying feasibility across landscapes, exposing the limits of one-size-fits-all prescriptions.

Push–Pull with Experts

○ The Court has leaned on expert committees to compensate for its institutional limits.

○ At the same time, it has revisited, questioned, or replaced expert conclusions, creating a push–pull dynamic that has often preceded judicial reversals or course corrections.

Impact on Public Challenge and Participation

○ Acting as a de facto approving authority, the Court’s early intervention has had chilling effects on public challenge.

○ As argued by environmental lawyer Ritwick Dutta, project proponents and governments are increasingly compelled to seek the Court’s clearance even before statutory regulators complete their scrutiny.

○ Such early approvals create a sense of finality, discouraging later objections and appeals.

Erosion of Layered Judicial Review

○ The core concern is not occasional technical error, but the Court’s premature entry into the regulatory process.

○ This risks crowding out meaningful review by statutory authorities and specialised tribunals.

○ Consequently, when the Court later modifies or narrows its own directives, it also reshapes who gets heard, when, and on what evidentiary footing, affecting the fairness and robustness of environmental governance.

Need for Stability in Environmental Adjudication

Continuing Mandamus and Instability

• Many environmental disputes unfold within continuing mandamus frameworks, marked by repeated interim orders, committee reports, affidavits, and frequent modifications.
• While this structure allows the Court to course-correct easily, it often does so at the cost of regulatory certainty and stability.

From Managerial Control to Regulatory Discipline

• Rather than remaining a substitute regulator, the Court should adopt a steadier, institutional approach.
• Environmental protection can be better achieved by disciplining the state back into effective regulation, not by permanent judicial management.

Clear Thresholds for Judicial Intervention

• The Court could define clear thresholds for when it will issue managerial or supervisory directions.
• It should insist on time-bound action by regulators, backed by reasoned decisions and publicly accessible data, while retaining its core role of reviewing legality and procedure.

Reducing Uncertainty in Rule-Making

• The Court can enhance stability by avoiding broad, sweeping directives that immediately invite multiple exceptions and relaxations.
• Where flexibility is unavoidable, it should clarify in advance the types of evidence, expert inputs, or implementation constraints that would justify future modification.

Benefits of a Steadier Approach

• Regulated entities would face clear and non-negotiable standards, rather than shifting judicial signals.
• Governments and regulators would be spared parallel decision-making and pushed to strengthen their own institutions.
• Citizens and affected communities would have clearer pathways to contest environmentally harmful activities, enhancing accountability and democratic participation.

Way Forward

• Reaffirm the Supreme Court’s role as a guardian of legality and procedure, not a parallel environmental regulator.
• Fix clear thresholds for invoking continuing mandamus, limiting it to cases of persistent, demonstrable regulatory failure.
• Mandate time-bound, reasoned action by environmental authorities, supported by transparent public data and disclosures.
• Strengthen statutory regulators and expert bodies through capacity-building, accountability mechanisms, and independence.
• Avoid one-size-fits-all judicial directions; prefer context-sensitive standards grounded in ecological diversity.
• Preserve space for public participation and challenge by allowing statutory and tribunal processes to run their course.
• Use judicial review to discipline the state back into regulation, ensuring stability, predictability, and democratic environmental governance.

To balance effective environmental protection with institutional integrity, the Court could:

1. Establish clear criteria for invoking continuing mandamus, reserving it for cases of persistent regulatory failure.
2. Focus on strengthening existing regulatory bodies like those responsible for Environmental Impact Assessment (EIA) rather than substituting for them.
3. Emphasize time-bound, reasoned actions by environmental authorities, supported by transparent data.
4. Avoid broad, one-size-fits-all directives that may not account for diverse ecological contexts.
5. Preserve space for public participation and challenge in environmental decision-making processes.
6. Use judicial review to reinforce the importance of adherence to environmental laws like the Forest Conservation Act and Coastal Regulation Zone notifications.

By adopting these approaches, the Court can help discipline regulatory bodies back into effective governance while maintaining the principles of environmental democracy and the separation of powers. This balanced approach would contribute to a more stable, predictable, and participatory environmental governance framework in India.

The Supreme Court’s expanding role in environmental governance through continuing mandamus has significantly impacted India’s environmental jurisprudence. While this approach has addressed regulatory failures, it has also raised concerns about institutional stability and separation of powers. The Court’s interventions, such as in the Vanashakti judgment on ex-post environmental clearances, have often blurred the lines between judicial review and executive function.

Source: https://www.thehindu.com/opinion/op-ed/top-courts-green-governance-cause-for-uncertainty/article70487766.ece

Mains Question (250 words):

Critically examine the Supreme Court’s expanding role in environmental governance through continuing mandamus. How can judicial intervention discipline regulatory failure without undermining institutional stability and separation of powers?