INTRODUCTION
One of the most important challenges facing legal systems in the contemporary world is the tension between the imperatives of development and the imperatives of environmental protection. In the case of India, the tension is perhaps most evident in the clash between the imperatives of infrastructure development and the imperatives of protecting the ecologically vulnerable and tribally inhabited forest ecosystems. The Indian Constitution recognizes the right to a wholesome environment as part of the right to life under Article 21.1 Moreover, the obligation to protect the environment is cast on the State under Article 48A, and every citizen is charged with the duty to protect the environment under Article 51A(g).2
Yet, the governance of the environment in the post-pandemic world in India is marked by a discernible paradigm shift. The economic pressures caused by the disruption of 2020 have only hastened the pre-existing tendency towards industrial liberalization, wherein environmental protection is seen as an obstacle to growth rather than the condition thereof. This tendency is perhaps most evident in two areas of governance, which overlap with each other. These two areas are the weakening of the Environmental Impact Assessment regime and the legislative weakening of the Forest (Conservation) Act, 1980, both of which clash with the protection afforded to forest-dwelling tribes under the Forest Rights Act, 2006.
The Forest Rights Act was brought in to address a “historical injustice” of colonial and post-colonial dispossession of tribal and forest-dwelling people.3 It grants individual and community forest land rights, and more importantly, vests sovereign power in forest governance in tribal areas in the Gram Sabha. Recent executive and legislative decisions, such as EIA exemptions and the Forest (Conservation) Amendment Act, 2023, undermining forest rights, demonstrate a trend to dismantle forest governance. By declaring some linear projects and industrial expansions to be of “national importance,” is the State not undermining its constitutional responsibility to natural resources to expedite their alienation to those who need them least? This paper will be divided into seven parts. Part II will outline its place within the basic tenets of environmental law. Part III will deal with constitutional provisions and the PIL route. Part IV will deal with EIA dilution and corporate liability before the National Green Tribunal. Part V will outline the human cost, measured through the Forest Rights Act, Forest (Conservation) Amendment Act, 2023, and Niyamgiri cases. Part VI will outline India’s responsibility within its international obligations. Part VII will outline normative recommendations, and Part VIII will be a conclusion.
THE CONCEPTUAL BEDROCK: PRINCIPLES VERSUS PRACTICE
Any rigorous assessment of the socio-legal conflict at the heart of this paper requires grounding in the foundational doctrines that environmental law has developed to regulate the State’s relationship with nature and with communities whose survival is bound to it.
A. The Public Trust Doctrine and the Limits of Eminent Domain
The Public Trust Doctrine asserts that some natural resources, such as forests, rivers, air, coastal areas, are of such vital importance to the community that they cannot be appropriated by individuals or states for their own use. The doctrine of trusteeship is applicable to natural resources, which are by their very nature meant for public use. The state can neither appropriate nor allow natural resources to be appropriated for its own use. The most authoritative statement of the doctrine of trusteeship in Indian jurisprudence can be found in the judgment of the Hon’ble Supreme Court in the case of M.C. Mehta v. Kamal Nath, 1997. The court has held: “The State is the trustee of all natural resources which are by their very nature meant for public use. The state can neither appropriate natural resources for its own use nor allow natural resources to be appropriated for its own use.”4
The doctrine of trusteeship in the context of forest management is challenged in its very structure every time the state invokes its power of eminent domain to allow the use of forest lands for purposes other than those of forests. Section 2 of the Forest (Conservation) Act, 1980, in its pre-amendment avatar until 2023, required central government approval for diversion of forest lands. This is a deliberative check on the use of forest lands that is in consonance with the doctrine of trusteeship. Eminent domain cannot override the doctrine of trusteeship. As the court has held in the case of M.C. Mehta v. Union of India, in the case of the Shriram company: “The right to life guaranteed by Article 21 includes the right to a safe environment. The state cannot discharge its trusteeship by merely invoking national development. The state has to balance development with environmental protection. The state cannot allow natural resources to be appropriated for its own use.5 The state has to act in consonance with the doctrine of trusteeship. The state cannot override the doctrine of trusteeship by invoking its power of eminent domain.”
The communities whose very living is inextricably tied to these resources forest dwellers, tribal communities, subsistence farmers are the ones who suffer the consequences of the state’s failure.
B. The Precautionary Principle and Its Subversion by Ex-Post-Facto Clearances
This Precautionary Principle, as set out in Principle 15 of the Rio Declaration on Environment and Development,6 mandates that the absence of full scientific certainty should not be used as a reason to postpone preventive measures to protect the environment where there is a threat of serious irreversible damage. The Supreme Court applied this Precautionary Principle to domestic law in the case of Vellore Citizens’ Welfare Forum v. Union of India (1996), which held that it was part of the corpus of environmental law through Articles 21, 47, 48A, and 51A(g).7
The Precautionary Principle is, by its very nature, prospective. It is one which demands assessment before action and deliberation before damage. The ex-post-facto environmental clearance negates this very logic. It permits industries to start operations without prior environmental clearance and then regularizes their defaults by paying a penalty. It effectively turns the Precautionary Principle into an accounting exercise. The Supreme Court, in its recent judgments in the series of cases involving the Union of India in Common Cause v. Union of India (2017), Alembic Pharmaceuticals Ltd. v. Rohit Prajapati (2020), and Vanashakti v. Union of India (2025), has held that retrospective environmental clearances are not only procedurally improper but also substantively incompatible with environmental law.8 It is incompatible because, as the Supreme Court held in Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, “the very purpose of prior environmental clearance is to prevent environmental damage which may be irreversible.”9 It is not possible to undo the environmental damage which has already been inflicted. It is only possible to clean the legal slate.
The executive insistence on the Draft EIA Notification 2020 and successive Office Memoranda to introduce provisions which permit retrospective environmental clearances is effectively a deliberate inversion of the regulatory logic. It effectively turns the Precautionary Principle into the “pollute and pay” model.
C. Intra-Generational Equity and the Eastern Ghats
Whereas inter-generational equity focuses on responsibilities towards future generations, intra-generational equity focuses on equity in terms of distribution of environmental responsibilities amongst those alive in a particular time frame. The principle emphasizes that the burden of development costs must not fall disproportionately on vulnerable sections of society. The most significant judicial pronouncement on this principle in the context of forest rights in India was in Orissa Mining Corporation Ltd. v. Ministry of Environment & Forests (2013), where the Supreme Court upheld the rights of the Dongria Kondh tribe, mandating that twelve Gram Sabhas exercise their sovereign right to determine whether Vedanta Resources’ plan to mine bauxite in their sacred hills would be permitted.10
The significance of this case lies in its jurisprudential architecture, which established a precedent that community forest rights under the FRA are not welfare measures to be weighed against development interests but are, in fact, enforceable rights with constitutional support, and the economic value of a mineral resource cannot outweigh the cultural, ecological, and other rights of communities whose very identity is inextricably linked with the landscape in question. All twelve Gram Sabhas have now rejected Vedanta’s plan to mine in their hills. The Forest (Conservation) Amendment Act, 2023, as Part V of this paper contends, takes a step back on this precedent.
CONSTITUTIONAL SAFEGUARDS AND THE ARC OF PUBLIC INTEREST LITIGATION
THE RIGHTS-DUTIES ARCHITECTURE
The Indian Constitution, for a founding document, is unique in its explicit recognition of environmental duties. Article 48A mandates the State to protect and improve the environment, and Article 51A(g) imposes a corresponding duty on every citizen. Initially considered to be merely aspirational, these provisions were elevated to constitutional mandates through judicial intervention.11 In Rural Litigation and Entitlement Kendra v. State of U.P. (1985), and continued through Subhash Kumar v. State of Bihar (1991), the Court has firmly established that a wholesome, pollution-free environment is a non-derogable aspect of Article 21.12
This constitutional edifice has resulted in what can be termed a structural paradox in environmental governance today. On one side, Articles 21, 48A, and 51A(g), along with the extensive body of judicial law that has developed around them, remain firmly in place. On the other, a series of executive and legislative decisions, such as those analyzed in this paper the Draft EIA 2020, the 2023 FCA Amendment seem to operate on an implicit assumption that the constitutional framework is merely one of a number of factors to be considered, rather than a mandatory framework within which all other decisions must be taken. This disconnect has occurred at a time when the pace of post-pandemic development is accelerating.
B. Public Interest Litigation: The Green Watchdog and Its Recalibration
The institutional vehicle for the most active enforcement of constitutional environmental protection has been the Public Interest Litigation, which found its doctrinal moorings in the case of S.P. Gupta v. Union of India (1982),13 which liberalized the requirements of locus standi for activists, non-governmental organizations, and courts to invoke Articles 32 and 226 and thereby challenge ecologically harmful state action without any demonstration of personal injury. The PIL remained the most dominant vehicle for the enforcement of the constitutional right to a clean environment for three decades.
The most prominent of the T.N. Godavarman Thirumulpad cases, which commenced in 1995 and spawned a long sequence of orders over the next two decades,14 remained the most striking exemplification of the Court’s judicial environmentalism. The Court effectively positioned itself as a special environmental regulator and issued elaborate directions on forest governance and even constituted High-Powered Committees to monitor compliance. The post-pandemic period has seen a noticeable shift in this approach. In the case of Citizens for Green Doon v. Union of India (2021),15 the Supreme Court cleared the widening of the road on the Char Dham Highway through the ecologically sensitive region of the Himalayas in the state of Uttarakhand, giving greater weightage to the security concerns articulated by the Ministry of Defence than the ecological concerns articulated by its own High-Powered Committee. This is symptomatic of the Supreme Court’s move towards accepting the executive’s categorization of infrastructure projects as in the “national interest,” an expansive categorization that has historically been used as an excuse to dismiss the existence of competing rights.
The consequences of such an approach are considerable. When the system of PIL is subject to such a deference-based re-evaluation in favor of infrastructure projects, the constitutional right to a healthy environment is preserved as an abstract proposition but is diminished in reality. The traditional inability to access the formal legal system for many communities has historically been addressed through the mechanism of PIL as a means to access the constitutional right to the environment; the erosion of this mechanism is, for such communities, the erosion of access to the legal system.
THE REGULATORY BOTTLENECK: EIA DILUTION AND CORPORATE LIABILITY
THE ARCHITECTURE OF ENVIRONMENTAL IMPACT ASSESSMENT AND ITS DISMANTLING
The EIA Notification 2006, framed under the Environment Protection Act 1986, is the key legislation by which the Precautionary Principle is put into practice.16 It laid down a framework of a pre-decision-making process in which there is a scoping phase, followed by preparation of an environmental impact report, then a technical appraisal by the concerned Expert Appraisal Committee, and finally a crucial mandatory public consultation in which communities have a right to raise objections before any clearance is granted. This process of assess, consult, and decide is a direct implementation of the principle that decisions regarding development must be made in light of a full knowledge of their consequences.
The Draft EIA Notification 2020 is a radical shift in the structure of decision-making laid down by the 2006 Notification.17 The most contentious part of the Draft Notification is Clause 7, which provides a route for industries that have started operations without a valid Environmental Clearance to seek retrospective permission the ex-post-facto route whose unconstitutional nature has been upheld by the Supreme Court in numerous rulings.18 At the same time, a number of projects have been excluded from public consultation in the Draft Notification the B2 category projects and those classified as ‘strategic.’ The removal of these projects from the EIA Notification is effectively a removal of the main route by which forest-dwelling communities can raise objections before ecological and social damage is done.
The Supreme Court ruling in 2025 in the case of Vanashakti v Union of India striking down the 2017 Notification and the 2021 Office Memorandum by which ex-post-facto clearances were granted has put a stopper on any further Notification by the Central Government in this regard.19 While judicial intervention is welcome in individual cases, what is required is a structural shift in legislation to bring executive decision-making in line with constitutional requirements. The repeated attempt by the executive branch of government to bring out these Notifications in a decade in which each one has been struck down by the Supreme Court points to a structural problem yet to be solved.
B. Corporate Liability and the National Green Tribunal
The National Green Tribunal Act of 2010 established a new adjudicatory body for the resolution of civil disputes involving significant issues of environmental concern.20 The new body combines legal and technical expertise to address the widely recognized inability of generalist courts to address complex environmental disputes involving multiple variables. Section 47 of the Water (Prevention and Control of Pollution) Act of 1974, and Section 40 of the Air (Prevention and Control of Pollution) Act of 1981, impose vicarious liability on corporate directors and managers for environmental offenses committed by the corporation. An exception to this liability is available only upon a showing of due diligence.21 The impact of these provisions is to change the calculus for corporate environmental compliance from a cost/benefit analysis to one in which the corporate manager must take personal responsibility for environmental offenses. The reality, however, is that the efficacy of the NGT has been undermined by a variety of factors. First, there have been ongoing vacancies in the positions of expert members of the NGT. Secondly, there have been jurisdictional overlaps between the NGT and the High Courts. Perhaps most damaging has been the establishment of ad hoc procedures for approval of specific infrastructure projects that bypass the NGT. The logical response of corporate actors to these changes is to recognize that, in light of the reduced cost of non-compliance, where such cost is significantly less than the profit generated by expedited construction, non-compliance is a rational response.
THE HUMAN COST: FOREST RIGHTS, DE-RESERVATION, AND THE 2023 AMENDMENT
THE FOREST RIGHTS ACT AS A DECOLONIZING INSTRUMENT
The Forest Rights Act of 2006 holds a special place in Indian social legislation. The Preamble of the Act accepts that forest governance in colonial and post-colonial India resulted in the dispossessing of forest-dwelling communities without any due process of law and without any compensation.22 The Act recognizes forest rights of individuals and communities to occupy and cultivate forest land in possession for generations, to access and use forest produce, and to conserve and manage forest resources. The central pillar of the Forest Rights Act is the Gram Sabha, which is not a consultative body but the main body of forest governance in tribal forest areas. The Gram Sabha is vested with the authority of deciding forest rights and granting consent for diversion of forest land for non-forest purposes after the free and informed consent of the Gram Sabha.23
B. The Forest (Conservation) Amendment Act, 2023: A Structural Retreat
The Forest (Conservation) Amendment Act, 2023, which has been brought into force on December 1, 2023, is widely seen as a significant watering down of India’s forest protection regime since the Forest Conservation Act was first passed in 1980.24 The amendments to the Forest Conservation Act have impacted the forest protection regime on multiple levels.
The first level at which the amendments impacted the forest protection regime was in terms of reducing the scope of land to be governed under the Forest Conservation Act. This was done by removing land that was recorded as forest prior to October 25, 1980, and was not formally notified under a State notification, as well as land that was originally forest but was later converted to non-forest land prior to December 12, 1996, from the purview of the Forest Conservation Act.25 This has resulted in a significant body of “deemed forests,” as designated by the Supreme Court’s landmark decision in the Godavarman case of 1996, being removed from the purview of central clearance, and these “deemed forests” often include some of the ecologically most sensitive and tribal-inhabited areas.26
The amendments also brought a number of exemptions to the purview of forest clearance. Projects within one hundred kilometers of International Borders and Line of Actual Control, infrastructure for security purposes up to an area of ten hectares, and public utility projects in Left Wing Extremism-affected areas up to an area of five hectares, were all brought within an exemption to forest clearance.27 The areas where these exemptions will be applicable include a significant part of India’s forested and tribal-inhabited areas, as border areas and LWE-affected areas include a significant part of India’s forested and tribal-inhabited areas, particularly in the northeastern states and the tribal areas of Jharkhand, Chhattisgarh, and Odisha.
Thirdly, and most importantly for the purposes of this paper, the 2023 Act does not have any saving provision for FRA compliance. The exemptions granted by the 2023 Act from the requirement of prior approval also remove the procedural requirement which ensured FRA compliance and Gram Sabha consent prior to diversion of forest land. The constitutional challenge to the 2023 Act in the case of Ashok Kumar Sharma v. Union of India28 is arguably the main pathway for resolving the uncertainty surrounding the Amendment. However, until such time as the constitutional challenge is decided, the legislative framework created by the Amendment is one which permits the override of recognized forest rights without Gram Sabha consent.
The distinction between the Niyamgiri decision and the legislative framework created by the 2023 Amendment is stark. The Supreme Court held in the Orissa Mining Corporation case that Gram Sabha consent is not a procedural requirement to be fulfilled on paper but a substantive right which must be exercised freely and meaningfully.29 The 2023 Amendment, by removing the procedural framework in which Gram Sabha consent is required and obtained, does not merely negate the right but removes the institutional occasion for the exercise of the right. The decision of the Indian government to clear environmental concerns for the construction of a Rs. 76,220 crore port project in the state of Maharashtra in February 2024 despite nearly 52,000 objections being raised during public hearings for the project is illustrative of the governance which post-Amendment law permits.30
INTERNATIONAL OBLIGATIONS AND THE GLOBAL LENS
FROM STOCKHOLM TO PARIS
India has a long history of environmental commitments, starting with the Stockholm Conference in 1972, which has continued with increased commitments through the Rio Declaration in 1992, Convention on Biological Diversity, and the Paris Agreement in 2015. In its new Nationally Determined Contribution, India has committed to creating another carbon sink of 2.5 to 3 billion tonnes of CO2 equivalent through forests and tree cover by 2030.31
The Forest Conservation Amendment of 2023, which has restricted forests, provided wide exemptions for border and security activities, and allowed for diversion without central government approval, creates a tension with these commitments, as a significant portion of forests are now vulnerable to development pressures, which have not officially been assessed in relation to their potential impact on India’s carbon sink commitments. Compensatory afforestation, through which these amendments seek to provide a solution for the ecological impact of increased diversion, has already been found in many studies to not provide a suitable replacement for biodiversity loss in primary forests. Monoculture plantations, which are predominantly used in compensatory afforestation, are not a suitable replacement for biodiversity loss in primary forests, and in many cases, compensatory afforestation is carried out on land already vested in Gram Sabhas under the FRA, which adds another layer of disempowerment on communities.
B. Trade, Investment, and the ESG Paradox
The ease of doing business agenda, which has guided post-2014 regulatory reforms, has been conceptualized in terms of attracting foreign direct investment and participation in global supply chains. At the same time, the global economy, which is a source of these investment flows, is now increasingly governed through Environmental, Social, and Governance (ESG) norms, which are ostensibly designed to ensure supply chain compliance with norms of community consultation, indigenous peoples’ rights, and environmental protection. Forest-dwelling communities who are impacted by forest diversion are not a part of this ESG discourse in domestic policy, with neither the 2023 Amendment nor its rules engaging with the international norms of free, prior, and informed consent to which India is committed under the UN Declaration on the Rights of Indigenous Peoples, which India ratified in 2007.32 The gap between international norms and domestic governance practice is no longer simply a normative issue, but now a source of reputational and legal risk for domestic firms and their global partners in global capital markets.
CRITICAL ANALYSIS AND NORMATIVE RECOMMENDATIONS
THE HOLLOWING OF THE PUBLIC TRUST DOCTRINE
Another common element in the legislative and executive actions reviewed in this paper is the reference to “public purpose,” “national importance,” and “national security” as terms which set aside the relevant environmental regulations. While the doctrine of eminent domain has long acknowledged the State’s right to take property for public purposes, subject to the payment of just compensation, the current pattern represents something qualitatively different. It is the use of the rhetoric of public purpose to set aside not only the right to private property, but also the constitutional right to environment and the statutory rights of the people with respect to land already held in public trust and already subject to the right to recognition statute.
The effect of this pattern is the progressive erosion of the Public Trust Doctrine. When the State processes almost any infrastructure project involving sufficient scale through an exemption-riddled clearance process which ignores environmental assessment and community consultation, it is acting in the interests of the project proponent, not the beneficiaries of the trust. This is impermissible, as the Court in M.C. Mehta v. Kamal Nath held.
The law on the Public Trust Doctrine is unambiguous. The practice is not.
B. Strengthening the National Green Tribunal
The National Green Tribunal needs substantial institutional overhauls to make it functional in achieving its legislative mandate. Three things need to be done. The selection of expert members must be made more regular and not suffer from delays in the hands of the executive. This can be achieved by creating a standing Expert Committee. The Tribunal suffers from persistent vacancies, which means it is technically understaffed to deal with the complex cases it was created to resolve. The jurisdiction of the NGT must be made clear, and legislative action taken to ensure that parallel proceedings in High Courts do not drain the life out of the NGT, creating conflicting precedents. The practice of the executive to refer important infrastructure projects to specialized clearance mechanisms, bypassing the NGT, must be made illegal. A Tribunal can only function as an effective constraint to corporate and state law violation in the environment sphere if it can assert jurisdiction over the projects that have the most at stake.
C. Binding Community Consent and the Operationalization of FPIC
The Gram Sabha needs to be restored as a meaningful concept of consent, not merely a ritualistic requirement. At a bare minimum, the Forest (Conservation) Amendment Act, 2023 needs to be amended to incorporate a clear FRA-savings clause, which reads: “All exemptions to the requirement of prior approval shall be subject to compliance with the requirement of free, prior, and informed consent under the Forest Rights Act.” This would reinstate interpretative consistency, which was undermined by the 2023 Amendment, and align FCA with Fifth Schedule provisions of the Constitution.
In addition to this legislative solution, the Gram Sabha system of consent needs to be strengthened in terms of procedure. The Vadhavan precedent, where 52,000 objections were overridden, underlines the failure of public consultation in the absence of power to shape or block outcomes. Gram Sabha consent needs to become a binding requirement, not a mere advisory input, in Scheduled V areas and forests under the FRA. Free, prior, and informed consent needs to be implemented in accordance with international norms, which include full information to communities regarding the nature and implications of activities before seeking their consent, consent to be given freely without coercion, and consent to precede any activities, not follow from a process of appraisal already initiated.
D. A Rights-Sensitive Definition of Public Purpose
The paper outlines a legislatorily entrenched definition of “public purpose” that is responsive to rights in the context of forest land diversion. This definition should involve a test whereby any claim of public purpose/national importance is satisfied by demonstrating: a) that there is no alternative means of achieving the proposed use that is as ecologically destructive; b) that there is a proper valuation of costs and benefits that includes values of forest as a component of ecological services and community livelihoods rather than simply the value of the minerals/infrastructure to be extracted; and c) in Scheduled Areas and forests covered by the FRA, there has been free and previously given consent of the Gram Sabha, which cannot be overridden by executive certification of national importance. These tests should not preclude development; they should preclude development unless justified on a basis that is responsive to all values and rights at stake, which is what constitutional trusteeship as a principle requires in any event.
CONCLUSION
The trajectory of Indian environmental governance in the post-pandemic decade indicates a clear pattern: enhanced executive powers to determine which projects are of national importance, which provide exemptions from institutional safeguards of EIA appraisal, central approvals, and Gram Sabha consent that operationalize constitutional and legislative environmental protections, and finally, a gradual subordination of the Public Trust Doctrine to a logic of development that prioritizes ecological integrity as a regulatory burden, rather than a constitutional requirement.
This paper has contended that these developments add up to a compound legal injury, which undermines the Precautionary Principle by normalizing ex-post-facto clearances and limiting the scope of prior environmental appraisal, undermines the Public Trust Doctrine by turning the State’s role as trustee into a role of facilitation of alienation, and finally, infringes intra-generational equity by ensuring that the burden of a development pattern, in which benefits are captured upwards by industry, infrastructure users, fiscal aggregates, is imposed downwards on communities in forests who are least capable of bearing these burdens, and have the least voice in decision-making processes that determine their fate.
The judicial interventions that are the focus of this analysis from Niyamgiri to Alembic Pharmaceuticals to the 2025 Vanashakti judgment. Hence, it shows that the constitutional and legal framework for challenging these trends is intact. But the courts can correct these individual infirmities. What is needed is a fundamental shift in the legislative and institutional landscape to align executive action with constitutional principle. This includes a constitutional FPIC standard for forest-dwelling communities, a robust and autonomous National Green Tribunal, a rights-based conception of public purpose, and an explicit FRA-saving clause in the FCA exemption regime.
Environmental law is not a barrier to development. Environmental law is the expression of the constitutional and constitutionalizing insight that development that is authentic and sustainable must be ecological, social, and democratic. The decline that this paper describes is not a problem of regulatory non-compliance. It is a problem of constitutional imagination. The only way to overcome this decline is to reclaim the basic constitutional intuition that the right to life in all its depth and complexity is vested in every Indian citizen, including those whose lives are still lived in and through the forests that are the object of protection of environmental law.
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Footnotes
1. INDIA CONST. art. 21; Subhash Kumar v. State of Bihar, (1991) 1 SCC 598 (India) (affirming that the right to life includes the right to pollution-free water and air).
2. INDIA CONST. arts. 48A, 51A, cl. g (inserted by the Constitution (Forty-Second Amendment) Act, 1976).
3. Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, No. 2 of 2007, Preamble (India) [hereinafter FRA] (acknowledging the “historical injustice” done to forest-dwelling communities).
4. MC. Mehta v. Kamal Nath, (1997) 1 SCC 388 (India).
5. MC. Mehta v. Union of India (Shriram Food and Fertilizer Case), (1987) 1 SCC 395 (India).
6. UN General Assembly, Rio Declaration on Environment and Development, A/CONF.151/26 (Vol. I) (Aug. 12, 1992), Principle 15.
7. Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647, PARA 11-15 (India).
8. Common Cause v. Union of India, (2017) 9 SCC 499 (lndia); Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, (2020) 17 SCC, ⁋22 (India) (“The concept of ex post facto environmental clearance is in derogation of the fundamental principles of environmental jurisprudence.”); Vanashakti v. Union of India, SCC OnLine SC (May 16, 2025) (India) (restraining the Central Government from issuing any further instrument permitting retrospective clearances).
9. Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, (2020) 17 SCC 157, ⁋20-23 (India)
10. INDIA CONST arts. 48A, 51A, cl. g.
11. Rural Litigation and Entitlement Kendra v. State of U.P., (1985) 2 SCC 431 (India); Subhash Kumar v. State of Bihar, (1991) 1 SCC 598 (India).
12. SP. Gupta v. Union of India, AIR 1982 SC 149 (India) (establishing foundational principles for relaxed locus standi and access to courts in public interest matters).
13. TN. Godavarman Thirumulpad v. Union of India, Writ Petition (Civil) No. 202 of 1995 (India) (ongoing; landmark forest governance directions issued from 1996 onwards).
14. Citizens for Green Doon v. Union of India, 2021 SCC OnLine SC 1243 (India) (permitting road width of up to 10 m for strategic Char Dham Highway stretches in deference to Ministry of Defence requirements, despite contrary recommendation of High-Powered Committee).
15. Environment (Protection) Act, No. 29 of 1986, § 3(2)(v) (India); Ministry of Environment and Forests, EIA Notification, S.0. 1533(E) (Sept. 14, 2006) (India) [hereinafter EIA Notification 2006].
16. Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, (2020) 17 SCC 157, ⁋22 (India).
17. Vanashakti v. Union of India, SCC OnLine SC (May 16, 2025) (India). The Court held that the 2017 notification and the 2021 OM permitting ex-post-facto clearances were void ab initio and restrained any further executive attempt to revive the practice
18. Vanashakti v. Union of India, SCC OnLine SC (May 16, 2025) (India). The Court held that the 2017 notification and the 2021 OM permitting ex-post-facto clearances were void ab initio and restrained any further executive attempt to revive the practice
19. National Green Tribunal Act, No. 19 of 2010, § 14 (India).
20. The Water (Prevention and Control of Pollution) Act, No. 6 of 1974, 47 (India); The Air (Prevention and Control of Pollution) Act, No. 14 of 1981, § 40 (India).
21. FRA, supra note 3, ⁋⁋3,4, 6.
22. FRA, supra nơte 3, §6(1) (requiring Gram Sabha to initiate the process of determining individual and community forest rights and to consider and approve claims).
23. The Forest (Conservation) Amendment Act, No. 15 of 2023 (India) (in force Dec. 1, 2023) [hereinafter FCAA 2023).
24. T.N. Godavarman Thirumulpad v. Union of India, Order of Dec 12, 1996 (India) (directing states to identify and report on all forests, including deemed forests, and prohibiting felling therein pending further orders).
25. FCAA 2023, supra note §23, 2(1)(i)-(ii) (exchanging from the Act’s coverage: land already diverted from forest use before Oct. 25, 1980; land notified as non-forest under any settlement or record before Dec 12. 1996).
26. FCAA 2023, supra note 23, §2(2)(a)-(d) (exempting: strategic linear projects within 100 km of international borders or LAC without prior approval; security-related infrastructures < 10 ha; public utility projects in LWE-affected districts ≤5 ha;
27. Ashok Kumar Sharma v. Union of India, Writ Petition (Civil) No. of 2023 (pending, Supreme Court of India) (challenging the constitutional validity of FCAA 2023 on grounds including violation of Arts. 14, 21, 244, and the Fifth Schedule, and failure to comply with FRA consent requirements).
28. Orissa Mining Corporation Ltd. v. Ministry of Environment & Forests, (2013) 6 SCC 476 (India).
29. See Vadhavan Port Project, Environmental Clearance Grant Letter, Ministry of Environment, Forest and Climate Change (Feb. 2024); Down to Earth, “Vadhavan Port gets green clearance despite 52,000 objections” (Feb. 9, 2024)
30. Paris Agreement, FCCC/CP2015/10/Add. 1, Art. 4 (Dec. 12, 2015); India, Nationally Determined Contribution (updated 2022) (committing to additional carbon sink of 2.5-3 billion tonnes CO2 eq. through forest and tree cover by 2030).
31. Paris Agreement, FCCC/CP2015/10/Add. 1, Art. 4 (Dec. 12, 2015); India, Nationally Determined Contribution (updated 2022) (committing to additional carbon sink of 2.5-3 billion tonnes CO2 eq. through forest and tree cover by 2030).
32. M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388 (India).