India’s solid waste crisis is no longer a question of policy inadequacy but one of systemic regulatory failure and enforcement paralysis. With over 62 million tonnes of waste generated annually and nearly half remaining untreated, the consequences have manifested in the form of:

• Expanding legacy dumpsites
• Severe air pollution (PM10 & PM2.5 contribution)
• Methane emissions and climate impact
• Groundwater contamination

The notification of the Solid Waste Management Rules, 2026 under the Environment (Protection) Act, 1986 marks a paradigm shift from a municipality-centric model to a liability-driven, generator-centric regulatory architecture.

Unlike the 2016 framework, the 2026 Rules are not merely regulatory guidelines — they are economically enforceable legal instruments backed by constitutional mandates and judicial intervention.

I. Constitutional Foundation and Judicial Trigger

The normative foundation of the 2026 Rules lies in the judicial expansion of Article 21 of the Constitution of India, which guarantees the right to life, now interpreted to include the right to a clean and healthy environment.

Judicial Catalyst: Bhopal Municipal Corporation Case (2026)

The Supreme Court, while adjudicating environmental compensation disputes, transformed a localized issue into a national compliance mandate. The Court held that:

• Waste mismanagement is a direct violation of fundamental rights
• Administrative inefficiency cannot justify environmental degradation
• Immediate enforcement overrides further legislative deliberation

Three-Tier Enforcement Doctrine

The Court institutionalized a structured enforcement model:

1. Primary Enforcement: Immediate environmental compensation and fines
2. Secondary Enforcement: Escalating daily penalties for continued violations
3. Tertiary Enforcement: Criminal liability under the Environment (Protection) Act, 1986

This framework effectively eliminates regulatory discretion and replaces it with mandatory enforcement obligations.

II. Regulatory Philosophy: From Decentralization to Centralized Accountability

The 2016 Rules suffered from a fundamental flaw: over-dependence on Urban Local Bodies (ULBs) with varying administrative capacities.

The 2026 Rules correct this through:

• Centralized monitoring (CPCB portal)
• Standardized definitions and thresholds
• Direct liability on waste generators
• Mathematically computed penalties

Comparative Legal Shift

This reflects a shift toward command-and-control regulation with market instruments.

III. Statutory Mechanics: The Four-Stream Segregation Mandate

At the core of the 2026 Rules lies the legal compulsion of waste segregation at source, which is no longer advisory but strictly enforceable.

Rationale

Mixed waste:

• Destroys recyclability
• Increases landfill burden
• Prevents energy recovery

Segregation enables:

• Resource recovery
• Circular economy integration
• Reduction in environmental externalities

1. Wet Waste (Biodegradable Stream)

This includes:

• Food waste
• Organic matter
• Agricultural residues

Legal mandate:
Must be processed through:

• Composting
• Bio-methanation

 Failure to process wet waste directly contributes to methane emissions, making it a high-priority regulatory target.

2. Dry Waste (Recyclable Stream)

Includes:

• Plastics
• Metals
• Paper
• Glass

The Rules formalize Material Recovery Facilities (MRFs) as:

• Statutory infrastructure
• Regulated processing units

 This transforms the informal recycling chain into a formal industrial ecosystem.

3. Sanitary Waste

Includes:

• Diapers
• Sanitary products

Key concern:

• Occupational hazard for sanitation workers

 Mandatory safe handling introduces a public health dimension into environmental law.

4. Special Care Waste (Domestic Hazardous Waste)

Includes:

• Pharmaceuticals
• Paint
• E-waste
• Mercury items

 Improper disposal leads to toxic leaching, making this category critical for environmental protection.

IV. Extended Bulk Waste Generator Responsibility (EBWGR): Structural Shift in Liability

The most transformative feature of the 2026 Rules is the EBWGR framework, which fundamentally alters the economics of waste management.

Legal Classification of Bulk Waste Generators

An entity qualifies if it meets any one threshold:

• ≥ 20,000 sq. m area
• ≥ 40,000 liters/day water usage
• ≥ 100 kg/day waste generation

 This wide definition ensures maximum regulatory capture of high-impact entities.

Core Legal Obligation

Bulk Waste Generators must:

• Process wet waste on-site
• Transfer other waste only to authorized entities
• Maintain compliance records

 Municipalities are no longer responsible for such entities.

EBWGR Certificate Mechanism

This acts as a market-based compliance instrument:

• Functions like tradable environmental credits
• Represents outsourced waste processing
• Creates a secondary market for waste management services

 This is a classic example of hybrid regulation (command + market mechanism).

V. Digital Traceability: Creation of a Closed Compliance Ecosystem

The CPCB portal introduces end-to-end digital governance.

Key Features

• Mandatory registration of all stakeholders
• Real-time tracking of waste flow
• Geo-tagged verification
• Periodic reporting obligations

Closed Compliance Loop

Entities are legally prohibited from:

• Engaging with unregistered operators

 This forces:

• Formalization of the informal sector
• Elimination of illegal dumping channels

Role of Environmental Auditors

Independent auditors:

• Verify data accuracy
• Prevent fraudulent compliance
• Ensure accountability

 This introduces third-party verification into environmental compliance.

VI. Environmental Compensation (EC): Economic Enforcement Mechanism

The 2026 Rules operationalize the Polluter Pays Principle through a quantitative penalty framework.

Nature of EC

• Not a fine, but a restorative levy
• Linked to environmental damage
• Escalates with duration and severity

Triggering Violations

• Non-segregation
• Illegal disposal
• False reporting
• Operating without registration

Economic Impact

The EC framework ensures:

• Non-compliance becomes financially unsustainable
• Environmental harm is internalized as cost

 This marks a shift toward environmental economics-based regulation.

Escrow Mechanism

Collected funds:

• Cannot be used as general revenue
• Must be reinvested in environmental restoration

 Ensures accountability in fund utilization.

VII. Waste-to-Energy and RDF Mandate

The Rules integrate waste management with energy policy.

Refuse Derived Fuel (RDF)

Non-recyclable waste is converted into fuel.

Mandatory Substitution

Industries must replace fossil fuels:

• 5–6% initially
• 10% in 3 years
• 15% in 6 years

 This creates:

• Demand for processed waste
• Reduction in landfill dependency

VIII. Carbon Credit Conflict: The Additionality Problem

A major legal-economic conflict arises with the Carbon Credit Trading Scheme (CCTS).

Core Issue: Additionality

Carbon credits require:

• Emission reductions beyond legal requirements

But:

• SWM Rules make waste processing mandatory

Therefore:

• Compliance ≠ eligible for carbon credits

Possible Legal Solutions

Entities must demonstrate:

• Early compliance
• Advanced technology
• Higher-than-required capacity

This requires strategic environmental planning and legal structuring.

IX. Institutional and Ground-Level Challenges

Despite strong legal design, implementation faces structural constraints:

1. Capacity Deficit

ULBs lack:

• Infrastructure
• Technical expertise

2. Informal Sector Displacement

Millions of waste workers risk exclusion due to:

• Digital compliance requirements
• Formalization barriers

3. Financial Burden

High compliance costs for:

• Corporates
• Municipal bodies

Case Insight: Ahmedabad

• Bulk generators no longer receive municipal collection
• Mandatory self-processing or certificate purchase

Demonstrates real-world enforcement shift.

Conclusion: A Transition to Liability-Driven Environmental Governance

The Solid Waste Management Rules, 2026 represent a decisive transformation in India’s environmental regulatory landscape.

They establish:

• Strict legal accountability
• Digital compliance infrastructure
• Economic penalties for violations
• Market-based compliance mechanisms

Most importantly, they redefine waste management as:

Not a municipal service
But a shared legal and economic responsibility

The success of this framework will ultimately depend on:

• Institutional capacity
• Enforcement consistency
• Inclusion of informal stakeholders

If effectively implemented, the 2026 Rules could mark India’s transition from a waste disposal economy → circular resource economy.

FAQs

What are Solid Waste Management Rules 2026?
They are India’s latest environmental regulations introducing strict waste segregation, generator responsibility, and digital compliance systems.

What is EBWGR?
A legal framework requiring bulk waste generators to process their own waste or purchase compliance certificates.

Is segregation mandatory?
Yes, four-stream segregation is legally enforceable.

What is Environmental Compensation?
A financial penalty imposed for environmental violations based on damage and duration.

References

1. New Solid Waste Management Rules Notified; To Come into Force from April 1, 2026 — PIB. Accessed March 25, 2026. https://www.pib.gov.in/PressReleasePage.aspx?PRID=2219676
2. Policy Gap Between Solid Waste Management Rules And Carbon Credits — Live Law. Accessed March 25, 2026. https://www.livelaw.in/articles/solid-waste-management-rules-carbon-credits-522972
3. Guidelines for Assessment of Environment Compensation to be levied for Violation of Plastic Waste Management Rules, 2016 — H.P. State Pollution Control Board / CPCB. https://hppcb.nic.in/PWM/Guidelines_Or_SOPs/Environment%20Compensation%20Guidelines%20CPCB.pdf

The post Solid Waste Management Rules, 2026: A Comprehensive Legal, Regulatory, and Compliance Analysis (India) appeared first on Bhatt & Joshi Associates.

1. Introduction: A New Segregation Mandate and the Liability Gap

India’s urban waste crisis has for decades been framed as an administrative failure masquerading as a governance challenge. The Solid Waste Management Rules, 2016, promised source segregation, decentralised processing, and scientific disposal. Yet a decade of implementation produced a stubborn gap between regulatory text and ground reality. Mixed waste continued to overwhelm landfills, unsegregated garbage moved through collection chains untouched, and Urban Local Bodies (ULBs) continued to cite financial incapacity as a first and last defence against accountability.

Into this landscape arrived the Solid Waste Management Rules, 2026 (SWM Rules 2026), notified by the Ministry of Environment, Forest and Climate Change (MoEFCC) under the Environment (Protection) Act, 1986. The Rules come into full force from April 1, 2026, and introduce what is arguably the most structurally demanding reform in India’s history of waste governance: mandatory four-stream segregation at source [1]. Waste must now be segregated into wet waste (kitchen scraps, vegetable peels, food leftovers), dry waste (plastic, paper, metal, glass, wood), sanitary waste (diapers, sanitary napkins, tampons, condoms), and special care waste (bulbs, batteries, expired medicines, paint cans, mercury thermometers). Each stream carries its own downstream obligation — wet waste to composting or bio-methanation, dry waste to Material Recovery Facilities (MRFs), sanitary waste to secure wrapped storage, and special care waste to authorised collection agencies.

The central legal question this article addresses is this: when a ULB fails to facilitate, operationalise, or enforce four-stream segregation — whether by not providing separate collection infrastructure, deploying mixed-waste vehicles, failing to operate MRFs, or not framing bye-laws — who bears legal liability? The answer sits at the intersection of constitutional law, environmental statute, municipal law, and a substantial body of judicial and tribunal precedent that this piece unpacks in detail.

2. The Regulatory Framework: From Three Streams to Four

The SWM Rules 2026 represent a deliberate escalation from the three-category system — wet, dry, domestic hazardous — established under the SWM Rules 2016. The 2016 framework, notified on April 8, 2016, under the Environment (Protection) Act, 1986, was the first to formally mandate source segregation as a legal obligation rather than a policy target. It imposed duties on waste generators to segregate and hand over segregated waste, and tasked ULBs with building collection, transportation, processing, and disposal infrastructure [2]. However, enforcement remained structurally thin. Domestic hazardous waste — the third stream — was routinely mixed with other waste due to the absence of separate bins, dedicated vehicles, and collection protocols.

The 2026 Rules respond to this directly. The four-stream model carves sanitary waste as a distinct fourth category, recognising its infection risk and the public health hazard of mixing used diapers and sanitary napkins with biodegradable or dry waste. Special care waste — paint cans, bulbs, mercury thermometers, and expired medicines — is treated as the fourth pillar, distinct from the earlier undifferentiated “domestic hazardous” category. What is critical from a liability standpoint is that the 2026 Rules formalise environmental compensation grounded in the Polluter Pays Principle for non-compliance — covering not just individual generators but any entity responsible for improper solid waste management, including ULBs whose failures in collection infrastructure and segregation systems result in stream contamination [1]. The Central Pollution Control Board (CPCB) is tasked with issuing compensation guidelines, while State Pollution Control Boards (SPCBs) are empowered to impose the compensation. The Rules also impose higher landfill fees on ULBs that send unsegregated waste to sanitary landfills — fees deliberately priced above the cost of proper segregated processing — making regulatory non-compliance economically irrational, not merely legally impermissible.

3. Constitutional Foundations of ULB Liability

Any serious analysis of ULB liability for SWM failures must begin with the constitutional architecture. Article 21 of the Constitution of India guarantees the right to life, and Indian courts have read into it a fundamental entitlement to a clean and pollution-free environment. The connection between unsegregated waste, contamination of water bodies, methane emissions from uncontrolled landfills, and direct threats to human health and life has been judicially established without ambiguity. This means a ULB’s failure to implement four-stream segregation is not merely a technical statutory default — it is a potential violation of a citizen’s fundamental right, justiciable before the Supreme Court under Article 32 and before High Courts under Article 226.

Article 48A, inserted into the Constitution by the 42nd Amendment in 1976, imposes a directive on the State to protect and improve the environment. Article 51A(g) makes it a fundamental duty of every citizen — and by extension every State organ including ULBs — to protect and improve the natural environment including forests, lakes, rivers, and wildlife. While these provisions are not individually enforceable in a court of law, they form the normative background against which the conduct of ULBs is evaluated. The Supreme Court has repeatedly used Articles 48A and 51A(g) as interpretive tools to broaden the scope of Article 21 liability in environmental litigation, treating inaction by State authorities on waste management as a failure that directly implicates the constitutional right to life.

4. Statutory Liability Under the Environment (Protection) Act, 1986

The Environment (Protection) Act, 1986 (EPA) is the parent statute under which the SWM Rules 2026 have been notified. Section 5 of the EPA grants the Central Government sweeping power to issue binding written directions to “any person, officer or any authority” — which expressly includes the power to direct “the closure, prohibition or regulation of any industry, operation or process” or “stoppage or regulation of the supply of electricity or water or any other service.” This power is not restricted to private actors. It extends directly to ULBs as statutory authorities. A ULB that persistently fails to implement segregation systems under the SWM Rules 2026 can therefore be the subject of binding Central Government directions under Section 5.

Section 15 of the EPA prescribes penalties for any person who fails to comply with any provision of the Act or any rule, order, or direction issued thereunder. The punishment is imprisonment for up to five years or a fine of up to one lakh rupees, or both. For continuing violations — and failure to implement segregation infrastructure is by nature a continuing default, renewed with every day that passes — an additional fine of up to five thousand rupees per day may be imposed. If the violation extends beyond one year, the imprisonment term may be extended to seven years. Since the SWM Rules 2026 were made under the EPA, a ULB’s failure to discharge its duties under the Rules is a failure under the EPA itself, and exposes the responsible officials to penal consequences under Section 15.

Section 17 of the EPA addresses offences by government departments specifically. Where an offence under the Act is committed by a government department, the Head of the Department shall be deemed guilty of the offence and may be prosecuted accordingly, unless he or she can prove that the offence was committed without knowledge, or that all due diligence was exercised to prevent it. This provision effectively pierces the veil of the government department and attaches personal criminal liability to the officer in charge — a powerful mechanism when applied to a ULB commissioner or municipal chief executive who fails to act on the four-stream mandate.

5. The Doctrine of Municipal Inability: A Defence That Courts Have Refused

The most common defence offered by ULBs in environmental litigation has been financial incapacity — the argument that implementing full segregation infrastructure requires funds, equipment, and personnel that smaller municipalities simply do not have. Indian courts have consistently and emphatically rejected this defence.

The foundational rejection came from Justice V.R. Krishna Iyer’s celebrated judgment in Municipal Council, Ratlam v. Shri Vardhichand & Ors., (1980) 4 SCC 162. The facts were rooted in ground reality that mirrors ULB failures today: residents of Ward No. 12, Ratlam, moved the Sub-Divisional Magistrate under Section 133 of the Code of Criminal Procedure, 1973, to compel the municipality to construct proper drainage systems and provide sanitation facilities. The municipality argued that it lacked the funds to comply. The Supreme Court dismissed the argument and held: “A responsible municipal council constituted for the precise purpose of preserving public health cannot run away from its principal duty by pleading financial inability.” Justice Krishna Iyer went further, stating that “decency and dignity are non-negotiable facets of human rights and constitute a first charge on local self-governing bodies,” and that public health infrastructure cannot be held “at the risk of a self-created bankruptcy or a perverted expenditure budget” [3]. The municipality was directed to implement a drainage scheme on a time-bound basis, and the Court held that Section 133 CrPC empowers courts to compel affirmative action from statutory bodies.

This reasoning applies with full force to ULBs defaulting on four-stream segregation obligations under the SWM Rules 2026. A ULB that claims it cannot provide separate bins, vehicles, or processing infrastructure for wet, dry, sanitary, and special care waste is making precisely the argument the Supreme Court rejected in Ratlam four and a half decades ago. The obligation to provide sanitation and waste management infrastructure is not conditional on budgetary comfort — it is a statutory and constitutional imperative that courts will enforce.

6. Almitra H. Patel v. Union of India: Accountability as a Judicial Command

The landmark writ petition filed by environmental activist Almitra H. Patel as WP No. 888/1996 before the Supreme Court, culminating in the ruling in Almitra H. Patel v. Union of India, (2000) 2 SCC 679, constitutes the most expansive judicial intervention in India’s solid waste governance. Led by Justice B.N. Kirpal, the Court found that the Municipal Corporation of Delhi (MCD) and the New Delhi Municipal Council (NDMC) were “wholly remiss in the discharge of their duties under law.” The Court observed: “It is no doubt correct that rapid industrial development, urbanisation and regular flow of persons from rural to urban areas have made major contribution towards environmental degradation, but at the same time the authorities entrusted with the work of pollution control cannot be permitted to sit back with folded hands on the pretext that they have no financial or other means to control pollution and protect the environment” [4].

The judgment issued ten operative directions, including the identification of landfill sites for the next twenty years, construction of compost plants, appointment of Executive Magistrates to enforce littering laws, and publication of the contact details of sanitation officials to ensure citizen access to grievance redressal. It also catalysed the formulation of the Municipal Solid Waste (Management and Handling) Rules, 2000. After the Supreme Court transferred the matter to the NGT in September 2014, monitoring continued under In re: Compliance of Municipal Solid Waste Management Rules, 2016, OA No. 606/2018. Under this OA, the NGT has summoned Chief Secretaries of all States and UTs to appear by video conference, directed time-bound action plans, and imposed compensation orders — all of which inform the accountability framework under the SWM Rules 2026 [10].

7. NGT Orders and Environmental Compensation: Maharashtra as a Case Study

The National Green Tribunal, established under the National Green Tribunal Act, 2010, has emerged as the most active adjudicatory forum for solid waste management enforcement in India. The NGT derives its jurisdiction over SWM violations from Schedule I of the NGT Act, which lists the EPA 1986 among the statutes under which it may hear disputes. Section 15 of the NGT Act empowers the Tribunal to grant relief and compensation to victims of environmental damage and to provide for restoration of damaged property or the environment. Section 20 mandates that the Tribunal shall apply the Polluter Pays Principle while passing any order or decision.

The Tribunal’s application of these provisions to governmental waste management failures was dramatically demonstrated in its order holding the Government of Maharashtra liable for environmental compensation of Rs. 12,000 crore. The coram of Justice Adarsh Kumar Goel (Chairperson), Justice Sudhir Agarwal, and Prof. A. Senthil Vel, monitoring compliance with Supreme Court directions in Almitra H. Patel v. Union of India, 2014 SCC OnLine SC 1844 and Paryavaran Suraksha v. Union of India, (2017) 5 SCC 326, computed compensation at Rs. 10,840 crores for gaps in liquid waste treatment and Rs. 1,200 crores for un-remediated legacy waste, totalling Rs. 12,000 crores, and directed Maharashtra to deposit the sum in a separate ring-fenced account within two months [5]. The Tribunal observed: “Award of above compensation has become necessary under Section 15 of the NGT Act to remedy the continuing damage to the environment and to comply with directions of the Hon’ble Supreme Court.” The Chief Secretary of the State was made personally answerable for compliance.

This judgment is significant for ULB liability under the SWM Rules 2026 for multiple reasons. It confirms that governmental entities — not only private polluters — fall squarely within the Polluter Pays framework. It demonstrates that financial orders of extraordinary magnitude can follow governmental inaction in waste management. And it establishes that continuous default in waste management — rather than a discrete environmental incident — is sufficient to trigger liability under Section 15 of the NGT Act [9].

8. Shared But Asymmetric Liability Under SWM Rules 2026

The SWM Rules 2026 mark a structural shift from treating solid waste management as a ULB-centric municipal service to framing it as a shared legal responsibility across the waste management chain. Households, bulk waste generators, institutions, event organisers, brand owners, and facility operators are all assigned clearer duties, with non-compliance potentially attracting penalties under local bye-laws [8]. However, this shared responsibility architecture does not dilute ULB liability — it layers accountability onto additional actors while retaining ULBs as the primary institutional guarantors of the system’s functioning.

Bulk Waste Generators — defined under the 2026 Rules as entities with a floor area of 20,000 square metres or more, water consumption of 40,000 litres per day or more, or solid waste generation of 100 kilograms per day or more — bear direct responsibility for ensuring that waste generated on their premises is collected, segregated, transported, and processed in an environmentally sound manner. The Extended Bulk Waste Generator Responsibility (EBWGR) framework, new under the 2026 Rules, requires them to either process wet waste on-site or obtain EBWGR certificates where on-site processing is not feasible. These generators account for nearly 30 percent of India’s total solid waste, and their direct compliance obligations meaningfully reduce the operational burden on ULBs [1].

Yet the fundamental principle across Indian jurisprudence remains intact: the local body is the last institutional guarantor of sanitation within its jurisdiction. When a generator defaults, the ULB cannot passively watch as mixed waste enters the collection chain. It must enforce through bye-law penalties, correction notices, and spot fines. Where it does not, the failure is attributable to the ULB itself, and both the Polluter Pays Principle under Section 20 of the NGT Act and the penal provisions of Section 15 of the EPA are available against its responsible officials.

9. NGT OA No. 606/2018: The Continuing Monitoring Framework

In re: Compliance of Municipal Solid Waste Management Rules, 2016 and other environmental issues, OA No. 606/2018 before the National Green Tribunal, represents the most sustained institutional monitoring of ULB compliance in Indian environmental law. Under this OA — which continues to operate and is being re-calibrated to the SWM Rules 2026 — the Tribunal has directed all Chief Secretaries to appear before it by video conference to account for the status of waste management in their States. The Tribunal has observed in its orders that “local authorities constituted for providing services to the citizens are lethargic and insufficient in their functioning which is impermissible. Non-accountability has led to lack of effort on the part of the employees.”

In its 2022 and 2023 orders under this OA, the NGT reiterated that lack of funds cannot be pleaded as a defence against the constitutional responsibility to provide a pollution-free environment, holding: “It is the constitutional responsibility of the State and the Local Bodies to provide pollution free environment and to arrange necessary funds from contributors or others. Being part of the right to life, which is also a basic human right and an absolute liability of the State, lack of funds or other resources such as land cannot be a plea to deny such right.” In February 2026, as the Supreme Court received submissions about the SWM Rules 2026 commencing on April 1, 2026, the bench of Justices Pankaj Mithal and S.V.N. Bhatti observed that “the statutory mechanism is not yielding desired results because of several factors at the field level” and directed that “authorities must complete the spadework before the rules come into effect or the ground situation will not improve” [6].

10. Mapping the Accountability Chain

From the foregoing analysis, the liability chain for four-stream segregation failure under the SWM Rules 2026 runs through several identifiable levels. At the first level, the waste generator — household, commercial establishment, or bulk waste generator — bears primary responsibility to segregate at source. Under the bye-laws framed by ULBs pursuant to their obligations under the SWM Rules, generators who fail to segregate are liable to spot fines and user charge penalties [7]. These bye-laws derive their authority from State municipal corporation acts and must be consistent with the SWM Rules under the EPA.

At the second level, ULBs bear the duty of providing separate collection infrastructure per stream, operating segregated transportation, coordinating with MRFs, and enforcing generator compliance. Where a ULB deploys mixed-waste vehicles, fails to provide separate bins for four streams, or routes unsegregated waste to landfills, it incurs the enhanced landfill fees under the 2026 Rules and remains exposed to environmental compensation proceedings before the NGT. Responsible officers — municipal commissioners, chief executives, and heads of sanitation departments — are the individuals against whom personal criminal liability under Section 15 read with Section 17 of the EPA attaches.

At the third level, SPCBs and Pollution Control Committees are tasked with levying environmental compensation in accordance with CPCB guidelines. The digital monitoring portal mandated under the 2026 Rules — through which waste generation, collection, transport, processing, disposal, and legacy dumpsite remediation data must be reported — creates an electronic audit trail that SPCBs and the NGT can use to identify defaults and trigger compensatory proceedings in near real time.

11. Conclusion: Liability Is Not Aspirational

The Solid Waste Management Rules 2026 are not the first instrument to mandate segregation in India, but they are structurally the most demanding. The shift from a three-stream to a four-stream model, the formalisation of the Polluter Pays Principle as an operative compensation mechanism, the introduction of higher landfill fees as a financial deterrent, and the digital monitoring portal together create a compliance architecture far more resistant to the passive non-compliance that plagued the 2016 Rules.

The legal liability when ULBs fail to implement four-stream segregation is not theoretical. It rests on a foundation built over four decades: the Ratlam Municipal Council judgment’s unambiguous rejection of financial incapacity as a defence, the Almitra Patel series of rulings establishing the right to a clean environment as a justiciable fundamental right under Article 21, the NGT’s Rs. 12,000 crore compensation order against Maharashtra for waste management failure, and the continuing monitoring framework under OA 606/2018. These are not aspirational standards — they are enforceable judicial commands.

A ULB that reaches April 1, 2026, without four-stream segregation bins deployed, without separate collection vehicles, without MRF coordination, and without framed and operational bye-laws does not merely risk administrative censure. It risks environmental compensation orders, personal penal prosecution of its officers under the EPA, judicial mandamus from High Courts, and summons before the NGT Chairperson to explain inaction. The courts have spoken with consistent clarity for over four decades: lack of funds, lack of staff, and lack of infrastructure are not defences. They are precisely the reasons the State and its local bodies must act with urgency, priority, and without further delay.

References

[1] Press Information Bureau, Ministry of Environment, Forest and Climate Change, “New Solid Waste Management Rules Notified; To Come into Force from April 1, 2026” (January 2026). Available at: https://www.pib.gov.in/PressReleasePage.aspx?PRID=2219676&reg=3&lang=1

[2] Ministry of Environment, Forest and Climate Change, Solid Waste Management Rules, 2016, notified under the Environment (Protection) Act, 1986, Gazette of India, Extraordinary, April 8, 2016. Available at: https://cdnbbsr.s3waas.gov.in/s30f46c64b74a6c964c674853a89796c8e/uploads/2024/07/20240710555191345.pdf

[3] Municipal Council, Ratlam v. Shri Vardhichand & Ors., (1980) 4 SCC 162, 1980 AIR 1622, Supreme Court of India. Available at: https://indiankanoon.org/doc/440471/

[4] Almitra H. Patel v. Union of India, (2000) 2 SCC 679, Writ Petition No. 888/1996, Supreme Court of India. Available at: https://elaw.org/resource/india-almitra-h-patel-v-union-india-wp-8881996-20000215-municipal-waste-case

[5] “NGT Directs Maharashtra Government to Pay Compensation of Rs. 12,000 Crore Due to Improper Waste Management,” SCC Times, September 16, 2022. Available at: https://www.scconline.com/blog/post/2022/09/16/ngt-directs-maharashtra-government-to-pay-compensation-of-rs-12000-crore-due-to-improper-waste-management/

[6] “Supreme Court Mandates Waste Management Infrastructure Compliance by April 2026,” Down to Earth, February 13, 2026. Available at: https://www.downtoearth.org.in/environment/daily-court-digest-major-environment-orders-february-13-2026

[7] Centre for Science and Environment, “Origin & Provisions of Municipal Bye-Laws & Solid Waste Management by Urban Local Bodies,” Down to Earth, March 2024. Available at: https://www.downtoearth.org.in/waste/origin-provisions-of-municipal-bye-laws-solid-waste-management-by-urban-local-bodies-94658

[8] “India’s New Solid Waste Management Rules Promise Greater Discipline, While Navigating Familiar Fault Lines,” Down to Earth, January 2026. Available at: https://www.downtoearth.org.in/waste/indias-new-solid-waste-management-rules-promise-greater-discipline-while-navigating-familiar-fault-lines

[9] “A Review of the NGT on Environmental Compensation and Waste Management Implementation,” Live Law, June 28, 2023. Available at: https://www.livelaw.in/articles/a-review-of-the-ngt-on-environmental-compensation-and-waste-management-implementation-231437

[10] In re: Compliance of Municipal Solid Waste Management Rules, 2016 and other environmental issues, OA No. 606/2018, National Green Tribunal, New Delhi, order dated April 30, 2019. Available at: https://indiankanoon.org/doc/90223511/

The post Solid Waste Management Rules 2026 (SWM Rules 2026): Who Bears Legal Liability When Urban Local Bodies Fail Four-Stream Segregation? appeared first on Bhatt & Joshi Associates.

India’s national capital has, for decades, carried the grim distinction of being one of the most polluted cities in the world. Each winter, a toxic haze descends on Delhi and its surrounding National Capital Region, pushing Air Quality Index readings past 400 — a level classified as “severe” — and triggering emergency responses that range from school closures to construction bans. This recurring crisis has brought both the CAQM and broader efforts to control Delhi air pollution into sharp public focus, highlighting the challenges of coordinating action between an overburdened judiciary and a fragmented executive.

The Commission for Air Quality Management in the National Capital Region and Adjoining Areas — universally referred to as the CAQM — was established through an ordinance in 2020 and given permanent statutory footing through the Commission for Air Quality Management in National Capital Region and Adjoining Areas Act, 2021 [1]. Parliament designed CAQM to be the single coordinating authority for air pollution control across Delhi, Haryana, Punjab, Uttar Pradesh, and Rajasthan — five states whose competing agricultural, industrial, and vehicular interests collectively determine the air Delhiites breathe. Yet despite this institutional design, the Supreme Court of India has repeatedly stepped back into the space that CAQM was meant to occupy, directly supervising the implementation of emergency pollution protocols, reprimanding the Commission for inaction, and issuing binding orders that function, in substance, as executive governance. The result is a constitutional curiosity: a statutory regulator that exists in law, but a Supreme Court that behaves, in practice, as though it does not.

The Legislative Inheritance: From EPCA to CAQM

To understand CAQM’s place in the legal ecosystem, one must first understand what it replaced. The Environment Pollution (Prevention and Control) Authority, or EPCA, was constituted in 1998 by the Supreme Court itself, in the long-running M.C. Mehta v. Union of India proceedings [2]. That case, filed originally in 1985 as a writ petition under Article 32 of the Constitution, had evolved over four decades into one of the most consequential examples of continuing mandamus in Indian judicial history. The EPCA was the Court’s institutional response to chronic inter-state coordination failures — an expert body meant to advise and oversee, but one that critically lacked any statutory backing. Without penal powers or independent enforcement authority, the EPCA could recommend but not compel, and the years between 1998 and 2021 saw pollution in Delhi worsen despite its continued functioning.

The push for a statutory replacement gained momentum through separate litigation. In 2020, environmental activist Aditya Dubey, then a minor, filed Writ Petition (Civil) No. 1135 of 2020 before the Supreme Court seeking relief against stubble burning in Punjab and Haryana [3]. The Court, in a three-judge bench headed by the Chief Justice, directed the formation of a committee chaired by retired Justice Madan B. Lokur to monitor stubble burning — a striking illustration of the Court once again filling institutional voids. It was in this charged environment that the central government promulgated the Commission for Air Quality Management in National Capital Region and Adjoining Areas Ordinance, 2020, which was converted into the CAQM Act, 2021 following parliamentary approval.

The CAQM Act, 2021: Statutory Design and Powers

The CAQM Act, 2021 — formally, the Commission for Air Quality Management in National Capital Region and Adjoining Areas Act, 2021 (No. 29 of 2021) — is one of the most centralised environmental statutes India has produced. Its architecture gives the Commission powers that expressly override state governments and State Pollution Control Boards in all matters relating to air quality in the NCR [1].

Section 12(1) of the Act provides: “Notwithstanding anything contained in any other law for the time being in force, the Commission shall have the power to take all such measures, issue directions and entertain complaints, as it deems necessary or expedient, for the purpose of protecting and improving the quality of the air in the National Capital Region and adjoining areas.” Section 12(2)(xi) empowers the Commission specifically to “issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions.” The explanation appended to this provision makes clear that this directional power includes the authority to order “the closure, prohibition or regulation of any industry, operation or process” and the “stoppage or regulation of the supply of electricity or water or any other service.”

Section 14 provides enforcement teeth. It empowers the Commission to initiate proceedings against any officer who fails to comply with its orders, with non-compliance punishable by imprisonment of up to five years, a fine of up to one crore rupees, or both. All appeals lie, not to civil courts, but before the National Green Tribunal. This structure was designed to insulate CAQM’s functioning from political interference while ensuring accountability through specialised environmental adjudication.

Despite this formidable statutory design, the Commission has struggled to translate legal authority into consistent on-the-ground enforcement. The Graded Response Action Plan — a tiered framework of emergency air quality measures introduced by the EPCA and continued by CAQM — was revised in September 2024 to be implemented proactively based on meteorological forecasts rather than reactively once AQI thresholds had already been breached. Yet, as the winter of 2024 demonstrated, this proactive mandate went largely unobserved.

The Constitutional Underpinning: Article 21 and the Right to Clean Air

Before examining the judiciary’s specific interventions, it is necessary to locate this discourse within the constitutional framework that makes judicial supervision both possible and, in India’s peculiar jurisprudence, almost inevitable.

In Subhash Kumar v. State of Bihar, (1991) 1 SCC 598, [4] the Supreme Court held that “right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life.” While the petition in that case was dismissed on the ground that it was not filed in genuine public interest, the constitutional proposition it established became foundational. If clean air is an aspect of the right to life and personal liberty under Article 21, then persistent, preventable air pollution is not merely an administrative failure — it is a constitutional violation, and courts possess jurisdiction to remedy it.

This constitutional anchor is what has kept M.C. Mehta v. Union of India — Writ Petition (Civil) No. 13029 of 1985 — alive in its various iterations for more than four decades [2]. The case, filed against vehicular pollution and industrial emissions in Delhi, became a permanent channel through which the Supreme Court has monitored, directed, and occasionally castigated executive bodies responsible for Delhi’s air. The continuing mandamus issued in this case has, over the years, produced orders on CNG conversion for public buses, odd-even vehicle schemes, and, more recently, the implementation of GRAP IV restrictions.

The Court as De Facto Regulator: The 2024 Interventions

The winter of 2024 produced the most direct and pointed display of the Supreme Court’s regulatory posture in recent memory. On 18 November 2024, a bench of Justices A.S. Oka and A.G. Masih took up the air pollution crisis in Delhi in M.C. Mehta v. Union of India. The AQI in Delhi had crossed 401 on 12 November 2024, but the CAQM had waited until 14 November to implement Stage III of the GRAP — a delay the Court found wholly unjustifiable [5].

When the Union of India and CAQM sought to defend the delay by citing meteorological forecasts that predicted improvement, Justice Oka responded with a statement that cut to the heart of the institutional dysfunction: “This is a completely wrong approach… Even in anticipation of AQI decreasing the threshold limit, it is the duty of the commission to start implementation of GRAP III or GRAP IV, as the case may be.” This observation was not merely a rebuke — it was a restatement of CAQM’s own statutory mandate and a direct finding that the Commission had abdicated its function.

The Court did not stop there. It invoked Section 14 of the CAQM Act directly, directing the Commission to initiate proceedings against the officers responsible for the delays. It appointed thirteen advocates as Court Commissioners to physically monitor compliance at Delhi’s entry points — because police and traffic authorities had failed to prevent non-essential trucks from entering the city in violation of Stage IV restrictions [5]. Out of 113 city-entry checkpoints, only 13 had any meaningful enforcement presence, as the Amicus Curiae Aparajita Singh informed the bench on 22 November 2024.

The Court also held that even when AQI levels improved, the Delhi government could not unilaterally downgrade from Stage IV restrictions. It reserved that decision for itself — requiring the government to approach the Court for permission before relaxing emergency measures. This is not the role of an appellate court. This is the role of a regulator overseeing CAQM Delhi air pollution management.

By 5 December 2024, after studying updated AQI data, the bench permitted the CAQM to take a call on reducing Stage IV to Stage II restrictions “in view of the improvement of the situation” — essentially granting the Commission conditional autonomy subject to judicial concurrence [5]. The same evening, the CAQM withdrew Stages III and IV.

Judicial Activism or Institutional Gap-Filling?

Critics of this judicial posture argue that the Supreme Court’s deep involvement in what is, at its core, an executive function distorts constitutional boundaries. The legislature created the CAQM precisely so that the Court could stand back. When the Court supervises truck entry at Delhi’s borders, directs governments to use satellite data from South Korea’s GEO-KOMSAT 2A satellite, and tells state governments which pollutant categories to prioritise, it is performing a function that the CAQM Act assigned to an executive body [5]. There is a genuine institutional cost: prolonged judicial supervision may disincentivise the Commission from building independent decisional capacity, since any significant decision will eventually be ratified or overruled by the Court.

Defenders of the Court’s approach point to the empirical record. The CAQM’s predecessor, EPCA, spent twenty-two years as essentially an advisory body, and Delhi’s air quality deteriorated regardless. The CAQM itself — despite possessing statutory powers that override state governments — has repeatedly waited for AQI levels to become critical before activating emergency protocols. This demonstrates that Delhi air pollution continues to be a serious challenge, even under the CAQM’s authority. If the Commission is not going to use its statutory powers proactively, the argument runs, somebody must. And in India’s constitutional order, that somebody has consistently been the Supreme Court, armed with Articles 32 and 142 of the Constitution.

The Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986 — the foundational environmental statutes — both impose obligations on state and central governments to prevent Delhi air pollution, but neither provides the kind of coordinated multi-state enforcement mechanism that the CAQM Act was meant to create. In their absence, the Court has historically served as the coordinating institution. The CAQM’s track record has not yet persuaded the Court that this historical role has become redundant.

The GRAP Framework: Regulation by Emergency Protocol

The Graded Response Action Plan deserves specific attention because it is the primary tool through which CAQM discharges — or fails to discharge — its mandate. GRAP divides responses to air pollution into four stages based on AQI thresholds: Stage I (Poor, AQI 201–300), Stage II (Very Poor, AQI 301–400), Stage III (Severe, AQI 401–450), and Stage IV (Severe Plus, AQI above 450). Each stage carries progressively stricter restrictions, culminating in Stage IV’s prohibition on non-essential trucks, suspension of construction and demolition activities, and recommended work-from-home mandates for public offices.

CAQM issues these restrictions under Section 12(2)(xi) of the CAQM Act. In November 2024, when AQI in parts of Delhi crossed 450, Stage IV was triggered. But the Supreme Court noted that the Commission’s revised September 2024 GRAP schedule — specifically designed to allow pre-emptive activation based on forecasts — had not been followed. The Court’s October 2018 order in M.C. Mehta, directing pre-emptive steps without waiting for pollution thresholds to be formally breached, had similarly not been complied with. The Court’s November 2024 order invoked Section 14 against the officers responsible [5].

This pattern — statutory mandate, non-compliance, judicial intervention — has repeated itself so regularly that it has ceased to be exceptional. The Supreme Court, sitting in its continuing mandamus jurisdiction, has become the effective appellate authority over CAQM’s emergency decisions, reviewing their proportionality and timing with a degree of scrutiny that any administrative law practitioner would recognise as judicial review on the merits, not merely on process.

Inter-State Coordination and the Limits of Statutory Authority

One dimension of the Delhi air Pollution crisis that the CAQM Act was explicitly designed to address is the problem of inter-state coordination. Stubble burning in Punjab and Haryana — the practice of burning paddy residue after harvest — contributes significantly to Delhi’s winter pollution. The CAQM’s mandate extends to coordinating with these states under Section 12 of the Act. In practice, the Commission has issued directions and imposed environmental compensation under the CAQM in NCR and Adjoining Area (Imposition, Collection and Utilization of Environmental Compensation for Stubble Burning) Rules, 2023, but farm fires have continued at scale.

The Supreme Court, in November 2024, took up the question of satellite monitoring of farm fires, directing CAQM and ISRO to collaborate on obtaining real-time data from geostationary satellites to overcome the limitation of NASA satellites that only capture data at 10:30 AM and 1:30 PM — a gap that, the Amicus noted, farmers had reportedly learned to exploit by timing their burning around satellite passes [5]. This level of operational detail — which satellite systems to use, how many checkpoints to staff — is not typically what courts do. But in the context of Delhi’s air crisis, the Court has found itself repeatedly compelled to fill these gaps.

Conclusion: An Unresolved Constitutional Question

The Commission for Air Quality Management, as constituted under the CAQM Act, 2021, is a statutory body with substantial powers: it overrides state governments, issues binding directions, imposes penalties up to one crore rupees, and operates beyond the jurisdictional limits of any single State Pollution Control Board. On paper, it is exactly what Indian environmental governance has long needed. In practice, its record has been characterised by delayed GRAP activation, insufficient inter-state coordination, and a tendency to manage crises rather than prevent them.

The Supreme Court’s continued deep engagement with Delhi’s air crisis — appointing commissioners, scrutinising satellite data, and deciding when GRAP stages can be relaxed — is not judicial overreach. It reflects a response to a genuine institutional deficit. The constitutional guarantee of clean air under Article 21, articulated in Subhash Kumar and strengthened through decades of M.C. Mehta litigation, requires active enforcement. When the designated enforcer, in this case the CAQM, fails to act decisively, judicial intervention becomes necessary to manage Delhi air pollution effectively.

The more fundamental question is whether this arrangement is sustainable or desirable. The Supreme Court’s docket is already stretched. Deep involvement in technical air quality management pulls judicial attention from other constitutional obligations. The CAQM’s effectiveness depends, ultimately, on it developing the institutional confidence to act without awaiting judicial affirmation. Whether that confidence emerges — and whether the Court is willing to step back once it does — will determine whether the CAQM becomes what Parliament intended: an autonomous, effective environmental regulator, rather than a body that operates only under judicial supervision.

References

[1] Commission for Air Quality Management in National Capital Region and Adjoining Areas Act, 2021 — PRS Legislative Research Overview: https://prsindia.org/billtrack/the-commission-for-air-quality-management-in-national-capital-region-and-adjoining-areas-ordinance-2021

[2] M.C. Mehta v. Union of India, W.P. (C) No. 13029 of 1985 — Indiankanoon (January 2020 Order): https://indiankanoon.org/doc/16059052/

[3] Aditya Dubey (Minor) v. Union of India, W.P. (C) No. 1135 of 2020 — Indiankanoon (December 2021 Order): https://indiankanoon.org/doc/97319720/

[4] Subhash Kumar v. State of Bihar, (1991) 1 SCC 598, AIR 1991 SC 420 — Indiankanoon: https://indiankanoon.org/doc/1646284/

[5] Supreme Court Observer — “Delhi Pollution Crisis: Can the Supreme Court Clear the Air?” (November 2024): https://www.scobserver.in/journal/delhi-pollution-crisis-can-the-supreme-court-clear-the-air/

[6] Supreme Court Observer — “Supreme Court’s Evolving Role in Mitigating Delhi’s Air Pollution Crisis” (December 2024): https://www.scobserver.in/journal/supreme-courts-evolving-role-in-mitigating-delhis-air-pollution-crisis/

[7] M.C. Mehta v. Union of India (GRAP IV Order, November 2024) — Casemine: https://www.casemine.com/judgement/in/674509f6e8c0441261876d18

[8] Section 12 — CAQM Act, 2021 — Indiankanoon: https://indiankanoon.org/doc/22229493/

[9] CPR India Brief — “The CAQM Act 2021: An Overview”: https://cprindia.org/wp-content/uploads/2021/12/The-CAQM-Act-2021-An-Overview_Harish-Ghosh-Mathew.pdf

The post CAQM as a De Facto Environmental Regulator: The Supreme Court’s Expanding Role in Delhi’s Air Pollution Crisis appeared first on Bhatt & Joshi Associates.

India’s environmental clearance architecture has, for decades, rested on a simple but inviolable premise: that the environment must be assessed before a project begins, not after it has already caused damage. This premise, sitting at the heart of the Environment (Protection) Act, 1986 [1] and the Environment Impact Assessment Notification, 2006 [2], was shaken dramatically in 2025 through a sequence of events that exposed deep fault lines within India’s Supreme Court on one of the most consequential questions in environmental governance — can a project obtain legal sanction after the fact, after land has been broken and concrete poured, for what was originally an unlawful commencement?

The legal controversy now before the Supreme Court — arising from the saga of Vanashakti v. Union of India and its extraordinary reversal — is not merely a procedural dispute about review jurisdiction. It is a constitutionality vacuum: a space where the fundamental right to a clean environment under Article 21, the precautionary principle, sustainable development, and the rule of law all collide with the practical pressures of public infrastructure, economic investment, and the irreversibility of completed construction. How the Supreme Court ultimately resolves this tension, on a reference now awaiting hearing by a larger bench, will define the contours of environmental governance in India for a generation.

The Legal Framework Governing Retrospective Environmental Clearances

Any analysis of the retrospective environmental clearances controversy must begin with the statutory architecture that governs environmental approvals. The Environment (Protection) Act, 1986 [1] is the parent statute. Enacted under Article 253 of the Constitution to give effect to decisions taken at the Stockholm Conference of 1972, Section 3(1) of the Act confers on the Central Government the power to take “all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution.” Section 3(2)(v) specifically empowers the Central Government to impose restrictions on the location of industries and the carrying on of any industrial process or operation.

Under this authority, the Central Government issued the Environment Impact Assessment Notification, 2006 [2], issued as S.O. 1533(E) on 14 September 2006, which superseded the earlier EIA Notification of 27 January 1994. The 2006 notification states expressly: “the required construction of new projects or activities or the expansion or modernization of existing projects or activities listed in the Schedule to this notification entailing capacity addition with change in process and or technology shall be undertaken in any part of India only after the prior environmental clearance from the Central Government or as the case may be, by the State Level Environment Impact Assessment Authority.” The phrase “only after” is not a directory condition — it is a mandatory precondition to any construction or commencement of activity. The clearance process under the 2006 notification proceeds through four sequential stages: screening, scoping, public consultation including a public hearing at the project site, and appraisal by an Expert Appraisal Committee (EAC) or State-Level Expert Appraisal Committee (SEAC) before a clearance can be granted or refused.

It is within this framework that the controversy around retrospective clearances — also described as ex post facto ECs — must be situated. A retrospective or ex post facto environmental clearance is one granted after a project has already commenced, expanded, or been completed — that is, after the very harm that the EC process was designed to prevent has already been risked or caused. The critical legal question is whether such clearances are permissible at all under Indian law, and if so, under what conditions and constitutional constraints.

The 2017 Notification and the 2021 Office Memorandum

The Ministry of Environment, Forest and Climate Change (MoEF&CC) issued a Notification on 14 March 2017 [3] that created a one-time amnesty window for project proponents who had commenced, continued, or completed activities without the mandatory prior environmental clearance. The 2017 notification provided a six-month window — later briefly extended through judicial direction to 13 April 2018 — during which defaulters could apply for an EC and, upon paying prescribed penalties and demonstrating compliance, have their projects regularised. Earlier attempts by MoEF&CC through Office Memoranda of December 2012 and June 2013 to create similar mechanisms had been struck down by the High Court of Jharkhand and the National Green Tribunal, which held those instruments to be illegal and outside the scope of the 2006 notification.

The 2017 notification was itself under judicial challenge when the MoEF&CC issued a further Standard Operating Procedure (SOP), styled as an Office Memorandum, on 7 July 2021. This 2021 OM, which had been directed by the National Green Tribunal in Tanaji B. Gambhire v. Chief Secretary, Government of Maharashtra, built on a polluter-pays and proportionality framework, imposing penalties on violators and prescribing a regularisation process. Environmental groups, including the petitioner Vanashakti — an NGO based in Mumbai — argued that the 2021 OM was nothing more than a fresh attempt to breathe life into the invalidated 2017 mechanism, now clothed in different language. MoEF&CC’s own position was that the 2021 OM did not create new retrospective environmental clearances but merely provided a compliance framework for penalising existing violators. The Madras High Court, in a judgment dated 30 August 2024, quashed the 2021 OM in proceedings challenging it separately, an order that was itself then challenged before the Supreme Court.

The Vanashakti Judgment of May 2025: A Line Drawn

On 16 May 2025, a two-judge bench of the Supreme Court consisting of Justice Abhay S. Oka and Justice Ujjal Bhuyan delivered what appeared to be a definitive judgment in Vanashakti v. Union of India, 2025 SCC OnLine SC 1139 (also cited as 2025 INSC 718) [4]. The bench struck down both the 2017 notification and the 2021 OM with unambiguous clarity. The court held that the concept of an ex post facto or retrospective environmental clearance is “completely alien to environmental jurisprudence,” relying expressly on the language first articulated in Common Cause v. Union of India, (2017) 9 SCC 499, and reiterated in Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, (2020) 17 SCC 157 [5].

The Vanashakti court reasoned that the entire EIA process — screening, scoping, public hearing, appraisal — exists to evaluate prospective harm and to allow stakeholders, including affected communities, to participate meaningfully before environmental damage occurs. A clearance granted after a project has commenced cannot serve any of these purposes; the environmental assessment becomes, at best, a post-mortem rather than a prevention. As the court stated, drawing on Alembic Pharmaceuticals: “environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development.” The court further held that the right to live in a pollution-free environment guaranteed under Article 21 of the Constitution, and the fundamental duty to protect the natural environment under Article 51A(g), imposed an obligation on the state not to create or perpetuate mechanisms that incentivised regulatory evasion.

The judgment issued consequential directions: MoEF&CC was restrained from issuing any future circulars, orders, or notifications providing for Retrospective Environmental Clearances in any form; regulatory authorities were directed to initiate closure and demolition proceedings against unlawful projects under Section 5 of the Environment (Protection) Act, 1986; and penal action under Section 15 read with Section 19 of the same Act was directed against violations. Notably, ex post facto ECs already granted under the 2017 notification were protected and left undisturbed by the judgment.

The Per Incuriam Recall: The Three-Judge Bench’s Verdict of November 2025

The judgment of May 2025 faced immediate and substantial resistance. Developers, industry associations, state governments, and public sector undertakings filed nearly 40 review petitions. The lead petition was filed by the Confederation of Real Estate Developers of India (CREDAI), and the matter was titled Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti, 2025 SCC OnLine SC 2474, 2025 INSC 1326 [6].

On 18 November 2025, a three-judge bench led by Chief Justice B.R. Gavai, alongside Justice K. Vinod Chandran and Justice Ujjal Bhuyan — who had himself co-authored the original Vanashakti verdict — delivered three separate opinions. By a 2:1 majority, Chief Justice Gavai and Justice Chandran recalled the May 2025 judgment and restored the original writ petitions for fresh hearing by an appropriate bench. Justice Bhuyan, in a 97-page dissent, dismissed all review petitions and reaffirmed the May judgment in its entirety.

The majority’s central reasoning was that the Vanashakti judgment was per incuriam — rendered in ignorance of binding coordinate bench decisions that had already upheld Retrospective Environmental Clearances frameworks in limited circumstances. The majority specifically pointed to Electrosteel Steels Limited v. Union of India, (2021) SCC OnLine SC 1247, D. Swamy v. Karnataka State Pollution Control Board, (2023) 20 SCC 469, and Pahwa Plastics Pvt. Ltd. v. Dastak NGO, (2023) 12 SCC 774, all benches of equal or comparable strength that had, in specific factual contexts, countenanced post facto EC. The majority also cited Common Cause v. Union of India, (2017) 9 SCC 499 to note that the Court had there permitted mining leaseholders to resume operations subject to compliance, effectively allowing a limited form of retrospective regularisation.

Chief Justice Gavai catalogued the concrete consequences of the May ruling in detail: central government projects worth ₹8,293 crore across 24 projects and state government projects worth ₹11,168 crore across 29 projects had been stalled — a total approaching ₹20,000 crore. The listed examples included a 962-bed AIIMS hospital in Odisha, the Vijayanagar Greenfield Airport in Karnataka, and Common Effluent Treatment Plants whose own demolition would cause further environmental harm. The CJI wrote: “If the Judgment Under Review is not recalled, it will have serious consequences in terms of demolition of projects which are either completed or about to be completed in the near future and which are of vital public importance constructed out of the public exchequer.” He further argued that demolishing and then rebuilding these projects after fresh EC would itself generate greater pollution than permitting their continuation under penalty.

Justice Bhuyan’s Dissent: The Constitutional Conscience of the Court

Justice Bhuyan’s dissent is remarkable for its doctrinal rigour and its refusal to subordinate constitutional principle to economic pragmatism. He categorically rejected both the per incuriam characterisation and the public interest reasoning offered by the majority. On the per incuriam question, Justice Bhuyan held that none of the coordinate bench decisions cited by the majority — Electrosteel, D. Swamy, or Pahwa Plastics — had expressly overruled or even deliberately departed from the core principle articulated in Common Cause and Alembic Pharmaceuticals. Those cases dealt with peculiar factual situations where regularisation was permitted in extreme circumstances under Article 142 jurisdiction, and their reasoning could not be read as establishing a general principle permitting ex post facto ECs as a routine remedial mechanism.

Justice Bhuyan described the very concept of ex post facto EC as “an anathema, a curse devoted to evil, to environmental jurisprudence.” He wrote: “Precautionary principle is the cornerstone of environmental jurisprudence. Polluter pays is only a principle of reparation. Precautionary principle cannot be given a short shrift by relying on the polluter pays principle. The review judgment is a step in retrogression.” He noted pointedly that MoEF&CC itself had not filed any review petition against the Vanashakti judgment — effectively accepting it — and questioned why the reviewing bench appeared to be, in his words, “so keen, virtually prodding the Central Government or the MoEF&CC to grant Retrospective Environmental Clearances to all the law violators.” Invoking the deadly Delhi smog as a reminder of the stakes, he emphasised that the Supreme Court as the highest constitutional court had a duty under the Constitution and under Indian environmental law to safeguard the environment and could not be seen to be “backtracking on the sound environmental jurisprudence that has evolved in this country, that too, on a review petition filed by persons who have shown scant regard for the rule of law.”

The Constitutional Vacuum: What Remains Unresolved

The recall of the Vanashakti judgment and the referral of the original petitions for fresh hearing by a larger bench has created a genuine constitutionality vacuum in Indian environmental law [7]. The 2017 notification and the 2021 OM — struck down by a two-judge bench in May 2025 — have had their striking-down itself recalled by a three-judge bench in November 2025. This places both instruments in legal limbo: neither definitively valid nor definitively invalid, pending a larger bench adjudication.

The question for the larger bench involves several distinct constitutional threads that are not easily reconcilable. The first is whether the fundamental right to a pollution-free environment under Article 21 imposes an absolute bar on retrospective clearances, or whether that right can be balanced against competing claims of economic development and public infrastructure. The second is whether the executive’s power under Section 3 of the Environment (Protection) Act, 1986 extends to creating regularisation mechanisms for past violations, or whether such mechanisms are an impermissible dilution of mandatory statutory safeguards. The third — and perhaps most critical — is whether the per incuriam doctrine was correctly invoked: were the coordinate bench decisions in Electrosteel, D. Swamy, and Pahwa Plastics genuinely binding precedents that were overlooked, or were they factually distinct applications of an agreed general principle, as Justice Bhuyan maintained?

The constitutional stakes are heightened by the question of intergenerational equity, a value the Supreme Court has recognised as embedded within both Article 21 and Article 51A(g). Retrospective clearances, by their nature, eliminate the ex ante deliberation — public hearing, expert appraisal, community consultation — that embodies this intergenerational protection. When a project is assessed after it has already been built, there is no opportunity to prevent harm; there is only the possibility of managing or compensating harm that has already occurred. Whether the Indian constitutional framework can accommodate this fundamentally different exercise in place of the forward-looking precautionary assessment is the question the larger bench must answer.

The Jairam Ramesh Petition and the Court’s Current Posture

The constitutional uncertainty was further underscored in February 2026 when former Union Minister Jairam Ramesh filed a writ petition directly challenging the November 2025 recall order. A bench presided over by Chief Justice Surya Kant dismissed the petition on procedural grounds, observing that the correct remedy was a review petition, not a fresh writ petition challenging the apex court’s own judgment [8]. The Court’s statement that the petition appeared aimed “more at attracting public attention than addressing a legal grievance” reflects something of the institutional frustration with the cycling of this litigation, even as the substantive constitutional question remains entirely open.

Implications for Environmental Governance and the Rule of Law

The broader implications of this unresolved controversy extend far beyond the specific projects at stake. As reporting by Down to Earth has noted, the recall risks making prior environmental clearance effectively optional — something developers aim for in good faith but know they can seek to avoid through regularisation if they proceed without it [9]. If the ex post facto pathway is reliably available, even if costly, the deterrent value of the EIA framework is fundamentally compromised. The signal received by the market, whatever the legal niceties, is that commencing a project without clearance and seeking retrospective regularisation later remains a viable — even rational — commercial strategy.

This concern is not abstract. Before the Supreme Court, reports placed before the bench indicated that MoEF&CC had, under the 2017 and 2021 mechanisms, already granted post facto clearance to over 100 projects and issued Terms of Reference for at least 150 more, including coal and iron mines and large factories. The scale of the violation-regularisation cycle in operation before the Vanashakti judgment is itself evidence of systemic regulatory failure that a constitutionally sound framework must address rather than accommodate. The larger bench’s eventual resolution of this question will also have implications for India’s obligations under multilateral environmental agreements and for the National Green Tribunal’s jurisdiction to enforce prior EC requirements against violators.

Conclusion

The recall of the Vanashakti judgment in November 2025 has left India’s environmental clearance jurisprudence in an unprecedented state of legal suspension. The constitutionality of retrospective or ex post facto environmental clearances — a question the two-judge bench answered clearly in the negative — remains formally open, awaiting adjudication by a larger bench. The tension at the heart of this dispute, between the precautionary principle and the economic consequences of rigorous compliance, is real and cannot be dismissed. But the manner of its resolution will determine whether India’s constitutional commitment to a clean environment retains genuine, substantive force, or can be diluted whenever the economic stakes are deemed high enough. The larger bench’s eventual judgment will, in a very real sense, define what kind of environmental rule of law India chooses to maintain — and what that choice will cost in irreversible ecological terms.

References

[1] Environment (Protection) Act, 1986, Ministry of Environment and Forests, Government of India. Available at: https://cpcb.nic.in/uploads/Projects/Bio-Medical-Waste/THE_ENVIRONMENT_(PROTECTION)_ACT1986.pdf

[2] Environment Impact Assessment Notification, 2006, S.O. 1533(E), 14 September 2006, MoEF&CC. Available at: https://environmentclearance.nic.in/writereaddata/EIA_notifications/2006_09_14_EIA.pdf

[3] Trilegal overview of the 2017 ex post facto EC notification and its legal history. Available at: https://trilegal.com/magazine/obtaining-environmental-clearance-in-india-comprehensive-overview-insights-issue-14.html

[4] Vanashakti v. Union of India, 2025 SCC OnLine SC 1139 / 2025 INSC 718, decided 16 May 2025 (Justices A.S. Oka and U. Bhuyan). Available at: https://indiankanoon.org/doc/44390976/

[5] Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, (2020) 17 SCC 157, decided 1 April 2020 (Justices D.Y. Chandrachud and A. Rastogi). Full judgment available at: https://api.sci.gov.in/supremecourt/2016/2562/2562_2016_0_1501_21582_Judgement_01-Apr-2020.pdf

[6] Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti, 2025 SCC OnLine SC 2474 / 2025 INSC 1326, decided 18 November 2025 (CJI B.R. Gavai, Justices K.V. Chandran and U. Bhuyan). Analysis and judgment coverage at: https://www.scconline.com/blog/post/2025/11/19/ex-post-environmental-clearances-sc-2025-review-vanashakti/

[7] Down to Earth, “SC’s decision to recall Vanashakti judgement risks making prior environmental clearance optional,” 20 November 2025. Available at: https://www.downtoearth.org.in/governance/scs-decision-to-recall-vanashakti-judgement-risks-making-prior-environment-clearance-optional

[8] Bar and Bench, “For media publicity: Supreme Court on Jairam Ramesh plea against retrospective environmental clearances,” February 2026. Available at: https://www.barandbench.com/news/litigation/for-media-publicity-supreme-court-on-jairam-ramesh-plea-against-retrospective-environmental-clearances

[9] Down to Earth, “The Supreme Court is sending wrong signals on post facto environmental clearances.” Available at: https://www.downtoearth.org.in/environment/the-supreme-court-is-sending-wrong-signals-on-post-facto-environmental-clearances-85208

The post Retrospective Environmental Clearances After the 3-Judge Bench Recall of the Vanashakti judgment: India’s Unresolved Constitutionality Vacuum appeared first on Bhatt & Joshi Associates.

Introduction

The Supreme Court of India delivered a transformative judgment on December 19, 2025, establishing that corporate social responsibility cannot be separated from environmental responsibility. This ruling came in the case concerning the protection of the critically endangered Great Indian Bustard, wherein Justices P.S. Narasimha and Atul S. Chandurkar held that companies claiming to be socially responsible cannot disregard their obligations toward wildlife and fragile ecosystems affected by their operations. The judgment represents a fundamental shift in how corporate governance intersects with environmental protection under Indian law.

The case arose from a public interest litigation filed in 2019 by environmentalist M.K. Ranjitsinh, seeking urgent conservation measures for the Great Indian Bustard, whose population has declined alarmingly due to infrastructure associated with renewable and non-renewable energy projects, particularly overhead transmission lines in Rajasthan and Gujarat [1]. The Court’s observations have far-reaching implications for corporate India, mandating that environmental spending under Corporate Social Responsibility frameworks is not voluntary charity but a constitutional obligation.

Background of the Great Indian Bustard Case

The Great Indian Bustard, locally known as Godawan, is a critically endangered bird species that once thrived across the Indian subcontinent but now survives primarily in small pockets of Rajasthan and Gujarat. The bird stands approximately one meter tall with a wingspan of around seven feet, making it one of the heaviest flying birds in the world. According to the International Union for Conservation of Nature, the species is classified as critically endangered, with its population reduced to fewer than 150 individuals [2].

The primary threat to the Great Indian Bustard’s survival has been identified as overhead power transmission lines. The Wildlife Institute of India’s 2018 Power Line Mitigation Report documented that approximately 100,000 birds die annually due to collision with power lines across India. The Great Indian Bustard lacks frontal vision, which prevents these heavy birds from detecting powerlines ahead of them, making collision mortality particularly severe. The expansion of solar and wind energy infrastructure in their habitat regions has intensified these threats considerably [3].

In April 2021, the Supreme Court issued an interim order imposing restrictions on the installation of overhead transmission lines across approximately 99,000 square kilometers of the bird’s habitat. The Court directed that future low-voltage power lines in priority areas be laid underground and mandated the installation of bird diverters on existing lines. However, this order was subsequently challenged by various stakeholders, including the Union of India and renewable energy companies, who argued that implementing these measures would adversely impact India’s renewable energy transition and international climate commitments under the Paris Agreement.

The December 2025 Judgment and Its Key Observations

Revised Conservation Zones

Accepting recommendations from a court-appointed expert committee, the Supreme Court approved revised priority conservation areas measuring 14,013 square kilometers in Rajasthan and 740 square kilometers in Gujarat. The Court cleared recommendations imposing a blanket prohibition on the installation of solar projects above 2 megawatt capacity and laying overhead transmission lines within these designated conservation zones. The judgment directed the undergrounding of 80 kilometers of critical 33 kilovolt power lines in Rajasthan and 79 kilometers of similar lines in Gujarat, along with the rerouting of several 66 kilovolt lines [4].

Corporate Social Responsibility as Constitutional Duty

The supreme Court categorically held that the corporate definition of social responsibility must inherently include environmental responsibility. Justice P.S. Narasimha observed that companies cannot assert to be socially responsible while ignoring the environment and other beings of the ecosystem. The Constitution, under Article 51A(g), imposes a fundamental duty on every citizen to protect and improve the natural environment, including forests, lakes, rivers, and wildlife. The judgment emphasized that a corporation, as a legal person and a key organ of society, shares this fundamental duty equally with individual citizens [5].

The Court further explained that Corporate Social Responsibility funds are the tangible expression of this constitutional duty. Consequently, allocating funds for the protection of the environment is not a voluntary act of charity but fulfillment of a constitutional obligation. This pronouncement fundamentally alters the traditional understanding of CSR as discretionary corporate philanthropy, recasting it as a binding legal and constitutional mandate.

Legal Framework Governing Corporate Social Responsibility

Section 135 of the Companies Act, 2013

The statutory foundation for Corporate Social Responsibility in India is laid down in Section 135 of the Companies Act, 2013. This provision mandates that every company having a net worth of rupees five hundred crore or more, or turnover of rupees one thousand crore or more, or a net profit of rupees five crore or more during the immediately preceding financial year shall constitute a Corporate Social Responsibility Committee of the Board consisting of three or more directors, including at least one independent director [6].

The Board of every such company must ensure that the company spends, in every financial year, at least two percent of the average net profits of the company made during the three immediately preceding financial years in pursuance of its Corporate Social Responsibility Policy. The CSR Committee is responsible for formulating and recommending to the Board a Corporate Social Responsibility Policy indicating activities to be undertaken by the company as specified in Schedule VII of the Act, recommending the amount of expenditure to be incurred on such activities, and monitoring the implementation of the CSR Policy from time to time.

Schedule VII of the Companies Act specifically includes environmental sustainability, ecological balance, protection of flora and fauna, animal welfare, agroforestry, conservation of natural resources, and maintaining quality of soil, air, and water as eligible CSR activities. The Supreme Court’s recent judgment has now elevated these activities from being optional choices within a broader CSR framework to mandatory components that every socially responsible corporation must address.

Section 166 of the Companies Act, 2013

Section 166 of the Companies Act, 2013, outlines the duties of directors and provides another crucial legal foundation for environmental responsibility. Section 166(2) specifically states that a director of a company shall act in good faith in order to promote the objects of the company for the benefit of its members as a whole, and in the best interests of the company, its employees, the shareholders, the community, and for the protection of environment [7].

This provision marked a significant departure from the traditional shareholder-centric model of corporate governance. The Supreme Court, in its December 2025 judgment, emphasized that Section 166(2) has dismantled the narrow shareholder-centric approach to corporate management. Directors are now legally bound to act in good faith not only for members and shareholders but also for employees, the community, and specifically for the protection of the environment. The inclusion of environmental protection as a distinct stakeholder interest represents a progressive legislative approach that recognizes the interdependence between business operations and ecological sustainability.

Constitutional Foundations of Environmental Responsibility

Article 51A(g) of the Constitution

Article 51A of the Constitution, inserted through the Forty-second Amendment Act of 1976, enumerates the Fundamental Duties of citizens. Article 51A(g) specifically imposes a duty on every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures. While these duties are not directly enforceable through courts, they provide valuable interpretative guidance for understanding other constitutional and statutory provisions [8].

The Supreme Court’s recent judgment draws heavily on Article 51A(g) to establish that corporations, being legal persons and integral components of civil society, share the fundamental environmental duties imposed on all citizens. The Court rejected the notion that corporations occupy a privileged position exempt from constitutional duties that bind natural persons. This interpretative approach represents a significant expansion of corporate accountability under constitutional law.

Article 48A and Environmental Protection

Article 48A of the Constitution, also inserted by the Forty-second Amendment Act of 1976, contains a Directive Principle of State Policy requiring the State to endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country. While Directive Principles are not directly enforceable, they have been interpreted by courts as fundamental to governance and must be read in conjunction with Fundamental Rights, particularly the Right to Life under Article 21.

The Supreme Court has consistently held that the right to a clean and healthy environment forms an integral part of the right to life guaranteed under Article 21. In the recent Great Indian Bustard judgment, the Court reaffirmed that environmental protection is not merely aspirational but represents a justiciable right that can be enforced against both state and non-state actors, including private corporations.

The Polluter Pays Principle and Corporate Accountability

The Supreme Court’s judgment invokes the well-established environmental law principle of “Polluter Pays,” which holds that entities responsible for environmental degradation must bear the cost of remediation and prevention. The Court observed that corporate entities operating in ecologically sensitive areas must conduct their activities with heightened awareness of their environmental impact and behave as guests in the habitat of endangered species.

The judgment specifically directed non-renewable and renewable power generators operating in priority and non-priority conservation areas of Rajasthan and Gujarat to conduct their business recognizing that they share the environment with the Great Indian Bustard and must operate with appropriate ecological sensitivity. This represents a practical application of the polluter pays principle, requiring industries whose infrastructure directly threatens wildlife to contribute toward conservation efforts through their CSR allocations.

Corporate Governance and the Stakeholder Model

The Supreme Court’s judgment reinforces a stakeholder-centric model of corporate governance, departing from the traditional shareholder primacy doctrine. The Supreme Court observed that the statutory mandate of Corporate Social Responsibility under Section 135 reflects the principle that corporate profits are not solely the private property of shareholders but are partly owed to the society that enables their generation. The judgment stated that the magic of legitimacy lies in the perspective that private property is a trust, not an absolute entitlement.

This philosophical foundation aligns with contemporary developments in corporate governance worldwide, where there is increasing recognition that corporations must serve broader societal interests beyond profit maximization for shareholders. The judgment places India at the forefront of jurisdictions that have constitutionalized corporate environmental responsibility, treating it not as discretionary corporate social investment but as a fundamental legal obligation.

Implications for Corporate India

Mandatory Environmental CSR Allocation

The immediate implication of the Supreme Court’s judgment is that companies covered under Section 135 can no longer treat environmental protection as one among many optional CSR activities. The judgment establishes that a meaningful portion of the mandatory two percent CSR spending must be allocated to environmental protection, conservation of endangered species, and ecological restoration. Companies that have historically focused their CSR spending exclusively on education, healthcare, or other social welfare activities must now reassess their policies to incorporate environmental components.

Current data indicates that environmental sustainability activities accounted for approximately twelve to fourteen percent of total CSR spending in recent financial years, with total CSR expenditure exceeding rupees twenty-nine thousand crore annually. The Supreme Court’s judgment suggests that this proportion must increase significantly, with environmental protection being treated as a core rather than peripheral CSR concern [9].

Enhanced Director Liability

The judgment strengthens the liability framework for directors who fail to ensure adequate environmental protection measures. By explicitly linking CSR environmental spending to the constitutional duty under Article 51A(g) and the statutory duty under Section 166(2), the Court has created multiple avenues for holding directors accountable. Directors who approve CSR policies that inadequately address environmental concerns may now face challenges on grounds of breach of statutory duties, potentially exposing them to penalties under Section 166(6) of the Companies Act, which provides for fines ranging from one lakh to five lakh rupees for violations.

Balancing Development and Conservation

The judgment acknowledges the tension between environmental conservation and developmental imperatives, particularly India’s commitment to renewable energy transition under international climate agreements. However, the Court firmly held that environmental safeguards are not adversaries to development but preconditions to it in ecologically fragile landscapes. The judgment stated that conservation of endangered species cannot be sacrificed at the altar of development, while simultaneously recognizing that both objectives must be pursued together without sacrificing one for the other.

This balanced approach requires companies to adopt more sophisticated project planning that integrates environmental considerations from the outset rather than treating them as afterthoughts or compliance burdens. The judgment essentially mandates that the cost of environmental protection must be internalized in business models rather than externalized onto society and future generations.

Comparative Analysis with Previous Judgments

The December 2025 judgment builds upon the Supreme Court’s earlier order in April 2021, which had imposed sweeping restrictions on overhead transmission lines across nearly 99,000 square kilometers. That order was subsequently modified in March 2024 after the Union government raised concerns about its impact on renewable energy projects and India’s international climate commitments. The March 2024 order had constituted a high-level expert committee to recommend balanced solutions.

The recent judgment represents the culmination of this process, incorporating the expert committee’s recommendations while firmly establishing the constitutional and statutory foundations of corporate environmental responsibility. Unlike the earlier orders that focused primarily on infrastructure restrictions, the December 2025 judgment addresses the broader question of corporate accountability and establishes CSR as a vehicle for fulfilling constitutional environmental duties.

Challenges in Implementation

Measuring Environmental Impact

One significant challenge in implementing the Supreme court judgment lies in measuring and verifying the environmental impact of Corporate Social Responsibility spending. Unlike traditional CSR activities in education or healthcare where outcomes can be relatively easily quantified, environmental conservation projects often yield results over longer timeframes and involve complex ecological assessments. Companies will need to develop robust monitoring and evaluation frameworks to demonstrate that their environmental CSR spending produces tangible conservation outcomes.

Allocation Between Competing Environmental Priorities

Companies operating across multiple geographical regions with diverse environmental challenges may face difficulties in allocating limited CSR resources between competing environmental priorities. For instance, a company with operations spanning coastal areas, forest regions, and arid zones must decide how to distribute environmental CSR spending across marine conservation, afforestation, and desert ecosystem protection. The judgment does not provide specific guidance on prioritization, leaving companies to make these determinations in consultation with environmental experts and affected communities.

Integration with Existing Regulatory Frameworks

Companies must now navigate the interaction between CSR-funded environmental activities and existing regulatory requirements under environmental laws such as the Environment Protection Act, 1986, the Wildlife Protection Act, 1972, the Forest Conservation Act, 1980, and state-level environmental regulations. The judgment makes clear that CSR cannot be used to fulfill basic regulatory compliance obligations but must represent additional contributions beyond minimum legal requirements.

The Role of Civil Society and Stakeholders

The supreme court judgment empowers civil society organizations, environmental groups, and affected communities to play a more active role in ensuring corporate compliance with environmental Corporate Social Responsibility obligations. By establishing environmental protection as a constitutional duty rather than discretionary spending, the judgment provides stronger legal foundations for public interest litigation and shareholder activism focused on environmental accountability.

Shareholders can now potentially challenge CSR policies that inadequately address environmental concerns under the oppression and mismanagement provisions of Sections 241 and 242 of the Companies Act, or through class action suits under Section 245. Environmental non-compliance may also be raised in general meetings and annual general meetings, creating reputational pressures on companies to demonstrate robust environmental CSR programs.

Future Directions and Conclusion

The Supreme Court’s landmark judgment establishes India as a pioneer in constitutionalizing corporate environmental responsibility. By declaring that CSR must inherently include environmental responsibility, the Court has fundamentally reshaped the relationship between business and nature under Indian law. The judgment makes clear that the era of treating environmental protection as optional corporate philanthropy has ended, replaced by a regime where ecological stewardship is a binding legal and constitutional obligation.

For corporate India, the Supreme Court judgment necessitates a comprehensive reimagining of Corporate Social Responsibility (CSR) strategies, with environmental protection elevated from a peripheral concern to a central mandate. Companies must now integrate environmental considerations into their core business strategies, recognizing that long-term commercial viability depends on ecological sustainability. The judgment calls for a new generation of corporate leadership that views environmental protection not as a constraint on business but as a fundamental responsibility that enhances corporate legitimacy and social license to operate.

The Great Indian Bustard case demonstrates how environmental litigation can serve as a catalyst for progressive legal developments that reconcile conservation with development. As India pursues ambitious economic growth and renewable energy targets, the principles established in this judgment will guide the difficult but necessary task of ensuring that development proceeds in harmony with nature rather than at its expense. The judgment reminds us that corporations, as powerful organs of society enjoying the benefits of legal personhood, must shoulder commensurate responsibilities toward the environment that sustains all life.

References

[1] LiveLaw. (2025). Corporate Social Responsibility Must Include Environmental Responsibility, Says Supreme Court In Great Indian Bustard Case. Retrieved from https://www.livelaw.in/top-stories/corporate-social-responsibility-must-include-environmental-responsibility-says-supreme-court-in-great-indian-bustard-case-513947

[2] IUCN Red List. (2025). Great Indian Bustard – Ardeotis nigriceps. Retrieved from https://www.iucnredlist.org/species/22691932/134188105

[3] Bar and Bench. (2025). Underground power lines, ban on new wind turbines: Supreme Court accepts measures to protect Great Indian Bustard. Retrieved from https://www.barandbench.com/amp/story/news/underground-power-lines-ban-on-new-wind-turbines-supreme-court-accepts-measures-to-protect-great-indian-bustard

[4] LatestLaws. (2025). Supreme Court treats Environmental spending under CSR as a Constitutional Mandate. Retrieved from https://www.latestlaws.com/latest-news/supreme-court-treats-environmental-spending-under-csr-as-a-constitutional-mandate-232448/

[5] India CSR. (2025). Corporate Social Responsibility (CSR) Must Include Environmental Responsibility: Supreme Court Judgment. Retrieved from https://indiacsr.in/corporate-social-responsibility-csr-must-include-environmental-responsibility-supreme-court-judgment/

[6] ClearTax. (2025). Corporate Social Responsibility Under Section 135 of Companies Act 2013. Retrieved from https://cleartax.in/s/corporate-social-responsibility

[7] Companies Act 2013 Integrated Ready Reckoner. (2024). Section 166. Duties of directors. Retrieved from https://ca2013.com/166-duties-of-directors/

[8] Oxford Academic – Journal of Environmental Law. (2022). Environmental Constitutionalism and Duties of Individuals in India. Retrieved from https://academic.oup.com/jel/article/34/3/399/6648946

[9] The CSR Universe. (2025). CSR must include environment & ecology, rules Supreme Court; calls green spending a constitutional duty, not charity. Retrieved from https://thecsruniverse.com/articles/csr-must-include-environment-ecology-rules-supreme-court-calls-green-spending-a-constitutional-duty-not-charity

The post Corporate Social Responsibility Must Include Environmental Responsibility: Supreme Court’s Landmark Judgment in Great Indian Bustard Case appeared first on Bhatt & Joshi Associates.

In a landmark judgment delivered on December 19, 2024, the Supreme Court of India reinforced the protection of forest lands by categorically ruling that no forest land can be leased or utilized for agricultural purposes without obtaining prior approval from the Central Government. The bench comprising Justice Vikram Nath and Justice Sandeep Mehta in the case of State of Karnataka & Ors. v. Gandhi Jeevan Collective Farming Cooperative Society Limited held that any lease granted in violation of the Forest (Conservation) Act, 1980 is void ab initio and cannot be allowed to continue under any circumstances. [1] This decision underscores the judiciary’s commitment to preserving India’s forest cover and preventing unauthorized diversion of forest land for non-forestry activities, particularly agriculture.

Background and Facts of the Case

The dispute originated from a lease agreement executed in 1976 by the Karnataka State Government, which granted approximately 134 acres of forest land located in Benachi and Tumarikoppa villages of Kalaghatagi Taluk in Dharwad District to the Gandhi Jeevan Collective Farming Cooperative Society Limited. The lease was granted for a period of ten years specifically for agricultural purposes. During the tenure of this lease, members of the cooperative society proceeded to clear the naturally grown trees on the land and commenced cultivation activities. Upon the expiry of the lease period on June 30, 1986, the State Government declined to renew or extend the lease arrangement. [2]

Following the State’s refusal to extend the lease, the cooperative society initiated a series of legal proceedings challenging the termination. The society filed writ petitions in 1985 and 1987, both of which were dismissed by the Karnataka High Court. Subsequently, a civil suit was instituted seeking protection of possession. Although the trial court partly decreed the suit by restraining interference except in accordance with law, the Forest Department initiated eviction proceedings under the Karnataka Forest Act and the Karnataka Forest Manual. An eviction order was passed on June 22, 2004, and the society’s statutory appeal before the Conservator of Forests was rejected on December 12, 2006. [3]

Despite the Forest Department having taken possession of the land, the Karnataka High Court granted liberty to the respondent society to submit a representation to the Central Government seeking continuation of the lease. This direction by the High Court prompted the State of Karnataka to file an appeal before the Supreme Court, challenging the grant of such liberty on the ground that it was contrary to the statutory provisions governing forest conservation and violated earlier binding directions issued by the apex court.

Legislative Framework: The Forest Conservation Act, 1980

Core Provisions and Restrictions

The Forest (Conservation) Act, 1980 was enacted on October 25, 1980, as a critical legislative measure to prevent large-scale deforestation and regulate the diversion of forest land for non-forest purposes across India. The Act established a centralized system of control whereby state governments and other authorities are required to obtain prior approval from the Central Government before undertaking any activity that would alter the forest status or character of land. [4] This legislative framework was necessitated by the alarming rate of forest degradation that was occurring in the decades preceding its enactment, driven largely by developmental pressures and commercial exploitation of forest resources.

Section 2 of the Forest (Conservation) Act, 1980 forms the cornerstone of forest protection in India. This provision stipulates that notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make any order directing that any reserved forest shall cease to be reserved, or that any forest land or any portion thereof may be used for any non-forest purpose, or that any forest land may be assigned by way of lease or otherwise to any private person or entity, or that any forest land may be cleared of trees which have grown naturally in that land for the purpose of using it for reafforestation, except with the prior approval of the Central Government. [5]

Definition of Non-Forest Purpose

The Act specifically defines what constitutes a “non-forest purpose” through an explanation added by the Forest (Conservation) Amendment Act, 1988. According to this definition, non-forest purpose means the breaking up or clearing of any forest land or portion thereof for the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal plants, or for any purpose other than reafforestation. Importantly, agriculture squarely falls within this definition of prohibited non-forest activities. However, the definition excludes activities relating to or ancillary to conservation, development and management of forests and wildlife, such as silvicultural operations, establishment of check-posts and infrastructure for forest staff, and eco-tourism facilities included in Forest Working Plans or Wildlife Management Plans. [5]

The Godavarman Case: Expanding Forest Protection

Landmark Interpretation of “Forest”

The Supreme Court’s approach to forest conservation has been significantly shaped by the landmark judgment in T.N. Godavarman Thirumulpad v. Union of India, decided on December 12, 1996. This case fundamentally redefined the understanding of what constitutes a “forest” for the purposes of the Forest (Conservation) Act, 1980. The Court held that the term “forest land” occurring in Section 2 will not only include “forest” as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. [6] This expansive interpretation was adopted to ensure that forest protection measures could not be circumvented through technical distinctions based on ownership patterns or official classifications.

The Godavarman case originated from concerns about illegal timber operations and deforestation in the Nilgiris region of Tamil Nadu. The petitioner, T.N. Godavarman Thirumulpad, an environmental activist, approached the Supreme Court to halt unauthorized timber harvesting that threatened the sandalwood forests and potentially endangered the sandalwood species itself. Recognizing that the issues raised extended far beyond a single region, the Court converted the matter into a continuing mandamus to address systemic failures in forest governance throughout the country. The Court issued wide-ranging national directives that included cessation of all non-approved forest activities such as sawmills, plywood mills, and mining operations, suspension of tree felling unless conducted under a central government-approved working plan, and a complete ban on timber movement from certain northeastern states. [7]

Binding Precedent and Continuing Mandamus

The Godavarman judgment has remained a continuing mandamus for nearly three decades, with the Supreme Court issuing periodic orders and directions to ensure effective implementation of forest land conservation measures. The Court in subsequent orders clarified that any non-forest activity within forest areas must cease forthwith unless specifically approved by the Central Government. This has created a robust framework wherein even activities that might have been permitted under state laws or earlier arrangements are now subject to strict central oversight and approval mechanisms. The judgment has been repeatedly relied upon by courts across the country to prevent unauthorized forest diversions and to order restoration of degraded forest lands.

Supreme Court’s Analysis in the Karnataka Case

Prohibition of Agricultural Activities on Forest Land

In the recent Karnataka judgment, the Supreme Court categorically observed that forest lands could not be allowed to be used for non-forestry purposes, which would include agriculture. The bench emphasized that granting permission to cultivate forest land would essentially require clearing of forest, and such a course of action is directly contrary to Section 2 of the Forest (Conservation) Act, 1980, which precludes dereservation or use of forest land for non-forestry purposes without prior approval of the Central Government. [1] The Court noted that this interpretation is not merely based on the literal reading of the statute but is informed by the constitutional obligation to protect and improve the environment and to safeguard forests and wildlife as mandated by Article 48A and Article 51A(g) of the Constitution of India.

The Court specifically rejected the argument that since the cooperative society had been cultivating the land for over a decade, there should be some consideration given to continue the arrangement. Instead, the bench held that the original grant of the lease itself was legally unsustainable and resulted in extensive deforestation and degradation of approximately 134 acres of forest land. The Court observed that no permission could have been granted to perpetuate the illegality committed while granting the lease of the forest land to the respondent cooperative society. This reflects the principle that prolonged illegality does not transform into a legal right, particularly when it concerns environmental protection and forest conservation where the harm caused is often irreversible.

Illegality of Lease Grants Without Central Approval

A crucial aspect of the Supreme Court’s reasoning was its finding that the lease granted in 1976 was itself contrary to law. While the Forest (Conservation) Act came into force in 1980, the Court noted that the principles of forest conservation and the requirement for sustainable forest management were well-established even prior to the enactment of the statute. More significantly, the Court held that once the Forest (Conservation) Act, 1980 came into force, any renewal or continuation of the lease became impermissible without obtaining prior approval from the Central Government as mandated under Section 2 of the Act. The Court emphasized that the statutory framework governing forest conservation imposes an absolute embargo on the use of forest land for non-forestry purposes without central approval. [8]

The bench further held that the Karnataka High Court erred in granting liberty to the cooperative society to make a representation for continuation of the lease. Such a direction, according to the Supreme Court, was contrary to the binding precedents established in the Godavarman case and other subsequent judgments that have consistently held that any diversion of forest land for non-forest purposes must cease forthwith unless approved by the Central Government. The Court noted that allowing the cooperative society to make such a representation would effectively amount to sanctioning a process that sought to validate an illegal diversion of forest land, which is impermissible under the law.

Regulatory Mechanism and Approval Process

Central Government’s Authority and Procedures

The Forest (Conservation) Act, 1980 vests the Central Government with exclusive authority to grant approvals for diversion of forest land for non-forest purposes. This centralized control mechanism was designed to ensure uniformity in forest conservation standards across the country and to prevent ad hoc decisions by state governments that might prioritize short-term developmental or revenue considerations over long-term environmental sustainability. The Central Government exercises this authority through the Ministry of Environment, Forest and Climate Change, which has established detailed procedures and guidelines for considering proposals for forest land diversion.

Under the Forest (Conservation) Rules, 2003, which were framed under Section 4 of the Act, any proposal for diversion of forest land must be submitted by the concerned state government to the Central Government through a prescribed format. The proposal must contain detailed information about the area of forest land proposed to be diverted, the purpose for which diversion is sought, details of trees to be felled, compensatory afforestation plans, and various other technical and environmental parameters. The Central Government has constituted a Forest Advisory Committee that examines these proposals and makes recommendations. Only after detailed scrutiny and consideration of environmental impacts, alternative options, and compensatory measures does the Central Government grant or refuse approval for forest land diversion.

Compensatory Afforestation and Net Present Value

An integral component of the regulatory framework is the requirement for compensatory afforestation whenever forest land is diverted for non-forest purposes. The principle underlying this requirement is that the loss of forest cover and the ecological services provided by forests must be compensated through afforestation on equivalent non-forest land. Additionally, user agencies are required to pay the Net Present Value of the forest land being diverted, which represents the present value of all future forest produce and ecosystem services that would have been available from the forest land in perpetuity. These funds are deposited in the Compensatory Afforestation Fund Management and Planning Authority (CAMPA), which was established pursuant to directions of the Supreme Court in the Godavarman case.

Ecological Restoration and Remedial Measures

Direction for Forest Restoration

Having set aside the High Court’s judgment and prohibited any continuation of agricultural activities on the forest land in question, the Supreme Court issued specific directions for ecological restoration of the degraded area. The Court directed the Karnataka Forest Department to restore the forest on the 134 acres of land by planting indigenous plants and trees in due consultation with experts. The Court emphasized the importance of using indigenous species rather than exotic or commercial species to ensure that the ecological character of the original forest is restored to the maximum extent possible. [1]

The Court specified that the restoration work must be completed within a period of twelve months and directed that the matter be listed after one year for receiving a compliance report. This reflects the Court’s recognition that merely prohibiting further illegal activity is insufficient; active measures must be taken to reverse the environmental damage caused by decades of unauthorized cultivation. The direction for expert consultation ensures that the restoration efforts are scientifically sound and ecologically appropriate, taking into account factors such as soil conditions, climate, native species composition, and ecosystem dynamics.

Implications for Forest Governance

Strengthening Central Control

The Supreme Court’s judgment reinforces the primacy of central government control over forest land diversion decisions. This centralized regulatory framework serves multiple important functions in forest governance. First, it ensures that forest conservation standards are applied uniformly across the country, preventing a race to the bottom where states might compete to offer easier clearances for developmental projects at the cost of environmental protection. Second, it provides a mechanism for balancing developmental needs with conservation imperatives at a national level, taking into account the cumulative impact of multiple projects rather than evaluating each proposal in isolation. Third, it helps prevent political or commercial pressures at the state level from compromising forest protection.

The judgment also clarifies that state governments cannot grant leases or permissions for use of forest land for agricultural or other non-forest purposes on their own authority, even if such land falls within state jurisdiction. Any such grants made without obtaining prior approval from the Central Government under Section 2 of the Forest (Conservation) Act, 1980 are void ab initio and create no legal rights or interests in favor of the persons or entities to whom such grants are made. This principle applies regardless of how long such unauthorized uses may have continued or what investments may have been made based on such illegal grants.

Impact on Agricultural Expansion

The judgment has significant implications for agricultural expansion policies, particularly in regions where forest lands might be considered suitable for cultivation. The Court has made it unequivocally clear that agriculture constitutes a non-forest purpose within the meaning of the Forest (Conservation) Act, 1980, and therefore any conversion of forest land for agricultural use requires prior approval from the Central Government. This requirement applies even to wasteland or degraded forest areas that might appear to have limited forest value. The Court’s reasoning is that allowing such conversions would set a dangerous precedent and could lead to widespread forest degradation, as areas with dense forest cover could be deliberately degraded to make them appear suitable for agricultural conversion.

The prohibition on agricultural use of forest land without central approval also serves to protect the rights and livelihoods of forest-dwelling communities and tribals who depend on forests for their subsistence. While the judgment does not directly address the rights recognized under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, the Forest Rights Act itself operates within the framework of the Forest (Conservation) Act and does not permit conversion of forest land for commercial agricultural purposes. The emphasis is on recognizing and protecting traditional forest-based livelihoods rather than promoting large-scale agricultural conversion of forest areas.

Recent Amendments and Ongoing Debates

The Forest Conservation Amendment Act, 2023

In August 2023, Parliament enacted the Forest (Conservation) Amendment Act, 2023, which renamed the Forest (Conservation) Act, 1980 as the Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980 and introduced several substantive changes to its provisions. The amendments introduced Section 1A, which provided a narrower definition of forest land by specifying that the Act would apply only to land declared or notified as forest under the Indian Forest Act, 1927 or any other law, and land recorded in government records as forest as on or after October 25, 1980. The amendments also exempted certain categories of land from the Act’s purview and expanded the types of activities that could be carried out on forest land without requiring prior approval. [9]

Environmental groups and conservation activists challenged the constitutional validity of the 2023 amendments through public interest litigations filed in the Supreme Court. They argued that the amendments weakened forest protection by potentially excluding vast areas of forest land that had been brought within the Act’s protective ambit by the Godavarman judgment. The petitioners contended that the narrower definition of forest land could result in approximately 1.97 lakh square kilometers of forest land losing protection under the Act. In response to these concerns, the Supreme Court passed an interim order on February 19, 2024, directing that states and union territories should continue to follow the definition of “forest” as laid down in the Godavarman judgment until the completion of the process of identifying forest lands as per the amended Act. This interim order ensured that forest protection standards would not be diluted pending final adjudication of the constitutional challenges.

Conclusion

The Supreme Court’s judgment in the State of Karnataka case represents a significant reaffirmation of India’s commitment to forest conservation and environmental protection. By categorically holding that forest land cannot be leased or used for agricultural purposes without prior approval from the Central Government, the Court has reinforced the statutory framework established by the Forest (Conservation) Act, 1980 and the judicial precedents set by the landmark Godavarman case. The judgment makes it abundantly clear that economic or developmental considerations cannot override the imperative of protecting and preserving forest ecosystems, which provide irreplaceable environmental services and support biodiversity.

The decision also serves as a stern warning to state governments and other authorities that grants of forest land made in violation of the statutory requirements are void and create no legal rights. The emphasis on ecological restoration through planting of indigenous species demonstrates the Court’s proactive approach to environmental remediation. As India grapples with the dual challenges of ensuring food security and protecting its remaining forest cover, this judgment provides clear legal guidance that forest conservation must remain paramount and that any proposals for utilizing forest land for agricultural or other purposes must undergo rigorous scrutiny and approval by the Central Government under the established regulatory framework.

References

[1] LiveLaw. (2024, December 19). Forest Land Cannot Be Leased Or Used For Agriculture Without Centre’s Prior Approval Under Forest Conservation Act: Supreme Court. Retrieved from https://www.livelaw.in/top-stories/supreme-court-rules-forest-land-lease-for-agriculture-illegal-forest-conservation-act-513900

[2] Business Standard. (2024, December 19). Forest land cannot be leased for farming without Centre’s approval: SC. Retrieved from https://www.business-standard.com/india-news/forest-land-cannot-leased-farming-without-centres-nod-sc-125121900552_1.html

[3] Verdictum. (2024, December 19). Forest Land Cannot Be Used For Non-Forestry Purposes Including Agriculture Without Central Government’s Prior Approval: Supreme Court. Retrieved from https://www.verdictum.in/court-updates/supreme-court/state-of-karnataka-ors-v-gandhi-jeevan-collective-farming-cooperative-society-limited-2025-insc-1461-1601827

[4] StudyIQ. (2025). Forest Conservation Act 1980, Objectives and Features. Retrieved from https://www.studyiq.com/articles/forest-conservation-act-1980/

[5] Indian Kanoon. Section 2 in The Forest (Conservation) Act, 1980. Retrieved from https://indiankanoon.org/doc/1642441/

[6] Indian Kanoon. T.N. Godavarman Thirumulkpad vs Union Of India & Ors on 12 December, 1996. Retrieved from https://indiankanoon.org/doc/298957/

[7] Eco Jurisprudence Monitor. (2025). India court case: T.N. Godavarman Thirumulpad v. Union of India & Others. Retrieved from https://ecojurisprudence.org/initiatives/t-n-godavarman-thirumulpad-vs-union-of-india-ors/

[8] India Legal. (2024, December 19). Supreme Court invalidates agricultural use of forest land without approval from Centre. Retrieved from https://indialegallive.com/constitutional-law-news/courts-news/supreme-court-invalidates-agricultural-use-of-forest-land-without-central-nod/

[9] Drishti IAS. (2024, February 19). SC’s Interim Order on the Forest Conservation Act 2023. Retrieved from https://www.drishtiias.com/daily-updates/daily-news-analysis/sc-s-interim-order-on-the-forest-conservation-act-2023

The post Supreme Court Ruling on Forest Land Leasing: Central Government Approval Mandatory for Agricultural Use Under Forest Conservation Act appeared first on Bhatt & Joshi Associates.

Introduction

India’s environmental regulatory landscape has witnessed significant transformations in recent years, particularly with the introduction of robust Extended Producer Responsibility (EPR) frameworks and evolving regulations for thermal power plants. The Environment Protection (Extended Producer Responsibility) Rules, 2024, represent a paradigm shift in waste management policy, while concurrent developments in thermal power plant regulations reflect the government’s attempt to balance environmental protection with energy security concerns [1]. These developments mark a critical juncture in India’s environmental governance, establishing new accountability mechanisms for producers while addressing practical challenges faced by the power sector.

The regulatory framework encompassing these changes draws its authority from the Environment (Protection) Act, 1986, which provides the foundational legal basis for environmental rule-making in India. Under Section 3 of the Environment (Protection) Act, 1986, the central government possesses wide-ranging powers to take measures for protecting and improving environmental quality [2]. This statutory authority has enabled the Ministry of Environment, Forest and Climate Change (MoEFCC) to introduce sweeping changes in both waste management and pollution control domains.

Extended Producer Responsibility: Legal Framework and Implementation

Constitutional and Statutory Basis

The Extended Producer Responsibility (EPR) framework in India derives its constitutional legitimacy from Article 48-A of the Constitution, which mandates the state to protect and improve the environment. The Environment (Protection) Act, 1986, enacted under Article 253 read with Entry 13 of List I of the Seventh Schedule, empowers the central government to frame rules for environmental protection [3]. The Supreme Court of India, in M.C. Mehta v. Union of India (1987) 1 SCC 395, established the principle that environmental protection is a fundamental duty of both the state and citizens, providing judicial backing for stringent environmental regulations.

The EPR concept was first introduced in India through the e-Waste (Management and Handling) Rules, 2011, which recognized producers’ responsibility for managing electronic waste [4]. This foundational framework was subsequently expanded to cover plastic waste through the Plastic Waste Management Rules, 2016, and has now evolved into the Environment Protection (Extended Producer Responsibility) Rules, 2024.

The Environment Protection (Extended Producer Responsibility) Rules, 2024

The Environment Protection (Extended Producer Responsibility) Rules, 2024, notified under the Environment (Protection) Act, 1986, establish a mandatory framework requiring Producers, Importers, and Brand Owners (PIBOs) to take responsibility for the entire lifecycle of their products. Rule 3 of the 2024 Rules defines EPR as “a policy approach in which a producer’s responsibility for a product is extended to the post-consumer stage of a product’s life cycle” [5].

The Rules impose ambitious recycling targets on PIBOs. Under Rule 6, producers must ensure that 70% of waste generated from their products is recycled or reused by 2026-27, with this target increasing to 100% by 2028-29 [6]. This progressive target structure represents a significant escalation from previous waste management requirements and reflects the government’s commitment to achieving circular economy objectives.

Rule 4 establishes the scope of application, covering packaging materials made of paper, metal, glass, and plastic, as well as sanitary products. The Rules mandate that PIBOs must obtain EPR authorization from the Central Pollution Control Board (CPCB) or State Pollution Control Boards (SPCBs) before commencing operations. The authorization process, detailed in Rule 7, requires producers to submit detailed waste management plans and demonstrate their capacity to meet prescribed targets.

Regulatory Mechanisms and Compliance Requirements

The Extended Producer Responsibility (EPR) framework operates through a credit-based system administered by the Centralized Extended Producer Responsibility Portal for Plastic Packaging, managed by the CPCB [7]. Under this system, producers can fulfill their obligations through direct collection and recycling or by purchasing EPR credits from recyclers. Rule 9 mandates that all transactions must be recorded on the centralized portal, ensuring transparency and accountability in the system.

The penalty provisions under Rule 15 establish strict consequences for non-compliance. Violations can result in closure of operations, cancellation of authorization, and financial penalties up to Rs. 1 crore. The Rules also provide for environmental compensation, calculated based on the environmental damage caused by non-compliance.

State governments play a crucial role in implementation through their respective SPCBs. Rule 12 empowers state authorities to monitor compliance, conduct inspections, and take enforcement action against violators. This decentralized approach ensures that implementation can be tailored to local conditions while maintaining national standards.

Thermal Power Plant Regulations: Recent Developments and Relaxations

Emission Norms and Compliance Timeline Extensions

Thermal power plants in India operate under emission norms prescribed under the Environment (Protection) Rules, 1986, as amended from time to time. The Ministry of Environment, Forest and Climate Change has periodically revised these norms to align with international standards and address air pollution concerns. However, implementation has faced significant challenges, leading to multiple deadline extensions.

In 2015, the MoEFCC notified revised emission norms for thermal power plants, setting stricter limits for particulate matter, sulfur dioxide (SO₂), and nitrogen oxides (NOₓ). The original compliance deadline of December 2017 has been extended multiple times, with the most recent extension granted in early 2025, pushing the deadline to 2028 for older plants [8].

The National Green Tribunal, in Paryavaran Suraksha Samiti v. Union of India, OA No. 25/2014, had earlier directed strict compliance with emission norms. However, the practical challenges faced by power utilities, including financial constraints and technical difficulties in retrofitting older plants, have necessitated a more flexible approach from regulators.

Flue Gas Desulfurization (FGD) Norms and Recent Relaxations

The requirement for installing Flue Gas Desulfurization (FGD) systems has been a contentious issue in the thermal power sector. The revised norms mandate that all thermal power plants install FGD systems to reduce SO₂ emissions. However, recent regulatory developments have introduced flexibility in implementation.

The Ministry of Power, in consultation with the MoEFCC, announced relaxations in FGD norms in July 2025, allowing plants to adopt alternative compliance mechanisms based on site-specific conditions and air quality parameters [9]. This recalibration of norms is expected to reduce electricity costs by 25-30 paise per unit, providing relief to both consumers and state electricity boards.

The relaxations are not uniform but are based on scientific assessment of ambient air quality and the specific contribution of individual plants to regional pollution levels. Plants located in areas with better air quality or those with lower capacity utilization factors may be eligible for modified compliance requirements.

Renewable Generation Obligation for Thermal Plants

A significant development in thermal power plant regulation is the introduction of Renewable Generation Obligation (RGO) for new plants. The Ministry of Power, through amendments to the Electricity Rules, 2005, has mandated that new coal or lignite-based thermal power plants must generate a portion of their total energy from renewable sources.

Under the RGO framework, thermal power plants with commercial operation dates after April 1, 2023, must meet specific renewable energy generation targets. Plants with COD between April 1, 2023, and March 31, 2025, were required to comply by April 1, 2025, while plants commissioned after April 1, 2025, must comply from their COD [10].

This regulatory innovation reflects the government’s strategy to integrate renewable energy into the traditional thermal power framework, facilitating a gradual transition toward cleaner energy generation while maintaining grid stability and energy security.

Judicial Interpretations and Case Law Developments

Supreme Court Precedents on Environmental Compliance

The Supreme Court of India has consistently emphasized strict environmental compliance in the power sector. In Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647, the Court established the “polluter pays” principle as a fundamental aspect of environmental law. This principle underlies both EPR frameworks and thermal power plant regulations, requiring polluters to bear the cost of environmental remediation.

In T.N. Godavarman Thirumulkpad v. Union of India (2006) 1 SCC 1, the Supreme Court reinforced the precautionary principle, mandating that environmental protection measures should not be delayed on grounds of scientific uncertainty. This precedent has been instrumental in justifying stringent EPR requirements despite industry concerns about implementation challenges.

The Court’s decision in Indian Council for Enviro-Legal Action v. Union of India (1996) 3 SCC 212 established the absolute liability principle for environmental damage, making it clear that industries cannot escape liability for environmental harm on grounds of technical impossibility or economic hardship.

National Green Tribunal Decisions

The National Green Tribunal (NGT) has played a pivotal role in shaping environmental compliance requirements. In Centre for Public Interest Litigation v. Union of India, Application No. 41/2012, the NGT directed the implementation of stricter emission norms for thermal power plants and mandated regular monitoring of compliance.

The Tribunal’s order in Social Action for Forest and Environment v. Union of India, OA No. 580/2017, specifically addressed EPR implementation, directing the CPCB to establish robust monitoring mechanisms and ensure effective enforcement of producer responsibility obligations.

Regulatory Authorities and Implementation Mechanisms

Central Pollution Control Board (CPCB) Role

The CPCB serves as the apex regulatory authority for implementing both EPR and thermal power plant regulations. Under the Water (Prevention and Control of Pollution) Act, 1974, and the Air (Prevention and Control of Pollution) Act, 1981, the CPCB possesses comprehensive powers to monitor, regulate, and enforce environmental compliance.

The Board’s functions include granting EPR authorizations, operating the centralized EPR portal, conducting compliance audits, and coordinating with state-level authorities. The CPCB’s technical guidelines for EPR implementation provide detailed procedures for registration, target calculation, and credit trading mechanisms.

For thermal power plants, the CPCB maintains the national database of emission monitoring data and conducts regular inspections to ensure compliance with prescribed norms. The Board’s annual reports on environmental compliance provide critical insights into sector-wide performance and identify areas requiring regulatory intervention.

State Pollution Control Boards (SPCBs)

State Pollution Control Boards function as the primary implementing agencies at the state level. Under the delegated authority from central regulations, SPCBs issue consent to establish and consent to operate permissions for industrial facilities, including thermal power plants and waste processing facilities.

The SPCBs’ responsibilities include local monitoring of EPR compliance, collection of environmental compensation, and coordination with municipal authorities for waste management infrastructure development. The effectiveness of EPR implementation largely depends on the capacity and resources of state-level institutions.

Economic Implications and Industry Response

Financial Impact on Producers

The Extended Producer Responsibility (EPR) framework imposes significant compliance costs on producers, importers, and brand owners. Industry estimates suggest that EPR compliance costs range from 1-3% of product value, depending on the product category and packaging materials used. Large multinational companies have generally adapted to EPR requirements more readily than small and medium enterprises, creating potential market consolidation effects.

The credit trading system provides flexibility but also introduces market dynamics that can affect compliance costs. EPR credit prices fluctuate based on supply and demand, with recycling capacity constraints driving up costs during peak compliance periods.

Power Sector Financial Implications

The relaxation of FGD norms for thermal power plants is expected to provide financial relief to the power sector, which has been grappling with stressed assets and high non-performing loans. The estimated reduction in electricity costs by 25-30 paise per unit could improve the financial viability of thermal power plants and reduce the burden on state electricity boards.

However, the introduction of RGO requirements adds new compliance costs for thermal power plants, requiring investment in renewable energy infrastructure or purchase of renewable energy credits. This dual regulatory approach reflects the government’s balancing act between immediate financial relief and long-term environmental objectives.

International Comparisons and Best Practices

Global EPR Models

India’s EPR framework draws inspiration from international models, particularly the European Union’s Extended Producer Responsibility Directive and similar frameworks in countries like Germany, Japan, and Canada. However, the Indian model incorporates unique features such as centralized credit trading and progressive target structures that reflect local conditions and development priorities.

The integration of digital platforms for monitoring and compliance represents an innovative approach that could serve as a model for other developing countries. The real-time tracking of waste flows and recycling activities through the centralized portal enhances transparency and reduces opportunities for non-compliance.

Thermal Power Plant Standards

International best practices in thermal power plant regulation emphasize technology-neutral approaches and performance-based standards rather than prescriptive technology requirements. India’s recent shift toward flexible compliance mechanisms aligns with this global trend while maintaining environmental protection objectives.

Future Outlook and Policy Recommendations

EPR Framework Evolution

The Extended Producer Responsibility (EPR) framework is likely to expand to cover additional product categories, including textiles, pharmaceuticals, and construction materials. The success of current implementation will determine the pace and scope of such expansion. Enhanced integration with municipal solid waste management systems and improved recycling infrastructure development are critical for achieving long-term objectives.

Digital innovation, including blockchain-based tracking systems and artificial intelligence for waste stream optimization, could further enhance EPR effectiveness. The development of standardized methodologies for life cycle assessment and environmental impact quantification will support evidence-based policy refinements.

Thermal Power Plant Regulations

The future of thermal power plant regulation will likely involve greater integration of renewable energy requirements, stricter efficiency standards, and enhanced focus on water conservation. The introduction of carbon pricing mechanisms could fundamentally alter the regulatory landscape and accelerate the transition toward cleaner technologies.

Technology developments in carbon capture and storage, advanced emission control systems, and hybrid renewable-thermal systems will influence regulatory approaches. Policymakers must balance environmental objectives with energy security concerns and economic realities.

Conclusion

The recent developments in Extended Producer Responsibility (EPR) frameworks and thermal power plant regulations represent a significant evolution in India’s environmental governance. The Environment Protection (Extended Producer Responsibility) Rules, 2024, establish a robust foundation for circular economy implementation, while regulatory adjustments in the thermal power sector reflect pragmatic approaches to environmental compliance.

The success of these regulatory innovations depends on effective implementation, adequate institutional capacity, and continued stakeholder engagement. The balance between environmental protection and economic development remains delicate, requiring continuous monitoring, evaluation, and adaptive management approaches.

As India pursues its climate commitments and sustainable development objectives, these regulatory frameworks will play a crucial role in shaping industrial behavior and environmental outcomes. The integration of digital technologies, market-based mechanisms, and performance-based standards represents a modern approach to environmental regulation that could serve as a model for other developing nations.

The legal foundation provided by constitutional mandates, statutory authority, and judicial precedents ensures the durability of these regulatory frameworks. However, their ultimate success will depend on effective enforcement, industry compliance, and the development of supporting infrastructure and institutions.

References

[1] Ministry of Environment, Forest and Climate Change. (2024). Environment Protection (Extended Producer Responsibility) Rules, 2024. Government of India. Available at: https://eprplastic.cpcb.gov.in/ 

[2] Environment (Protection) Act, 1986, Section 3. The Gazette of India. Available at: https://www.indiacode.nic.in/ 

[3] The Constitution of India, Article 48-A and Article 253. Available at: https://www.constitutionofindia.net/ 

[4] Ministry of Environment and Forests. (2011). E-waste (Management and Handling) Rules, 2011. Available at: https://testbook.com/question-answer/in-india-extended-producer-responsibility3–5f34ea35d042f30d092413f4 

[5] Recykal. (2025). EPR Registration Guide in India 2025: Compliance, Process, and Sustainability. Available at: https://recykal.com/blog/epr-registration-guide-in-india-all-you-need-to-know-in-2025/ 

[6] Mondaq. (2024). Environment Protection (Extended Producer Responsibility) Rules, 2024: Paving The Way For Sustainable Waste Management. Available at: https://www.mondaq.com/india/waste-management/1558154/ 

[7] Central Pollution Control Board. Centralized EPR Portal for Plastic Packaging. Available at: https://eprplastic.cpcb.gov.in/ 

[8] Down To Earth. (2025). India Extends SO₂ Compliance Deadline for Thermal Power Plants Yet Again. Available at: https://www.downtoearth.org.in/pollution/thermal-power-plants-get-another-extension-for-so-compliance-norms-its-time-we-reassess-ongoing-delays 

[9] Construction World. (2025). India Relaxes FGD Norms for Thermal Power Plants. Available at: https://www.constructionworld.in/energy-infrastructure/power-and-renewable-energy/india-relaxes-fgd-norms-for-thermal-power-plants/76381 

The post Extended Producer Responsibility (EPR) Framework and Thermal Power Plant Regulatory Changes in India: Environmental Law Developments appeared first on Bhatt & Joshi Associates.

Introduction

India’s legal landscape has witnessed significant transformations in 2025, particularly in environmental law and judicial proceedings. The evolution of Extended Producer Responsibility and Live-Streaming Court frameworks, along with the growing adoption of digital judicial practices, represent pivotal shifts in how the Indian legal system addresses contemporary challenges. These developments reflect the nation’s commitment to environmental sustainability and judicial accessibility while maintaining the integrity of legal processes.

The convergence of environmental regulation and digital judicial processes demonstrates India’s adaptive approach to modern governance challenges. While Extended Producer Responsibility mechanisms continue to evolve under existing environmental protection frameworks, the integration of technology in court proceedings has become increasingly institutionalized across multiple High Courts and the Supreme Court of India.

Extended Producer Responsibility: Legal Framework and Recent Developments

Constitutional and Legislative Foundation

Extended Producer Responsibility operates under the umbrella of India’s constitutional commitment to environmental protection as enshrined in Article 48A and Article 51A(g) of the Constitution. The legislative framework primarily derives its authority from the Environment (Protection) Act, 1986, which provides the Central Government with comprehensive powers to regulate environmental matters [1].

The Environment (Protection) Act, 1986, under Section 3, empowers the Central Government to take measures necessary for protecting and improving the quality of the environment. Section 6 specifically authorizes the government to make rules for regulating the discharge of environmental pollutants, which forms the legal basis for Extended Producer Responsibility regulations.

Evolution of EPR Regulations in 2025

The year 2025 has marked significant developments in the Extended Producer Responsibility framework, particularly through amendments to the Hazardous Waste Management Rules. The Ministry of Environment, Forest and Climate Change introduced comprehensive modifications to ensure safe handling, generation, processing, treatment, packaging, storage, transportation, and disposal of hazardous waste [2].

These regulatory changes emphasize the principle that producers must assume responsibility for the entire lifecycle of their products, particularly post-consumer waste management. The framework requires manufacturers, importers, and brand owners to establish comprehensive waste management systems that comply with Central Pollution Control Board regulations.

Implementation Mechanisms and Compliance Structure

The Extended Producer Responsibility system operates through a structured compliance framework that requires producers to register with appropriate regulatory authorities and submit detailed waste management plans. The Central Pollution Control Board has established centralized portals for different categories of waste, including plastic packaging, to streamline the registration and monitoring process [3].

Under the current regulatory structure, producers must demonstrate their capacity to handle projected waste generation through approved collection and recycling networks. The system mandates annual reporting of waste collection and recycling activities, with regular audits to ensure compliance with established targets and standards.

Legal Implications and Penalty Structure

Non-compliance with Extended Producer Responsibility requirements attracts penalties under the Environment (Protection) Act, 1986. Section 15 of the Act prescribes imprisonment for a term which may extend to five years, or a fine which may extend to one lakh rupees, or both [4]. For continuing violations, additional fines may be imposed for each day the violation continues.

The penalty structure reflects the seriousness with which environmental violations are treated under Indian law. Foreign companies importing products into India are equally subject to these requirements, establishing the extraterritorial application of EPR obligations for businesses operating in the Indian market.

Live-Streaming and Mobile Court Hearings: Judicial Innovation

Legal Authority and Regulatory Framework

The implementation of live-streaming court proceedings finds its legal foundation in the inherent powers of the judiciary to regulate its own procedures, as recognized under Article 145 of the Constitution for the Supreme Court and corresponding provisions for High Courts. The Supreme Court’s decision to introduce live-streaming was formalized through specific guidelines that balance transparency with judicial dignity.

The Department of Justice, Ministry of Law and Justice, has provided oversight for the implementation of live-streaming across multiple High Courts. As of 2025, live-streaming has been operationalized in High Courts of Gujarat, Orissa, Karnataka, Jharkhand, Patna, Gauhati, Uttarakhand, Calcutta, Madhya Pradesh, Meghalaya, and Telangana, along with Constitutional Bench proceedings of the Supreme Court [5].

Technical Standards and Implementation Guidelines

The e-Committee of the Supreme Court of India has developed comprehensive Model Rules for Live-Streaming and Recording of Court Proceedings, which establish technical standards and procedural requirements for implementing digital broadcasting of judicial proceedings [6]. These rules address critical aspects including video quality standards, audio clarity requirements, and security protocols to prevent unauthorized access or manipulation.

The technical infrastructure for live-streaming requires robust internet connectivity, professional-grade audio-visual equipment, and secure streaming platforms that can handle multiple concurrent viewers while maintaining the sanctity of court proceedings. The National Informatics Centre provides technical support and hosting services for these digital initiatives.

Privacy and Confidentiality Considerations

The implementation of live-streaming court proceedings necessitates careful consideration of privacy rights and confidentiality requirements. Certain categories of cases, including those involving minors, matrimonial disputes, and sensitive commercial matters, are typically excluded from live-streaming to protect the interests of the parties involved.

The judicial system has established protocols to ensure that sensitive information disclosed during proceedings is not inappropriately broadcast or recorded. These measures include the ability to temporarily suspend live-streaming when confidential matters are being discussed and the implementation of delayed broadcasting for certain types of proceedings.

Impact on Legal Practice and Access to Justice

Live-streaming of court proceedings has significantly enhanced public access to judicial processes, allowing legal practitioners, academic institutions, and the general public to observe court proceedings in real-time. This development aligns with the constitutional principle of open justice while utilizing technology to overcome geographical barriers.

The availability of live-streamed proceedings has particular significance for legal education, enabling law students and practitioners to observe high-quality judicial discourse and procedural practices. Additionally, it facilitates better preparation for legal professionals who can observe similar matters being argued before different benches.

Convergence of Environmental Law and Digital Proceedings

Case Law Developments Through Digital Platforms

The combination of evolving environmental law and digital court proceedings has created new opportunities for developing environmental jurisprudence. Several significant environmental cases have been live-streamed, allowing for broader public engagement with environmental legal issues and increasing transparency in judicial decision-making processes.

The Supreme Court’s approach to environmental matters, as demonstrated in cases such as M.C. Mehta v. Union of India and subsequent environmental jurisprudence, continues to evolve through digital platforms that make these proceedings accessible to environmental lawyers, activists, and researchers across the country [7].

Regulatory Enforcement Through Digital Monitoring

The integration of digital technologies in both environmental regulation and judicial proceedings has enhanced the effectiveness of regulatory enforcement. Environmental compliance monitoring can now be more effectively adjudicated through courts that utilize digital evidence presentation and remote hearing capabilities.

The Central Pollution Control Board and State Pollution Control Boards can present real-time environmental data and monitoring reports through digital court systems, enabling more informed judicial decision-making in environmental matters. This technological integration has improved the speed and accuracy of environmental litigation.

Challenges and Future Considerations of EPR and Live-Streaming Courts in India

Technical Infrastructure Requirements

The successful implementation of both Extended Producer Responsibility systems and live-streaming court proceedings requires substantial technical infrastructure investments. Rural and remote areas may face challenges in accessing high-speed internet connections necessary for participating in digital court proceedings or complying with online EPR reporting requirements.

The digital divide presents ongoing challenges for ensuring equitable access to both environmental compliance systems and judicial proceedings. Addressing these technological disparities remains crucial for the effective implementation of these legal innovations.

Regulatory Harmonization Needs

The rapid evolution of both environmental regulations and digital judicial procedures requires careful coordination to ensure regulatory coherence. Different states may implement varying standards for EPR compliance and digital court proceedings, potentially creating compliance challenges for businesses and legal practitioners operating across state boundaries.

Harmonizing technical standards, procedural requirements, and reporting mechanisms across different jurisdictions will be essential for maintaining the effectiveness and accessibility of these legal innovations. The development of uniform national standards while respecting state autonomy presents an ongoing regulatory challenge.

Privacy and Security Considerations

Both Extended Producer Responsibility and live-streaming court proceedings involve the collection and dissemination of potentially sensitive information. Ensuring robust cybersecurity measures and privacy protections while maintaining transparency and accessibility requirements creates complex technical and legal challenges.

The protection of commercial sensitive information in EPR reporting systems and the safeguarding of personal information in court proceedings require sophisticated technical solutions and comprehensive legal frameworks that balance competing interests.

International Perspectives and Comparative Analysis

Global Best Practices in Extended Producer Responsibility Implementation

India’s Extended Producer Responsibility framework draws upon international best practices while adapting to local conditions and requirements [8]. European Union directives on Extended Producer Responsibility have influenced the development of Indian regulations, particularly in areas such as packaging waste management and electronic waste handling.

The implementation of EPR systems in developed countries provides valuable insights into effective regulatory structures, monitoring mechanisms, and compliance frameworks that can inform the continued evolution of India’s environmental regulations.

Digital Court Proceedings: International Trends

The adoption of live-streaming court proceedings in India aligns with global trends toward greater judicial transparency and accessibility. Several countries have implemented similar systems, providing comparative data on the effectiveness and challenges associated with digital judicial proceedings [9].

International experience suggests that successful implementation of digital court proceedings requires careful attention to technical standards, procedural safeguards, and ongoing training for judicial officers and legal practitioners. These lessons inform India’s continued development of digital judicial infrastructure.

Economic and Social Impact Analysis

Economic Implications of EPR Implementation

The Extended Producer Responsibility framework creates significant economic implications for businesses operating in India. Companies must invest in waste management infrastructure, establish recycling networks, and implement comprehensive tracking systems to demonstrate compliance with regulatory requirements.

While these requirements impose additional costs on producers, they also create new economic opportunities in the recycling and waste management sectors. The development of EPR compliance services has emerged as a significant business sector, providing specialized services to help companies meet their regulatory obligations.

Social Benefits of Digital Court Access

Live-streaming court proceedings democratizes access to judicial processes, allowing citizens who cannot physically attend court sessions to observe proceedings and understand legal processes. This enhanced accessibility particularly benefits rural communities, students, and individuals with mobility limitations.

The educational value of accessible court proceedings cannot be understated, as it provides opportunities for civic education and legal awareness that contribute to a more informed citizenry. This transparency also enhances public confidence in the judicial system by making court proceedings more visible and accountable.

Conclusion and Future Outlook

The developments in Extended Producer Responsibility regulations and live-streaming court proceedings represent significant advances in India’s legal and regulatory framework. These innovations demonstrate the country’s commitment to environmental protection and judicial accessibility while embracing technological solutions to contemporary challenges.

The continued evolution of these systems will require ongoing attention to technical infrastructure development, regulatory harmonization, and the balance between transparency and privacy. Success in these areas will depend upon sustained collaboration between government agencies, the judiciary, the legal profession, and technology providers.

As India continues to develop as a major economy with growing environmental consciousness and technological capabilities, these legal innovations position the country as a leader in adaptive governance. The integration of environmental responsibility and digital judicial processes provides a foundation for addressing future challenges while maintaining the rule of law and environmental sustainability.

The experience gained from implementing these systems will inform future legal and regulatory developments, contributing to a more effective, accessible, and environmentally responsible legal framework that serves the needs of India’s diverse population while meeting international standards for environmental protection and judicial transparency.

References

[1] Environment (Protection) Act, 1986. 

[2] Ministry of Environment, Forest and Climate Change. (2025). Hazardous Waste Management Rules Amendment. Available at: https://www.scconline.com/blog/post/2025/07/04/hazardous-waste-management-rules-epr-amendment-2025/ 

[3] Central Pollution Control Board. (2025). Centralized EPR Portal for Plastic Packaging. Available at: https://eprplastic.cpcb.gov.in/ 

[4] Environment (Protection) Act, 1986, Section 15. Penalty for contravention of the provisions of the Act and the rules, orders and directions.

[5] Department of Justice, Ministry of Law and Justice. (2025). Live Streaming of Court Cases. Available at: https://doj.gov.in/live-streaming/ 

[6] e-Committee, Supreme Court of India. Model Rules for Live-Streaming and Recording of Court Proceedings. Available at: https://ecommitteesci.gov.in/document/model-rules-for-live-streaming-and-recording-of-court-proceedings/ 

[7] Supreme Court of India. (2025). Live Streaming Portal. Available at: https://www.sci.gov.in/live-streaming/ 

[8] Recykal. (2025). EPR Registration Guide in India 2025: Compliance, Process, and Sustainability. Available at: https://recykal.com/blog/epr-registration-guide-in-india-all-you-need-to-know-in-2025/ 

[9] Climeto. (2025). Extended Producer Responsibility (EPR) in India: A Complete Guide for Businesses. Available at: https://climeto.com/extended-producers-responsibility-epr-in-india-a-complete-guide-for-businesses/ 

The post India’s Legal Reforms 2025: Extended Producer Responsibility and Live-Streaming Court proceedings appeared first on Bhatt & Joshi Associates.

Introduction

The year 2025 has marked a significant period of legislative transformation in India, characterized by unprecedented constitutional developments and sweeping regulatory reforms across multiple sectors. The most notable event was the vice president jagdeep dhankhar’s resignation on July 21, 2025, which created ripple effects across India’s constitutional framework. Simultaneously, the country witnessed substantial legislative changes in labor laws, environmental regulations, and technology governance that will reshape India’s legal landscape for years to come.

This legislative roundup examines the constitutional implications of the vice president jagdeep dhankhar’s resignation, analyzes the implementation of new labor codes, reviews environmental law updates, and explores emerging technology regulations. These developments represent a paradigm shift in how India approaches governance, worker protection, environmental stewardship, and digital transformation.

Constitutional Framework: Vice President Jagdeep Dhankhar’s Historic Resignation

Constitutional Provisions Governing Resignation

Vice President Jagdeep Dhankhar’s resignation on July 21, 2025, invoked Article 67(a) of the Indian Constitution, which states that “the Vice-President may, by writing under his hand addressed to the President, resign his office” [1]. This constitutional provision provides the mechanism through which the second-highest constitutional office in India can be vacated voluntarily. The resignation took effect immediately upon submission to President Droupadi Murmu, demonstrating the constitutional principle of immediate transfer of authority in high offices.

The constitutional framework surrounding the Vice President’s office is established under Part V of the Constitution, specifically Articles 63 to 71. Article 63 establishes that “there shall be a Vice-President of India,” while Article 64 designates the Vice President as the ex-officio Chairman of the Rajya Sabha. The resignation under Article 67(a) represents only the third instance in India’s constitutional history where a Vice President has resigned mid-term, following V.V. Giri in 1969 and Mohammad Hidayatullah in 1979.

Legal Implications and Precedential Value

Vice president jagdeep dhankhar’s resignation citing health concerns establishes an important precedent regarding the voluntary relinquishment of high constitutional offices. The constitutional principle underlying such resignations rests on the doctrine of public service and the recognition that effective discharge of constitutional duties requires physical and mental capability. This precedent reinforces the constitutional value that public office is held in trust for the people, and occupants must prioritize public interest over personal ambition.

The immediate effect of the resignation triggered the constitutional mechanism under Article 67(b), which provides for succession arrangements. The Deputy Chairman of the Rajya Sabha assumes the functions of the Chairman until a new Vice President is elected. The Election Commission of India, acting under the Conduct of Election Rules, 1961, and the Presidential and Vice-Presidential Elections Act, 1952, announced elections for September 9, 2025 [2].

Electoral Process and Constitutional Requirements

The election of a new Vice President follows the procedure outlined in Article 66 of the Constitution, which mandates election by an electoral college consisting of members of both Houses of Parliament. The election process is governed by the system of proportional representation by means of the single transferable vote, ensuring broader representation across party lines. This electoral mechanism reflects the constitutional design of creating consensus-based leadership for the second-highest office in the country.

Labor Law Transformation: Implementation of New Labor Codes

The Four Pillars of Labor Reform

India’s labor law landscape underwent revolutionary changes with the implementation of four new labor codes that replaced 29 existing central labor laws [3]. These codes represent the most ambitious labor law reform since independence, addressing wages, social security, occupational safety and health, and industrial relations. The Wage Code, 2019; the Industrial Relations Code, 2020; the Code on Social Security, 2020; and the Occupational Safety, Health and Working Conditions Code, 2020 collectively establish a new paradigm for worker protection and employer obligations.

The Code on Wages, 2019, universalizes the concept of minimum wage across all sectors and establishes a statutory floor wage below which no minimum wage can be fixed. Section 6 of the Code mandates that “the Central Government shall fix a floor wage taking into account the living standard of workers” [4]. This provision ensures that minimum wage fixation considers regional economic conditions while maintaining national standards for worker welfare.

Minimum Wage Restructuring and Implementation

The new wage structure under the updated codes establishes differentiated minimum wages based on skill levels. Unskilled workers are entitled to a daily minimum wage of ₹783, semi-skilled workers receive ₹868, and highly skilled workers earn ₹1,035 per day [5]. This skill-based differentiation represents a departure from the previous uniform approach and acknowledges the economic value of different skill sets in the modern economy.

The implementation mechanism involves state governments fixing minimum wages within their jurisdictions while adhering to the central floor wage. Section 9 of the Code on Wages requires that “the appropriate government shall review and revise the minimum rates of wages at intervals not exceeding five years.” This provision ensures regular adjustment of wages to reflect economic changes and inflation patterns, protecting workers from erosion of purchasing power.

Social Security Expansion and Coverage

The Code on Social Security, 2020, extends social security coverage to previously excluded categories of workers, including gig workers, platform workers, and fixed-term employees. Section 2(60) defines “organised worker” broadly to include “an employee in the organised sector and includes a fixed term employee” [6]. This expansion addresses the changing nature of employment relationships in the digital economy and provides security to millions of previously unprotected workers.

The Code establishes various social security schemes including the Employees’ Provident Fund, Employees’ State Insurance, Employees’ Compensation, Employment Injury Benefit Scheme, and Maternity Benefits. Chapter VII of the Code specifically addresses “Social Security for Gig Workers and Platform Workers,” recognizing the emergence of new employment categories in the digital economy.

Environmental Law Updates and Regulatory Framework

Climate Change Mitigation and Legal Framework

India’s environmental law framework has evolved significantly to address climate change challenges and international commitments under the Paris Agreement. The Environment (Protection) Act, 1986, continues to serve as the primary legislative framework for environmental protection, but recent amendments and notifications have strengthened implementation mechanisms and expanded regulatory scope [7].

The National Green Tribunal (NGT), established under the National Green Tribunal Act, 2010, has played a crucial role in environmental jurisprudence. Section 14 of the NGT Act provides that “the Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including air and water pollution) is involved” [8]. Recent judgments by the NGT have established important precedents regarding environmental clearances, pollution control, and restoration obligations.

Forest Conservation and Biodiversity Protection

The Forest Conservation Act, 1980, underwent significant amendments to strengthen forest protection mechanisms while facilitating legitimate developmental activities. Section 2 of the Act prohibits “de-reservation of forests or use of forest land for non-forest purpose” except with central government approval. Recent notifications have streamlined the forest clearance process while maintaining stringent environmental safeguards.

The Biological Diversity Act, 2002, governs access to biological resources and associated traditional knowledge. Section 3 of the Act regulates “access to biological diversity by foreign individuals, institutions or companies” and requires prior approval from the National Biodiversity Authority. Recent amendments have strengthened penalty provisions and expanded the scope of regulated activities to address biopiracy concerns.

Pollution Control and Regulatory Enforcement

The Water (Prevention and Control of Pollution) Act, 1974, and the Air (Prevention and Control of Pollution) Act, 1981, form the backbone of India’s pollution control framework. These Acts establish State Pollution Control Boards and the Central Pollution Control Board with powers to regulate industrial emissions and effluents. Section 25 of the Water Act requires “no person shall, without the previous consent of the State Board, establish or take any steps to establish any industry, operation or process which is likely to discharge sewage or trade effluent” [9].

Recent amendments have strengthened penalty provisions and introduced environmental compensation mechanisms. The concept of “polluter pays” has been reinforced through judicial interpretation and regulatory guidance, making polluting industries liable for restoration costs and environmental damage.

Technology Law and Digital Governance Framework

Digital Personal Data Protection Act, 2023

The Digital Personal Data Protection Act, 2023, represents India’s primary data protection legislation, establishing rights for data principals and obligations for data fiduciaries. Section 5 of the Act provides that “personal data shall be processed lawfully, fairly and transparently” [10]. The Act introduces concepts of data localization, cross-border data transfer restrictions, and significant penalties for non-compliance.

The Act establishes the Data Protection Board of India with powers to investigate violations, impose penalties, and issue binding directions. Section 18 empowers the Board to “inquire into any complaint made to it or, on its own motion, inquire into any breach of the provisions of this Act.” This enforcement mechanism provides teeth to data protection laws and ensures meaningful compliance by digital platforms and service providers.

Information Technology Act Amendments

The Information Technology Act, 2000, continues to govern cyberspace regulation, but recent amendments have expanded its scope to address emerging digital challenges. Section 43A of the IT Act mandates that “where a body corporate, possessing, dealing or handling any sensitive personal data or information in a computer resource which it owns, controls or operates, is negligent in implementing and maintaining reasonable security practices and procedures” resulting in wrongful loss, such body corporate shall be liable to pay damages [11].

Recent Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, have imposed additional obligations on social media intermediaries and digital news publishers. These rules require intermediaries to establish grievance redressal mechanisms, trace message origins when legally required, and comply with government takedown orders within specified timeframes.

Industrial Relations and Collective Bargaining

Modernized Dispute Resolution Mechanisms

The Industrial Relations Code, 2020, modernizes India’s industrial relations framework by consolidating three existing laws and introducing contemporary dispute resolution mechanisms. Section 55 of the Code establishes “Industrial Relations Committees” at establishment level to “promote measures for securing and preserving amity and good relations between the employer and workmen” [12].

The Code introduces the concept of “negotiating unions” and “negotiating councils” to formalize collective bargaining processes. Chapter V of the Code specifically deals with “Recognition of Trade Unions and Negotiating Union or Negotiating Council,” providing a structured approach to worker representation and collective negotiations.

Strike and Lockout Provisions

The Code maintains restrictions on strikes and lockouts while providing clearer procedures for legal industrial action. Section 61 prohibits strikes and lockouts in “public utility services” during the pendency of proceedings before any labour court, tribunal, or arbitrator. This provision balances the fundamental right to collective bargaining with the need to maintain essential services.

The definition of “public utility service” under Section 2(53) includes railways, air transport services, postal, telegraph and telephone services, and generation, production and supply of electricity. This expanded definition recognizes the critical nature of infrastructure services in the modern economy while preserving worker rights within defined parameters.

Occupational Safety and Health Standards

Enhanced Safety Framework

The Occupational Safety, Health and Working Conditions Code, 2020, establishes modern safety standards applicable to all sectors of the economy. Section 25 mandates that “every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of all workers while they are at work” [13]. This provision establishes the fundamental employer obligation for workplace safety across all industries and employment categories.

The Code introduces risk-based enforcement and self-certification mechanisms for low-risk industries while maintaining strict oversight for high-risk sectors. Chapter III specifically addresses “Safety and Health,” requiring employers to conduct risk assessments, implement safety management systems, and provide safety training to workers.

Working Conditions and Welfare Provisions

The Code modernizes working time regulations and introduces flexibility in work arrangements while protecting worker welfare. Section 54 limits working hours to “not more than eight hours in a day and forty-eight hours in a week” while allowing flexible scheduling arrangements subject to worker consent and safety considerations.

Welfare provisions under Chapter V include requirements for drinking water, washing facilities, first aid, canteens, and rest rooms. These provisions ensure basic amenities for workers while allowing employers flexibility in implementation based on establishment size and nature of operations.

Regulatory Compliance and Enforcement Mechanisms

Unified Compliance Framework

The new labor codes introduce a unified compliance and enforcement framework designed to reduce regulatory burden while strengthening worker protection. The concept of “Inspector-cum-Facilitator” under Section 51 of the Industrial Relations Code transforms the traditional enforcement approach from punitive to facilitative, encouraging compliance through guidance rather than merely penalizing violations.

Digital platforms for registration, returns, and compliance management streamline administrative processes and reduce bureaucratic delays. The introduction of composite registration and unified returns reduces paperwork and compliance costs for employers while maintaining regulatory oversight.

Penalty Structure and Enforcement

Enhanced penalty provisions across all codes ensure deterrent effect against violations while providing proportionate sanctions. The Industrial Relations Code prescribes imprisonment up to one year or fine up to ₹1 lakh or both for violations of strike and lockout provisions. This graduated penalty structure balances the need for compliance with the principle of proportionality in punishment.

Conclusion

The legislative developments of 2025, marked by Vice President Jagdeep Dhankhar’s resignation and the implementation of new labor codes, represent a watershed moment in India’s legal evolution. These changes reflect the country’s commitment to constitutional governance, worker protection, environmental stewardship, and digital transformation. The constitutional precedent established by the Vice Presidential resignation reinforces democratic values and the principle that public office is held in trust for the people.

The new labor codes promise to modernize India’s industrial relations framework while protecting worker rights and promoting economic growth. Environmental law updates demonstrate India’s commitment to sustainable development and climate change mitigation. Technology regulations address the challenges of digital transformation while protecting citizen privacy and data security.

These legislative changes require careful implementation and continuous monitoring to achieve their intended objectives. The success of these reforms will depend on effective enforcement mechanisms, stakeholder cooperation, and adaptive governance approaches that respond to emerging challenges while maintaining the rule of law and constitutional values.

References

[1] Constitution of India, Article 67(a). Available at: https://legislative.gov.in/constitution-of-india 

[2] Election Commission of India. (2025). Notification for Vice President Election. 

[3] Ministry of Labour & Employment. (2025). Labour Law Reforms. Government of India. Available at: https://labour.gov.in/labour-law-reforms 

[4] The Code on Wages, 2019, Section 6. 

[5] Sankhla & Co. (2025). India’s New Labour Laws 2025: Updates & Implementation Plan. Available at: https://sankhlaco.com/indias-labour-codes-set-to-be-implemented-in-stages-starting-in-2025-important-developments/ 

[6] The Code on Social Security, 2020, Section 2(60). 

[7] Environment (Protection) Act, 1986. 

[8] National Green Tribunal Act, 2010, Section 14. 

[9] Water (Prevention and Control of Pollution) Act, 1974, Section 25.

Authorized and Published by Dhrutika Barad

The post Legislative Roundup: Vice President Jagdeep Dhankhar’s Resignation and Key Labor, Environment, and Technology Law Updates appeared first on Bhatt & Joshi Associates.

Introduction to Green Credit Programme

India’s Green Credit Programme (GCP), launched by the Ministry of Environment, Forest and Climate Change (MoEF&CC) in October 2023, represents an ambitious market-based mechanism designed to incentivize voluntary environmental actions across various sectors. However, recent revelations through Right to Information (RTI) responses have brought to light significant legal controversies surrounding its implementation. As environmental lawyers and policymakers grapple with these issues, it becomes imperative to critically examine the legal framework, procedural irregularities, and potential implications of this novel environmental governance mechanism. This article undertakes a comprehensive legal analysis of the GCP, examining its statutory basis, implementation challenges, and broader implications for environmental governance in India.

Historical Context of Environmental Market Mechanisms in India

To fully appreciate the legal complexities surrounding the Green Credit Programme, it is essential to understand the evolution of market-based environmental governance in India. Traditional command-and-control approaches have dominated India’s environmental regulation framework since the enactment of key legislation like the Environment Protection Act (EPA) of 1986. However, the past two decades have witnessed a gradual shift toward incorporating market-based instruments that leverage economic incentives to achieve environmental objectives.

The first significant move in this direction came with the Energy Conservation Act of 2001, which provided a legal foundation for energy efficiency certificates. This was followed by the introduction of Renewable Energy Certificates in 2010 under the Electricity Act, 2003. More recently, the Plastic Waste Management Rules incorporated an Extended Producer Responsibility (EPR) framework, introducing a certificate-based compliance mechanism. Each of these mechanisms, however, was implemented only after establishing explicit statutory authority through either new legislation or specific amendments to existing laws.

The Green Credit Programme represents a departure from this established pattern, as it attempts to create a tradable credit system under the umbrella of the Environment Protection Act without a corresponding amendment to the parent legislation. This procedural innovation has raised fundamental questions about the legal validity of the programme and the scope of delegated legislative authority under the EPA.

Legal Framework of the Green Credit Programme

The Green Credit Programme was officially notified through the Green Credit Rules on October 13, 2023, under the Environment Protection Act, 1986. The programme encompasses eight key activities: tree plantation, water management, sustainable agriculture, waste management, air pollution reduction, mangrove conservation, governance, and administration. Under this framework, individuals, communities, and private industries that engage in environment-positive actions receive tradable ‘green credits,’ which can then be used to meet legal obligations such as compensatory afforestation requirements for industrial or infrastructure projects.

The MoEF&CC has justified the programme’s legal basis by citing Section 3 of the EPA, which empowers the Central Government to “plan and execute a nationwide programme for the prevention, control, and abatement of environmental pollution.” The Ministry argues that the GCP supports environmental protection and improvement, placing it squarely within the scope of the EPA’s mandate. Additionally, the Ministry has drawn parallels with the Extended Producer Responsibility framework under waste management rules, suggesting that market-based mechanisms already operate under the EPA umbrella.

However, this interpretation of the EPA’s scope has been contested by legal experts and the Legislative Department of the Ministry of Law and Justice itself. The central question revolves around whether the EPA, as currently written, provides sufficient statutory authority for establishing a market-based trading system for environmental credits without specific legislative amendments. This question is particularly salient given that similar mechanisms, such as the Carbon Credit Trading Scheme, were only implemented after specific amendments to their respective parent acts.

Procedural Irregularities in Green Credit Programme Implementation

Documents obtained through RTI reveal a concerning pattern of procedural irregularities in the implementation of the Green Credit Programme. On October 5, 2023, the Legislative Department under the Ministry of Law and Justice cautioned that the provisions of the Environment Protection Act “perhaps do not support such business objects or activity and rules to be framed for the purposes.” The Department advised the Environment Ministry to “examine the legality of the proposed Green Credit Rules in consultation with the Department of Legal Affairs.”

Despite this explicit recommendation, the Environment Ministry proceeded with the notification of the Green Credit Rules on October 13, 2023, without obtaining the suggested legal review from the Department of Legal Affairs. The Ministry’s internal communications reveal that it justified this decision based on “the importance of launch and early roll out for implementation of the Green Credit Programme,” suggesting that programmatic priorities may have superseded legal due diligence concerns.

The issue reemerged on January 4, 2024, when the Legislative Department, while reviewing the methodology for tree plantation-based credits, noted that it had no record of advice from the Department of Legal Affairs on the matter. To this observation, the Environment Ministry simply referred back to its submissions from October 10, 2023, without addressing the underlying legal concerns.

These procedural irregularities raise important questions about administrative law principles, particularly the doctrine of procedural propriety. The Supreme Court has consistently held that administrative actions must adhere to procedural fairness and due diligence. In cases like Cellular Operators Association of India v. TRAI (2016), the Court emphasized that regulatory actions must follow proper consultative procedures and consider expert advice. The apparent sidestepping of the Law Ministry’s recommendations may potentially render the Green Credit Rules vulnerable to judicial challenge on procedural grounds.

Comparative Analysis with Related Legal Frameworks

To assess the legal validity of the Green Credit Programme, it is instructive to compare it with other market-based environmental mechanisms in India, particularly those that have undergone specific legislative authorization.

The Carbon Credit Trading Scheme, announced in the 2023 Union Budget, required an amendment to the Energy Conservation Act before implementation. The amendment explicitly empowered the government to specify a carbon credit trading scheme and issue carbon credit certificates. Similarly, the Renewable Energy Certificate mechanism was established only after specific provisions were included in the Electricity Act regulations.

In contrast, the Environment Ministry has justified the GCP by drawing parallels with the Extended Producer Responsibility framework under waste management rules. However, this comparison merits careful scrutiny. As noted by senior advocate Sanjay Upadhyay, “The comparison of extended producer responsibility framework and green credit is an unfair comparison and almost amounts to comparing apples with oranges. This is because EPR is not voluntary but obligatory and the green credit program is a voluntary program.”

Furthermore, the EPR framework operates within a narrower regulatory scope, focusing specifically on producer obligations for waste management, rather than creating a broad-based trading platform for diverse environmental activities. The regulatory intent and operational scope of these mechanisms differ significantly, raising questions about the validity of drawing direct legal parallels between them.

Constitutional and Administrative Law Implications

The Green Credit Programme raises several important questions of constitutional and administrative law that extend beyond procedural irregularities to touch upon fundamental principles of separation of powers and delegated legislation.

The doctrine of ultra vires is particularly relevant here. This doctrine limits administrative actions to the scope of authority granted by the parent legislation. In Vide State of Karnataka v. H. Ganesh Kamath (1983), the Supreme Court held that delegated legislation must conform strictly to the parent act’s authorization. The question emerges whether the Green Credit Rules, by creating a market-based trading system without explicit authorization in the Environment Protection Act, exceed the scope of delegated legislative authority.

Additionally, the principle of legislative intent is central to interpreting statutory powers. When the EPA was enacted in 1986, market-based environmental governance mechanisms were not prevalent in India’s regulatory landscape. This raises the question of whether the establishment of a trading platform for environmental credits falls within the original legislative intent of the EPA.

The constitutional principle of “colorable legislation” may also be relevant. This principle, established in cases like K.C. Gajapati Narayan Deo v. State of Orissa (1953), holds that what cannot be done directly cannot be done indirectly. If creating a market-based environmental credit system would normally require legislative amendment (as with carbon credits), implementing such a system through rules without amending the parent act might potentially be viewed as circumventing the legislative process.

Stakeholder Perspectives and Expert Opinions

Legal experts and former government officials have expressed varying views on the legal foundation of the Green Credit Programme. Prakriti Srivastava, a retired Indian Forest Service officer and former Principal Chief Conservator of Forest, Kerala, has stated unequivocally that “the Environment Protection Act in no way provides for a business model for exchange of green credits for compensatory afforestation.” She argues that if the EPA were to be used for such a purpose, it should have been amended following due process, including parliamentary approval.

Environmental law practitioners have highlighted another dimension of concern: the potential for regulatory uncertainty. When programmes are implemented without clear legislative mandates, they create unpredictability for stakeholders and may face challenges in courts, undermining their effectiveness and longevity. This is particularly problematic for market-based mechanisms, which rely on stable, predictable frameworks to build investor confidence.

Industry stakeholders, meanwhile, have shown significant interest in the programme despite its legal uncertainties. Since its launch, 384 entities, including 41 public sector undertakings such as Indian Oil Corporation Ltd, Power Grid Corporation of India Ltd, and National Thermal Power Corporation Ltd, have registered for participation. This suggests a strong market appetite for such mechanisms, even as legal questions remain unresolved.

Judicial Precedents on Environmental Governance

Indian courts have developed a rich jurisprudence on environmental governance that offers insights into how the Green Credit Programme might be evaluated in potential legal challenges.

In Indian Council for Enviro-Legal Action v. Union of India (1996), the Supreme Court recognized the government’s duty to implement environmental protection measures effectively but also emphasized the importance of following established legal procedures. Similarly, in Vellore Citizens Welfare Forum v. Union of India (1996), while endorsing the ‘polluter pays’ principle that aligns with market-based mechanisms, the Court underscored the need for such principles to be implemented within the existing legal framework.

More recently, in M.C. Mehta v. Union of India (2017), concerning vehicular pollution in Delhi, the Supreme Court acknowledged the value of innovative regulatory approaches but stressed that such innovations must be grounded in sound legal authority. Similarly, in Hanuman Laxman Aroskar v. Union of India (2019), the Court held that environmental regulatory bodies must act within their statutory mandates and follow proper procedures.

These precedents suggest that while courts may be sympathetic to innovative environmental governance mechanisms like the GCP, they are likely to scrutinize whether such mechanisms have been established with proper legal authority and through appropriate procedural channels.

International Perspectives and Best Practices

The legal challenges facing India’s Green Credit Programme are not unique. Many jurisdictions worldwide have grappled with similar questions when implementing market-based environmental mechanisms. Examining these international experiences provides valuable context for evaluating India’s approach.

The European Union’s Emissions Trading System (EU ETS), often cited as a model for market-based environmental governance, was established through a specific directive (Directive 2003/87/EC) that provided clear legislative authority. Similarly, California’s Cap-and-Trade Program was authorized by specific legislation (AB 32) before implementation. These examples highlight the international norm of establishing explicit legislative foundations for environmental market mechanisms.

The United Nations Framework Convention on Climate Change (UNFCCC) has also emphasized the importance of robust legal frameworks for market-based mechanisms. Article 6 of the Paris Agreement, which governs international carbon markets, explicitly requires participating countries to establish clear regulatory frameworks with appropriate legal authority.

These international precedents suggest that robust legal foundations are not merely procedural formalities but essential elements for the credibility and effectiveness of market-based environmental mechanisms. They provide stakeholders with certainty and confidence in the system’s stability and legitimacy.

Path Ahead for Green Credit Programme

Given the legal uncertainties surrounding the Green Credit Programme, several potential remedies and paths forward merit consideration:

First, ex post legislative validation could address the current legal ambiguities. The government could introduce amendments to the Environment Protection Act explicitly authorizing the establishment of a green credit trading system, similar to the approach taken with the carbon credit trading scheme. Such amendments could provide retrospective validation for the actions already taken while establishing a clear legal foundation for future operations.

Second, comprehensive rules with enhanced procedural safeguards could be formulated. Even without amending the parent act, the government could draft more comprehensive rules that address the concerns raised by the Legislative Department, possibly after obtaining formal opinions from the Department of Legal Affairs. These rules could include enhanced procedural safeguards, clearer definitions of terms, and more robust governance mechanisms.

Third, judicial clarification through a reference or test case could be sought. The government or stakeholders could seek judicial clarification on the scope of the EPA’s provisions relating to market-based mechanisms. This approach would provide authoritative guidance on the legal boundaries within which such mechanisms can operate under the current legislative framework.

Finally, integration with established legal frameworks could be pursued. The GCP could be more explicitly integrated with established legal frameworks such as the compensatory afforestation regime under the Forest (Conservation) Act, providing a clearer legal nexus between the credits and their intended uses.

Environmental Justice and Equity Considerations

Beyond the technical legal questions, the Green Credit Programme also raises important environmental justice and equity considerations that have legal dimensions. Market-based environmental mechanisms have been criticized globally for potentially exacerbating existing inequalities if not designed with explicit equity safeguards.

The Supreme Court, in cases like Subhash Kumar v. State of Bihar (1991) and M.C. Mehta v. Union of India (Environmental Education case, 1991), has recognized environmental rights as an integral aspect of the fundamental right to life under Article 21 of the Constitution. This rights-based perspective requires environmental governance mechanisms to not only be legally sound but also equitable and accessible to all sections of society.

The GCP’s design and implementation must therefore be evaluated not only for its technical legal compliance but also for its alignment with constitutional principles of equity and justice. This includes ensuring that the benefits of the programme reach marginalized communities and that participation is not limited to large corporate entities with resources to navigate complex market mechanisms.

Implications for Environmental Governance

The legal controversies surrounding the Green Credit Programme have broader implications for environmental governance in India, particularly as the country increasingly adopts market-based regulatory approaches.

The tension between regulatory innovation and legal due process highlighted by this case reflects a broader challenge in environmental governance: balancing the need for rapid, effective responses to environmental challenges with the importance of procedural propriety and legal certainty. As climate change and other environmental crises become more urgent, this tension is likely to intensify.

The GCP case also underscores the importance of transparent, consultative processes in developing environmental regulations. The apparent sidestepping of legal advice and limited public consultation in the programme’s development raises concerns about regulatory capture and democratic accountability in environmental policymaking.

Finally, the case highlights the need for a more comprehensive legal framework for market-based environmental mechanisms in India. Rather than addressing each mechanism in isolation, there may be value in developing overarching legislation that provides general principles and safeguards for all such mechanisms, similar to approaches taken in jurisdictions like the European Union.

Conclusion: Strengthening the Legal Backbone of the Green Credit Programme

The Green Credit Programme represents an innovative approach to environmental governance in India, with potential benefits for forest cover enhancement and sustainable practices. However, its implementation has raised significant legal questions that merit careful consideration by policymakers, legal practitioners, and the judiciary.

The procedural irregularities in the programme’s implementation, particularly the apparent sidestepping of legal advice from the Ministry of Law and Justice, raise concerns about adherence to principles of administrative law and proper procedure. The more fundamental question of whether the Environment Protection Act provides sufficient legal basis for establishing a market-based trading system for environmental credits without specific legislative amendments remains unresolved.

As the programme continues to operate and attract participants, these legal uncertainties create potential risks for both the government and stakeholders. They also raise broader questions about the legal foundations of market-based environmental governance in India and the appropriate balance between regulatory innovation and legal due process.

The way forward should involve addressing these legal challenges transparently and systematically, potentially through legislative amendments, enhanced procedural safeguards, or judicial clarification. Such measures would not only strengthen the legal foundation of the Green Credit Programme but also contribute to the development of a more robust legal framework for market-based environmental governance in India.

In an era of accelerating environmental challenges, innovative regulatory approaches like the Green Credit Programme are increasingly necessary. However, their effectiveness and legitimacy ultimately depend on their grounding in sound legal principles and proper procedural implementation. The legal controversies surrounding the GCP offer valuable lessons for ensuring that future innovations in environmental governance are both effective in addressing environmental challenges and robust in their legal foundations.

References

Statutory Materials

1. The Environment (Protection) Act, 1986
2. The Energy Conservation Act, 2001 (as amended in 2023)
3. The Electricity Act, 2003
4. Green Credit Rules, 2023

Case Law

1. Cellular Operators Association of India v. TRAI (2016) 7 SCC 703
2. State of Karnataka v. H. Ganesh Kamath (1983) 2 SCC 402
3. K.C. Gajapati Narayan Deo v. State of Orissa AIR 1953 SC 375
4. Indian Council for Enviro-Legal Action v. Union of India (1996) 3 SCC 212
5. Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647
6. M.C. Mehta v. Union of India (Vehicular Pollution Case) (2017) 7 SCC 243
7. Hanuman Laxman Aroskar v. Union of India (2019) 15 SCC 401
8. Subhash Kumar v. State of Bihar (1991) 1 SCC 598

Disclaimer: The views expressed in this article are the personal opinions of the author and do not constitute legal advice. Readers are advised to consult qualified legal professionals for specific legal matters.

The post Legal Analysis of India’s Green Credit Programme: Framework, Challenges, and Implications appeared first on Bhatt & Joshi Associates.