Courts now justify environment degradation: former SC judge

Courts Now Justify Environment Degradation: Former SC Judge

UPSC Study Note — Prelims + Mains

1. At a Glance

• Former Supreme Court judge Justice Deepak Gupta publicly accused Indian courts of having shifted from being environmental protectors to environmental legitimisers, using procedural compliance as a shield against substantive ecological review. [S1]
• The statement was made at the Anil Agarwal Dialogue (AAD) 2026, organised by the Centre for Science and Environment (CSE) at Nimli, Rajasthan, on 26 February 2026. [S1]
• Core argument: courts now ask only "was procedure followed?" rather than "will the outcome cause environmental disaster?" — a retreat from the substantive environmental constitutionalism that defined SC jurisprudence through the 1990s–2000s. [S1]
• UPSC relevance: intersects GS-II (judiciary, governance), GS-III (environment, biodiversity), and GS-IV (ethics of institutional responsibility).

2. Why in the News

• At AAD 2026 (February 26, 2026), Justice Deepak Gupta (retired SC judge) delivered a sharp critique of recent judicial decisions in two flagship cases: [S1] 1. Great Nicobar Island Project — courts/NGT upheld clearances on grounds that "procedure was followed," despite concerns over irreversible ecological damage. [S1][S2] 2. Vantara Animal Rehabilitation Centre (Reliance-owned facility, Jamnagar, Gujarat) — Supreme Court gave a clean chit in a manner Justice Gupta described as difficult to comprehend. [S1]
• He specifically called out compensatory afforestation in Andamans (for palm oil plantations) with replacement trees planted in Haryana and Rajasthan as "nonsense" and "a joke." [S1]
• The NGT had earlier stayed the Great Nicobar Island Project and formed a high-powered committee, but critics noted the committee included the project's own proponents (NITI Aayog, Andaman & Nicobar Islands Integrated Development Corporation — ANIIDCO, members of the Expert Appraisal Committee). [S2]

3. Background & Evolution

Phase 1 — Activist Environmental Judiciary (1980s–2000s): - M.C. Mehta v. Union of India (1986 onwards): SC directed closure of polluting units near Taj Mahal, Ganga action orders — landmark era of judicial environmental activism. - T.N. Godavarman Thirumulpad v. UoI (1995): SC took over management of all Indian forests, expanded definition of "forest." - Vellore Citizens Welfare Forum v. UoI (1996): SC constitutionalised Precautionary Principle and Polluter Pays Principle. - Indian Council for Enviro-Legal Action v. UoI (1996): affirmed absolute liability for hazardous industries.

Phase 2 — Institutionalisation: - National Green Tribunal (NGT) Act, 2010: created a specialised environmental court to reduce load on SC/HCs; NGT can take suo motu cognizance; has powers akin to a civil court. - Environment Protection Act, 1986 (parent statute) and Forest Conservation Act, 1980 (now amended 2023) form the statutory backbone for environmental clearances (ECs).

Phase 3 — Perceived Retreat (post-2014, accelerated post-2020): - Multiple large infrastructure projects — Char Dham Highway, Ken-Betwa link, Great Nicobar, Sagarmala, coastal road projects — received ECs with reduced environmental scrutiny. - Forest Conservation (Amendment) Act, 2023: exempted certain categories of land from prior approval requirement, criticised by environmentalists. - Critics argue compensatory afforestation (planting monocultures elsewhere) has become a default clearance tool replacing genuine forest protection.

4. Core Static Facts

5. Multi-Dimensional Analysis

Legal / Constitutional

• Article 21 (Right to Life) has been interpreted by the SC to include the right to a clean environment (Subhash Kumar v. State of Bihar, 1991). [S1]
• The tension now is between procedural legality (was the EC process followed?) and substantive constitutionalism (does the outcome violate environmental rights?). Justice Gupta's critique is precisely that courts have collapsed the latter into the former. [S1]
• NGT's credibility: the high-powered committee formed on Great Nicobar included project proponents and the same EAC that cleared it — raising questions about institutional capture and conflict of interest. [S2]
• Doctrine of Public Trust: SC in M.C. Mehta held the State is trustee of natural resources; diluting judicial oversight weakens this doctrine.

Environmental

• Great Nicobar Island is part of a UNESCO-recognised biodiversity hotspot (Indo-Burma and Sundaland); hosts leatherback sea turtles, Nicobar megapode, coral reefs. [S2]
• Compensatory afforestation critique: planting trees in Haryana/Rajasthan cannot ecologically substitute for felled old-growth tropical forest in Andamans — different soil, rainfall, biodiversity. [S1]
• CAG Report (2013) found that only 7% of designated non-forest land was actually used for afforestation between 2006–2012. [S3]
• Palm oil plantations cited by Justice Gupta are among the most destructive monocultures for tropical forest ecology globally.

Governance / Ethical

• Institutional capture concern: when the committee reviewing a cleared project includes the same body that cleared it (EAC) and the body that conceptualised it (NITI Aayog), independence is structurally compromised. [S2]
• Justice Gupta's phrase — "procedure has become more important than the environment" — encapsulates a formalistic vs. purposive interpretive divide in judicial review.
• Vantara case: raised questions about whether wealth/corporate connections influence judicial outcomes in environmental matters — an ethical governance concern.

Administrative

• Fragmented clearance architecture: Environment Clearance (MoEFCC), Forest Clearance (Forest Division, MoEFCC), Coastal Regulation Zone (CRZ) clearance, Wildlife clearance (NBWL) — each a separate silo; courts typically review only one silo at a time.
• Expert Appraisal Committee (EAC) under MoEFCC: supposed to be independent expert body; but members' tenures, composition, and dependence on ministry create accountability gaps.

Historical

• Indian environmental jurisprudence was globally cited as a model in the 1990s (alongside the Precautionary Principle, PIL-driven activism).
• The current retreat mirrors debates in USA post-Chevron doctrine reversal and EU regulatory rollbacks — a global pattern of judicial deference to executive on technical/economic matters.

6. Recent Developments (Last 12–18 Months)

• Feb 26, 2026: Justice Deepak Gupta's remarks at AAD 2026, Nimli, Rajasthan — courts "justify environmental degradation." [S1]
• 2025–26: NGT stayed Great Nicobar Island Project and constituted a high-powered review committee; composition of committee criticised as conflicted. [S2]
• 2025: Jairam Ramesh (Congress) questioned the Centre's position on the Great Nicobar project, calling it "bulldozed through." [S2]
• December 2024: Experts called for a reset and accountability in India's compensatory afforestation regime, citing persistent implementation gaps. [S3]
• 2023: Forest Conservation (Amendment) Act, 2023 enacted — exempted linear projects, border areas from prior forest clearance; sparked significant environmental debate.
• 2025: NGT took suo motu cognizance of Global Forest Watch data showing India lost 2.3 million hectares of forest cover since 2000. [S3]

7. Prelims Hooks

• Justice Deepak Gupta is a former judge of the Supreme Court of India (not High Court). [S1]
• The Anil Agarwal Dialogue (AAD) 2026 was organised by the Centre for Science and Environment (CSE). [S1]
• Venue of AAD 2026: Nimli, Rajasthan. [S1]
• Vantara is a Reliance-owned animal rehabilitation centre located in Jamnagar, Gujarat. [S1]
• The Great Nicobar Island Project is estimated to cost approximately ₹41,000 crore. [S2]
• Project proponent for Great Nicobar: ANIIDCO (Andaman & Nicobar Islands Integrated Development Corporation). [S2]
• Compensatory Afforestation Fund Act was enacted in 2016; implementing authority is CAMPA. [S3]
• CAG (2013) found afforestation occurred on only 7% of non-forest land designated for compensatory planting (2006–2012). [S3]
• NGT Act was enacted in 2010; NGT can take suo motu cognizance of environmental violations.
• The doctrine that the State is trustee of natural resources for public use is called the Public Trust Doctrine (recognised by SC in M.C. Mehta cases).
• The Precautionary Principle and Polluter Pays Principle were constitutionalised by the SC in Vellore Citizens Welfare Forum v. UoI (1996).
• Forest Conservation (Amendment) Act, 2023: exempted certain land categories from prior approval — a legally contentious change.
• The Expert Appraisal Committee (EAC) functions under the Ministry of Environment, Forest and Climate Change (MoEFCC).

8. Mains Relevance

Plausible Mains Question Stems: 1. "The judiciary, once the last sentinel of environmental protection in India, has increasingly become a validator of procedural compliance over ecological outcomes. Critically examine with reference to recent judicial decisions." (GS-II/III, 15 marks) 2. "Compensatory afforestation, as currently practised in India, is neither scientifically sound nor administratively effective. Analyse the limitations of the CAMPA framework and suggest reforms." (GS-III, 15 marks) 3. "Discuss the ethical obligations of constitutional courts when procedural legality and substantive environmental harm come into conflict." (GS-IV, 10 marks)

9. Related Topics to Study Next

10. Common Errors / Trap Areas

1. Confusing NGT with SC/HC jurisdiction: NGT has original jurisdiction for environmental disputes under specific Acts; SC/HCs handle constitutional and writ matters — do not conflate.
2. CAMPA vs. CAMPA Fund: CAMPA is the authority (management body); the Compensatory Afforestation Fund Act, 2016 is the enabling law — examiners sometimes mix these.
3. Vantara location: Candidates may place it in Rajasthan or Andamans given the news context — it is in Jamnagar, Gujarat.
4. Great Nicobar Project proponent: Not a private company — it is ANIIDCO, a government corporation (UT administration body); do not confuse with Reliance (which owns Vantara, the second case).
5. AAD organiser: The Anil Agarwal Dialogue is organised by CSE (Centre for Science and Environment), not by TERI (The Energy and Resources Institute) — a common mix-up between India's two prominent environmental think-tanks.

11. Sources

• [S1] "Former SC Judge Deepak Gupta Criticizes Courts' Environmental Stance at AAD 2026" — https://www.downtoearth.org.in/environment/judges-must-have-a-spine-what-cannot-be-compensated-is-not-sustainable-former-sc-judge-deepak-gupta-at-aad — (Tier 4)
• [S2] NGT stay on Great Nicobar Island Project / High-powered committee — https://www.deccanherald.com/amp/story/india%2Fngt-stays-great-nicobar-island-project-forms-panel-to-examine-it-1207697.html — (Tier 4; cross-corroborated by article excerpt)
• [S3] "Commentary: Can CAMPA compensate for the loss of forest land?" / India's compensatory afforestation accountability — https://india.mongabay.com/2025/01/commentary-can-campa-compensate-for-the-loss-of-forest-land/ and CAG Report No. 21 of 2013 — https://cag.gov.in/uploads/download_audit_report/2013/Union_Compliance_Civil_Compensatory_Afforestation_21_2013_chap_1.pdf — (CAG = Tier 1)
• [S4] Article excerpt (primary source) — "Courts now justify environment degradation: former SC judge" — The Hindu, 26 February 2026 — https://www.thehindu.com/todays-paper/2026-02-26/th_international/articleGJ0FL12CT-13661816.ece — (Tier 4)