Top court’s green governance, cause for uncertainty

Over the last decade, the Supreme Court of India has increasingly moved from reviewing the legality of administrative decisions to issuing forward-looking directions mimicking regulation in important environmental cases. This shift has emerged in a series of matters in which regulators have dropped the ball, pulling the Court into a managerial role. But the Court has then compounded the problem by continuing to substitute for the regulator instead of correcting the regulator’s process and stepping back.

This tendency to remain involved, especially within a single continuing mandamus across domains, has consequences for regulated actors, the state, and the people, and needs to be tempered.

Rulings and shifts

In June 2022, the Court laid down that protected areas across India should have an eco-sensitive zone (ESZ) of at least one kilometre from their boundaries. But in April 2023, the Court modified the direction and said the rule would not apply where the Environment Ministry had already issued ESZ notifications, partly because States had argued that the blanket rule was hard to implement.

Earlier, in December 2015, the Court had banned the registration of private diesel cars and sport utility vehicles with an engine capacity of 2,000 cc or more in the Delhi-National Capital Region (NCR). However, by August 2016, it lifted the embargo and replaced it with a charge to compensate, reported widely as 1%-2% on the ex-showroom price. In 2025, the Court again started with a broad protection that was easy to articulate, calling for no-coercive action against owners of diesel or petrol vehicles that were more than 10 or 15 years old, respectively. Then the Court narrowed the rule by restricting action only against those vehicles below the Bharat Stage-IV standard.

The firecracker matter followed the same trajectory. The Court sometimes imposed a near-total ban in the NCR because of air pollution, only to relax it around specific festivals and limited categories such as “green crackers”, in both instances citing enforcement constraints and public order realities.

While fragmented enforcement, delayed notifications, poor monitoring and ad hoc exemptions left gaps that invited judicial intervention, the Court has often responded by stepping into the regulator’s shoes rather than by holding regulators to their statutory duties.

In these matters, the Court’s justification has often shifted from being rooted in legality to that in consequences. In May 2025, in Vanashakti vs Union of India, the Court said ex post facto environmental clearances run against core environmental principles. But in November, it recalled that position in a review, with the majority judgment expressing concerns about disrupting ongoing commercial activity. In these instances, the Court’s impulse to govern caused it to treat a doctrinal statement as the starting point and to manage the fallout later.

The issue of expertise

‘Expertise’ has also been a source of support as well as dispute once the Court starts issuing forward-looking directives. In the Aravalli matter, for instance, the Court’s November 20 order adopted a unified definition for “Aravalli hills and ranges” in the context of controlling mining, based on a committee’s findings. Within weeks, however, it placed that order in abeyance and moved to constitute a new committee after concerns that the definition would have unintended legal effects. In the ESZ issue as well, a uniform buffer sounded decisive at first but once stakeholders realised that the ecological basis and feasibility varied considerably across landscapes, the rule met with resistance. The Court has used expert inputs to compensate for its limits but has also contested expertise. This push-pull relationship, while implicitly not a bad thing, has also set the stage for U-turns.

Perhaps where the Court conducting itself as an approving authority has bitten the hardest is the consequences for public challenge. As environmental lawyer Ritwick Dutta has argued, project proponents and governments have been forced to approach the Court for permissions even before statutory authorities have finished examining a project, at the same time conferring a sense of finality that discourages contestation later. The bigger problem here is not that the Court may get a technical detail wrong but that its early entry into the approval process can smother meaningful judicial review in other fora. As a result, when the Court modifies an older rule, it also reshapes who is heard and on what evidentiary basis.

Need for stability

Many of these disputes also sit inside continuing mandamus structures — serial interim directions, committee reports, affidavits, and modifications — so it has been easy for the Court to correct course but often at the expense of stability. Instead, the Court should consider adopting a steadier hand, i.e., protecting the environment by disciplining the state back into regulation. It can do this by specifying thresholds for when it will issue managerial directions and insisting on time-bound regulatory action with reasons and public data, while retaining its prerogative to review legality and procedures. It can also reduce uncertainty by avoiding sweeping rules that also immediately invite exceptions and by explaining in advance what kinds of evidence or implementation constraints would justify modification.

This way, regulated actors will deal with strict rather than negotiable rules, governments will not have to contend with parallel decision-making, and the people will know where and how to contest activities that render environmental harm.

mukunth.v@thehindu.co.in

Published – January 09, 2026 12:18 am IST