Our environmental futures: A weekly round-up on Constitution First

ON FEBRUARY 25, the Supreme Court will hear arguments in what may be one of this year’s most important environmental law cases – whether India’s environment ministry can grant clearances to projects that have already begun construction without prior permission. While the question may sound technical, its consequences are not.

The issue stems from a 2017 notification and a 2021 Office Memorandum issued by the Ministry of Environment, Forests and Climate Change which created pathways to ‘regularise’ projects that commenced work without prior Environmental Clearance (‘EC’). In May 2025, a two-judge bench led by Justice Abhay S. Oka had struck them down in Vanashakti v. Union of India, holding that ex post facto EC was “completely alien to environmental jurisprudence”. 

Six months later, a three-judge bench recalled that judgment. Former CJI B.R. Gavai, who wrote the majority decision, held that allowing the May 2025 ruling to stand would have a “devastating effect” on infrastructure investments. Justice Ujjal Bhuyan dissented, arguing that Common Cause (2017) and Alembic Pharmaceuticals (2020) had already settled the issue. “The review judgment is a step in retrogression,” his judgement noted. At the latest hearing on February 16, 2025, CJI Surya Kant expressed concern that the May judgment had created “unnecessary uncertainty.”

This is the state of India’s environmental jurisprudence in early 2026. And if one wishes to see what this looks like outside the courtroom, this week on The Leaflet, Kashmir-based climate activist Raja Muzaffar Bhat offers an answer.

Raja’s report travels to Bangus Valley in Kupwara, Kashmir, a high-altitude meadow ringed by centuries-old Deodar, Kail, and Fir trees, home to Gujjar and Chopan pastoralists, and a quietly beloved destination for travellers. Bangus already had three access roads, one of which was constructed by the Border Roads Organisation for the Army several decades ago, and two for civilians. Yet in 2017, Kashmir’s Public Works Department (‘PWD’) began constructing a fourth, 35-kilometre road through the Rajwar forest – without forest clearance, EC, or any apparent public necessity.

Forest clearance came only in September 2019, two years after construction began. Its conditions stated that approval would lapse if compensatory dues of Rs 3.81 crore were not deposited within one year. For six years, these dues remained unpaid!

The reckoning came in the form of an application before the NGT, brought forth by lawyer Rasikh Rasool Bhat, whose documentation of the violations compelled the PWD to deposit the overdue compensation. The proceedings also revealed wider patterns: across 145 to 154 infrastructure projects in Jammu and Kashmir, mostly road works, 82,327 trees had been felled without compensatory deposits. Of Rs 80.73 crore of outstanding liability, Rs 45.33 crore remained unpaid.

“Had I not taken this issue to the National Green Tribunal, all these things would not have been exposed,” Rasikh wondered aloud.

J&K’s Chief Secretary attributed all fault to a July 2019 decision of Kashmir’s State Administrative Council, then headed by Governor Satya Pal Malik, which permitted forest diversion without full compensatory payments. Trees fell by policy and officers were absolved. The Chief Secretary tendered an “unconditional apology” to the Tribunal, but no prosecutions have followed.

The Bangus story is dispiriting, and yet in certain ways inspiring – of how far persistent lawyering and advocacy can help unveil big, systemic wrongdoings. But elsewhere, this week, the picture remains darker.

Last week, the NGT dismissed the second round of challenges to the Great Nicobar Project which involves the felling of nearly one million trees across 130 square kilometres of some of the most biodiverse forest remaining on earth. The Tribunal held that it found “no good ground to interfere.”

The NGT, as a specialised tribunal, is empowered to conduct a merits review, scrutinising scientific assessments, much more beyond checking mere procedural compliance. Yet, the decision appears to confirm only that regulatory requirements had been formally satisfied. Foundational principles such as the precautionary principle, the public trust doctrine and intergenerational equity took a backseat. The corals in Galathea Bay were described as “scattered” and therefore, apparently, expendable.

Against this broader backdrop, the Supreme Court’s February 25 hearing assumes significance. The hearing will not resolve these systemic concerns alone but it remains the clearest test of the Court’s direction and of whether environmental safeguards under Indian law will be meaningfully enforced.

Read the full report on Cutting through Rajwar on The Leaflet here.