Is the green jurisprudence losing its judge?

Massive public protests eventually compelled the Supreme Court to keep its controversial Aravalli judgment in abeyance and propose an expert committee reassessment for an ecologically sustainable solution. When estimates project a 24.7% India’s GDP by 2070, the Apex Court’s environmental commitment remains questionable. The SC, having recognised environmental rights as Fundamental Rights under the Constitution, stands as the vanguard in shaping the climate jurisprudence. While the UN Environment Programme proclaims in India’s climate litigation, a few SC judgments in late 2025 have raised eyebrows.  

Before proceeding, it is relevant to highlight the Court’s ‘heyday’ of environmental jurisprudence developed since the 1980s through PILs, orchestrated by M.C. Mehta and cemented by “Green Judge” Justice Kuldip Singh by expanding Article 21 to include the right to a healthy environment. This era of judicial creativity was marked by introducing Absolute Liability for hazardous disasters in M. C. Mehta v. Union of India (UoI) (1987). Justice Singh conceived the Public Trust Doctrine, holding the State as the trustee of natural resources in M.C. Mehta v. Kamal Nath (1996), followed by the Precautionary Principle in Vellore Citizens Forum v. UoI (1996). While in the Taj Trapezium Case (1996), recognising sustainable development, he mandated 292 polluting industries to relocate outside the zone or use alternative fuel to prevent the yellowing of the Taj Mahal; he made the tanneries pay for the pollution in the Calcutta Tanneries’ Case (1997). 

Recently, in M.K. Ranjitsinh v. UoI (2024), while ordering underground cabling to save the habitat of the Great Indian Bustard, the Court upheld the right to be free from adverse effects of climate change” as part of Article 21 and 14. In Ridhima Pandey v. UoI (2025), the Court pulled up the State for inadequate climate action and its failure in meeting Paris commitments. Further, the Court has intervened in cases involving Uttarakhand’s hydroelectric projects and developmental initiatives in Himalayan states.

Nevertheless, at times the SC under the then Chief Justice B.R. Gavai appeared to be less troubled about climatic issues. First, in April 2025, Justice Bhuyan and Justice Oka imposed a complete ban in Delhi-NCR on firecrackers’ use, manufacture, sale and storage, including green crackers, which emit only 30% less pollution than conventional ones. The Court disagreed with the firecracker manufacturers’ arguments about trade rights, emphasising that “right to live in a pollution-free atmosphere” is paramount under Article 21, particularly for street dwellers. It reminded traders of their Fundamental Duty under Article 51A to keep Delhi pollution-free and directed NCR states to implement the ban. However, in October 2025, Justice Gavai’s bench called the complete ban “practical and ideal” and relaxed it. Drawing an inexplicable analogy with the mining ban in Bihar, it allowed “certified green crackers”. This decision proved ineffective as Delhi faced severe post-Diwali air pollution. 

Environmental governance in India relies on Environmental Clearance (EC) before commencing projects with environmental impact, as per the Environment (Protection) Act, 1986 and Environmental Impact Assessment (EIA) Notifications of 1994 and 2006. In Vanashakti v. UoI (May 2025), the SC, referring to Common Cause v. UoI (2017) and Alembic Pharmaceuticals Ltd. v. Rohit Prajapati (2020), held that ex-post facto (retrospective) EC is impermissible under Indian law. Thus, the 2017 Notification and Office Memorandum (OM) 2021 issued by the Environment Ministry for mining projects were invalidated. The 2017 Notification provided a one-time amnesty for granting EC to projects without prior clearance. The 2021 OM established procedures for violation cases, allowing post-facto regularisation subject to EIA. 

On November 18, 2025, in a split verdict on a review petition filed by Confederation of Real Estate Developers Association of India (CREDAI), the majority, comprising Justice Gavai and Justice Chandran, recalled the May judgment, noting that a rigid prohibition could harm infrastructure projects worth ₹20,000 crores. Nonetheless, Justice Bhuyan (also part of the original judgment) identified that ex-post facto EC is “completely alien” to environmental law and “an anathema” to the environment. The EIA process and EC are preventative safeguards which ensure a project’s environmental suitability. Emphasising on precautionary principle, he observed that once construction begins, environmental damage is already done, making subsequent assessment ineffective. Moreover, he pointed out that the CREDAI members had applied after the relaxation window was closed. Hence, they can’t be beneficiaries under the 2017 Notification. In fact, the US$2.4 billion loss (in this case) from demolishing non-compliant projects is minimal compared to India’s projected climate change losses of US$35 trillion over the next 50 years. 

Once more, on November 20, 2025, Justice Gavai’s bench delivered a judgment on the Aravalli conservation. The key issue was the absence of a uniform definition of “Aravali Hills and Ranges” across states, causing illegal mining and ecological damage. The Aravallis, one of the oldest mountain ranges, prevent the eastward spread of the Thar Desert and are vital for groundwater and biodiversity. The region hosts wildlife sanctuaries, tiger reserves, and wetlands. The Court linked Aravalli conservation with India’s UN Convention to Combat Desertification obligations and directed the Environment Ministry to form a committee for a uniform Aravali definition. Environmentalist Ritwick Dutta notes the committee deviated from its view that a uniform definition is impossible and abruptly concluded that “for sustainable mining in Aravallis, the elevation criterion of 100 meters above local relief would be appropriate”. This opened hills below 100 metres for mining, except those legally protected. The committee provided no details about hills above 100 metres or a rationale for using mining as the basis. While the SC judgment appeared pro-climate by addressing mining’s impact and directing a Sustainable Mining Plan, the Aravallis redefinition excluded 11,033 of 12,081 hills from protection. This led to the public fear that it could legitimise mining in previously protected areas, leading to the Court’s suo motu cognisance of its own judgment.

The three cases were adjudicated by panels led by Justice Gavai. The Court might be afforded the benefit of doubt regarding Justice Gavai’s perceived environmental insensitivity leading to such anomalies; however, they suggest that the Court remains uncertain, leaving us at a crossroads concerning climate jurisprudence. With climate change more prominent than ever, it is imperative to identify a “green judge” who would prioritise environmental considerations. Justice Bhuyan offers us the glimmer of hope in this regard.

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