When the Supreme Court Becomes the Regulator: How Environmental Adjudication Is Slipping into Governance

Over the past decade, the “Supreme Court of India” has steadily moved beyond reviewing the legality of environmental decisions to issuing detailed, forward-looking directions that resemble regulation itself. This judicial shift has been driven by repeated regulatory failures, but it has also raised deeper concerns about stability, expertise, and democratic accountability in environmental governance.

From Judicial Review to Managerial Directions

Traditionally, courts assessed whether regulators followed the law, applied due process, and respected constitutional limits. Increasingly, however, the Supreme Court has stepped into a managerial role — laying down substantive environmental rules, monitoring compliance, and modifying them over time.

This shift is most visible in cases where regulators delayed notifications, failed to monitor compliance, or issued ad hoc exemptions. Faced with governance gaps, the Court has often chosen to act as a substitute regulator rather than correct institutional failure and step back once legality was restored.

How Broad Rules Are Announced — and Then Rolled Back

Several recent environmental interventions follow a similar arc: a sweeping, easy-to-articulate rule is announced, only to be narrowed later due to feasibility and implementation concerns.

In June 2022, the Court mandated a minimum one-kilometre eco-sensitive zone (ESZ) around all protected areas. Less than a year later, it diluted this direction, exempting areas where the Environment Ministry had already issued ESZ notifications, after states flagged practical difficulties.

A similar pattern played out in air pollution cases. In December 2015, the Court banned the registration of diesel vehicles above 2,000 cc in the Delhi-NCR. By August 2016, the ban was lifted and replaced with a compensatory charge. In 2025, the Court again began with a broad protection for owners of old vehicles, only to later restrict enforcement to those below Bharat Stage-IV norms.

Firecracker regulations in Delhi-NCR have followed the same trajectory — near-total bans justified by air quality, followed by festival-specific relaxations and limited categories such as “green crackers”, citing enforcement and public order constraints.

Consequences-Based Reasoning Replacing Legal Principle

In many of these cases, the Court’s reasoning has gradually shifted from strict legality to managing outcomes. This tension was visible in “Vanashakti vs Union of India”, where in May 2025 the Court held that ex post facto environmental clearances violate core environmental principles. Just months later, in a review, the majority recalled this position, expressing concern about disrupting ongoing commercial activity.

The problem is not merely inconsistency. By treating doctrinal clarity as a starting point and managing consequences later, the Court risks weakening legal certainty while entrenching itself deeper into executive decision-making.

Expert Committees, U-Turns, and the Limits of Judicial Expertise

Expertise has played an ambivalent role in this judicial turn. In the Aravalli mining matter, the Court adopted a uniform definition of “Aravalli hills and ranges” based on a committee report, only to place the order in abeyance weeks later after concerns about unintended legal consequences, and to constitute a fresh committee.

The ESZ issue revealed similar tensions. A uniform buffer initially appeared decisive but soon met resistance when stakeholders highlighted that ecological sensitivity and feasibility vary widely across landscapes. While expert inputs have helped the Court navigate technical complexity, frequent reversals have also underscored the limits of courts acting as de facto regulators.

How Early Judicial Entry Can Silence Later Challenges

One of the most far-reaching consequences of this approach lies in how it reshapes public challenge. As environmental lawyer Ritwick Dutta has argued, project proponents and governments now approach the Supreme Court for permissions even before statutory authorities complete scrutiny.

This early judicial approval can create a sense of finality that discourages later contestation before tribunals or High Courts. The issue is not just technical error but institutional distortion: premature judicial entry can smother meaningful review and alter who gets heard, on what evidence, and at what stage.

Continuing Mandamus and the Cost of Uncertainty

Many of these cases unfold within continuing mandamus structures — serial interim orders, affidavits, committee reports, and frequent modifications. While this allows the Court to correct course, it often comes at the cost of regulatory stability.

For regulated actors, rules begin to look negotiable rather than firm. For governments, parallel decision-making complicates administration. For citizens, it becomes unclear where and how environmental harm can be challenged.

Why the Court Needs a Steadier Institutional Hand

The answer is not judicial retreat from environmental protection but a recalibration of role. The Court could discipline regulators back into action by clearly specifying thresholds for managerial intervention, insisting on time-bound regulatory decisions supported by public data and reasons, and then stepping back to its core function of reviewing legality and process.

Avoiding sweeping rules that immediately invite exceptions — and clarifying in advance what evidence or constraints justify modification — would also reduce uncertainty. Such an approach would restore predictability, strengthen regulatory institutions, and ensure that environmental protection remains anchored in law rather than continuous judicial management.