When Courts Become Regulators

Over the past decade, the Supreme Court of India has steadily moved beyond reviewing the legality of executive action to issuing forward-looking, regulatory-style directions in environmental cases. This shift has been driven partly by regulatory failure — fragmented enforcement, delayed notifications, and weak monitoring — that has drawn the Court into a managerial role. Yet, by continuing to substitute itself for regulators rather than correcting their processes and stepping back, the Court has created new problems of instability, uncertainty, and democratic accountability.

From judicial review to managerial governance

Traditionally, environmental adjudication focused on whether statutory authorities acted within the law and followed due process. Increasingly, however, the Court has framed broad, prospective rules that resemble regulation. These directions often begin with clear, easily articulated protections, but are later narrowed, modified, or relaxed in response to implementation difficulties.

This pattern has emerged within continuing mandamus proceedings, where the Court remains seized of a matter across years through interim orders, committee reports, and affidavits. While this structure allows course correction, it also blurs the line between adjudication and governance.

Illustrative swings in environmental rulings

In June 2022, the Court directed that all protected areas in India must have an eco-sensitive zone (ESZ) of at least one kilometre from their boundaries. By April 2023, the rule was diluted, exempting areas where the Environment Ministry had already issued ESZ notifications, after States flagged serious feasibility concerns.

A similar trajectory marked air pollution cases in the Delhi-NCR. In December 2015, the Court banned registration of private diesel vehicles with engine capacity of 2,000 cc and above. By August 2016, the ban was lifted and replaced with a compensatory charge of 1–2% of the ex-showroom price. In 2025, the Court again began with a broad protection — no coercive action against 10- or 15-year-old diesel and petrol vehicles — only to later restrict enforcement to vehicles below the Bharat Stage-IV standard.

The firecracker litigation followed the same arc: near-total bans imposed in response to pollution, followed by festival-specific relaxations and the introduction of “green crackers”, citing enforcement and public order constraints.

Consequences-first reasoning and doctrinal reversals

In many of these cases, the Court’s justification has shifted from legality to consequences. This was evident in Vanashakti vs Union of India (2025), where the Court initially held that ex post facto environmental clearances violate core environmental principles. Within months, that position was recalled on review, with the majority citing concerns about disrupting ongoing commercial activity.

Here, doctrinal clarity became the starting point, with the practical fallout managed later — a reversal of the usual judicial discipline where consequences are assessed before laying down rules.

The uneasy role of expertise

Expert committees have been both a crutch and a contestation point in this regulatory turn. In the Aravalli mining matter, the Court adopted a unified definition of “Aravalli hills and ranges” based on expert findings to curb mining. Within weeks, the order was placed in abeyance and a new committee constituted after concerns arose about unintended legal consequences.

The ESZ episode revealed a similar tension. A uniform buffer appeared decisive, but ecological diversity and varied land-use patterns made a one-size-fits-all rule difficult to sustain. The Court has alternated between relying on expertise and second-guessing it, creating room for abrupt U-turns.

Impact on public participation and challenge

Perhaps the most serious fallout of the Court acting as an approving authority is its effect on public challenge. As environmental lawyer Ritwick Dutta has noted, project proponents and governments increasingly approach the Court for clearances even before statutory authorities complete their scrutiny. This early judicial imprimatur can confer a sense of finality that discourages later contestation before specialised fora.

The issue is not merely technical error. When the Court enters too early, it reshapes who gets heard, what evidence is considered, and which institutional pathways remain open for affected communities.

Why continuing mandamus breeds instability

Many of these disputes unfold within continuing mandamus frameworks, making it easier for the Court to modify directions. But frequent recalibration comes at the cost of predictability. Regulated actors face negotiable rules rather than stable standards; governments confront parallel decision-making; and citizens struggle to identify where accountability truly lies.

A steadier judicial approach

Environmental protection need not require judicial micromanagement. A more stable approach would involve disciplining regulators back into action rather than replacing them. This could include:

• Setting clear thresholds for when the Court will issue managerial directions.
• Mandating time-bound regulatory action with publicly disclosed reasons and data.
• Avoiding sweeping rules that immediately invite exceptions.
• Clarifying in advance the evidentiary or feasibility grounds that would justify modification.

Such an approach preserves the Court’s core role — reviewing legality and procedure — while strengthening regulatory institutions.

What to note for Prelims?

• Continuing mandamus allows courts to issue ongoing directions.
• Eco-sensitive zones (ESZs) buffer protected areas.
• Bharat Stage norms regulate vehicular emissions.
• Ex post facto environmental clearances are legally contentious.

What to note for Mains?

• Judicial overreach vs regulatory failure in environmental governance.
• Limits of court-led regulation in complex technical domains.
• Role of expertise and public participation in environmental decision-making.
• Need for institutional balance between courts, regulators, and legislatures.

The Supreme Court’s environmental interventions have often been born of necessity. But when courts begin to govern rather than adjudicate, the long-term costs to stability, participation, and institutional balance can outweigh the immediate gains in protection.