In a rare display of judicial disagreement, Supreme Court Justice Ujjal Bhuyan has openly criticized a recent ruling made by a bench led by Chief Justice of India (CJI) BR Gavai. The criticism centered around the court's decision to recall its May 2025 judgment, which had directed the demolition of structures granted post-facto environmental clearances. Justice Bhuyan, who was part of the original bench, argued that the majority opinion, delivered by CJI Gavai and Justice K Vinod Chandran, overlooked fundamental principles of environmental jurisprudence.
The core of the disagreement lies in the interpretation of environmental regulations and the permissibility of granting environmental clearances (ECs) after a project has commenced or expanded. The May 2025 verdict, authored by Justices AS Oka (since retired) and Bhuyan, had deemed the practice of granting ex post facto ECs illegal, asserting that such clearances must be obtained before any construction or expansion begins. This ruling was based on the principle that those who undertake polluting activities without prior approval are knowingly violating the law.
However, a review petition filed by the Confederation of Real Estate Developers of India (CREDAI) argued that the judgment caused significant hardship to the real estate industry and related sectors. CJI Gavai, in allowing the review, stated that the demolition of projects worth ₹20,000 crore would result in increased pollution. He also pointed out that the 2021 Office Memorandum, which allowed for retrospective ECs, was issued in compliance with the National Green Tribunal (NGT) directives.
Justice Bhuyan, in his dissent, strongly refuted this position, calling the review judgment "a step in retrogression". He argued that the court should not backtrack on established environmental jurisprudence, especially at the behest of those who have disregarded the rule of law. Justice Bhuyan emphasized the importance of the precautionary principle, stating that it is the cornerstone of environmental law and cannot be undermined by the "polluter pays" principle. He also referenced the deteriorating air quality in Delhi as a stark reminder of the need to uphold environmental regulations.
Furthermore, Justice Bhuyan contended that earlier judgments cited to justify the allowance of post-facto ECs were "per incuriam," meaning they ignored binding precedents. He also highlighted that the Ministry of Environment, Forest and Climate Change itself did not file a review petition, suggesting their acceptance of the original Vanashakti judgment.
In an unusual move, after pronouncing his judgment, CJI Gavai acknowledged the criticism from Justice Bhuyan. He noted that while there was a precedent for a dissenting judge to critique the CJI's opinion and for the CJI to respond, he would "depart from tradition" and not alter his judgment in any way. "I have not changed a single word in my judgment even after receiving the dissenting judgment," CJI Gavai stated.
This open disagreement between the two judges has sparked considerable discussion within the legal community. Some see it as a healthy sign of judicial independence and intellectual rigor, while others express concern about the potential for undermining public confidence in the court. It also raises questions about the balance between environmental protection and economic development, and the role of the judiciary in navigating this complex issue.
The Supreme Court's decision to allow retrospective environmental clearances has significant implications for ongoing and future projects across the country. While it may provide relief to developers who have already commenced work without prior approval, it also raises concerns about the potential for environmental damage and the erosion of established legal safeguards. Justice Bhuyan's dissent serves as a stark reminder of the importance of upholding environmental principles and ensuring that development is sustainable and in accordance with the law.
