In a significant turn of events for India's environmental regulatory landscape, the Supreme Court has recalled its May 2025 Vanashakti judgment that had prohibited the granting of post-facto environmental clearances (ECs). This recall, decided by a 2:1 majority on November 18, 2025, effectively revives the legal mechanism that allows projects which commenced or expanded without prior environmental approvals under the 2006 Environmental Impact Assessment (EIA) notification to seek ex-post facto clearances. The decision has far-reaching implications for environmental laws and ongoing or future projects across the country.
The original Vanashakti judgment delivered on May 15, 2025, took a firm stance on the precautionary principle, emphasizing that environmental harm should be prevented before it occurs. It struck down the Union Ministry of Environment, Forest and Climate Change's (MoEFCC) 2017 Notification and 2021 Office Memorandum, which allowed for retrospective ECs, deeming them illegal and unconstitutional. The court had asserted that projects cannot receive clearances after starting work and the government must not grant post-facto ECs in the future. This earlier ruling relied on the principle that the right to live in a pollution-free environment is a fundamental right under Article 21 of the Indian Constitution.
However, this strict prohibition faced opposition from industry bodies, particularly the Confederation of Real Estate Developers of India (CREDAI), who filed review petitions. They argued that the original judgment failed to consider earlier rulings that, in exceptional cases, permitted the regularisation of post-facto ECs. These groups emphasized the need for practical mechanisms to regularize existing violations, pushing for a more "balanced approach".
The recall of the Vanashakti judgment was based on several considerations. The majority, consisting of Chief Justice B.R. Gavai and Justice K. Vinod Chandran, held that the May ruling was per incuriam, meaning it was delivered in ignorance of binding law. They argued that the judgment ignored key precedents and misread earlier rulings. Furthermore, they expressed concerns about the potential consequences of the ban, including the demolition of projects of vital public importance constructed out of public funds, leading to significant financial losses and increased pollution from demolition activities. The majority posited that a rigid ban could produce more ecological harm than a carefully regulated system of exceptional regularization.
In contrast, Justice Ujjal Bhuyan dissented, upholding the original verdict against retrospective environmental clearance. Justice Bhuyan, who also authored the original Vanashakti ruling, argued that the concept of ex-post facto EC is "an anathema" to environmental jurisprudence and that clearance must come first. He emphasized the hazards of environmental pollution, using Delhi smog as a stark reminder.
The implications of this recall are extensive. With the Vanashakti judgment set aside, the legal basis for granting retrospective environmental clearances is restored, offering relief to industries and infrastructure agencies. It allows regulators to operate under the pre-Vanashakti framework, where projects that had commenced without prior approval could seek clearance upon the imposition of penalties. The court found that the 2013 notification and the 2021 Office Memorandum provided a framework for granting environmental clearance upon the imposition of heavy penalties.
However, the decision also raises concerns that it risks making prior environmental clearance optional. Critics argue that institutionalizing the regularization of violations sends a dangerous message that non-compliance can be corrected later through fines or administrative measures, potentially encouraging future environmental breaches. The court has, however, restrained the central government from issuing any future circulars or orders that provide for retrospective EC in any form.
The Supreme Court has ordered the matter to be placed before an appropriate bench for reconsideration of the issues afresh. This indicates that the legal debate surrounding retrospective environmental clearances is far from over and that the future of environmental regulation in India remains uncertain. The core issue remains whether the environmental clearance system should operate through a strict prior-approval model or whether retrospective clearance may be permitted in limited situations where rigid enforcement may produce outcomes that do not advance environmental protection.
