By Dr Swati Jindal Garg
Through its latest judgment, the Supreme Court has reignited the national debate over the permissibility of ex-post facto environmental clearances (ECs). Delivered by a bench comprising then Chief Justice of India BR Gavai and Justices K Vinod Chandran and Ujjal Bhuyan, the Court’s ruling in Confederation of Real Estate Developers of India (CREDAI) vs Vanashakti marks a striking departure from its earlier stance.
With a 2:1 majority, the Court recalled its May 15, 2025 judgment in Vanashakti vs Union of India, which had categorically prohibited retrospective ECs. The recall signals a dramatic shift from longstanding jurisprudence rooted in the precautionary principle and the insistence that environmental approvals must precede project activity.
THE VANASHAKTI JUDGMENT (MAY 2025): A BRIEF RECAP
In the now-recalled ruling, a bench of Justices Abhay S Oka and Ujjal Bhuyan had held that ex-post facto ECs were impermissible in law. The Court had struck down several office memoranda and notifications that attempted to legitimize retrospective approvals for industrial and mining projects.
That decision was anchored firmly in the precautionary principle—the idea that environmental harm must be prevented before it occurs, not managed afterwards.
It echoed the Court’s landmark 2020 ruling in Alembic Pharmaceuticals Ltd vs Rohit Prajapati, which had described post-facto clearances as “unsustainable in law” and antithetical to the purpose of environmental regulation.
For nearly a decade, this interpretation stood as the law of the land—until the recent judgment.
CREDAI VS VANASHAKTI (NOV 2025): THE NEW MAJORITY VIEW
Then Chief Justice BR Gavai, writing for the majority, advanced a new rationale:
Per incuriam finding: The earlier Vanashakti decision, he held, was delivered in ignorance of binding precedent and statutory provisions.
Environmental and economic pragmatism: Demolition of completed projects merely for want of prior clearance, he reasoned, could itself cause pollution and “irreparable economic waste”.
A sustainable-development lens: Environmental law, in the majority’s view, must balance ecological protection with developmental needs, making retrospective clearances a pragmatic compliance tool.
Justice K Vinod Chandran, in a concurring opinion, reinforced this perspective:
Administrative flexibility: He upheld the validity of the ministry of environment’s notifications allowing post-facto ECs.
Developmental necessity: He argued that strict insistence on prior approval could stall industrial and infrastructural growth.
Conditional acceptance: Retrospective approvals, he stressed, must be accompanied by stringent compliance mechanisms, not granted as blanket permissions.
THE LONE DISSENT: JUSTICE BHUYAN STANDS FIRM
Justice Ujjal Bhuyan—who had authored the earlier Vanashakti judgment—issued a strong dissent:
Precautionary principle reaffirmed: Post-facto ECs, he maintained, are fundamentally incompatible with environmental law.
Violation of statutory process: The EIA notification clearly requires clearance before project commencement, and retrospective approvals defeat this statutory mandate.
A warning against dilution: Prioritizing economic considerations risks undermining environmental governance and eroding public trust.
A DEBATE DECADES IN THE MAKING
The legality of ex-post facto clearances has long vexed Indian courts. Key rulings include:
Common Cause vs Union of India (2017): Mining without prior EC was illegal; retrospective approvals were rejected.
Alembic Pharmaceuticals (2020): Post-facto ECs held contrary to law; prior clearance deemed a strict precondition.
Sterlite Industries (2013) and Dastak NGO (2019): Both reinforced the principle that environmental clearance must precede project activity, not follow it.
THE CORE DOCTRINAL TENSION
At the heart of the issue lies a long-standing conflict between:
The Precautionary Principle—prevent harm before it happens; require prior clearance.
Sustainable Development—balance environmental protection with economic growth; allow pragmatic responses to avoid wasteful demolition.
The Court’s latest ruling clearly tilts the balance towards developmental pragmatism, raising critical concerns:
1. Erosion of deterrence: Developers may feel emboldened to bypass prior approvals, anticipating later regularization.
2. Administrative overreach: Allowing subordinate legislation to dilute statutory safeguards could weaken regulatory integrity.
3. Judicial inconsistency: The recall creates doctrinal uncertainty in environmental jurisprudence.
4. Reduced public participation: Retrospective approvals bypass the EIA process’s public-hearing component.
5. Long-term ecological costs: Short-term economic benefits may come at the expense of lasting environmental damage.
THE ROAD AHEAD
The implications are far-reaching:
Policy realignment: The government may feel emboldened to issue more notifications enabling retrospective clearances.
Litigation surge: Environmental groups are likely to challenge such approvals aggressively.
Boost to investor confidence: Developers may view the ruling as relief from regulatory uncertainty.
Scrutiny of global commitments: India’s environmental commitments may be questioned if safeguards appear weakened.
CONCLUSION
The Supreme Court’s recall in CREDAI vs Vanashakti marks a watershed moment in Indian environmental law. By opening the door to ex-post facto clearances, the majority has elevated developmental pragmatism over ecological precaution. Justice Bhuyan’s dissent stands as a reminder that environmental governance is, at its core, preventive, not curative.
The future trajectory of Indian jurisprudence will hinge on whether subsequent benches embrace this pragmatic turn—or return to a stricter, precaution-centred framework.
—The author is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi
The post A Precedent Reversed appeared first on India Legal.