SC recalls its judgement on Ex-post facto environmental clearances

On 18 November 2025, a 2:1 Supreme Court Bench (CJI Chandrachud, Justice Chandran majority; Justice Bhuyan dissent) recalled its own May 2025 Vanashakti judgment. The recalled verdict had struck down:

• 2017 MoEFCC “violation window” notification, and
• 2021 Office Memorandum (OM)
  that permitted ex post facto environmental clearances for projects that had begun without prior approval.

Key Issue

Whether India’s environmental clearance regime mandates:

1. Strict prior approval only, OR
2. Allows limited ex post facto clearance when rigid enforcement does not further environmental objectives.

Legal Framework

Environment (Protection) Act, 1986

• Empowers Centre to regulate environmental pollution and set procedures.

EIA Notifications

1. 1994 & 2006 EIA Notifications
   • Required clearance before project operations.
   • Word “prior” was not originally explicit; courts later interpreted “pre-approval” as mandatory.
2. 2006 EIA Notification
   • Made explicit: “prior environmental clearance” is mandatory for any:
     • Construction
     • Expansion
     • Modernisation

Persistent Violations

• Several public & private projects (airports, hospitals, industries, roads) began without clearance.
• Long pendency of applications prompted MoEFCC to issue:
  • 2017 one-time “violation window” → 6 months for violators to apply.
  • 2021 OM → laid a continuing process for violation appraisal.

Vanashakti Judgment (May 2025)

Bench: Justice Abhay Oka & Justice Ujjal Bhuyan

• Struck down the 2017 notification and 2021 OM.
• Key reasoning:
  • The EIA process is inherently prospective, requiring:
    • Prior appraisal
    • Public consultation
  • Retrospective clearance defeats the purpose of EIA.
• Clarified: clearances already granted would remain valid (to avoid administrative chaos).

Review of Judgment

Constitutional Basis

• Article 137: SC may review its own judgments.
• Subject to:
  • Article 145 (SC rule-making power)
  • Supreme Court Rules, 2013
    • Review petition must be filed within 30 days.
    • Must be heard by the same Bench, unless unavailable.

Reason for Special Bench

• Justice Oka retired; therefore, a Special Bench (CJI Chandrachud, Justice Chandran, Justice Bhuyan) constituted.

November 2025 Ruling: The Recall

Majority (2:1)

• Held Vanashakti judgment per incuriam:
  • Ignored binding precedent allowing limited ex post facto clearances (e.g., Electrosteel, Alembic Pharma, etc.).
• Stated:
  • Absolute bar on retrospective clearance may cause counterproductive environmental outcomes.
  • The law permits remedial, not punitive, environmental regulation in specific circumstances.

Dissent (Justice Bhuyan)

• Upheld the earlier ruling.
• Argued prior clearance is foundational to environmental rule of law and public participation.

EIA 2006 Categories

• Category A
  • High-impact projects
  • Appraised by MoEFCC (central level)
• Category B
  • Lower-impact, region-specific projects
  • Appraised by State Level Environment Impact Assessment Authority (SEIAA)

Why This Matters

For Governance

• Determines how India handles thousands of ongoing violations.
• Balances:
  • Ease of doing business
  • Environmental protection
  • Administrative practicality

For Environmental Jurisprudence

• Reinforces principle: Ex post facto ECs are not barred, but exceptional.

Source: IE