Recently, the Supreme Court reversed its May 2025 order that had struck down the grant of retrospective environmental clearances (ECs), citing concerns over the public interest and economic repercussions.

What is Ex-Post Facto Environmental Clearance? 

• Ex-post facto environmental clearance refers to approval granted to projects or activities that have already been initiated or completed without obtaining prior environmental clearance (EC) as mandated under the Environmental Impact Assessment (EIA) Notification.
• Implications: Ex-post facto clearance bypasses proper environmental scrutiny, potentially leading to significant environmental degradation, loss of biodiversity, and violation of environmental norms.
• Government Stance: 
• • 2017 Notification: The Ministry of Environment, Forest and Climate Change (MoEFCC) issued a notification restricting ex-post facto clearances, except in exceptional cases where the project was compliant with environmental standards.

Environmental Clearance Regime in India

• Environment Protection Act (1986): The Environment Protection Act and EIA notifications (1994 & 2006) are structured around Prior Environmental Clearance (EC), mandating that large projects must not begin until assessed for environmental impact.
• Court Rulings on Post-Facto ECs: Previous rulings (e.g., Common Cause 2017, Alembic Pharmaceuticals 2020) declared post-facto ECs as impermissible, reinforcing that ECs should be granted before project initiation to assess potential impacts.

The Vanashakti Case and Its Reversal

• May 2025 Order (Vanashakti): The Court declared that granting post facto ECs for illegal constructions was “gross illegality” and an “anathema” to environmental law.
  • The court struck down the 2017 notification and 2021 Office Memorandum (OM) of Centre which recognised the post-facto ECs.
• Government and Industry Response: The Confederation of Real Estate Developers of India (CREDAI) and the Union government had filed review petitions arguing that the decision would result in demolition of public and private projects worth thousands of crores.

Supreme Court’s Majority Judgment (Nov 2025)

• Public Interest Argument: Chief Justice B.R. Gavai held that the May 16 ruling would cause devastating economic effects, especially on public infrastructure like hospitals and medical institutes
• Justification for Retrospective ECs: The Chief Justice questioned the necessity of demolishing completed projects and emphasized that post facto clearances should not be dismissed rigidly but allowed in exceptional cases where large investments were already made.
• Post Facto ECs as Exception: The majority upheld that post-facto ECs should not be the regular route but could be allowed for projects with considerable resources already committed, ensuring public interest is safeguarded.

Dissenting Opinion

• Backtracking on Environmental Law: Justice Ujjal Bhuyan dissented sharply, accusing the Court of backtracking on sound environmental jurisprudence to favor violators. 
  • He criticized the false narrative being created between environment and development.
• Incompatibility with Environmental Laws: Justice Bhuyan argued that retrospective ECs are incompatible with the precautionary principle and sustainable development. 
  • He termed the concept of post-facto clearance as a “detrimental and alien concept” that leads to irreparable environmental degradation.
• Fundamental Environmental Concerns: He emphasized that ecology and development are not mutually exclusive and should align with Constitutional goals of sustainable development.

Check Out UPSC CSE Books

Visit PW Store

Implications for Environmental Law

• Post-Facto ECs as Exception: The judgment reflects the continued importance of prior ECs for ensuring environmental protection, with post-facto ECs remaining an exception in very specific, high-investment cases.
• Environment vs Development Debate: The ruling highlights the difficult balance between environmental preservation and economic development, ensuring that both can coexist under the framework of sustainable development.
• Risks and Concerns: This may encourage some developers to violate procedures, weakening the deterrent effect of environmental laws if not monitored.

DOWNLOAD PDF