The Supreme Court, by a 2:1 majority, has recalled its earlier judgment in the Vanashakti matter, which had prohibited the Union government from granting post-facto environmental clearances for projects. The earlier ruling had invalidated a 2017 notification and a 2021 office memorandum that enabled retrospective environmental approvals. In reviewing the case, the Bench comprising the Chief Justice and two companion judges considered multiple pleas challenging the correctness of the original decision. The majority held that the earlier judgment had not taken into account certain binding precedents, including one that had previously upheld the grant of ex-post facto clearances in exceptional circumstances. They emphasised that prior rulings had recognised the possibility of regularising violations with penalties in limited scenarios, and therefore a total prohibition would create inconsistencies.
The Chief Justice expressed concern that enforcing a blanket ban on retrospective clearances could cause practical and environmental issues, noting that mandating demolition of existing structures might itself result in environmental damage. The majority found that the earlier judgment treated all instances of non-compliance uniformly, without distinguishing between acceptable and impermissible activities. They also highlighted that while the previous decision barred future post-facto clearances, it did not invalidate the ones already issued under the 2017 notification and the 2021 memorandum, potentially leading to unequal treatment among similarly situated parties.
In a strong dissent, Justice Ujjal Bhuyan defended the original Vanashakti ruling, stating that the review petitions lacked substantive grounds. He maintained that the Court had correctly applied precedents establishing that environmental clearance must be obtained prior to commencement of any project, and that retrospective approvals undermine the statutory framework requiring prior assessment. He rejected reliance on a particular earlier judgment that appeared to support ex-post facto clearances, stating that it was delivered without considering binding Supreme Court rulings and therefore could not be treated as authoritative. According to him, allowing retrospective approvals would dilute essential environmental safeguards and violate principles such as the precautionary rule and sustainable development.
Justice Bhuyan further argued that public-interest considerations, such as avoiding demolition, cannot excuse non-compliance with mandatory environmental norms. He pointed out that the government had previously described the 2017 notification as a one-time measure and criticised the subsequent extension of the regime through the 2021 memorandum as arbitrary. In his view, any move to permit post-facto clearances in the name of pragmatism weakens environmental governance and encourages violations.
Justice Chandran, agreeing with the Chief Justice, noted that while a strict interpretation of the law might technically require demolition before a fresh clearance can be sought, such an approach would be impractical and counterproductive. He stated that environmental authorities possess substantive powers under the governing statute, which were not sufficiently addressed in the earlier judgment. He concluded that the complete ban imposed by the Vanashakti decision did not align with the wider body of environmental jurisprudence and failed to account for the complexities involved in regulatory administration.
As a result of the majority decision, the Vanashakti judgment has been recalled, thereby removing the absolute prohibition on post-facto environmental clearances. However, the dissent warns that the shift may have long-term consequences for environmental protection, insisting that strict prior-clearance requirements remain essential to safeguarding ecological interests.
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