To Set the Clock Back to Save Time Is Not Justice But Judicial Compromise: Supreme Court's Split Verdict Reignites Debate on Post-Facto Environmental Clearances

“There is no concept called ex post facto environmental clearance in environmental jurisprudence. It cannot be countenanced. It is an anathema” – Justice Ujjal Bhuyan’s dissent stands firm against judicial dilution of environmental principles.Today, On November 18, 2025, the Supreme Court of India delivered a powerful and deeply divided judgment in the review petition filed by the Confederation of Real Estate Developers of India (CREDAI) against the May 16, 2025 ruling in Vanashakti v. Union of India. The earlier Vanashakti decision had struck down the 2017 Notification and 2021 Office Memorandum issued by the Ministry of Environment, Forest and Climate Change (MoEF&CC), which permitted ex post facto Environmental Clearances (ECs) for projects that had commenced without prior approval.

In the review judgment, Chief Justice D.Y. Chandrachud and Justice K. Vinod Chandran allowed the review, effectively recalling the original Vanashakti judgment and restoring the writ petitions and connected civil appeals for a fresh hearing. However, Justice Ujjal Bhuyan delivered a resounding dissent, refusing to allow the review and calling the very concept of ex post facto environmental clearance “a complete anathema” to India’s environmental jurisprudence.

The split verdict lays bare the ongoing constitutional and legal tension between the need for environmental protection and the practical realities of infrastructure and industrial development, raising fundamental questions about the legitimacy of legalizing past violations in the name of public interest and economic growth.

“Supreme Court Cannot Be Seen Backtracking On Sound Environmental Jurisprudence”: Justice Bhuyan Opposes Review

Justice Ujjal Bhuyan’s dissent is a fierce defense of the environmental rule of law. Refusing to allow the review petition, he held that the concept of post-facto clearance is unknown to Indian environmental law and contrary to judicial precedents. Citing the apex court’s binding judgments in Common Cause v. Union of India and Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, he stated:

“There is no concept called ex post facto environmental clearance in environmental jurisprudence. It cannot be countenanced. It is an anathema.”

Justice Bhuyan criticized the majority’s reliance on the judgments in Electrosteel Steels Ltd., Pahwa Plastics, and D. Swamy, declaring that these decisions were rendered without consideration of the binding ratio in Common Cause and Alembic and were thus per incuriam.

“Judicial discipline and judicial propriety have been breached. The subsequent coordinate Bench took a completely divergent view... and did not follow the binding precedent.”

Calling the majority’s recall of the Vanashakti judgment “a step in retrogression,” Justice Bhuyan emphasized that the principle of non-regression in environmental law, rooted in international commitments like the Rio Declaration, cannot be diluted.

“Supreme Court… cannot be seen backtracking on sound environmental jurisprudence that has evolved in this country, that too, on a review petition filed by persons who have shown scant regard for the rule of law.”

He warned that accepting economic hardship as a justification for environmental violations would erode the integrity of the law, stating: “It does not lie in the mouth of law violators to advance such a kind of justification to sustain the illegality.”

“Demolition Merely to Re-Apply for Clearance Would Be Setting the Clock Back to Save Time”: Justice Chandran’s Concurring Opinion Bats for Judicial Balance

Justice K. Vinod Chandran, in a separate concurring opinion, agreed with the Chief Justice in allowing the review but penned a detailed reasoning that acknowledges the legal tensions at play. He agreed that both the 2017 Notification and the 2021 Office Memorandum, though struck down in Vanashakti, were relied upon by numerous project developers in good faith and in the context of long-pending regulatory processes.

Justice Chandran observed:

“Demolition of the structures raised, merely for the purpose of applying for a prior EC to construct afresh, would not only cause undue hardship but also result in further depredation of the environment by the debris generated.”

He referred to real-life examples such as a greenfield airport and a fully constructed hospital that were caught in regulatory limbo. According to him, to undo such projects in the name of strict compliance would be counterproductive.

The concurring opinion traced the evolution of environmental clearance under the Environment (Protection) Act, the EIA Notifications of 1994 and 2006, and the 2017 Notification which temporarily allowed post-facto clearances. Justice Chandran noted that the Madras High Court had earlier recorded the government’s assurance that the 2017 Notification was a one-time measure, extended only till April 2018.

However, he emphasized that even though Common Cause and Alembic rejected post-facto ECs in principle, both judgments had allowed violators to continue operations on the basis of environmental remediation and penalties. Hence, he found that a reconciliation of those judgments with Electrosteel, Pahwa, and D. Swamy was possible.

“In my humble opinion, it also lowers the majesty of this Court,” said Justice Chandran, referring to criticisms of the government’s role. “The balanced approach, in the wake of admitted violations, taken in Common Cause & Alembic, has been completely lost sight of, by the judgment under review.”

He concluded that the power to issue ECs includes the power to amend or relax them, subject to conditions, and that a balanced, fact-sensitive approach was essential in environmental adjudication.

“A Rigid, Pedantic Approach Would Be Counterproductive”: Majority Allows Review, Restores Writ Petitions for Fresh Consideration

The majority opinion, delivered by Chief Justice D.Y. Chandrachud (text not publicly released in detail but supported by Justice Chandran’s concurrence), found merit in the grounds for review under Article 137 of the Constitution and Order XLVII Rule 1 of the CPC. It concluded that the earlier Vanashakti ruling had failed to consider relevant precedents and facts, and that the petitioners had been left remediless despite having nearly complied with the post-facto process.

The Court held that the writ petitions and civil appeals, which challenged the validity of the 2017 Notification and the 2021 Office Memorandum, must be restored and heard afresh, thus effectively recalling the Vanashakti judgment.

The Court refrained from finally ruling on the legality of the ex post facto EC regime and stated that it would be for the appropriate Bench to decide afresh on the constitutional and statutory validity of the 2017 and 2021 instruments.

“False Narrative Pitting Environment Against Development Is Untenable”: Principle of Sustainable Development Reaffirmed Amidst Legal Divisions

Justice Chandran noted that the notion that environmental protection must yield to development pressures is misleading. He reiterated the principle of sustainable development, calling it a well-settled judicial doctrine in Indian law.

“A false narrative pitting environment against development is untenable, and the principle of sustained development is reinforced by a plethora of judgments of this Court.”

He added that the relaxation in the regulatory regime, even if temporary, must be viewed in the light of “progressive realization of economic, social and cultural rights” as envisioned under the Constitution and elaborated in judgments such as Navtej Singh Johar v. Union of India.

Legality of Post-Facto EC Regime to Be Decided Anew, Court Divided on Judicial Leniency

The Supreme Court’s November 18, 2025 decision marks a pivotal moment in the evolution of environmental jurisprudence in India. While the majority has taken a pragmatic, development-sensitive view, Justice Ujjal Bhuyan’s dissent stands as a principled reaffirmation of environmental constitutionalism. The matter now returns to the Bench for full reconsideration of the core issue: can Indian environmental law permit the regularization of illegality under the cloak of necessity?

The coming hearing will test not just legal doctrine, but India’s environmental conscience.

Date of Decision: November 18, 2025