India's Supreme Court Recalls Verdict Striking Down Retrospective Environmental Clearances

Supreme Court Reinstates Retrospective Green Clearances

The Supreme Court of India, in a significant 2:1 majority judgment delivered on Tuesday, November 18, 2025, has recalled its previous verdict that had declared retrospective (ex post facto) environmental clearances (ECs) as illegal. This decision effectively restores the government's ability to grant retroactive approvals for projects that commenced without prior environmental consent.

The three-judge bench comprised Chief Justice of India B.R. Gavai, Justice Ujjal Bhuyan, and Justice K. Vinod Chandran. While Chief Justice Gavai and Justice Chandran formed the majority, Justice Bhuyan recorded a strong dissenting opinion.

The May 16 Verdict and Its Impact

The recalled judgment, issued on May 16, 2025, and often referred to as the 'Vanashakti judgment,' had unequivocally struck down the practice of granting ex post facto ECs. It had deemed such clearances a 'gross illegality' and 'anathema' to environmental law, also invalidating a 2017 notification and a 2021 Office Memorandum that facilitated these approvals. The original verdict, delivered by a bench including Justice A.S. Oka (now retired) and Justice Ujjal Bhuyan, emphasized that the right to a pollution-free environment is integral to the fundamental right to life.

Reasons for the Recall: Public Interest and Economic Costs

The majority opinion, led by CJI B.R. Gavai, cited significant public interest and economic implications as primary reasons for the recall. It was argued that allowing the May 16 judgment to stand would have a 'devastating effect,' potentially leading to the demolition of projects worth approximately Rs 20,000 crore. This figure includes 24 Central projects valued at Rs 8,293 crore and 29 State projects worth Rs 11,168 crore, many of which are crucial public infrastructure. Examples cited include the 962-bed AIIMS Medical College and Hospital in Odisha and a greenfield airport in Vijayanagar, Karnataka.

CJI Gavai questioned whether demolishing such projects, built with public funds, would truly serve the public interest or merely result in 'throwing the valuable public resources in the dustbin.' The majority also noted that the May 16 judgment had overlooked previous Supreme Court rulings by co-equal benches that had permitted post-facto ECs in exceptional circumstances, rendering the earlier verdict 'per incuriam' (passed in ignorance of a prior binding decision).

Dissenting View: 'Anathema to Environmental Jurisprudence'

Justice Ujjal Bhuyan, in his dissenting opinion, strongly maintained that the concept of retrospective environmental clearances is 'alien' and 'anathema' to environmental jurisprudence. He termed the review judgment a 'step in retrogression' and criticized it for overlooking the 'very fundamentals of environmental jurisprudence.' Justice Bhuyan emphasized the 'precautionary principle' as the cornerstone of environmental law and warned against legitimizing 'lawlessness' by allowing environmental violators to obtain retroactive approvals.

Future Implications

The Supreme Court's latest decision provides significant relief to various industries and infrastructure agencies in India, allowing projects that began without prior environmental clearance to seek regularization, albeit with potential penalties. The matter is now slated to be placed before an appropriate bench for fresh consideration, indicating ongoing legal scrutiny of the issue.