The Supreme Court of India, in Vanashakti v. Union of India (2025 SCC OnLine SC 1139), delivered a significant judgment on 16 May 2025 holding that the concept of ex-post facto environmental clearance is fundamentally incompatible with Indian environmental jurisprudence. A Bench of Justice A.S. Oka and Justice Ujjal Bhuyan struck down two Office Memoranda issued by the Union Government in 2017 and 2021 that had permitted retrospective environmental approvals for projects that commenced without prior clearance.
Background
The challenge arose from two government notifications. The first, issued in 2017, provided that ex-post facto environmental clearances could be granted to projects or activities that had started work on site, expanded production beyond the limits of an existing clearance, or changed their product mix without obtaining prior clearance under the Environment Impact Assessment (EIA) Notification, 2006. A subsequent Office Memorandum in 2021 reinforced this position.
Environmental organisations, led by the Mumbai-based NGO Vanashakti, challenged these notifications on the ground that permitting retrospective clearances undermined the entire purpose of the environmental impact assessment framework — which is to evaluate and mitigate environmental damage before a project commences, not to ratify damage already done.
The matter engaged the intersection of the precautionary principle, the Environment Protection Act, 1986, and the constitutional mandate under Articles 21 and 48A to protect the environment.
Key Holdings
The Court held as follows:
Ex-post facto clearances impermissible: The Court declared that the concept of ex-post facto environmental clearance is alien to environmental jurisprudence and anathema to law. An environmental clearance must, by its very nature, precede the commencement of a project, not follow it.
Office Memoranda struck down: Both the 2017 Notification and the 2021 Office Memorandum were struck down as being ultra vires the Environment Protection Act, 1986 and the EIA Notification, 2006.
Prior assessment mandatory: The Court reaffirmed that environmental impact assessment is a pre-condition to project commencement, not a post-hoc exercise. The precautionary principle requires that potential environmental damage be evaluated and mitigated before, not after, the activity begins.
Constitutional duty: The Bench emphasised the State's constitutional obligation under Article 48A to protect and improve the environment and safeguard forests and wildlife, reading it in conjunction with the right to a clean environment under Article 21.
Implications for Practitioners
This judgment had immediate and far-reaching consequences for the real estate, mining, and infrastructure sectors, where projects that had commenced without environmental clearance were relying on the possibility of obtaining retrospective approval. At the time of the judgment, the ruling effectively barred any future regularisation of such projects.
For environmental law practitioners, the decision provided a strong constitutional foundation for challenging projects operating without prior clearance. It strengthened the hand of affected communities and environmental organisations in demanding strict pre-project assessment compliance.
However, practitioners should note a critical subsequent development: on 18 November 2025, a three-judge Bench in Confederation of Real Estate Developers of India v. Vanashakti recalled this judgment by a 2:1 majority, holding that retrospective environmental clearances may be granted for permissible activities under defined conditions. The legal position on this issue therefore remains contested, and the divergent judicial views indicate that the matter may ultimately require resolution by a larger Bench.