When the apex court reviews its own decision: The environmental clearance paradox
On 18 November 2025, the Supreme Court (SC) of India did something unusual: it recalled its own six-month-old judgment. By a 2:1 majority, a bench comprising chief justice BR Gavai and justice K Vinod Chandran overturned the court’s 16 May 2025 verdict that had categorically banned the practice of granting post-facto or retrospective environmental clearances to projects.
Justice Ujjal Bhuyan, who had been part of the original bench that authored the May verdict, wrote a stinging dissent, calling the review judgment “a step in retrogression” and warning that it “overlooks the very fundamentals of environmental jurisprudence”.
This is not merely a technical dispute about procedural rules. At its core, lies a fundamental tension in India’s development model: can we allow projects worth thousands of crores—hospitals, airports, effluent treatment plants—built with public money but without environmental clearance, to stand? Or must environmental law’s preventive architecture remain inviolate, even at the cost of demolishing completed infrastructure?
What Happened: From Strictness To Pragmatism
The 16 May 2025 judgment in Vanashakti vs Union of India, authored by justice AS Oka (since retired) and justice Ujjal Bhuyan, had struck a decisive blow against what environmental activists have long termed “environmental lawlessness by design”. The court invalidated the ministry of environment’s 2017 notification and 2021 office memorandum, both of which had created a mechanism allowing projects that commenced construction or operations without prior environmental clearance (EC) to apply for retrospective approval by paying penalties.
The May verdict’s language was unambiguous. It held that post-facto environmental clearances were “completely alien” to India’s environmental jurisprudence, violated the fundamental right under Article 21 to live in a pollution-free environment, and contradicted the precautionary principle—the cornerstone of environmental law. Those seeking such clearances were not innocent actors but “fully aware” that they were breaking the law. The court cited binding precedents from Common Cause v. Union of India (2017) and Alembic Pharmaceuticals v. Rohit Prajapati (2020), both of which had held that ex-post facto clearances rewarded violators and undermined the mandatory requirement of prior assessment.
The impact was immediate and far-reaching. According to the government’s own submissions, 24 Central projects worth ₹8,293 crore and 29 state-level projects worth ₹11,168 crore were suddenly at risk of demolition or closure—totalling nearly ₹20,000 crore of public infrastructure. These included a 962-bed AIIMS hospital in Odisha, a newly constructed greenfield airport in Vijayanagar (Karnataka), and numerous common effluent treatment plants (CETPs) designed to prevent industrial pollution from contaminating rivers.
Six months later, faced with review petitions filed primarily by the Confederation of Real Estate Developers’ Associations of India (CREDAI) and supported by an affidavit from the Union government, the court reversed course.
The Majority’s Justification: Judicial Discipline and Public Interest
Chief justice Gavai’s 84-page judgment rested on two primary grounds: a “grave error” in judicial discipline and the “catastrophic impact” on public interest.
The per incuriam argument
CJI Gavai held that the 16 May judgment was rendered per incuriam—“through lack of care”—because it failed to consider three binding precedents from coordinate benches of equal strength: Electrosteel Steels Ltd. v. Union of India (2021), Pahwa Plastics v. Dastak NGO (2023), and D. Swamy v. Karnataka State Pollution Control Board (2022). In all three cases, the court had permitted ex-post facto clearances in exceptional circumstances, particularly where closure would cause disproportionate economic hardship or where the project otherwise complied with pollution norms.
The chief justice emphasised that “it is trite law that a bench of two judges is bound by an earlier view taken by other two-judge benches”. By ignoring these precedents, the May judgment violated the principle of stare decisis—the doctrine that courts should follow established precedent to ensure consistency and legal certainty.
The public interest calculus
Moving beyond legal technicality to practical consequences, the chief justice posed a stark question: would it be in the public interest to demolish all such projects and “permit the money spent from the pocket of public exchequer to go in the dustbin”?
He pointed out that demolishing the 962-bed AIIMS facility in Odisha would deprive “thousands of citizens of the region” of essential medical services. Similarly, destroying CETPs—specifically designed to treat industrial effluent and prevent river pollution—would perversely increase environmental damage rather than reduce it. The process of demolition itself, he noted, would generate massive amounts of construction waste and pollution, making the cure worse than the disease.
Crucially, justice Gavai clarified that his analysis focused primarily on government and public sector projects. “The effect on the projects undertaken by the private individuals/entities may be manifold,” he observed, suggesting that stricter scrutiny would apply to private violators.
Justice K Vinod Chandran, writing a separate concurring judgment, agreed that the review was “not only warranted but imperative and expedient”. He emphasised that the failure of the May bench to notice crucial earlier judgments was itself a valid ground for review, and that regulatory certainty required harmonising apparently conflicting precedents.
The Dissent: Environmental Law Cannot Bend for Violators
Justice Ujjal Bhuyan’s 97-page dissent is perhaps even more significant than the majority opinion, for it articulates the foundational principles now at risk of erosion.
a.) The precautionary principle is non-negotiable
Justice Bhuyan emphasised that environmental law in India rests on the precautionary principle—the idea that environmental harm must be prevented before it occurs, not compensated after the fact. “‘Precautionary principle’ is the cornerstone of environmental jurisprudence,” he wrote. “‘Polluter pays’ is only a principle of reparation. Precautionary principle cannot be given a short shrift by relying on polluter pays principle.”
This distinction is crucial. The polluter-pays principle, which the 2021 office memorandum invoked by imposing penalties on violators, addresses remediation and compensation after damage has occurred. The precautionary principle operates before projects begin, requiring rigorous environmental impact assessment (EIA), public hearings, and expert appraisal to determine whether a project should proceed at all. Once construction begins without clearance, the environmental baseline is destroyed, making meaningful assessment impossible.
b.) No concept of post-facto clearance in environmental law
Justice Bhuyan held unequivocally that “there is no concept of ex post facto environmental clearance in environmental law,” calling it “an anathema, a curse devoted to evil, to environmental jurisprudence”. The EIA notification of 2006 states clearly that projects “shall require prior environmental clearance” before any construction begins. The word “prior” is not incidental—it is the entire point.
Citing the example of Delhi’s toxic smog, justice Bhuyan warned that “the court cannot be seen backtracking on the 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”.
c.) Review jurisdiction not made out
On the narrow legal question of whether grounds for review existed, Justice Bhuyan was categorical: no error had been demonstrated. The May judgment had correctly followed Common Cause (2017) and Alembic Pharmaceuticals (2020)—both binding two-judge decisions that explicitly held post-facto clearances illegal. The later cases cited by the chief justice—Electrosteel, Pahwa Plastics, and D Swamy—had not expressly overruled these precedents. If there was indeed a conflict between coordinate benches, the proper course was to refer the matter to a larger bench for authoritative resolution, not to allow review petitions from violators.
Justice Bhuyan also noted, pointedly, that the Union government itself had not filed a review petition but merely submitted an affidavit supporting CREDAI—effectively accepting the May verdict while simultaneously undermining it.
Arguments for the Recall: Pragmatism and Proportionality
Supporters of the majority view can marshal several arguments.
a.) Completed public infrastructure serves citizens
The AIIMS hospital in Odisha, whatever its procedural defects, now provides 962 beds serving a medically underserved region. Demolishing it would not undo past environmental harm but would deny healthcare to thousands. Similarly, the Vijayanagar airport and CETPs represent functional infrastructure addressing real public needs.
b.) Demolition increases environmental damage
The majority correctly observed that demolishing thousands of crores worth of construction would generate enormous quantities of debris, consume energy, and create pollution—all while the environmental harm from the original construction cannot be reversed. If the projects are now operationally compliant with pollution norms, closure becomes punitive rather than protective.
c.) Reconciling conflicting precedents
The court has indeed permitted limited post-facto clearances in exceptional cases—notably in Electrosteel (where closure of a running steel plant would cause massive economic dislocation) and Pahwa Plastics (where denial of clearance would be disproportionate). A complete ban in the May judgment arguably failed to account for this nuanced jurisprudence. Justice Chandran’s emphasis on “harmonising” precedents rather than rigidly applying one line of cases has doctrinal appeal.
d.) Economic realism and the investment climate
India’s infrastructure deficit is acute. While this cannot justify violation of environmental law, the practical reality is that procedural delays, bureaucratic confusion, and changing rules have sometimes led even well-intentioned public agencies to proceed without clearances they believed were not required or were pending. A blanket demolition order risks creating regulatory paralysis and deterring essential public investment.
Arguments Against the Recall: Rule of Law and Long-Term Consequences
Yet the dissent’s concerns cannot be dismissed as environmental purism divorced from reality.
a.) Rewarding knowing violators
The May judgment carefully distinguished between inadvertent violations and deliberate flouting of law. As justice Oka had noted, the beneficiaries were not innocent or uninformed individuals but corporations, public sector bodies, real estate developers and mining operators who knowingly acted in breach of the law. Granting them retrospective clearance sends a clear message: violate first, regularise later. This creates perverse incentives and undermines the entire regulatory framework.
b.) The precautionary principle is preventive, not compensatory
The fundamental purpose of prior environmental clearance is to prevent projects that would cause unacceptable harm from ever being built. Once construction proceeds, the environmental baseline is altered, biodiversity displaced, and ecosystems disrupted. No after-the-fact assessment can meaningfully evaluate what the pre-construction impact would have been. The 2006 EIA notification mandates scoping, public hearings and expert appraisal before construction precisely because these processes become meaningless afterwards.
c.) Constitutional right to a clean environment
Article 21 of the Constitution guarantees the right to life, which the SC has consistently held includes the right to a clean and pollution-free environment. Articles 48A and 51A(g) impose a constitutional duty on the State and citizens to protect and improve the natural environment. Post-facto clearances subordinate this fundamental right to economic expediency. If public interest is to be invoked, the long-term public interest in breathable air, clean water and stable ecosystems must weigh more heavily than short-term infrastructure concerns.
d.) A slippery slope of systemic erosion
The real danger lies not in regularising this particular set of projects but in the precedent it sets. If completed projects can be saved through penalties and post-facto assessments, what incentive remains for future compliance? As justice Bhuyan warned, this is “a step in retrogression”. Environmental governance in India has been fragile and enforcement weak; the May judgment represented a rare assertion of strict accountability. Its recall may embolden future violations.
e.) Alternative mechanisms were available
Even within the May judgment’s framework, limited clarifications could have addressed genuine cases where applications were filed during the valid 2017 window. There was no need to throw open the doors again through wholesale recall. Moreover, for truly exceptional cases involving critical public infrastructure, Parliament could have enacted specific legislative provisions with appropriate safeguards, rather than the executive issuing office memoranda that circumvent statutory requirements.
Conclusion: A Question of Institutional Credibility
This case transcends environmental law—it raises profound questions about judicial consistency, the balance between development and sustainability, and the credibility of India’s regulatory institutions.
The SC now speaks in two voices on environmental clearances within the span of six months. While the doctrine of per incuriam provides a formal legal justification for the recall, the underlying truth is more troubling: the court has struggled to reconcile its aspirational environmental jurisprudence with the messy realities of India’s infrastructure development and regulatory capacity.
The majority’s pragmatism has merit—demolishing functional hospitals and pollution-control facilities serves no one. But justice Bhuyan’s dissent poses a question that cannot be avoided: if environmental law bends every time compliance becomes inconvenient or expensive, does it have any meaning at all?
The answer may lie not in choosing between environment and development but in building institutional capacity for concurrent compliance—streamlining clearance procedures, improving inter-agency coordination, and imposing genuinely deterrent penalties on violators, while protecting the precautionary principle’s core. Until that happens, courts will continue to navigate impossible choices between legal principle and practical consequence, satisfying neither environmentalists nor developers, and leaving India’s ecological future hostage to ad hoc judicial pragmatism.
For now, the projects worth ₹20,000 crore have been saved. The cost—in institutional credibility and environmental governance—may, however, prove far higher.
(Karan Bir Singh (KBS) Sidhu is a retired IAS officer and former special chief secretary, government of Punjab. He holds a Master’s degree in Economics from the University of Manchester, UK. He writes at the intersection of global trade negotiations, Trump-era tariff shocks, and contemporary geopolitics.)
