Author: Ajim B Shaikh

Case Title	Vanashakti & Anr. v. Union of India & Ors.
Neutral Citation	2025 INSC 718
Writ Petitions	W.P.(C) No. 1394 of 2023 | W.P.(C) No. 118 of 2019 | W.P.(C) No. 115 of 2024 | C.A. No. 381-382 of 2025
Date of Decision	May 16, 2025
Court	Supreme Court of India — Civil Original Jurisdiction
Bench (2-Judge)	Justice Abhay S. Oka (Author) & Justice Ujjal Bhuyan

Facts

India’s Environment Impact Assessment (EIA) framework, based on the Environment (Protection) Act, 1986 and the EIA Notifications of 1994 and 2006, requires industries and major projects to obtain Environmental Clearance (EC) before starting construction or operations. EC means government permission after assessing whether a project may harm the environment. The EIA system is preventive in nature because environmental damage is often irreversible. Under the 2006 EIA Notification, a multi-stage process of screening, scoping, public consultation, and appraisal is followed, and the Expert Appraisal Committee (EAC) examines reports and recommendations before EC is granted. The main issue in this case was ex post facto Environmental Clearance, which means approval after the activity has already begun. Instead of taking permission first, industries began construction illegally and later applied for EC, mainly to avoid the rigid process, ensure ease of doing business, and get faster approvals. This created a moral hazard and encouraged violation of environmental rules. To address this, Ministry of Environment, Forest and Climate Change,(MoEFCC) issued the 2017 Notification, giving a limited six-month amnesty window for projects without prior EC before 14 March 2017, and later the 2021 Office Memorandum, which created an SOP for such violations. The matter finally reached the Supreme Court through multiple writ petitions and civil appeals.

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Issues

1. Whether ex post facto or retrospective Environmental Clearance is permissible under the EIA Notification, 2006 and the Environment (Protection) Act, 1986?
2. Whether the 2017 Notification and 2021 Office Memorandum are ultra vires the Environment (Protection) Act, 1986 and unconstitutional?
3. Whether ex post facto Environmental Clearance violates Articles 14 and 21 of the Constitution?
4. If these schemes are illegal, whether the clearances already granted under them should be annulled or preserved?

Arguments by Both Sides

Arguments by the Petitioners (Vanashakti & Others)

The petitioners relied on the literal interpretation of the EIA Notification, 2006, which repeatedly uses the phrase “prior environmental clearance.” They argued that the word “prior” makes pre-commencement clearance mandatory and leaves no room for retrospective approval.

The petitioners contended that ex post facto EC violates the Precautionary Principle, as recognised in Common Cause v. Union of India and Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, because it permits projects to operate without prior scrutiny, resulting in irreversible environmental damage.

They further argued that the right to a clean and pollution-free environment forms part of Article 21 of the Constitution of India. By permitting industries to operate illegally and later seek regularization the Notifications and OMs violated citizens’ right to a healthy environment.

Relying on Alembic Pharmaceuticals, the petitioners argued that a “violate first and regularize later” approach encourages industries to ignore environmental laws and weakens preventive environmental governance.

The petitioners also argued that the 2017 Notification and 2021 OM are ultra vires Section 3 of the Environment (Protection) Act, 1986 because the statute only authorises measures necessary for protecting and improving the environment, not regularizing illegal projects.

Arguments by the Respondents (Union of India & Others)

The Additional Solicitor General argued that the 2021 OM did not grant ex post facto EC but merely established a Standard Operating Procedure to deal with violations that had already occurred.

The Government relied heavily on the Polluter Pays Principle, arguing that violators would still face penalties, pay compensation for environmental damage, and undertake remedial measures before being allowed to continue operations.

The Union Government further argued that EC granted under the SOP would operate only prospectively from the date of approval and therefore was not truly retrospective.

The Government also advanced a pragmatic argument. Many violating projects involved large industries, public sector undertakings, real-estate, and infrastructure projects where substantial investments had already been made. According to the Government, demolishing such projects would cause economic loss and greater environmental damage.

The respondents additionally argued that projects found environmentally harmful or impermissible could still face demolition or closure.

Judgment / Decision

On May 16, 2025, a two-Judge Bench of the Supreme Court comprising Justice Abhay S. Oka and Justice Ujjal Bhuyan delivered a landmark judgment in favor of the petitioners.

The Supreme Court struck down the 2017 Notification and the 2021 Office Memorandum, along with all circulars and communications issued to give effect to them, holding them ultra vires the Environment (Protection) Act, 1986 and violative of Article 21 of the Constitution.

The Court categorically held that ex post facto or retrospective Environmental Clearance is completely alien to environmental jurisprudence and contrary to the EIA Notification, 2006. Starting any project without prior EC amounts to a gross illegality.

The Court restrained the Central Government from issuing any future notifications, circulars, or Office Memorandums permitting ex post facto Environmental Clearance or regularising acts done in violation of the EIA framework.

At the same time, the Court protected ECs already granted under the 2017 Notification and 2021 OM to avoid administrative chaos, economic disruption, and further environmental harm.

Legal Reasoning

1. The Supreme Court held that “prior” Environmental Clearance under the EIA Notification, 2006 is mandatory and must be obtained before any project begins.
2. The Court ruled that Section 3 of the Environment (Protection) Act, 1986 can only be used to protect and improve the environment, not to regularize illegal projects.
3. The Court held that allowing projects without prior environmental scrutiny violates Article 21, which guarantees the right to a clean and pollution-free environment.
4. The scheme was held arbitrary under Article 14 because it unfairly benefited violators over law-abiding project proponents.
5. The Court reaffirmed that Indian environmental law is preventive in nature and that ex post facto EC violates the Precautionary Principle.
6. The Court clarified that the Polluter Pays Principle cannot justify retrospective Environmental Clearance because compensation cannot legalize an illegal project.
7. The Court relied on Common Cause v. Union of India, Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, and Electrosteel Limited v. Union of India, which held that ex post facto Environmental Clearance is contrary to environmental jurisprudence.

Environmental Impact & Personal Commentary

The Vanashakti litigation addressed one of the most significant structural weaknesses in India’s environmental governance: the gap between law on paper and law in practice. Reading this judgment feels like a breath of fresh judicial air in 2025. Justice Oka writes with remarkable clarity. By striking down the “build first, regularise later” approach, the Supreme Court reaffirmed the Precautionary Principle and clarified that environmental safeguards must come before development, not after environmental damage has already occurred. The judgment reinforced accountability of corporations and developers by making it clear that industries cannot violate environmental laws expecting later approval.

 In my view, the original Vanashakti judgment was constitutionally and environmentally significant because it refused to prioritise economic convenience over environmental protection. It is very beneficial for future litigants, NGOs, and citizens to challenge EC on the basis of Vanashakti. For a nation committed to Net Zero by 2070, environmental framework must remain preventive and robust. The original Vanashakti judgment was a moment of clarity. Its reversal was, as Justice Bhuyan rightly said, ‘a step in retrogression.