Supreme Court Reverses its Ban on Ex-Post Environmental Clearances

In a landmark development, the Supreme Court of India has, by a 2:1 majority, recalled its own May 16, 2025 decision that had prohibited the grant of retrospective (or “ex post facto”) environmental clearances (ECs). The reversal reopens the door for the government to regularise projects that commenced without prior environmental approval, a move that has significant legal, environmental, and development implications. 

The original judgment, widely referred to as the Vanashakti judgment, struck down a 2017 notification and a 2021 Office Memorandum of the Ministry of Environment, Forest and Climate Change (MoEFCC), which had provided a mechanism for ex-post environmental clearances. The Court, in that decision, emphasised the foundational role of prior clearance, arguing that retrospective ECs undermine essential features of environmental impact assessment (EIA): public hearing, scoping, appraisal, and screening. Further, the bench had held that environmental law requires application of mind before commencement of a project; such forward-looking regulation is the purpose of the EIA process. Though the Court nullified the regulatory basis for future retrospective approvals, it did not invalidate ECs already granted under the 2017/2021 regime, ostensibly to avoid massive disruption. 

A three-judge bench led by CJI B. R. Gavai, with Justice Chandran concurring and Justice Bhuyan dissenting, recalled the May ruling after reviewing nearly 40 petitions. The majority cited the risk of demolishing major public infrastructure projects worth Rs. 20,000 crore and the environmental harm such demolition could cause. They also noted that past notifications provided a penalty-based mechanism for retrospective ECs. The issue has now been referred to a larger bench. Justice Bhuyan dissented, reiterating that ex post facto clearances violate environmental law and erode the precautionary and participatory foundations of the EC framework. He stressed that prior assessment is a constitutional obligation, not a procedural formality, and that allowing retrospective approvals risks incentivising non-compliance across sectors. 

This reversal marks a notable shift in how the law balances environmental protection with economic imperatives. Projects in infrastructure, real estate, mining, and similar sectors that began without prior clearance may now pursue regularisation instead of facing demolition or prolonged litigation. Critics, including Justice Bhuyan, caution that bypassing prior assessment risks weakening core safeguards such as public hearings and environmental appraisal. With the Court referencing a penalty-based framework, a central question emerges: will retrospective clearances require meaningful remediation, or merely provide a procedural cover? 

From a legal practitioner’s perspective, this judgment marks a delicate recalibration, not a clean win for either development lobbies or environmental purists. The Court has not granted a carte blanche; instead, it has reopened a deeply contested legal question, insisting on a reassessment in a proper forum. For real estate and infrastructure lawyers, environmental counsel, and regulators, the judgment is a call to revisit compliance strategies, risk assessment, and long-term project sanction frameworks.