New Delhi— In a significant development, the Supreme Court on Tuesday recalled its May 16 judgment that had barred the Centre from granting retrospective environmental clearances (ECs) to projects found violating environmental norms. The decision came through a 2:1 majority by a Bench comprising Chief Justice B R Gavai, Justice Ujjal Bhuyan, and Justice K Vinod Chandran, who delivered three separate opinions while hearing nearly 40 review and modification petitions linked to the Vanshakti case.
The earlier verdict, delivered by a Bench of Justice A S Oka (now retired) and Justice Bhuyan, had prohibited the Ministry of Environment, Forests and Climate Change (MoEFCC) from issuing ex-post facto clearances. That ruling had far-reaching implications, effectively preventing the regularisation of projects that had begun operations without prior ECs.
On Tuesday, CJI Gavai and Justice Chandran set aside the May 16 judgment, stating that the issues required fresh consideration by an appropriate Bench. CJI Gavai noted the practical consequences of the earlier ruling, pointing out that “public projects worth ₹20,000 crore will have to be demolished if the clearance is not reviewed.” He added that his conclusions had drawn criticism from Justice Bhuyan.
Justice Bhuyan issued a firm dissent, reiterating that retrospective environmental clearances are not recognised under environmental law. He said the concept of ex-post facto ECs is “an anathema, a curse devoted to evil, to environmental jurisprudence,” underscoring the potential dangers of allowing violations to be regularised after the fact.
CJI Gavai, however, highlighted that both the 2013 notification and the 2021 Office Memorandum had laid down a framework that allowed clearances to be granted on the basis of heavy penalties imposed on violators. The detailed judgment explaining the Court’s reasoning is expected soon.
The Bench had reserved its decision on October 9 after extensive arguments from senior advocates Kapil Sibal, Mukul Rohatgi, and Solicitor General Tushar Mehta, representing industrial bodies, infrastructure developers, and government agencies seeking a review or modification of the earlier ruling.
