DEVELOPMENT AND CLEAN AIR ARE NOT BINARY CHOICES

December 03, 2025

A Detailed Legal Analysis of the Supreme Court’s Ex Post Facto Environmental Clearance Ruling

INTRODUCTION: THE SUPREME COURT REOPENS EX POST FACTO CLEARANCES

In Confederation of Real Estate Developers Association of India (CREDAI) v. Vanashakti & Ors., 2025, a two-judge majority (Justice BR Gavai and Justice K Vinod Chandran) reopened the possibility of granting ex post facto Environmental Clearances (ECs) — approvals given after construction has already begun. Justice Ujjal Bhuyan dissented. The verdict effectively reverses the landmark May 2024 judgment in Vanashakti v. Union of India, which categorically prohibited such retroactive approvals.

This ruling marks one of the most consequential environmental decisions in recent years, reopening the door for developers to operate without prior scrutiny, and later regularise the project with penalties or corrective measures.

BACKGROUND: THE MAY 2024 VANASHAKTI JUDGMENT

The original Vanashakti v. Union of India judgment (May 2024) by Justice AS Oka and Justice Bhuyan struck down the Ministry of Environment, Forest and Climate Change (MoEFCC)’s:

2017 Notification permitting ex post facto clearances under restrictive conditions
2021 Office Memorandum laying guidelines for such clearances

The Court held that environmental governance is fundamentally preventive, and prior ECs are mandatory under the Environmental Impact Assessment (EIA) framework. Allowing projects to seek ECs after construction had begun was declared contrary to environmental rule of law.

This judgment was considered a major win for environmental jurisprudence in India.

WHY THE COURT REVERSED ITS EARLIER STAND

CREDAI filed a review petition supported by the Union Government and several state governments. They argued that:

The earlier judgment did not consider existing precedents where the Supreme Court allowed ex post facto clearances in exceptional cases.
Demolition of large, partially completed projects would lead to massive wastage of public and private resources.
Delays in EC processing or administrative bottlenecks often result in genuine cases where construction begins without prior approval.

The new verdict reopened the possibility of retroactive approvals, citing practical governance considerations.

IMMEDIATE IMPACT OF THE RULING

The new ruling enables developers to:

Start construction even in ecologically fragile or sensitive zones.
Proceed without waiting for lengthy EC processes.
Seek regularisation later by paying fines or undertaking remediation.

Earlier deterrents like demolition, injunctions, or reputational harm are now significantly weakened. Developers may calculate that violating EC requirements first, and rectifying later, is financially more viable than compliance in advance.

This creates a structural shift in environmental compliance behaviour in India.

RISKS OF EX POST FACTO CLEARANCES

Allowing retroactive approvals undermines:

Preventive environmental governance
Public participation in the EIA process
Transparency in decision-making
Accountability for environmental damage

Once wetlands are filled, groundwater depleted, or forest cover removed, no punitive fine can restore the original ecology. The ruling risks institutionalising a “build first, legalise later” culture.

Over time, this may result in rising environmental violations, especially in areas where prior clearance delays are expected.

THE DISSENTING OPINION OF JUSTICE UJJAL BHUYAN

Justice Bhuyan’s dissent is a strong reaffirmation of environmental constitutionalism. He held that:

Ex post facto clearances dilute environmental law by converting violations into financial transactions.
Allowing regularisation incentivises developers to “pay to pollute.”
It violates the precautionary principle, a foundational doctrine of Indian environmental law.
It infringes Article 21, which includes the right to a clean and healthy environment.
It undermines Article 51A(g), which imposes a fundamental duty on citizens to protect the environment.

His dissent places environmental protection above economic and developmental expediency.

THE COBRA EFFECT AND PERVERSE INCENTIVES

The ruling creates a classic cobra effect: a policy meant to reduce violations may incentivise more violations. Just as colonial incentives to kill cobras led to cobra breeding, allowing ex post facto ECs may cause more developers to proceed without prior permission, knowing that they can negotiate compliance later.

This risks escalating long-term environmental degradation.

THE DEVELOPMENT VS ENVIRONMENT DEBATE

India needs both economic growth and environmental protection. Framing these as mutually exclusive interests is a false choice. Sustainable development must ensure:

Infrastructure building
Clean air
Clean water
Ecological balance

The recall judgment helps avoid large-scale demolition of partially built structures but risks causing deeper ecological damage through gradual weakening of safeguards.

STATUTES RELEVANT TO THE RULING

Environment (Protection) Act, 1986

Serves as the umbrella legislation for environmental regulation.
Section 3 empowers the Central Government to issue notifications regulating industrial and infrastructural activities.

EIA Notification, 2006

Mandatory requirement of prior Environmental Clearance before commencing construction.
Prescribes categories of projects and the need for public consultation, expert appraisal, impact analysis, etc.

Forest (Conservation) Act, 1980

Prohibits diversion of forest land without prior Central Government approval.

Water (Prevention and Control of Pollution) Act, 1974

Prior consent is mandatory to establish or operate any project impacting water bodies.

Air (Prevention and Control of Pollution) Act, 1981

Prior consent required for industries affecting air quality.

National Green Tribunal Act, 2010

Empowers the NGT to strike down projects operating without environmental permission.

These statutory frameworks collectively mandate prior clearances.

RELEVANT CONSTITUTIONAL PROVISIONS

Article 21

Expanded to include the right to a clean environment, clean air, clean water, and environmental protection.

Article 48A

Directive Principle requiring the State to protect and improve the environment.

Article 51A(g)

Fundamental duty of every citizen to protect and preserve the natural environment.

Article 32 and 226

Empower courts to intervene in environmental matters involving violation of fundamental rights.

KEY JUDICIAL PRECEDENTS

Vellore Citizens’ Welfare Forum v. Union of India (1996)

Established the Precautionary Principle and Polluter Pays Principle as part of Indian law.

MC Mehta series (1986 onwards)

Expanded environmental rights under Article 21; enforced strict liability for hazardous industries.

Alembic Pharmaceuticals Ltd. v. Rohit Prajapati (2020)

Supreme Court strongly disapproved ex post facto clearances. Held that environmental law cannot be used to condone prior illegalities.

Lafarge Umiam Mining v. Union of India (2011)

Recognized sustainable development as the guiding principle balancing development and environmental concerns.

Sterlite Industries v. Union of India (2013)

Reaffirmed mandatory nature of prior clearances.

Vanashakti v. Union of India (2024)

Categorically barred ex post facto ECs; now effectively reversed.

These precedents show that Indian environmental law traditionally favours preventive rather than corrective regulation.

CONCLUSION: THE ENVIRONMENT CANNOT WAIT

The recall judgment avoids the immediate chaos of demolishing partially built projects but opens the door to a slow weakening of environmental safeguards.

India does not need to choose between development and clean air. Sustainable governance requires both. However, the new ruling risks incentivising violation over compliance, convenience over caution, and profit over precaution.

The environment cannot wait for a larger bench or another moment of judicial correction. Long-term ecological health must remain central to India’s development model.