Syllabus: Conservation, environmental pollution and degradation, environmental impact assessment.
Background of the Case
- On 18 November 2025, the Supreme Court (2:1 majority) reviewed and recalled its May 2025 judgment in CREDAI vs Vanashakti.
- The recalled judgment had earlier declared ex post facto environmental clearances (ECs) illegal.
- The review now holds that retrospective ECs may sometimes serve public interest, with Justice Ujjal Bhuyan dissenting.
The Problematic Logic of the Review
- The Court argues that refusing retrospective ECs could force authorities to halt or demolish completed projects.
- This creates circular reasoning: the illegal act becomes the justification for granting the clearance.
- Violations thus become grounds for validation, making rules fungible in face of a fait accompli.
Context of India’s Environmental Jurisprudence
- For decades, SC has linked the right to a healthy environment to Article 21.
- It has repeatedly upheld the precautionary principle, sustainable development, intergenerational equity, and the right against climate harms.
- However, these doctrines are undermined when the Court undercuts its own reasoned rulings.
The Original Judgment (May 2025)
- Authored by Justice A.S. Oka, it struck down the 2017 Notification and 2021 Office Memorandum permitting retrospective ECs.
- It reaffirmed that prior EC is a core pillar of the EIA 2006 regime, requiring:
- public hearings,
- scientific impact studies,
- expert appraisal, and
- conditional approvals before project initiation.
- Retrospective ECs violate the purpose of preventive environmental regulation.
- Relied on Common Cause (2017) and M.C. Mehta decisions, which rejected backdated approvals.
- Highlighted that the Government had earlier assured the Madras High Court that the 2017 notification was a one-time exemption, later contradicted by the 2021 SOP.
Flaws in the Review Judgment
- Focuses narrowly on project inconvenience, shifting from principle to expediency.
- As Justice Bhuyan warns, replacing prior scrutiny with backdated lenience destroys deterrence.
- Encourages project proponents to begin work without EC, expecting later regularisation through fines.
Consequences for Environmental Governance
- EIA process hollowed out; public participation and expert review reduced to ritual.
- Compliance becomes voluntary; enforcement loses strength.
- Signals dilution of accountability at a time of deepening climate crises.
Conclusion
- The review weakens decades of environmental protection jurisprudence.
- When the Court reconsiders the issue, more than EC notifications are at stake—the credibility of India’s rule of law is on the line.
