Published on: 2nd August 2026
Authored by: Jasaswini Tripathy
SOA National Institute of Law
1. Case Details
Full Case Name: Vanashakti v. Union of India & Ors.
Review Case Name: Confederation of Real Estate Developers’ Associations of India (CREDAI) v. Vanashakti & Ors.
Citation: 2025 INSC 718; Writ Petition (C) No. 1394 of 2023 (with connected WP(C) No. 118 of 2019, WP(C) No. 115 of 2024, and CA No. 381 to 382 of 2025)[1]
Review Judgment Citation: 2025 INSC 1326; Review Petition (C) Diary No. 41929 of 2025[2]
Court: Supreme Court of India
Bench (Original Judgment): Justice Abhay S. Oka, Justice Ujjal Bhuyan[1]
Bench (Review Judgment): Justice K. Vinod Chandran (concurring), Justice Ujjal Bhuyan (dissenting), written for the majority by CJI B.R. Gavai[2]
Date of Judgment: 16 May 2025 (Original); 18 November 2025 (Review)[1], [2]
Area of Law: Environmental Law, Constitutional Law, Administrative Law[3]
2. Facts of the Case
The Environmental Impact Assessment (EIA) Notification of 2006, issued under the Environment (Protection) Act, 1986, mandates that any project carrying significant environmental implications must obtain prior Environmental Clearance (EC) before commencing construction or operations.[3] This requirement is a substantive environmental safeguard. The EIA framework is built upon four mandatory stages: determination of terms of reference, baseline data collection, public consultation, and expert appraisal. These stages hold legal significance only when conducted prior to project execution, rather than post facto after environmental degradation has occurred.[1]
In March 2017, the Ministry of Environment, Forests and Climate Change (MoEFCC) issued a notification offering a regularisation window for project proponents who had started operations without prior EC, allowing retrospective applications subject to penalty payments.[1] In Puducherry Environment Protection Association v. Union of India before the Madras High Court, the Union government made an explicit commitment that the 2017 notification was strictly a one-time measure.[4] However, in 2021, the MoEFCC issued an Office Memorandum (OM) reinstating the exact regularisation scheme, directly violating its undertaking before the High Court.[1] This marked the government’s third attempt to formalize an amnesty framework for environmental non-compliance.[1]
Vanashakti, an environmental NGO based in Mumbai, challenged the 2017 notification and the 2021 OM before the Supreme Court under Article 32.[1], [3] Industry associations, including CREDAI, Tata Steel, and Goel Ganga Developers, intervened, claiming that over 99,300 ongoing projects would face jeopardy if the retrospective regularisation mechanism were invalidated.[1]
3. Primary Issues Before the Court
1. Permissibility of Retrospective Clearance: Whether ex-post-facto Environmental Clearance is legally permissible under the Environment (Protection) Act, 1986, and the 2006 EIA Notification.[1], [3]
2. Violation of Article 21: Whether the 2017 notification and the 2021 OM violated the fundamental right to a clean environment under Article 21 of the Constitution.[1], [3]
3. Precautionary Principle and Public Trust: Whether the precautionary principle and public trust doctrine bar retrospective regularisation of unauthorized developments.[1]
4. Scope of Review Jurisdiction: Whether the Supreme Court could recall its own final judgment in review on the ground that coordinate bench decisions were not brought to the attention of the original bench.[2]
4. Arguments of the Parties
Arguments of the Petitioner (Vanashakti):
Represented by Senior Advocates Gopal Sankaranarayanan and Sanjay Parikh, the petitioner argued that ex-post-facto EC invalidates the core purpose of environmental impact assessment, which requires evaluating risk prior to project commencement.[1] Relying on Common Cause v. Union of India[5] and Alembic Pharmaceuticals Ltd. v. Rohit Prajapati,[6] they contended that retrospective clearances are legally impermissible.[1]
The petitioner asserted that the 2021 OM exacerbated the constitutional breach because it represented the government’s third attempt to perpetuate an illegal system despite promising a High Court that it was a one-time measure.[1] The scheme infringed upon Article 21[3] by exposing communities to unappraised environmental risks and circumventing public consultation.[1]
Arguments of the Respondents and Intervenors (UOI & CREDAI):
The Union of India and industry groups argued that sustainable development, recognized in Vellore Citizens’ Welfare Forum v. Union of India,[7] requires balancing environmental protection with economic growth.[1] They submitted that halting public interest projects, such as hospitals and infrastructure constructed without prior EC, would cause disproportionate harm to society.[1] They cited Lafarge Umiam Mining Pvt. Ltd. v. Union of India[8] where retrospective regularisation was permitted under specific circumstances.[1]
In the Review proceedings, CREDAI argued that the original bench failed to consider binding decisions of coordinate benches, specifically Electrosteel Steels Ltd. v. Union of India,[9] constituting an error apparent on the face of the record that justified recalling the judgment.[2]
5. Judgment and Ratio Decidendi
Original Judgment (16 May 2025):
In a unanimous judgment written by Justice Abhay S. Oka and Justice Ujjal Bhuyan, the Supreme Court struck down both the 2017 notification and the 2021 OM.[1] The Court held that ex-post-facto EC is entirely alien to environmental jurisprudence and violates the 2006 EIA Notification.[1] Mandatory prior assessments cannot be substituted with retrospective regularisation, as public participation and expert evaluation lose efficacy after environmental damage has occurred.[1]
The Court issued a prospective mandamus restraining the Central Government from issuing any future notifications, circulars, or OMs granting ex-post-facto EC in any form.[1] The government’s breach of its undertaking to the Madras High Court was emphasized as compounding the legal invalidity.[1]
Review Judgment (18 November 2025):
Six months later, a 2:1 majority bench recalled the May 2025 ruling.[2] CJI B.R. Gavai, writing for the majority, held that the original bench failed to consider coordinate bench rulings that required harmonization, and that the balance between environment and development under the doctrine of sustainable development was inadequately assessed.[2] The majority permitted ex-post-facto clearances subject to stringent conditions and monetary penalties, invoking the polluter pays principle.[2]
Justice Ujjal Bhuyan dissented in a 97-page opinion, holding that the precautionary principle is a primary preventive imperative in environmental law, whereas the polluter pays principle is merely remedial.[2] He asserted that the two cannot be placed in conflict to weaken preventive safeguards and described the review decision as a retreat from established environmental jurisprudence.[2]
6. Critical Analysis
The Vanashakti litigation highlights a critical tension between environmental rule of law and industrial pressures.[1], [2] The original judgment aligned with established environmental jurisprudence, linking the right to a clean environment under Article 21[3] (recognized in Subhash Kumar v. State of Bihar)[10] with the precautionary principle established in Vellore Citizens’ Welfare Forum.[7] Relegating violations to monetary penalties converts statutory prohibitions into a compliance fee, allowing commercial entities to bypass public scrutiny.[1]
The Review judgment raises significant procedural and substantive concerns.[2] The rationale that coordinate bench rulings were ignored overlooks that decisions like Common Cause[5] and Alembic Pharmaceuticals[6] had already established ex-post-facto EC as illegal.[1] The original bench was applying these precedents to their logical conclusion.[1]
Furthermore, treating the government’s breach of its undertaking to the High Court as mere background context undermines judicial accountability.[1], [2] As Justice Bhuyan highlighted, prioritizing the polluter pays principle over the precautionary principle alters the fundamental structure of environmental law by treating environmental damage as a manageable cost rather than a preventable harm.[2] This approach also conflicts with international obligations under Principle 15 of the Rio Declaration 1992[11] and domestic rulings recognizing climate rights, such as M.K. Ranjitsinh v. Union of India.[12]
7. Conclusion
The Vanashakti review highlights a fundamental question in environmental law: whether constitutional courts can maintain strict preventive oversight when faced with large scale economic non-compliance.[1], [2] While the original judgment affirmed strict statutory compliance, the review majority adopted a flexible regulatory framework based on monetary compensation and conditional regularisation.[1], [2]
References
[1] Vanashakti v. Union of India & Ors., 2025 INSC 718; Writ Petition (C) No. 1394 of 2023 (Supreme Court of India).
[2] Confederation of Real Estate Developers’ Associations of India (CREDAI) v. Vanashakti & Ors., 2025 INSC 1326; Review Petition (C) Diary No. 41929 of 2025.
[3] Environment (Protection) Act, No. 29 of 1986, INDIA CODE (1986); Environmental Impact Assessment Notification, 2006; INDIA CONST. art. 21, 32.
[4] Puducherry Environment Protection Association v. Union of India, Writ Petition No. 11135 of 2017 (Madras High Court).
[5] Common Cause v. Union of India & Ors., (2017) 9 SCC 499.
[6] Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors., (2020) 17 SCC 157.
[7] Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647.
[8] Lafarge Umiam Mining Pvt. Ltd. v. Union of India, (2011) 7 SCC 338.
[9] Electrosteel Steels Ltd. v. Union of India, 2021 SCC OnLine SC 1247.
[10] Subhash Kumar v. State of Bihar, (1991) 1 SCC 598.
[11] United Nations Conference on Environment and Development, Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (Vol. I), Principle 15 (1992).
[12] M.K. Ranjitsinh & Ors. v. Union of India & Ors., 2024 INSC 280.
