Justice Bhuyan Cites “Deadly Delhi Smog” In Dissent Opposing Supreme Court Move Toward Post-Facto EC, Says Court Must Not Retreat From Established Environmental Principles
Kiran Raj
Justice Ujjal Bhuyan of the Supreme Court, in his dissent opposing the move to revisit the Court’s 2024 Vanashakti judgment, cautioned against weakening environmental safeguards, pointing to Delhi’s deteriorating air quality as a stark reminder of the need for strict regulatory compliance. He noted that the original Vanashakti decision, authored by a bench of Justices A.S. Oka (since retired) and Bhuyan, had prohibited ex post facto environmental clearances and affirmed that such approvals must be obtained prior to commencing construction or expansion activities.
The review petitions were filed by project proponents, including real estate developers, who had undertaken construction activities without obtaining prior Environmental Clearance (EC). These petitioners sought protection under the 2021 Office Memorandum issued by the Ministry of Environment, Forest and Climate Change, which introduced a process for considering cases where projects had commenced without the required clearance and sought to regularise such violations under the EIA regime.
The majority in review, comprising the Chief Justice of India B.R. Gavai and Justice K. Vinod Chandran, examined earlier two-judge bench decisions while reconsidering the Vanashakti judgment and relied on those precedents to allow limited post-facto regularisation in certain categories of cases.
Justice Ujjal Bhuyan declined to follow this reasoning. He recorded that the precedents invoked to justify reopening Vanashakti were per incuriam because they did not take into account binding earlier decisions on the requirement of prior EC. On that basis, he stated that those rulings could not be used to alter the conclusions reached in Vanashakti.
His dissent discussed the 2017 Notification issued by the Environment Ministry, which created a six-month opportunity for regularising pre-existing violations relating to prior EC requirements. This window concluded in September 2017 and was extended once pursuant to directions issued by the Madras High Court. Before the High Court, the Union Government, through the Additional Solicitor General, stated that the 2017 exercise was a one-time mechanism and would not be continued beyond the time permitted under the notification.
Justice Ujjal Bhuyan recorded that he was “unable to persuade myself to agree to the line of reasoning and conclusions reached by the learned Chief Justice” and stated that “no case for review has been made out.” He observed that the grounds for reopening Vanashakti were “not at all tenable and certainly cannot form the basis for recalling of the judgment in Vanashakti.”
He recorded that the Court’s settled approach in Common Cause held that “a prior EC is necessary” and that “the concept of an ex post facto or a retrospective EC is completely alien to environmental jurisprudence including EIA 1994 and EIA 2006.” Referring to Alembic, he stated that “the concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA Notification dated 27-1-1994,” noting that “environment law cannot countenance the notion of an ex post facto clearance.” He stated that “Thus, from a combined reading of Common Cause and Alembic the ratio is crystal clear: there is no concept called ex post facto EC in environmental jurisprudence. It cannot be countenanced. It is an anathema. This is because it is detrimental to the environment and could lead to irreparable ecological degradation.”
He observed that relief granted in Common Cause and Alembic under Article 142 was “in the peculiar facts of that case which cannot be construed to be the ratio.” Contrasting binding precedent with later cases, he recorded that Electrosteel, Pahwa Plastics, and D. Swamy “went on a tangent.”
Justice Bhuyan noted that the Central Government had earlier assured that the 2017 window would be a one-time measure and observed that the Centre “has never withdrawn or contradicted this assurance.” He stated that the 2021 Office Memorandum was fundamentally inconsistent with the statutory notification, recording that “The 2021 OM goes against the very grain of, rather is contrary to the statutory 2017 Notification, and therefore has no legal force. The 2021 OM is per se illegal and invalid and was rightly set aside in Vanashakti.” He further stated that “It does not lie in the mouth of law violators to advance such justification to sustain the illegality which goes to the root.” He noted that the Ministry did not file its own review petition, despite supporting those filed by others.
Invoking international environmental doctrine, he referred to the principle of non-regression, stating that weakening existing protections would reverse progress achieved since the Stockholm and Rio Conferences. He recorded that “The precautionary principle is the cornerstone of environmental jurisprudence. Polluter pays is only a principle of reparation. Precautionary principle cannot be given a short shrift by relying on polluter pays principle. The review judgment is a step in retrogression.”
Before concluding, he stated: “Before parting with the record, I would like to painfully observe that the deadly Delhi smog reminds us everyday about the hazards of environmental pollution. Supreme Court as the highest constitutional court of the country has the duty and obligation under the Constitution of India and the laws framed thereunder to safeguard the environment.” He added that “the court cannot be seen backtracking on the sound environmental jurisprudence that has evolved in this country, that too, on a review petition filed by persons who have shown scant regard for the rule of law.”
Justice Bhuyan directed: The review petition is liable to be dismissed. There is no justification whatsoever for review of the Vanashakti judgment.”
Case Title: Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti and Another
Neutral Citation: 2025 INSC 1326
Case Number: Review Petition (C) No. ___ of 2025; Diary No. 41929 of 2025; Writ Petition (C) No. 1394 of 2023
Bench: Chief Justice B.R. Gavai, Justice Ujjal Bhuyan, Justice K. Vinod Chandran
