Post-Facto Environmental Clearances: CJI Says May 2025 SC Ruling Created “Unnecessary Uncertainty”
Evan V
Chief Justice of India Surya Kant on Monday expressed concern over the Supreme Court’s May 2025 judgment in the Vanashakti v Union of India matter that barred post-facto environmental clearances, observing that the ruling had generated avoidable uncertainty and unpredictability in the legal position.
A Three Judge Bench of the Chief Justice and Justices Joymalya Bagchi and Vipul Pancholi was hearing the batch after a three-judge Bench, by a 2:1 majority, recalled the May 2025 decision under review in November 2025 and restored the matters for consideration on merits.
The Bench indicated that it will take up, on February 25, the question whether the November 2025 review judgment—while recalling the earlier verdict—has the effect of upholding the Office Memorandums issued by the Union of India in 2017 and 2021 that permit the grant of ex post facto environmental clearances. The Court noted that the review judgment contains observations which appear to approve the 2017 and 2021 OMs.
Appearing for the Union, Solicitor General Tushar Mehta submitted that the May 2025 judgment had placed multiple public projects in limbo. By way of illustration, he referred to a mining project involving Steel Authority of India Limited and a fully constructed airport in Karnataka.
Senior Advocate P. Wilson, appearing for the State of Tamil Nadu, submitted that a cancer hospital project worth ₹218 crore and the construction of a District Collectorate office had been impacted, with the projects stated to be stalled.
Senior Advocate Gopal Sankaranarayanan, appearing for the petitioners, submitted that the review judgment does not expressly adjudicate the validity of the OMs; rather, it recalled the prior judgment that had invalidated them and consequently restored the main matter for fresh consideration. He drew attention to paragraph 142 of the review judgment in support.
Justice Bagchi, however, referred to paragraph 96, which records that the May 2025 judgment was delivered contrary to earlier precedents. Reference was also made to paragraph 140, which disapproved of the demolition of completed constructions. The Chief Justice, for his part, noted paragraph 90, which observed that the Common Cause v Union of India precedent did not bar post-facto clearances. The Solicitor General relied on paragraph 118, which observed that PSUs acting on the basis of the 2021 OM could not be deprived of benefits.
Justice Bagchi stated that the Court would have to examine whether the review judgment’s observations amount to "binding precedents" or whether they are tentative views recorded while reopening the issue. He observed: "Since the final decisions are one of recall, then all these observations might be in the nature of obiter. If these observations are binding observations, then there is nothing left to decide,"
He added that review jurisdiction is ordinarily confined to setting aside the earlier decision and does not decide the lis, remarking: "The list comes alive after the review,"
Justice Bagchi further noted that there are observations indicating that the 2021 OM was upheld in D. Swamy v. Karnataka State Pollution Control Board and Pahwa Plastics Private Limited v. Dastak NGO, while also observing: "The thing to be seen is if the finding binds us. It is by a coordinate bench,"
The Chief Justice expressed dissatisfaction with the approach adopted by the two-judge Bench in May 2025, indicating that relevant precedent ought to have been comprehensively considered to avoid disruption to settled understanding. He observed: "It was the duty of the 2-judge bench that they should have considered the entire case law at that time before taking a view instead of unnecessarily creating uncertainty. We ourselves are leading to unpredictability, and that is unfortunate. Somebody should have honestly assisted the bench pointing out all the judgments Therefore the review bench is absolutely correct that it was a per incurium view. But having said that, the matter is now before us and it is our duty to now decide."
He further added: "We have enough time to refer to various parts of the Constitution, but we don't have enough time to refer to our precedents!" At the same time, the Chief Justice clarified that the Court would hear the matter "with an open mind."
During the hearing, it was also pointed out that the review decision carried a dissent by Justice Ujjal Bhuyan, who took the view that Common Cause v Union of India and Alembic Pharmaceuticals v Rohit Prajapati had expressly ruled against ex-post facto clearances, and that D. Swamy and Pahwa Plastics were per incuriam for not following those precedents.
The Bench was also informed about a recent notification issued by the Ministry of Environment and Forests on January 20, stating that the Centre is awaiting the Supreme Court’s final decision. The Court indicated that it will examine the matter on February 25.
Case Title: Vanashakti v Union of India and connected cases.
Case No: W.P.(C) No. 1394/2023
