Evan V


In the batch of matters arising from Vanashakti v. Union of India, petitioners opposing ex-post facto environmental clearances urged the Supreme Court on Monday to refer the case to a five-judge Bench, contending that certain findings and observations in the three-judge review judgment delivered in November 2025 travel beyond the permissible scope of review and operate as per incuriam on key questions.

A Three Judge Bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice Vipul M. Pancholi was hearing the matters after the Supreme Court, by a majority in review, recalled the May 2025 judgment which had barred post-facto environmental clearances and restored the petitions to the file for fresh consideration. The Court has also been examining whether the review order has the effect of upholding the Union’s Office Memorandums (OMs), including those dated March 14, 2017 and 2021, which were relied upon to permit the grant of ex-post facto clearances.

Senior Advocate Gopal Sankaranarayanan, appearing for the petitioners, traced the regulatory history relied upon by the Union, including the limited “window” under the 2017 notification. He submitted: "Effectively, after 13 April 2018, there is no legal regime in the country that permits somebody to come and apply for an EC. There isn't one."

Also Read: Vilifying Any Community Through Speeches Or Art Constitutionally Impermissible; Public Figures In High Constitutional Office Equally Bound: Supreme Court

He also referred to an OM dated July 7, 2021, stating that it was framed in the context of directions of the National Green Tribunal (NGT) requiring a procedure and penalties for ex-post facto applications. According to him, the resulting SOP was struck down by the Madras High Court on August 30, 2024 (with limited prospective application for certain projects), and he pointed out that no special leave petition had been filed against that order. He further submitted that the May 2025 Vanashakti ruling arose from an SLP filed by parties who succeeded before the Madras High Court.

A central plank of his submission was that the review Bench’s reading of precedent—particularly D. Swamy v. Karnataka State Pollution Control Board (2021)—creates a binding impediment for petitioners seeking to assail the 2017 notification and the 2021 OM on merits. In that context, he stated: "...however three judge bench decision has come to the conclusion that the 2017 notification is a valid statutory notification and that D Swamy judgment is valid as such. Now this stands in the way when I have to argue the validity of that very notification. The only way I can persuade your lordship to sum up this is by coming to a different interpretation regarding D Swamy, which I will have to do before a five-bench or before this bench. I don't have a third option because the minute I open my writ and start arguing my writ this is staring me in the face,"

He also relied on Sheo Nandan Paswan v. State of Bihar (1987) to argue that extensive merits-like findings in review can prejudice the losing side.

The Chief Justice responded that the submission premised on a “cryptic” review order may not arise on these facts: "This issue may not arise, Mr Sankaranayanan, because the three-judge bench's judgment is not cryptic. It is a reasoned judgment."

When another counsel argued that ex-post facto clearances cannot be introduced through administrative instructions and described it as a “backdoor entry” for violators—particularly in relation to the 2021 OM—the Chief Justice queried: "So you do not want any project to be launched in the country?...In which century, by the way, do you expect the country to survive, sir?"

As arguments progressed and a further request was made for reference to a larger Bench, the Chief Justice also remarked:"What is the question of referring to five judges unless we doubt the three-judge bench."

Senior Advocate Sanjay Parekh adopted Sankaranarayanan’s submissions and expressed concern that the jurisprudence on the precautionary principle and intergenerational equity requires preventive action rather than post-damage approvals. He submitted:"The very concept of protection and preservation read with precautionary principle and intergenerational equity envisages preventive action prior in time and not action after damage is done, sometimes irreversibly. What, my Lord, shocked me was certain observations that are made in these judgments that the EIA notification conceals off, my Lord, ex post facto clearance."

Also Read: Right To Education | Three-Year Service Requirement No Bar For Government Employees Seeking Distance Mode Education : Punjab And Haryana High Court

He cautioned against reliance on the General Clauses Act and proportionality in the environmental clearance context, suggesting the consequences would be “catastrophic”, and supported the prayer for a larger Bench reference.

Thereafter, counsel commenced merits submissions, including on the internal logic of post-facto approvals, pointing out that the 2017 notification requires details ordinarily relevant to pre-clearance scrutiny (such as proposed demolition/route diversions), which, it was submitted, becomes incongruent where clearance is sought after the project is already executed.

Case Title: Vanashakti v. Union of India 

Case No.: W.P.(C) No. 1394/2023 and connected matters.

Bench: Chief Justice  Surya Kant, Justice Joymalya Bagchi and Justice Vipul M. Pancholi