The Supreme Court of India has recently recalled its significant May 2025 judgment in the Vanashakti versus Union of India case, creating confusion and triggering premature celebrations within industrial circles. However, environmental experts caution that this judicial recall does not signify a return to the era of ex-post-facto Environmental Clearances.
The Legal Basis of the Recall
The recall decision rests primarily on a point of judicial discipline, noting that a two-judge bench cannot appear to contradict earlier two-judge benches that had, in limited and exceptional circumstances, considered the possibility of retrospective Environmental Clearance. The fundamental question of whether such exceptions are legally sustainable and whether they can coexist with the stricter reasoning of earlier judgments has now been referred to a larger bench.
Crucially, the recall must not be interpreted as an endorsement of retrospective approvals, nor does it dilute the core principles that guided the original Vanashakti ruling. Unless the larger bench decides otherwise, environmental governance in India remains firmly anchored to the established logic that Environmental Clearance must be prior because ecological damage is often permanent, irreparable, and impossible to offset through compensatory measures.
The Critical Importance of Prior Environmental Clearance
Environmental Clearance was never intended to function as a post-construction compliance certificate. It serves as a scientific and legal safeguard, deeply rooted in the Environment Impact Assessment Notification of 2006, designed to evaluate whether a project should receive approval at all—not merely how to mitigate environmental harms after the fact.
The EIA framework operates on the precautionary principle and the mitigation hierarchy, which prioritize avoiding environmental harm over minimizing, repairing, or compensating for it later. This comprehensive process extends beyond pollution control to critically assess ecological risks, including the loss of natural ecosystems, biodiversity, livelihoods of nature-dependent communities, and cumulative impacts of any project on its location and surroundings.
Public hearings form the cornerstone of this process—a mandatory stage where affected communities can review EIA findings and voice concerns before expert appraisal and final decision-making occur. This democratic oversight becomes meaningless when projects have already been constructed, rendering public participation a hollow ritual.
The Problem of Fait Accompli and Regulatory Challenges
India's regulatory practice, characterized by a near-zero rejection rate, consultant-driven EIA reports funded by project proponents themselves, and growing reliance on administrative shortcuts to reinterpret environmental laws, has encouraged a troubling culture of fait accompli. Environmental violations are increasingly treated as manageable, negotiable, and ultimately regularizable through back-door amendments to environmental laws, bypassing parliamentary approval and public consultations.
The original Vanashakti judgment disrupted this dangerous trend by striking down the 2017 amnesty notification and the 2021 Standard Operating Procedure that had effectively institutionalized post-facto regularization. The judgment reaffirmed the fundamental legal reality that the Environment (Protection) Act cannot be amended by administrative fiat to legitimize what was illegal from the outset.
The review order acknowledges that earlier benches—in Electrosteel Steels (2023), D. Swamy (2023), and Pahwa Plastics (2023)—had discussed limited exceptions for ex-post-facto approvals. Whether these exceptions can withstand legal scrutiny and harmonize with the Alembic Pharmaceuticals (2020) and Common Cause (2017) judgments now awaits determination by a larger Supreme Court bench.
Interim Period Demands Prudence and Restraint
What the recall explicitly does not do is restore the 2017 or 2021 notifications, uphold retrospective regularization, or permit the Ministry of Environment, Forest and Climate Change (MoEFCC) to issue fresh instruments enabling post-facto approvals. This makes the coming months critically important for environmental governance in India.
Vacuums in judicial clarity often invite administrative adventurism, and pressure from industries and state agencies to bypass Vanashakti's core safeguards is inevitable. Environmental advocates emphasize that this temptation must be firmly resisted.
Until the larger bench decides the matter, the MoEFCC must exercise judicial restraint and refrain from issuing any instruments that attempt to reinterpret or dilute the requirement of prior Environmental Clearance. The recall should not become an opportunity to weaken environmental safeguards, undermine public participation, or incentivize illegal construction in expectation of later condonation.
India cannot afford another cycle of environmental damage resulting from procedural shortcuts. While the Vanashakti judgment may be temporarily paused, its underlying principles—precaution, prevention, and democratic oversight—must continue to define the legal architecture of environmental decision-making in the country.
This moment calls for prudence rather than opportunism. The MoEFCC's conduct during this interim period will determine whether the ministry learns from past regulatory failures or repeats them. While the Constitution obligates the state to protect and improve the environment and safeguard the country's forests and wildlife, the Supreme Court remains the ultimate guardian of that constitutional promise.
