Breaking the rules: On the reversing of the Vanashakti ruling.
Post-facto clearance must remain the exception, not the rule.
The majority decision by a Bench of the Supreme Court to reverse its May 2025 order, which had stayed the grant of post-facto environmental clearances, illustrates the difficulty of dealing with the seemingly irreversible consequences of a much-abused law. The controversy is also about the form of the Environment Ministry’s instruments that normalised those exceptions. The Environment (Protection) Act 1986 and EIA notifications of 1994 and 2006 are framed around prior environmental clearance (EC), which means that large construction and industrial projects must not start work until an authority has assessed their consequences. Decisions by the Court including Common Cause (2017) and Alembic Pharmaceuticals (2020) treated post-facto EC as impermissible where prior EC was mandatory. The order in May, in Vanashakti, read this as ruling out post-facto ECs altogether for such projects. The new majority does not say ‘EC first’ is no longer the rule but locates a narrow space for post-facto clearances by relying on Alembic, D. Swamy, and others to allow ‘regularisation ’ when considerable resources have already been committed, usually with fines. This still means that the Ministry can maintain ‘EC first’ as the legal default and allow post-facto clearances only in rare, highly constrained cases. In any case the spirit of the EC regime remains ex ante.
A clearance granted after construction has begun or finished cannot replicate the EIA’s rationale, which is to make environment-related decisions before the potential cumulative consequences are underway. Post-facto clearances can only impose penalties, prescribe mitigation or order closure or demolition. Even if the judiciary permits such ECs in some circumstances now, the clearances will be remedial and sit uneasily with the structure of environmental jurisprudence in India since the 1990s. The majority’s concern about differential treatment of past and future violators is also understandable, even if its remedy is not. Vanashakti struck down the 2017 notification and subsequent Environment Ministry office memoranda that facilitated post-facto ECs, but it let existing post-facto ECs stand. The majority treated this as discriminatory, which is fair, but unequal treatment during a shift from a permissive to a stricter regime is to be expected during regulatory housekeeping. Its existence does not by itself require that an old route be revived. The Court has also recalled the bar on post-facto ECs and reopened the legal question, indicating that limited post-facto regularisation is not in itself untenable. In the end, the Ministry must treat post-facto ECs as exceptional not least because they are inherently at odds with the legal framework. Any complaint about discrimination between past and future violators should be addressed by tightening legacy clearances, not by normalising post-facto regularisation.