A Dismantling of Base of Environmental Regulation

UPSC Syllabus Topic: GS Paper 3 –Environment

Introduction

In CREDAI vs Vanashakti (November 18, 2025), the Supreme Court recalled its May 2025 decision that had struck down ex post facto environmental clearances (ECs). This recall reopens the dispute and weakens a strict, preventive approach based on prior ECs. It raises concern that finished projects and sunk costs may outweigh constitutional duties of environmental protection and long-term ecological safety.

Background

1. Evolution of preventive environmental principles: For decades, the Supreme Court linked environmental protection to Article 21’s right to life. It upheld the precautionary principle, intergenerational equity, sustainable development, and even recognised a right against the harms of climate change. These ideas required early and preventive state action to avoid irreversible ecological harm.
2. Formation of the EIA regime: Following the Stockholm Conference (1972), India enacted the Environment (Protection) Act (1986), and later introduced the Environmental Impact Assessment (EIA) Notifications of 1994 and 2006. Together, they established a system where certain industries and projects required prior environmental clearances (ECs) before starting operations—ensuring public hearings, expert scrutiny, and scientific evaluation.
3. Dilution through executive actions:

• The 2017 Notification allowed projects that began without prior EC to apply retrospectively within six months.
• Later, a 2021 Office Memorandum extended this leniency through a “Standard Operating Procedure,” regularising violators with penalties and costs.
• These measures transformed preventive clearance into post-violation approval.

4. The May 2025 Vanashakti ruling:

• A bench of Justices A.S. Oka and Ujjal Bhuyan held that prior environmental clearances (ECs) is the only lawful route.
• It struck down both the 2017 and 2021 relaxations as unconstitutional, restrained future regularisations, and affirmed environmental protection as a foundational duty under Articles 21 and 51A(g).
• It also noted that the Union government had earlier assured that the 2017 relaxation was a one-time measure.

Review Petitions and the Reversal: Split Verdict of November 18, 2025

Grounds for review

1.Industry bodies, especially Confederation of Real Estate Developers of India (CREDAI), and the Union government sought review, saying Vanashakti had ignored earlier precedents such as Common Cause, Alembic Pharmaceuticals, Electrosteel Steels and Pahwa Plastics, where limited ex post facto environmental clearances (ECs) were allowed in exceptional cases under Article 142.
2. They called review “imperative and expedient” and demanded a “balanced approach”, arguing that a total ban on retrospective ECs would make regularisation of ongoing projects impossible.

Majority view (CJI Gavai & Justice Chandran)

1. By majority of CJI B.R. Gavai and Justice K. Vinod Chandran, the Court recalled the May 2025 judgment and restored the case for a fresh hearing.
   2. CJI Gavai warned of a “devastating effect”, including possible demolition of projects worth nearly ₹20,000 crore—such as SAIL investments, a 962-bed AIIMS hospital in Odisha, a greenfield airport in Karnataka, a CAPF medical institute in Delhi, and many other central and state projects funded from the public exchequer.
   3. The majority held that ex post facto environmental clearances (ECs) should not be refused with pedantic rigidity and may be permitted in rare, exceptional situations, with heavy penalties and strict conditions instead of demolition.

Minority dissent (Justice Bhuyan)

1. Justice Bhuyan dissented, saying the review overlooked fundamentals of environmental jurisprudence and meant “backtracking on sound environmental jurisprudence” for the sake of violators.
   2. He rejected the “dustbin” argument over sunk public costs, opposed prodding the government towards ex post facto environmental clearances (ECs), and pointed to Delhi’s deadly smog and rising pollution as proof of the human cost of weak enforcement.
   3. He insisted that retrospective environmental clearances (ECs) are an “anathema”, a concept “devoted to evil”, that would cause irreparable environmental degradation.

Concerns Arising From the Review Judgment

1. Shift from prevention to regularisation:The ruling replaces preventive environmental protection with post-violation accommodation, allowing illegality to justify itself.
2. Weakening of the EIA process: Public hearings and expert appraisals lose meaning once projects already stand completed, making scrutiny a mere formality.
3. Erosion of deterrence: The polluter-pays principle risks turning into a “pay and legalise” route, encouraging non-compliance through fines instead of enforcement.
4. Loss of accountability: Regulatory authority weakens as compliance appears voluntary, reducing the state’s power to ensure genuine environmental discipline.
5. Undermining judicial credibility: Reversing a reasoned judgment undermines consistency and public faith in environmental rule of law.
6. Negative climate signal: At a time of deepening ecological crisis, the rollback signals retreat from India’s commitment to sustainable, rights-based development.

Way Forward

1. Reaffirm Prior EC as the Rule: Prior environmental clearance must remain the legal norm, not a flexible condition. Any retrospective environmental clearances (ECs) should be strictly exceptional and time-bound.
2. Prevent “Pay and Legalise” Practices: Penalties should deter, not legitimise, illegal projects. Fines cannot substitute environmental compliance.
3. Strengthen Monitoring and Accountability: Authorities must ensure real-time monitoring, transparent approvals, and public disclosure to prevent post-violation regularisation.
4. Align Policies with Constitutional Principles: Future notifications and memorandums must reflect Article 21’s right to health and the precautionary principle.
5. Restore Public Trust in Environmental Governance: The Court and government must rebuild credibility by enforcing preventive laws, not bending them to suit economic convenience.

Conclusion

The recall of Vanashakti in CREDAI vs Vanashakti reopens the question of ex post facto clearances. It also signals a retreat from preventive environmental regulation. Protecting India’s environment now requires restoring the primacy of prior environmental clearances (ECs), rejecting “pay and legalise” regularisation, and upholding constitutional environmental rights and the rule of law.

Question for practice:

Discuss how the Supreme Court’s recall of the Vanashakti judgment in CREDAI vs Vanashakti affects the preventive framework of environmental regulation in India.

Source: The Hindu