Environment Vs Development – SC’s Reversing the Vanashakti Judgement

UPSC Syllabus Topic: GS Paper 3 –Environment

Introduction

On 18 November 2025, the Supreme Court recalled its May 2025 Vanashakti ruling that had outlawed retrospective environmental clearances. The case now stands at the centre of a wider conflict between strict, preventive environmental regulation based on prior environmental clearance and demands to protect large public and private investments through limited ex post facto approvals. The split verdict highlights deep tensions between constitutional environmental rights and development-led policy choices.

Background: Vanashakti Judgment (May 2025)

Key holdings of the May 2025 judgment

1. In May 2025, a bench of Justices Abhay S. Oka and Ujjal Bhuyan held that prior environmental clearance (EC) is the only lawful route to set up or expand industrial and real estate projects.
2. It struck down the Environment Ministry’s 2017 Notification and 2021 Office Memorandum that permitted ex post facto ECs, terming this framework illegal and unconstitutional.
3. The bench also restrained the Central Government from issuing any future circulars or orders providing for retrospective EC or regularising violations of the EIA notification,
4. It allowed ECs already granted under these instruments to continue.
5. The Court relied on Article 21’s right to a pollution-free environment and to health, and on Article 51A(g) which places a duty on citizens to protect and improve the environment.
   6. It treated environmental protection as a foundational requirement rather than a fine-based system.

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 ECs were allowed in exceptional cases under Article 142.
   2. They called the 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 EC 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 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 ECs are an “anathema”, a concept “devoted to evil”, that would cause irreparable environmental degradation.

Environment vs Development: Core Legal and Policy Tensions

1. Precautionary principle vs regularisation:

• The May Vanashakti ruling treated prior environmental clearance (EC) as non-negotiable, rooted in prevention and advance study.
• The recall opens space for limited ex post facto ECs in “exceptional” cases, shifting focus from strict prevention to controlled regularisation after violations.

2. Sustainable development and article 21:

• One side links sustainable development to the right to life and health under Article 21, insisting that projects must fit environmental limits from the start.
• The opposing view weighs infrastructure needs and sunk public investment, accepting limited retrospective approvals to avoid demolition.

3. Polluter pays vs “pay and legalise”: The Court warned against turning the polluter pays principle into a “pay and legalise” route, where fines buy forgiveness. Exceptional ex post facto clearances risk making prior EC look optional rather than mandatory.
4. Narratives on environment and development: The dissent rejects a false narrative that treats environment and development as rivals, stressing that real development includes ecological protection. The majority stresses public cost, jobs and continuity of projects, using penalties to claim a balanced middle path.

Way Forward

1. Reaffirm prior EC as the norm: The discussion points towards prior EC as the default rule, with any ex post facto relief, if allowed at all, confined to truly exceptional situations under strict judicial control.
2. Stronger enforcement and transparency: To avoid an “optional EC” mindset, authorities need firm monitoring and compliance so that violators do not expect easy regularisation through fines or fresh notifications.
3. Legislative and policy clarity: There is a need for clear, coherent rules aligning the EIA framework, notifications and Office Memorandums with constitutional principles, so that future disputes over ex post facto ECs are reduced. A detailed implementation roadmap is not explained, which leaves a gap in the policy picture.

Conclusion

The reversal of Vanashakti exposes a sharp clash between environmental constitutionalism and development-centred pragmatism. One side insists on strict prior EC, prevention and constitutional duties; the other worries about wasted public investment and favours limited regularisation with penalties. The reheard case will be crucial in deciding whether India’s growth path is guided mainly by precaution, or continues to accommodate post-facto forgiveness.

Question for practice:

Discuss how the Supreme Court’s reversal of the Vanashakti judgment reflects the tension between environmental protection and development needs in India.

Source: The Hindu