FACTS
The case of Vanashakti v. Union of India & Ors. (2025) marks a significant development in Indian environmental jurisprudence. The petitioner, Vanashakti, a Mumbai-based environmental non-governmental organization, approached the Supreme Court challenging the legality of granting ex post facto environmental clearances (ECs) to industries and projects that had already commenced operations without prior approval. For decades, industrial units and developmental projects in India were known to begin construction or operations first and then apply for environmental clearance retrospectively, undermining the very objective of the Environment Impact Assessment (EIA) Notification of 2006, framed under the Environment (Protection) Act, 1986.
Vanashakti contended that such retrospective approvals were an abuse of process, as the purpose of environmental clearance is to assess the environmental impact before the commencement of the project, not after irreparable harm has already been caused. The petition gained urgency after multiple instances surfaced where hazardous industries operated for years without mandatory clearance, later seeking post-facto regularisation.
The Union of India and concerned project proponents argued that granting ex post facto clearances was a practical necessity, as industries contribute substantially to economic growth, employment, and development. The Ministry of Environment, Forest and Climate Change (MoEFCC) had, on several occasions, issued office memoranda allowing such retrospective approvals, often citing public interest and financial investment concerns. This was seen as a way to balance environmental protection with developmental priorities.
The case thus raised a crucial question: can the environment, a constitutionally protected right under Article 21, be compromised through procedural relaxations? Or must the rule of law strictly require prior approval to ensure accountability and sustainability?
ISSUES RAISED
- Whether the practice of granting ex post facto environmental clearances violates the principles enshrined in the Environment (Protection) Act, 1986, and the EIA Notification of 2006.
- Whether such retrospective approvals undermine the constitutional mandate of environmental protection under Article 21 of the Constitution of India.
- Whether industries and projects that commenced operations without obtaining mandatory prior clearance can be allowed to regularise their violations.
- Whether economic and developmental considerations can override environmental safeguards in granting ex post facto clearances.
RATIONALE
The Supreme Court, in its landmark decision, unequivocally held that ex post facto environmental clearances are impermissible in law. The Court reasoned that environmental law in India is founded on the precautionary principle and the principle of sustainable development. These principles require proactive, not reactive, measures.
The Court emphasized that the grant of clearance is not a mere procedural formality but a substantive safeguard to assess and mitigate environmental harm before it occurs. Allowing post-facto approvals would defeat the very purpose of the EIA Notification, which is designed to ensure informed decision-making and public participation at the pre-operational stage.
The judgment also stressed the constitutional dimension of the issue. The right to a clean and healthy environment is recognized under Article 21 as part of the right to life. Permitting retrospective regularisation of environmental violations would amount to diluting this fundamental right. The Court further invoked Article 48A (Directive Principle of State Policy) and Article 51A(g) (Fundamental Duty), which mandate environmental protection as a collective obligation of the State and citizens.
Additionally, the Court relied on its own precedents, reiterating that regulatory relaxations cannot be allowed to convert statutory safeguards into empty formalities. It categorically struck down the MoEFCC’s office memoranda permitting such ex post facto clearances, declaring them contrary to the parent statute and constitutional principles.
CONTENTIONS
Petitioner’s Contentions (Vanashakti):
- Ex post facto clearances undermine environmental law:
The petitioner strongly contended that the very idea of granting approval after a project has already started operating is inconsistent with the precautionary principle and the doctrine of sustainable development. These principles require preventive checks before any environmental harm occurs, since damage to ecosystems is often permanent and cannot be reversed later. Thus, giving clearance retrospectively completely defeats the purpose of environmental regulation.
- Rewarding violators and punishing law-abiding industries:
Vanashakti emphasized that such retrospective approvals create a dangerous precedent. If violators can simply regularize their operations later, industries that carefully follow the law from the beginning are placed at a disadvantage. This creates a culture where non-compliance seems beneficial, which undermines the credibility and effectiveness of environmental governance in India.
- Lack of legal authority for post-facto approvals:
According to the petitioner, neither the Environment (Protection) Act, 1986 nor the EIA Notification, 2006 provides for retrospective environmental clearances. On the contrary, both legal frameworks expressly require prior approval before a project is undertaken. Since there is no statutory backing for ex post facto approvals, any such grant would be ultra vires and contrary to the intent of Parliament.
- Contrary to established judicial precedents:
Vanashakti relied on earlier Supreme Court rulings, such as Alembic Pharmaceuticals Ltd. v. Rohit Prajapati (2020) and Common Cause v. Union of India (2017), where the Court had clearly held that retrospective clearances are not permissible. The petitioner argued that ignoring these precedents would erode the consistency of environmental jurisprudence and weaken judicial safeguards for the environment.
Respondent’s Contentions:
- Industries as engines of growth and employment:
The Union of India stressed that industries are not only crucial to economic development but also provide large-scale employment. Closing down operational units solely because of procedural lapses would, in their view, lead to job losses, wasted investments, and an adverse impact on national economic growth.
- Ex post facto clearances as exceptions, not the norm:
The government contended that retrospective approvals are granted only in limited and exceptional cases. These are not meant to dilute environmental safeguards but to provide flexibility where projects may have inadvertently started without clearance. According to them, such exceptions prevent the economy from being crippled by technical irregularities.
- Corrective measures and penalties as safeguards:
The respondents further submitted that violations can be addressed through penalties, compliance directives, and environmental restoration measures. They argued that canceling or shutting down projects outright would cause disproportionate hardship, while corrective mechanisms could strike a balance between environmental protection and industrial continuity.
- Public interest and pragmatic governance:
The Ministry of Environment, Forest and Climate Change (MoEFCC) defended its office memoranda, stating that these were issued in the larger public interest. They claimed that allowing limited retrospective approvals ensured financial stability and prevented economic disruption. The government urged the Court to adopt a practical and balanced approach, rather than a rigid interpretation that could stall development.
DEFECTS OF LAW
The case exposed significant defects in India’s environmental regulatory framework. Firstly, the EIA process has long been criticized for weak enforcement and lack of transparency. Despite judicial pronouncements against ex post facto clearances in earlier cases, the executive continued to issue office memoranda to circumvent statutory provisions. This reflects institutional inconsistency and executive overreach.
Secondly, penalties and restoration measures imposed in cases of non-compliance often remain inadequate. Many industries treated penalties as a cost of doing business, while irreversible ecological damage continued unchecked. The absence of strict liability provisions allowed violators to externalize environmental costs onto local communities and ecosystems.
Thirdly, the case revealed the tension between economic development and environmental sustainability. Successive governments often leaned towards industrial interests, citing growth imperatives, rather than enforcing the precautionary principle strictly. This created a regulatory culture where violations were normalized.
Lastly, the lack of public participation and community engagement in the EIA process weakened accountability. Many affected communities were neither informed nor consulted before projects commenced, further diluting environmental democracy.
INFERENCE
The Supreme Court’s decision in Vanashakti v. Union of India (2025) provides much-needed clarity by closing the doors on post-facto environmental clearances. The judgment reinforces that environmental protection cannot be compromised for expediency. It sends a strong signal to industries that compliance is non-negotiable and must be ensured before operations begin.
At a broader level, the case highlights the judiciary’s role as the guardian of environmental justice in India. While the executive and legislature often oscillate between developmental and environmental priorities, the judiciary has consistently upheld the constitutional right to a clean environment. This decision strengthens the jurisprudence that environmental safeguards are substantive rights, not procedural hurdles.
However, the effectiveness of the judgment will depend on its implementation. The executive must now strictly enforce prior clearance requirements and hold violators accountable without exception. Strengthening monitoring mechanisms, enhancing community participation, and imposing stringent liability provisions are critical next steps.
CONCLUSION
The Vanashakti v. Union of India (2025) judgment stands as a milestone in Indian environmental law. By declaring ex post facto environmental clearances impermissible, the Supreme Court has reaffirmed the preventive essence of environmental protection. The ruling bridges the gap between law and practice, curbing a long-standing misuse that endangered ecosystems and public health.
This judgment carries profound implications: industries must internalize environmental compliance as an essential cost of business, rather than treating it as an optional formality. The decision also strengthens the constitutional mandate that development cannot come at the cost of irreparable environmental damage.
Ultimately, the case reflects the evolving judicial consciousness that environmental rights are inseparable from human rights. In an era of climate change and ecological crises, the Court’s strong stand against ex post facto clearances is both timely and necessary. It signals a transformative shift towards genuine environmental accountability, ensuring that India’s growth story aligns with the principles of sustainability and intergenerational equity.
Bhoomi shroff
Siddharth law college, Gandhinagar.