Today, On 18th November, The Supreme Court restored the mechanism for retrospective environment clearance, with CJI Gavai noting that his judgment had been criticised. Justice Bhuyan dissented firmly, arguing that review was unjustified and warning that established environmental jurisprudence should not be reversed.
New Delhi: The Supreme Court brought back the legal system that allows retrospective environmental clearances (EC) for projects that started work or expanded without taking prior permission under the 2006 Environmental Impact Assessment (EIA) rules.
With this, the Court revived a mechanism that had earlier been struck down.
The Court agreed to hear again and allowed the review petition that challenged its own May 2025 judgment which had cancelled both the 2017 notification and the 2021 Office Memorandum permitting retrospective ECs.
A Bench of Chief Justice of India (CJI) BR Gavai, Justice Ujjal Bhuyan and Justice K Vinod Chandran delivered three separate judgments on the issue.
CJI Gavai said that,
“The 2020 OM was issued as directed by the NGT. We’ve referred to two earlier coordinate bench rulings, including MCGM. Both the 2020 OM and the 2017 Notification allow ECs only for permissible activities; anything in prohibited zones like CRZ or grasslands must be demolished. If reviews aren’t allowed, public projects worth Rs.20,000 crore may have to be torn down. In my view, the Vanashakti judgment should be recalled, and I have allowed the review though my brother Justice Bhuyan disagrees.”
CJI Gavai also added,
“There are three judgments…In my judgment, I have allowed the recall. My judgment has been criticised by my brother Justice Bhuyan,”
Justice Ujjal Bhuyan wrote a separate judgment and said he could not support recalling Vanashakti.
He stated,
“I’ve read the judgment recalling Vanashakti, but I cannot agree. There is no basis for review, so I dismiss the petitions.”
He continued his critique and said,
“The D. Swamy and Electrosteel rulings completely reverse the steady evolution of environmental law and its protective framework.”
Justice Bhuyan also noted that the Ministry of Environment, Forest and Climate Change (MoEF) had not filed any review petition against Vanashakti, which to him meant that the Ministry had effectively accepted that ruling. He said individual cases could have been decided on the basis of the existing law, and that filing separate review petitions for each matter was unnecessary.
Justice K Vinod Chandran agreed with the CJI and gave a concurring judgment.
Justice Vinod Chandran stated,
“I concur with the CJI. The power to relax a statutory requirement cannot be viewed as completely absent. The D. Swamy ruling rightly relies on Section 21 of the General Clauses Act. Courts must adapt to changing times and practical realities. I fully agree with the CJI that the review is justified and should be allowed promptly.”
Earlier, On May 16, a bench comprising Justices Abhay S. Oka (now retired) and Bhuyan determined that the choice to permit retrospective environmental clearance contravened the directives of the Supreme Court.
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The Court asserted that individuals who engaged in environmentally damaging development without obtaining the necessary approvals were likely aware of the illegality of their actions.
Subsequently, the Confederation of Real Estate Developers of India (CREDAI) filed a review petition, contending that the ruling imposed considerable difficulties on the real estate sector and related industries
Case Title: CONFEDERATION OF REAL ESTATE DEVELOPERS OF INDIA (CREDAI) V VANASHAKTI AND ANR. Diary No. 41929-2025
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