The May 2025 Judgment in Vanashakti v. Union of India & Ors was too good to be true; the illegalisation of an inherently perverse circumvention came as a shot in the arm considering the legal regression in environmental protection spearheaded by the executive in connivance with a complacent legislature. The subject at hand- ex post facto environmental clearance (hereafter, ‘ex post facto EC’) as conceptualised by primarily two instruments- a Gazette notification and an Office Memorandum[2]- issued under the 2006 EIA notification- had been hotly contested in high courts and under the appellate jurisdiction of the supreme court previously, on varying facts, issues, and notification itself (one judgment- Alembic Pharmaceuticals- was on the 1994 EIA notification). Vanashakti was filed as a writ petition directly challenging the legality of ex post facto EC, given that the Central Government had been normalising a pattern of impunity by extending the deadlines within which a non-compliant project proponent could apply for the EC. In a nutshell, the 2006 EIA notification, issued by the Central Government under section 3 of the Environment Protection Act, 1984, inter alia, requires that all project proponents undertaking identified activities as per the notification, apply for and acquire a prior environmental clearance (the existence of ‘prior’ is significant, when compared to its absence in the 1994 notification). The 2017 Notification was the first executive order to allow ex post facto EC if filed within 6 months from date of notification. This was extended for 30 days in Puducherry Environment Protection Association v. Union of India (Madras HC), on the recorded submission of the Central Government that it would be a one-time measure.[3] Then the 2021 OM was introduced, that was supposed to lay down SoP for 2017 notification, in compliance with Tanaji B. Gambhire v. Chief Secretary, Government of Maharashtra and Others (NGT, Principal bench).[4] Vanashakti identified the SoP as an implicit continuation of the ex post facto EC regime, even after the expiration of the 2017 OM,[5] thereby contrary to the submission made in the Madras HC; it was not an innocuous SoP but a surreptitious license to violate environmental norms initially, get an ex post facto EC, pay penalties and continue. Only certain cases of enormous improbability of compliance with environmental norms were to be directed for demolition.[6]
However, it would be incorrect to pin the perversity in the
allowance of ex post facto EC even after the 2017 notification; more fundamentally, and
rightly so, the malaise existed in its allowance in the first place. Vanashakti
sought to contend with this derogation of the EIA notification’s requirement of
‘prior’ EC on the basis of the scope of executive action allowed by EPA and
2006 EIA Notification (section 3 of the Act grants Central Government to take
positive action to protect the environment[7];
how could the same be construed to allow endangerment, through executive orders,
that was the essential purport of ex post facto EC?) and a principles-based discourse
that sought to visiblise the discomfort of situating ex post facto EC in the
regime of environmental protection in the first place, that borrowed strength
from two prior judgments of the SC, namely Alembic Pharmaceuticals and Common
Cause.[8]
In the latter prong of contention, glaringly, it was evident that the concept
was at direct odds with the objective of the EPA,
Para 19. “The object of the 2017
notification appears to be to protect the industries and entities which
violated the EIA notification.”
Vanashakti emphasised the impunity and artificial portrayal
of ignorance with which project proponents, despite knowing that a ‘prior’ EC
is required as per 2006 EIA notification, carried on without obtaining one, and
sought legalisation of their projects through the two notification and OM later. This exercise,
on the face of it, displayed trivialisation of obtaining an EC in the catena of
various approvals a project proponent is required to obtain BEFORE legally
beginning with the project itself. Moreover, the multiple extensions played the
role of making an exception the norm, despite a specific undertaking by the
Central Government of the ex post facto EC under 2017 notification being a “one-time
measure”. Does the ignorance of this recorded undertaking by Pahwa Plastics[9]
and now in CREDAI (the judgment dated November 18, 2025 that has allowed
review of Vanashakti)[10],
mean that submissions recorded before the court can be derogated from inconsequentially,
merely because judicial pronouncements are to be interpreted differently than
statutes?[11] Another
line of questioning inevitably also arises in cases of environmental law:
whether the court would have treated this undertaking with more seriousness had
it been a more “serious” matter, perhaps in the realm of taxation? Especially when
the State is supposed to act as a steward of the environment under the Public
Trust Doctrine, can its undertakings be ignored or accepted summarily, without any
critical appraisal? Ideally, no.
Vanashakti, while prohibiting the Central Government
to issue any further notifications in the semblance of the two struck down notification and OM,
allowed the ex post facto ECs granted till the date of the judgment i.e., May
16, 2025, to operate. This accommodation, rooted in equity, was not enough for
the petitioners in CREDAI, who have sought for challenging the entire judgment instead
of an expansion of accommodation in Vanashakti itself, a course of
action potentially explorable as per the dissenting judge (and original co-adjudicator in Vanashakti) in CREDAI. This review petition, therefore, has
undertones of retaining the impunity and illegality prevalent before Vanashakti,
spearheaded by Big Corporate (and suspiciously, not by the Central Government
directly), relying on principles of judicial discipline, stare decisis and
judicial predictability. But, very arguably, the principles have been moulded
to the extent of blatant misapplication, that necessitated the dissenting judge
to take a crash course on all these principles in his 93-page dissent.
Two sets of judgments have existed on ex post facto EC. Alembic
and Common Cause had unequivocal ratios stating that ex post
facto EC is an anathema to EPA and 2006 EIA, and the larger scheme of
environmental jurisprudence. Just with respect to fact application, they relied
on equity and proportionality principles, to allow the prevalence of granted ex
post facto ECs after paying penalties, a direction originating in the court’s
power under Article 142 of the Constitution. The other set, comprising Pahwa
Plastics, Electrosteel[12],
and D. Swamy[13],
accepted the argument of exceptional cases that could allow perfectly legal ex
post facto ECs. In CREDAI, the fact applications of Alembic and Common
Cause have been identified as a part of the ratio of those respective judgments.
Buttressing the observation of the majority was the portrayal of petitioners as
helpless project proponents (who proceeded relying on the 2021 OM to not obtain
a ‘prior’ EC, as required by the EIA notification, that has a superior
statutory character), the fact of near completion of obtaining ex post facto ECs,
nature of projects (sewage treatment plant, AIIMS hospital and an airport), and
the lingering fear of demolition as a penalty. The CREDAI judgment, that was
supposed to only find grounds of review, did not stop at finding those grounds,
but has made an emotive case for the petitioners to the detriment of the respondents.
Finding that the demolition will cause immense loss to the public
exchequer, the majority judgment made the following observations with respect
to a sewage treatment plant that could be demolished for lack of a legal EC:
“para 111. (…) The question is
whether demolition of such effluent treatment plants, constructed using huge
public exchequer, would be conducive to the protection of environment or
against it?
para 112. I, therefore, ask a
question to myself as to whether it would be in the public interest to demolish
all such projects and permit the money spent from the pocket of public
exchequer to go in the dustbin?”
Cherrypicking the sewage treatment plant is reflective of
the peculiar conundrum seen in M.K. Ranjitsinh[14];
however, the list of projects that could be demolished also includes a
greenfield airport in Karnataka- would it not be doubly endangering for the environment
given the lack of an EC to begin with, and then the pursuant emissions that
will ratchet up? Moreover, the question of public interest again brings to fore
the fundamental development v. environment dichotomy which has always provided
room for judicial manoeuvring based on convenience in environmental cases. Can the
cases of all project proponents be situated in the realm of public interest? Is
there really no private interest at play here, with the public interest
actually lying in the long-term goal of recognition and enforcement of procedural
fairness and propriety in environmental protection? Can the primacy of money,
albeit important for a developing country like India, always trump environmental
protection that has often struggled in making a space for itself monetarily? The
pronouncement in Vanashakti that denied regularisation of the projects
defiant of 2006 EIA notification, even after payment of penalties under section
15 of the EPA, sought to prevent overutilisation of an ex post facto polluter
pays principle that did little for ecological restoration by just levying
monetary damages which could most of the times be a better option than compliance (as
explored widely in ecological economics).
[1] Confederation
of Real Estate Developers of India (CREDAI) v. Vanashakti & Anr, Review
Petition in WP (C) 1394//2023, para 20 (Bhuyan J.).
[2] The
2017 notification and 2021 OM; 2017 notification issued by MoEFCC on 14.03.2017, S.O. 804(E), and published in the Gazette.
[3] Vanashakti
v. Union of India, WP(C) No. 1394/2023, para 8.
[5] Confederation
of Real Estate Developers of India (CREDAI) v. Vanashakti & Anr, Review
Petition in WP (C) 1394//2023, para 36 (Bhuyan J.). (hereafter, “CREDAI”)
[6] Vanashakti, supra note 3, para 29. “The Court must come down very heavily on the attempt of the Central
Government to do something which is completely prohibited under the law.
Cleverly, the words ex post facto have not been used, but without using those
words, there is a provision to effectively grant ex post facto EC.”
[7] Vanashakti, supra note 3, para 13.
[8] Alembic
Pharmaceuticals Ltd. v. Rohit Prajapati & Ors., Civil Appeal No. 1526 of
2016; Common Cause v. Union of India & Ors, 2017 (9) SCC 499.
[9] M/s
Pahwa Plastics Pvt. Ltd. & Anr. v. Dastak NGO, Civil Appeal No. 4795 of
2021.
[10] Confederation
of Real Estate Developers of India (CREDAI) v. Vanashakti & Anr, Review
Petition in WP (C) 1394//2023.
[11] ibid,
para 47.
[12] Electrosteel
Steels Limited Vs. Union of India, 2023 (6) SCC 615.
[13] D.
Swamy Vs. Karnataka State Pollution Control Board, 2023 (20) SCC 469.
[14] M.K.
Ranjitsinh & Ors. v. Union of India & Ors., WP(C) No. 838/2019.
[15] Confederation
of Real Estate Developers of India (CREDAI) v. Vanashakti & Anr, Review
Petition in WP (C) 1394//2023, para 44 (Bhuyan J.).
[16] Vanashakti,
supra note 3, para 25.
