“This is the ratio”[1]! and the spectre of ex post facto EC lingers

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).

The other set of cases, for instance, Pahwa Plastics for our purposes, was not mentioned in Vanashakti, the reasoning of which, as per the dissenting judge in CREDAI, laid in the per incuriam nature of those judgments vis-à-vis Alembic and Common Cause.[15] But the majority construed this as an ignorance necessitating a review of the judgment. It can be argued that this was not an error apparent on the face of the record; the arguments of the respondent in Vanashakti, namely Union of India, did argue, even if implicitly, on the basis of huge costs of construction and its wastage if ex post facto ECs were not approved.[16] The issue of proportionality was an act of equity and exception (which can be contested from the vantage point of environmental compromises) that even Vanashakti upheld by allowing the granted ex post facto ECs the same stature as ‘prior’ ECs. It was not as rigorously ignorant of exception as CREDAI made it out to be; the form was emphasised to the detriment of substance which was present in Vanashakti. The CREDAI judgment appeared to be an exercise of appellate jurisdiction, a contention raised by the respondents in the beginning. Merely because two views are possible in ex post facto EC, one allowing on the basis of exception that runs contrary to the very substance of EPA and EIA, and one disallowing on the basis of statutory guidance and authoritative environmental protection principles, the review seeks to sabotage the exceptional nature of review jurisdiction itself. Even if the review on merits remains to begin, the CREDAI judgment has set a tone too hostile and ungenerous to Vanashakti, by trumping the cause of development and potential monetary loss, with environmental protection having no comparable monetary leverage.

[P.S.: A factual correction has been made since this blogpost was posted, namely, it was the 2017 "notification" and not an "office memorandum"; despite that it was rightly ruled as illegal by Vanashakti, in the face of the parent 2006 EIA notification.]

---

[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.

[4] Appeal No.34/2020 (WZ)

[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.