‘A Many-Headed Hydra’: Petitioners urge Supreme Court to ‘draw a line’ on ex post-facto environmental clearance

THE SUPREME COURT this week questioned whether courts could adopt a rigid approach barring ex post-facto environmental clearances altogether, and if the legislature or a delegated law-maker could be treated as completely stripped of power to provide for such a regime. The bench of Chief Justice Surya Kant, and Justices Joymalya Bagchi and Vipul Pancholi was hearing the challenge to the legal framework permitting ex post-facto environmental clearances. The matter arises from the Court's earlier decision recalling its own order that had prohibited retrospective environmental approvals. 

In the previous hearing in February, Senior Advocate Gopal Sankaranarayanan had argued that the review bench’s decision had effectively shut the door on the petitioners’ ability to argue their case, and had urged the Court to either refer the matter to a five-judge Constitution Bench or clarify that those findings were not binding on the merits. 

In the hearings this week, while Sankaranarayanan argued that Section 3 of the Environment Protection Act, 1986 (‘EPA’) could not be used to create a blanket post-facto clearance regime, advocate Srishti Agnihotri argued that the very architecture of the EIA process makes prior clearance structurally non-negotiable.

Find our detailed coverage on the previous hearing in February 2026 here.

‘Can there be an absolute bar on ex-post facto sanction?’: Justice Bagchi

On March 23, Senior Advocate Gopal Sankaranarayanan, appearing for the Mumbai-based NGO, Vanashakti, submitted that legislation or delegated legislation could not permit ex-post facto environmental clearances under Section 3 of the EPA.

Justice Bagchi noted that while an Office Memorandum may not amend the Environmental Impact Assessment Notification, which requires prior clearance for projects and carries a legislative character, there may be certain cases where the environmental harm is limited enough to justify approval without threatening sustainable development..

“There may be appropriate cases, for example, that the degree of environmental harm is not so high to the extent of sustainable development which may be achieved. In such cases, a notification for [post facto] sanction may be given,” he said.

He further highlighted that construction of a road, a hospital or a public utility service could represent compelling scenarios where ex-post facto approval yields to a higher public interest. 

Sankaranarayanan clarified that he was not arguing the legislature is entirely devoid of power to carve out exceptions. But it is important to question the avenue through which that power may be exercised. Section 3 of the EPA, which empowers the Central Government to take measures that promote environmental protection, cannot be the vehicle for a framework that regularises violations.