Ex-Post Facto Environmental Clearances: Supreme Court hears arguments on referring Vanashakti matter to larger bench
As the Vanashakti matter returns to the Supreme Court after a contentious review, petitioners argue that three findings of the review bench have shut the door on their ability to argue the case at all.
Ajitesh Singh
Published on: 26 February 2026, 07:12 am
WHEN THE SUPREME COURT'S three-judge bench assembled on Wednesday to hear the Vanashakti matter, the petitioners opposing ex-post facto environmental clearances (‘ECs’) came not to argue the merits of their case, but to argue that they could not argue it at all. The reason, Senior Advocate Gopal Sankaranarayanan, told the bench of Chief Justice of India Surya Kant, and Justices Joymalya Bagchi, and Vipul M. Pancholi, was that a prior three-judge bench, sitting in review jurisdiction in November 2025, had already decided the very questions that the petitioners needed to argue.
“I stand here only because your review has been allowed,” Sankaranarayanan, representing Vanashakti, a Mumbai-based NGO, told the Court. “Otherwise, I was outside the court as a happy litigant having succeeded before two judges. I'm back here because the review reopened it but decided fully on the merits against me.”
It was, by any measure, an unusual position to be in.
The Madras High Court judgment, as per the petitioners, had considered all five Supreme Court judgments that later became the battleground in the review proceedings.
The Madras High Court judgment
Running through the entire day's proceedings was a judgment that has received surprisingly little attention given its centrality to the dispute – the Madras High Court's final judgment of August 30, 2024, which struck down the 2021 Standard Operating Procedure (‘SOP’) by Ministry of Environment, Forest and Climate Change (‘MoEFCC’) on ex-post facto clearances as unconstitutional.
Significantly, the Union government chose not to challenge this judgment. No Special Leave Petition (‘SLP’) was filed by the MoEFCC against it. It was the petitioners themselves, who after succeeding in the High Court, came before the Supreme Court by way of Special Leave Petition, seeking to extend the High Court's ruling to the three projects for which the Court had allowed prospective operation of the SOP.
The Madras High Court judgment, as per the petitioners, was itself a comprehensive exercise which had considered all five Supreme Court judgments that later became the battleground in the review proceedings: Common Cause v. Union of India (2017), Alembic Pharmaceuticals v. Rohit Prajapati (2020), Electrosteel Steels v. Union of India (2021), D. Swamy v. Karnataka State Pollution Control Board (2022), and Pahwa Plastics v. Dastak NGO (2022). It extracted their true ratio by referring to the facts of the case law, and examining the historical pattern of the Ministry repeatedly issuing clearance windows for violators. And it had concluded, after detailed analysis, that neither the Environment Protection Act, 1986 nor the Environmental Impact Assessment (‘EIA’) Notification, 2006 contained any enabling provision for the grant of ex-post facto EC.
“The Madras High Court judgment considers, in fact, those very judgments which the three-judge bench says were not considered,” Sankaranarayanan submitted, “So I believe that is also a ground for review, because that was a point which is squarely taken and should have been at least noted.”
When the bench pointed out that since leave had been granted in the SLP, the Madras High Court judgment had merged with the Supreme Court's proceedings, Sankaranarayanan responded that the merger made the High Court's reasoning even more significant, not less.
