‘Not post-facto Environmental Clearance at all’: Union argues as Supreme Court reserves judgment in Vanashakti
As a bench led by CJI Surya Kant concluded arguments on whether the government can grant retrospective environmental approval, the Union pressed to relax its ‘straitjacket’ prior EC regime to adapt to changing times.
Sushovan Patnaik
2 April 2026
ON WEDNESDAY, as the Supreme Court reserved its verdict on the legal regime on grant of ex-post facto environmental clearance (‘EC’), the fundamental query before it stands to be this – is ex post facto clearance absolutely opposed to India’s environmental jurisprudence, or is it actually in furtherance of its environmental interests?
Before the Court reserved its judgment, Additional Solicitor General (‘ASG’) Aishwarya Bhati, for the Union government, extensively questioned the correctness of the Court’s May 2025 decision, authored by Justice A.S. Oka, which had struck down a 2017 notification and a 2021 Office Memorandum that granted post facto environmental clearance to projects. Bhati argued that the May judgment not only incorrectly interpreted five precedents of the Supreme Court, but also misunderstood the scope of Section 15 of the Environment (Protection) Act, 1986. She argued that the government was only seeking to relax the prior EC regime, and was not imposing a post facto regime at all.
A bench of Chief Justice Surya Kant and Justices Joymalya Bagchi and V.M. Pancholi has been hearing the matter afresh, after the Court’s November 2025 review judgement, authored by then CJI Gavai, recalled the May 2025 judgment that had prohibited retrospective environmental approvals.
ASG Bhati argued that the May judgment not only incorrectly interpreted five precedents of the Supreme Court, but also misunderstood the scope of Section 15 of the Environment (Protection) Act, 1986.
Did the May 2025 judgment misinterpret the Supreme Court’s own prior findings?
ASG Bhati took the Court through each of the prior judgments that are in contest in the present hearings: 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). The May 2025 judgment, authored by Justice Oka, had observed that both the 2017 notification and 2021 OM were bringing in a regime “completely prohibited” by Common Cause and Alembic Pharmaceuticals.
Bhati tried to highlight the effective portions of these judgments. In Common Cause, she noted, although the Court directed mining leaseholders who did not have EC initially to suspend mining operations, it eventually permitted them to restart mining operations once statutory compliances were made and dues were paid. She pointed out that over a 100 mining leases were allowed to be continued this way.
In Alembic, she noted that a manufacturing drug factory that began operation in 1992 applied for EC only in 2001. The Court quashed a 2002 notification of the Ministry of Environment, Forest and Climate Change (‘MoEFCC’) permitting ex post facto clearance, but allowed the factory to continue operation on payment of compensation.