SC recalls its order barring retrospective green clearances; Justice Bhuyan dissents

In a significant shift, the Supreme Court on Tuesday, 18 November, recalled, by a 2:1 majority, its 16 May judgment that had prohibited the Centre from granting retrospective environmental clearances (ECs) to projects found violating environmental norms.

The earlier ruling, widely known as the Vanshakti judgment, had barred the Ministry of Environment, Forests, and Climate Change (MoEFCC) from issuing ex-post facto approvals to projects already operating in violation of environmental law.

A bench of Chief Justice B.R. Gavai, Justice Ujjal Bhuyan and Justice K. Vinod Chandran delivered three separate judgments while deciding nearly 40 review and modification petitions filed by government bodies, industries and infrastructure entities.

CJI Gavai and Justice Chandran allowed the review pleas, set aside the May 16 ruling and sent the issues to an appropriate bench for fresh consideration.

“Public projects of Rs 20,000 crore will have to be demolished if the clearance is not reviewed,” the CJI observed, adding that the earlier judgment required reconsideration. “In my judgment, I have allowed the recall. My judgment has been criticised by my brother Justice Bhuyan.”

Justice Bhuyan authored a forceful dissent, insisting that retrospective environmental clearances have no legal foundation.

“There is no concept of ex-post facto environmental clearance in environmental law,” he wrote, describing the very idea as “an anathema… a curse devoted to evil, to environmental jurisprudence.”

The CJI, however, noted that both the 2013 notification and the 2021 Office Memorandum issued by the MoEFCC explicitly envisaged a scheme for granting environmental clearance upon the imposition of heavy penalties on violators. Whether such a framework is lawful now awaits determination by a new bench.

The verdict has provided a lifeline to critical public infrastructure projects across India including an AIIMS in Odisha. The judges said if the May 16 verdict is not recalled, it will result in demolition of various buildings and projects constructed out of public exchequer to the tune of nearly Rs 20,000 crore.

The majority decision cited the potentially "devastating effects" on projects of national importance, including the 962-bed AIIMS hospital and a greenfield airport.

"A perusal of the list produced would reveal that out of the projects which will be adversely affected by the JUR, some of the projects are concerning construction of hospitals/medical colleges/airports and some are with regard to common effluent treatment plants," the CJI said.

The matter was reserved on October 9 after extensive arguments from senior advocates Kapil Sibal, Mukul Rohatgi and Solicitor General Tushar Mehta, who had urged the court to revisit the Vanshakti ruling in light of its sweeping implications for ongoing and completed projects.

The recall now reopens a major debate at the intersection of environmental protection, industrial development and regulatory accountability—a debate that will be reargued from scratch before a new bench.