Context

• The Supreme Court of India’s decision in CREDAI vs Vanashakti (November 18, 2025), delivered by a 2:1 majority, marks a significant and troubling shift in India’s environmental jurisprudence.
• By recalling its own May 2025 judgment that had struck down ex post facto environmental clearances (ECs), the Court has reopened the possibility for developers to retrospectively legalise projects built in violation of the law.
• The majority justified this reversal on the grounds of public interest, claiming that disallowing such clearances could disrupt or dismantle completed projects.
• This logic, however, turns illegality into its own justification, subordinating environmental rule of law to administrative convenience.

Circular Logic and the Normalisation of Illegality

• Central to the majority’s reasoning is the assertion that requiring prior ECs may cause hardship when projects are already built.
• This approach effectively treats the violation as the rationale for excusing the violation, making compliance appear optional.
• What was designed as a mandatory safeguard becomes a flexible post-hoc formality.
• This stands in stark contrast to the Court’s long-standing position that environmental protection must be anticipatory, anchored in Article 21’s guarantee of the right to a healthy environment, the precautionary principle, and doctrines of intergenerational equity.
• The review judgment signals a shift from principle to expediency. By treating completed construction as an overriding factor, it allows economic momentum to dictate environmental legality.
• Justice Ujjal Bhuyan’s dissent highlights this danger, emphasising that bending the law to accommodate violations erodes the very framework created to prevent ecological harm.

The Original Judgment: Returning to First Principles

• The May 2025 judgment authored by Justice A.S. Oka had rejected both the 2017 and 2021 government notifications permitting retrospective ECs.
• It grounded its reasoning in the evolution of India’s environmental governance, beginning with the Stockholm Conference of 1972, the Environment (Protection) Act of 1986, and the Environmental Impact Assessment (EIA) frameworks of 1994 and 2006.
• These legal instruments established prior environmental scrutiny as a central pillar of ecological regulation.
• The original ruling underscored that public hearings, expert appraisal, and scientific evaluation are meaningful only when conducted before construction begins.
• It reaffirmed that preventing irreversible harm is the essence of environmental regulation, and that ex post facto approvals defeat this purpose.
• The Court relied on precedents such as Common Cause vs Union of India (2017), which declared retrospective clearances inherently detrimental, and the M.C. Mehta line of cases, which insisted on prior approval even for lease renewals.

The Review Judgment: A Retreat into Expediency

• The review judgment reframes the central question: not whether environmental harm must be prevented in advance, but whether enforcing prior scrutiny inconveniences those who have already broken the law.
• Justice Bhuyan’s dissent identifies this shift as a clear retreat from decades of jurisprudence. If violations can be regularised through fines, compliance loses its binding force.
• Developers may proceed without an EC, confident that post-facto validation will replace meaningful scrutiny.
• This approach weakens both the deterrent value of environmental regulation and the credibility of judicial oversight.
• By undoing a carefully reasoned judgment rooted in precedent, the Court signals a willingness to allow economic considerations to override ecological mandates, even when violations are blatant and deliberate.

Consequences for Environmental Governance

• The implications of the review judgment are considerable.
• First, it hollows out the EIA process, reducing public participation, expert appraisal, and scientific evaluation to perfunctory exercises if projects can later be regularised.
• Second, it effectively renders compliance voluntary, diminishing the regulatory authority of the state and weakening enforcement mechanisms.
• Most troubling is the message this sends at a time of escalating climate risk and ecological fragility. India faces intensifying floods, heatwaves, and biodiversity loss, yet the ruling further dilutes the already fragile tools of environmental accountability.
• An institution long regarded as a leader in environmental protection now appears willing to bend foundational safeguards to accommodate unlawful development.

Conclusion

• As the Court prepares to hear the matter again, the stakes extend beyond the validity of two notifications.
• At issue is the credibility of India’s environmental rule of law, and the integrity of constitutional commitments to ecological protection.
• Restoring the primacy of prior environmental scrutiny is essential not only to prevent irreversible harm but also to reaffirm the legitimacy of governance.
• The forthcoming hearings offer an opportunity to correct course and ensure that environmental law remains a shield against harm, not a mechanism for post-hoc rationalisation.