“Zero-Tolerance for Post-Facto Environmental Clearance” –
A Comprehensive Commentary on Vanashakti v. Union of India, 2025 INSC 718

1. Introduction

The Supreme Court’s decision in Vanashakti v. Union of India marks a watershed moment in Indian environmental jurisprudence. The case consolidated four writ petitions and a civil appeal challenging the legitimacy of governmental instruments that permitted ex post facto (post-fact) Environmental Clearances (ECs) for projects that had already commenced or expanded without mandatory prior approvals under the Environment Impact Assessment (EIA) Notification, 2006.

The principal actors were:

• Petitioner: Vanashakti, a Mumbai-based environmental NGO, alongside other public-spirited litigants.
• Respondent: Union of India, represented by the Ministry of Environment, Forest & Climate Change (MoEFCC).

At stake was the legality of (i) the MoEFCC’s 2017 “one-time” notification that opened a six-month window for seeking post-facto ECs for past violations, and (ii) a 2021 Office Memorandum (OM) that introduced a “Standard Operating Procedure” (SOP) effectively reviving the very possibility of regularising such violations. The Court not only annulled these instruments but also prospectively barred the Government from ever resurrecting a post-facto clearance regime.

2. Summary of the Judgment

1. The Court struck down the 2017 Notification, the 2021 OM and “all circulars/orders/OMs/notifications” issued to give them effect, declaring them ultra vires the Environment (Protection) Act, 1986 (“EP Act”) and the Constitution.
2. It held that any form of post-facto environmental clearance is “completely alien” to Indian environmental law, reaffirming and extending earlier rulings (Common Cause, Alembic Pharmaceuticals, etc.).
3. The Court issued a prospective injunction against the Central Government from issuing “in any form or manner” future instruments that contemplate or permit post-facto ECs.
4. Ex post facto ECs already granted under the invalidated instruments were, pragmatically, left undisturbed.

3. Analysis

3.1 Precedents Cited and Their Influence

1. Common Cause v. Union of India (2017) 9 SCC 499
   • Laid down that retrospective ECs “are completely alien to environmental jurisprudence.”
   • Formed the backbone of the Court’s reasoning; the 2017 Notification was found to “straight-jacket” itself around a doctrine already condemned by Common Cause.
2. Alembic Pharmaceuticals v. Rohit Prajapati (2020) 17 SCC 157
   • Invalidated a 2002 circular allowing post-facto ECs for industrial expansions under the 1994 EIA regime.
   • The Court borrowed Alembic’s language that post-facto clearances are “anathema” to precautionary and sustainable development principles.
3. Electrosteel Steels Ltd. v. Union of India (2023) 6 SCC 615
   • Re-emphasised the “non-negotiable” nature of prior EC; cited to underscore institutional continuity.
4. High Court cases: Puducherry Environment Protection Association (Madras HC, 2017) and Appaswamy Real Estates (Madras HC, 2018)
   • Provided contextual facts, especially the Government’s recorded undertaking that the 2017 Notification was a one-time measure—an undertaking the Supreme Court ultimately enforced.

3.2 Court’s Legal Reasoning

The judgment methodically interwove constitutional mandates, statutory text, and prior case law:

• Statutory scheme: Section 3 of the EP Act empowers the Centre to protect and improve the environment, while Rule 5 of the EP Rules authorises it to restrict polluting activities. The EIA Notification, 2006—issued under these provisions—insists on “prior environmental clearance” for specified projects.
• Grammatical & purposive interpretation: The word “prior” and the phrase “shall not be undertaken” signify a mandatory pre-condition, not an optionally curable defect.
• Constitutional lens: Article 21’s right to a clean environment and Article 51A(g)’s fundamental duty to protect nature trump administrative leniency toward violators.
• Rule of law & undertakings: The Centre’s “categorical undertaking” before the Madras High Court that the 2017 Notification was a one-time indulgence created a binding obligation. Issuing the 2021 OM was therefore both ultra vires and contemptuous of judicial comity.
• Public interest over private loss: The Court rejected MoEFCC’s plea that massive sunk costs demanded regularisation, holding that environmental protection is paramount and industrial actors knowingly bore the risk of non-compliance.

3.3 Impact on Future Litigation and Policy

• Absolute Prospective Bar: Any future attempt by the executive to resurrect post-facto ECs is per se unconstitutional, obviating repeated litigation.
• Regulatory Overhaul: SEIAAs and MoEFCC must now enforce a zero-tolerance approach; project developers will need to integrate environmental compliance at the design stage.
• Strengthened Citizen Actions: The ruling equips activists with a clear benchmark to challenge clandestine projects without prior EC.
• Corporate Governance: Boards and lenders must treat prior EC as a deal-breaker; due-diligence checklists will be revised to reflect the Court’s categorical prohibition.
• Urban Planning & Real-Estate: The real-estate sector—frequently benefitting from “regularisation drives”—faces heightened legal exposure, promoting more sustainable construction practices.

4. Complex Concepts Simplified

Environmental Clearance (EC)

A formal approval granted by an expert authority after evaluating a project’s potential environmental impacts. Think of it as a “licence” to proceed, conditional upon mitigation measures.

Ex post facto EC

An EC granted after the project has begun operations—akin to granting a driver’s licence to someone who has already been speeding.

EIA Notification, 2006

A detailed legal framework listing categories of projects that require prior EC, and prescribing a multi-stage review—screening, scoping, public hearing, appraisal—before approval.

Polluter Pays Principle

The idea that a person who pollutes should bear the cost of managing that pollution to prevent damage to human health or the environment.

Precautionary Principle

A strategy to cope with possible risks where scientific understanding is yet incomplete: if an action may cause severe harm, the lack of full certainty should not be a reason for postponing preventive measures.

5. Conclusion

Vanashakti cements the Supreme Court’s long-standing suspicion of post-facto environmental approvals into an absolute doctrinal bar. By striking down both the 2017 Notification and the 2021 OM, and by prospectively prohibiting any similar future instruments, the Court:

• Upholds constitutional environmentalism under Article 21;
• Affirms the inviolability of statutory mandates demanding prior environmental scrutiny;
• Signals to industries, lenders and regulators alike that environmental due diligence is not a box-ticking exercise but a substantive, non-negotiable precondition to development;
• Strengthens the judiciary’s role as a sentinel over environmental governance.

In a decade where worsening air-quality indices and climate anxieties dominate public discourse, Vanashakti stands as a robust judicial declaration: development that begins by breaking the law is no development at all. The judgment’s legacy will be measured by whether it finally compels both State and industry to internalise the cost of environmental stewardship at the inception—not in hindsight—of every project.