Supreme Court rules post facto environmental clearances violate eco-centric proportionality

This is a Supreme Court of India judgment (2026 INSC 761) resolving a dispute over the validity of government instruments that allow for 'post facto' (after-the-fact) environmental clearances for projects that began without prior permission. It matters to citizens because it determines whether real estate and industrial projects can be legally regularized after violating environmental laws, impacting the right to a pollution-free environment and the development of infrastructure.

Who it concerns: The judgment concerns the Petitioner (Vanashakti), the Respondent (Union of India/Ministry of Environment, Forest and Climate Change), the Confederation of Real Estate Developers of India (CREDAI), project proponents, and the general public affected by environmental clearances.

What the document says

• The case challenges the 2017 Notification and the 2021 Office Memorandum issued by the Ministry of Environment, Forest and Climate Change (MoEFCC), which enabled the grant of post facto environmental clearances (EC) to projects violating the prior EC requirement under the EIA Notification, 2006.
• A two-Judge Bench previously (in Vanashakti-I, 2025) struck down both instruments, holding that granting ex post facto EC is alien to environmental jurisprudence and restraining the Central Government from issuing similar instruments.
• A three-Judge Bench allowed a review petition filed by CREDAI by a 2:1 majority, recalling the Vanashakti-I judgment and restoring the matters to their original file and number.
• The current Bench (Joymalya Bagchi, J.) is hearing the restored matters to determine the validity of the post facto clearance regime.
• The judgment references the Madras High Court's decision in Fatima v. Union of India (2024), which quashed the 2021 OM with prospective effect, and notes that Civil Appeals against this High Court decision are also pending.

Also in the document

• The Court frames the issue as a balance between the right to a pollution-free environment and the right to development, citing the principle of 'eco-centric proportionality'.
• Petitioners argue that the 2017 Notification was intended as a one-time measure with a six-month window, whereas the 2021 OM is a standard operating procedure.
• The text notes that previous Supreme Court decisions (Common Cause, Alembic Pharmaceuticals) have described post facto EC as an 'anathema to environmental law', though some exceptions were made in specific cases like Electrosteel Steels.
• The State of Tamil Nadu has also filed a Civil Appeal (No. 8253 of 2026) challenging the Madras High Court's decision in Fatima, which was directed to be listed after the judgment in the present proceedings.