The Supreme Court’s latest move to recall its earlier Vanashakti judgement has reopened a crucial debate in India’s environmental governance. The development raises concerns that prior environmental clearance, a mandatory safeguard meant to prevent ecological damage, may gradually become optional if retrospective approvals gain legal acceptance again.
Supreme Court reopens issue of retrospective clearances
On November 18, 2025, the Supreme Court recalled its May 15 Vanashakti vs Union of India judgement, which had categorically barred the grant of retrospective or ex post facto environmental clearances. The earlier ruling had invalidated the Union environment ministry’s 2017 Notification and 2021 Office Memorandum that allowed industries to regularise violations even after beginning construction or operations.
The recall follows a review petition filed by the Confederation of Real Estate Developers of India (CREDAI). The industry body argued that the two-judge bench had not fully considered earlier Supreme Court decisions, including those in the Electrosteel Steels Ltd and Pahwa Plastics cases, where post-facto approvals were allowed under exceptional circumstances.
With the recall order, the Court has now opened the door for a fresh and comprehensive hearing to reconcile these conflicting precedents.
Why the earlier judgement mattered
The original Vanashakti judgement was seen as a strong reaffirmation of the precautionary principle that guides environmental law in India. Delivered by justices Abhay S Oka and Ujjal Bhuyan, the ruling emphasised that environmental clearance must be secured before starting or modifying any industrial or real estate project. This requirement, the Court noted, flows from Article 21 of the Constitution, which upholds the right to a clean and pollution-free environment as part of the right to life.
The earlier judgement had also criticised the environment ministry’s repeated efforts to shield violators by allowing post-facto approvals. It made clear that environmental protection cannot be reduced to a system of fines or penalties issued after harm has already occurred.
Key directives issued in May included a prohibition on any future circulars enabling retrospective clearances and a reaffirmation that prevention, not regularisation, must remain the foundation of India’s environmental clearance process.
Industry calls for a balanced approach
In its review petition, CREDAI argued that the judgement had overlooked what it described as the “balanced approach” taken in previous cases such as Common Cause and Alembic Pharmaceuticals. These rulings, the industry claims, allowed flexibility in situations where immediate closure of a project might lead to economic disruption.
The petition described the review as both “imperative and expedient”, underlining the industry’s demand for a mechanism to deal with existing violations without shutting down projects.
Risk of weakening environmental safeguards
Environmental experts warn that reopening the question of retrospective clearances could dilute one of the most important components of India’s Environmental Impact Assessment system. The purpose of prior clearance is prevention: it ensures detailed studies, public hearings and planning before any irreversible environmental damage occurs.
Allowing projects to apply for clearance after construction is complete effectively removes the preventative power of the EC process. It risks turning it into a mere procedural formality, where violations can be addressed through fines or paperwork instead of genuine environmental planning.
Several experts also fear that institutionalising regularisation will send a dangerous signal: that projects can bypass rules first and seek approval later. This, they warn, may lead to more violations and weaken community participation in environmental decision-making.
Fresh uncertainty ahead
With the Supreme Court recalling the earlier ruling, the legal position on retrospective clearances now enters a phase of uncertainty. The upcoming hearing will determine whether India continues with a strict adherence to prior environmental clearance or moves towards greater flexibility for industries that have started work without approvals.
For now, environmentalists believe the recall carries a troubling message. Granting such exceptions, they argue, risks making prior environmental clearance optional rather than mandatory, undermining the very purpose of environmental protection in the country.