Vanashakti v. Union of India and its November 2025 review: the ex post facto environmental clearance saga

The Vanashakti saga — operating across two Supreme Court engagements in 2025 — is the most consequential recent shift in the architecture of environmental clearance under Indian law. On 16 May 2025, a two-judge bench of Justices A.S. Oka and Ujjal Bhuyan struck down the 2017 Office Memorandum and the 2021 Notification that the Ministry of Environment, Forest and Climate Change had used to grant retrospective — ex post facto — environmental clearances to projects that had begun work without obtaining prior approval. On 18 November 2025, a different bench — led by Chief Justice B.R. Gavai, sitting with Justice K. Vinod Chandran and Justice Bhuyan — recalled the earlier judgment by 2:1. Justice Bhuyan, who had been part of the May 2025 unanimous bench, dissented from the November 2025 recall.

The saga matters because the architecture of environmental clearance is the principal regulatory tool for managing the environmental impact of industrial and infrastructure activity. The doctrinal question — whether the State can sanction work that has already begun without prior approval — operates at the centre of the regulatory architecture.

The architecture of environmental clearance

The Environmental Impact Assessment Notification, 2006 — issued under the Environment (Protection) Act, 1986 — supplies the principal architecture for environmental clearance in India. The Notification sets out the categories of projects that require prior environmental clearance, the procedures for obtaining clearance, and the consequences of operation without clearance.

The architectural premise of the EIA Notification is that environmental impact assessment must be conducted before a project begins — so that the assessment can inform the decision to proceed, the conditions under which it should proceed, and the mitigation measures that should be put in place. Once a project has begun, the assessment is conducted against an already-existing baseline of environmental change, and the leverage to require mitigation is substantially reduced.

The ex post facto clearance architecture — operating through office memoranda and notifications issued by the Ministry — had emerged in the years between 2017 and 2021 to allow the Ministry to grant clearance to projects that had begun work without prior approval. The 2017 Notification and the 2021 Office Memorandum were the operative regulatory instruments.

The May 2025 judgment

The Vanashakti petition challenged the constitutional validity of the 2017 Notification and the 2021 Office Memorandum. The challenge rested on three connected propositions.

The first was that ex post facto environmental clearance was inconsistent with the architecture of the EIA Notification, 2006. The Notification's premise — assessment before commencement — could not be honoured by an architecture that allowed the State to sanction work already begun.

The second was that the executive instruments violated the constitutional protection of environment under Article 21 — read with the precautionary principle and the polluter-pays principle that the Court had articulated in Vellore Citizens' Welfare Forum v. Union of India (1996), M.C. Mehta (Oleum Gas Leak) and the broader line of environmental authority. Ex post facto clearance, on the petitioner's case, operated as a licence to violate the prior-approval architecture.

The third was that the executive instruments operated outside the scope of the Environment (Protection) Act, 1986. The Act's architecture for environmental regulation — and the EIA Notification's architecture as a subordinate instrument — did not contemplate the doctrinal innovation that the ex post facto architecture represented.

The bench of Justices Oka and Bhuyan accepted the principal propositions. The judgment held that the architecture of ex post facto environmental clearance could not be reconciled with the EIA Notification's premise of assessment before commencement, nor with the precautionary and polluter-pays principles that the Article 21 environmental line had recognised. The 2017 Notification and the 2021 Office Memorandum were struck down. The architecture of prior environmental clearance was restored as the operative position.

The November 2025 review

The Confederation of Real Estate Developers' Associations of India filed a review petition. The review was heard by a bench led by Chief Justice B.R. Gavai, sitting with Justice K. Vinod Chandran and Justice Bhuyan — the latter having been part of the May 2025 unanimous bench.

The majority — Gavai, C.J., with Chandran, J. concurring — held that the review was maintainable and that the May 2025 judgment should be recalled. The reasoning rested on three connected propositions.

The first was that the May 2025 judgment had not adequately engaged with the operational consequences of the ex-post-facto-clearance bar. Substantial industrial and infrastructure activity — including projects that had been operating for years — had been left without a regulatory route. The architectural consequence of the May 2025 judgment was, on the review majority's reading, more severe than the constitutional protection required.

The second was that the executive's discretion under the EIA Notification — and under the Environment (Protection) Act — extended to architectures that allowed for the regularisation of activity in appropriate cases. The ex-post-facto-clearance architecture, on this reading, was a permissible exercise of executive regulatory discretion, not an architectural displacement of the EIA Notification's premise.

The third was that the May 2025 judgment's holding — that ex post facto clearance was alien to environmental jurisprudence — was too absolute. The architecture of environmental regulation accommodated, on the review majority's reading, both prior-approval and regularisation routes; the doctrinal position the May 2025 judgment had taken was more categorical than the constitutional architecture required.

The May 2025 judgment was recalled. The 2017 Notification and the 2021 Office Memorandum were restored to operation.

The Bhuyan dissent

Justice Bhuyan dissented. The dissent's principal proposition was that no case for review had been made out. The disagreement with the majority is doctrinally important; it represents the position that the May 2025 judgment correctly construed the constitutional and statutory architecture, and that the review majority's contrary position is inconsistent with the architecture.

The dissent operates on three propositions. The first is that the doctrinal frame of the May 2025 judgment — the precautionary principle, the polluter-pays principle, and the architecture of Article 21 environmental protection — was correctly applied. The second is that the operational consequences the review majority had relied upon — the leaving of existing projects without a regulatory route — could be addressed through narrower mechanisms that did not require the abandonment of the May 2025 doctrinal frame. The third is that the review jurisdiction is a narrow one — for the correction of manifest errors, not for the wholesale reconsideration of doctrinal positions — and that the review majority's engagement exceeded the constitutional scope of the review jurisdiction.

What the position now looks like

The current architecture — after the November 2025 recall — is that ex post facto environmental clearance can be granted under the 2017 Notification and the 2021 Office Memorandum that the May 2025 judgment had struck down. The Ministry's discretion to regularise projects that have begun without prior approval has been restored.

The architectural premise of prior environmental clearance under the EIA Notification, 2006, continues to apply. The Notification's categories, procedures, and conditions are operative. The ex-post-facto architecture sits alongside the prior-approval architecture as an additional regulatory route.

The practical consequence is that a project developer who has begun activity without prior approval has an architectural route to regularise — by applying for ex post facto clearance — rather than being foreclosed by the prior-approval requirement. The operational discipline of prior approval has, on this architecture, been substantially relaxed.

The doctrinal arc

The Vanashakti saga sits in a substantial line of constitutional engagement with environmental regulation. The line includes M.C. Mehta v. Union of India (1986) — the Oleum Gas Leak case — which articulated the absolute-liability doctrine for hazardous industries. It includes Vellore Citizens' Welfare Forum v. Union of India (1996) — which articulated the precautionary principle and the polluter-pays principle as part of Indian environmental jurisprudence. It includes the line on river-pollution, forest conservation, and air-quality regulation that has been the work of the Court across the post-1980 period.

The Vanashakti saga is the most recent — and the most divided — engagement of the Court with the architecture of environmental clearance. The May 2025 judgment and the November 2025 recall together produce a doctrinal record in which the Court has taken two different positions on the same architecture within six months.

What the judgment did not decide

Three limits should be flagged on the current position.

First, the November 2025 recall operates on the doctrine but leaves open substantial questions about how the Ministry must exercise its ex-post-facto discretion. The architecture of considerations — including the cumulative environmental impact, the prejudice to affected populations, and the mitigation requirements — has been left to administrative engagement.

Second, the recall does not engage with the relationship between ex post facto clearance and the constitutional protection of environment under Article 21. The doctrinal question — whether ex-post-facto regularisation is constitutionally permissible in all cases, or only in narrow categories — has been left to future engagement.

Third, the doctrinal status of the May 2025 reasoning — including the broader doctrinal propositions on the precautionary principle and the polluter-pays principle as applied to environmental clearance — remains, on the most defensible reading, untouched. The recall operates on the specific architecture; the broader doctrinal frame continues to operate as part of Indian environmental jurisprudence.

What practitioners take from the saga today

For environmental-law practitioners, the November 2025 position is the operative authority. Ex post facto environmental clearance is available under the 2017 Notification and the 2021 Office Memorandum; project developers who have begun activity without prior approval have a regularisation route.

For project developers and corporate clients, the architecture has shifted substantially in their favour. The prior-approval discipline remains as the architectural premise; the ex-post-facto route operates as an additional avenue for projects that have proceeded without prior approval.

For environmental petitioners and NGOs, the November 2025 position is the most significant doctrinal setback of the recent period. The architecture of prior approval — which the May 2025 judgment had reinforced — has been substantially diluted.

For the broader profession, the saga is a working instance of the review jurisdiction operating to reverse a recent constitutional disposition. The doctrinal questions on the scope of the review jurisdiction — and the relationship between wholesale doctrinal reconsideration and the correction of manifest error — are part of the institutional record.

Related editorial pieces

• Vellore Citizens' Welfare Forum v. Union of India: precautionary principle and polluter pays
• M.C. Mehta v. Union of India: the Oleum Gas Leak case and absolute liability
• NGT 2026 environmental directions: an overview