On November 18, 2025, in CREDAI vs Vanashakti, by means of a 2:1 majority, the Supreme Court docket of India reviewed and recalled its judgment from Might this 12 months, the place it had declared notifications allowing individuals to safe ex publish facto environmental clearances (ECs) as unlawful. The unique judgment was hailed as a landmark second, as a uncommon occasion of the Court docket grounding its rhetoric in enforceable self-discipline. However the Court docket has now asserted, with a powerful dissent from Justice Ujjal Bhuyan, that its earlier ruling misinterpreted binding precedents and failed to understand that retrospective ECs could, in some conditions, additional the reason for public curiosity.
Our speedy response would possibly effectively be to ask how? To reply this, the Court docket employs a completely round logic. Because the then Chief Justice of India, Justice B.R. Gavai put it, to thoroughly deny retrospective clearances undermines public welfare as a result of it might effectively compel authorities to halt or tear down accomplished initiatives that had begun with out prior permission. Thus, the unlawful act is, by itself, became a justification. The very fact of a violation — of a undertaking unlawfully commenced with out an EC — winds up forming the rationale for granting the very clearance that the regulation requires prematurely. In different phrases, the principles turn out to be fungible, to accommodate a fait accompli.
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An undoing of a reasoned judgment
For someplace nearing half a century, the Supreme Court docket has spoken in hovering phrases about the proper to a clear and wholesome atmosphere. By means of quite a few judgments, it has positioned this promise inside Article 21 of the Structure of India’s assure of a proper to life. It has cited the precautionary precept — which requires the state to undertake protecting measures even when scientific proof about an environmental threat is unsure — as a binding norm. It has additionally acknowledged that ecological degradation burdens each the current and future generations. It has enunciated a proper towards the harms of local weather change, and it has appealed to rules of intergenerational fairness and sustainable improvement as constitutional targets.
So grandiose have these pronouncements usually been that this physique of regulation is seen as one of many Court docket’s extra progressive feats. However summary doctrines take us solely to this point. They serve little function if they aren’t meaningfully utilized to actual world violations.
Worse nonetheless, they collapse fully when the Court docket undoes its personal fastidiously reasoned judgments. That’s exactly the fear with the judgment in CREDAI. It turns non-compliance from an offence into an argument, and dismantles, within the course of, the foundations of environmental regulation.
At its core, India’s environmental legal guidelines mandate prior EC for sure industrial and improvement initiatives of specified sizes and kinds.
This requirement, instilled by means of the Surroundings Affect Evaluation (Notification) of 2006 has been watered down not less than twice over. In 2017, the Ministry of Surroundings, Forest and Local weather Change issued a notification allowing those that had commenced work on web site with out an EC or expanded manufacturing past the restrict of the EC, to use for and safe a retrospective licence inside six months from March 14, 2017. In 2021, the Ministry issued what it described as an “Workplace Memorandum” and instituted a “Normal Working Process” permitting initiatives in violation of the regulation, the place the window out there underneath the 2017 order to use couldn’t be availed, to be regularised, by paying penalties and prices.
The idea of the unique ruling
The Court docket’s unique ruling, authored by Justice A.S. Oka, struck down each the 2017 and 2021 notifications. In doing so, the judgment returned to first rules and located the controversy throughout the lengthy arc of India’s environmental jurisprudence. It traced the trajectory from the Stockholm Convention of 1972 to the enactment of the Surroundings (Safety) Act, 1986, after which to the Environmental Affect Evaluation (EIA) frameworks of 1994 and 2006, every measure constituting a constructing block in a regime that goals at stopping hurt reasonably than condoning and regularising violations.
The decision noticed the insistence on a previous EC as no procedural formality. Alternatively, it insisted that this shaped a central pillar in our statutory design. The EIA regime requires public hearings, scientific research, knowledgeable appraisal and conditional approvals earlier than a undertaking begins, as a result of the concept is to stop irreversible hurt. A previous EC ensures that undertaking viability is assessed contemplating ecological limits. It ensures that financial momentum doesn’t predetermine environmental outcomes.
The unique judgment additionally drew upon long-standing choices, together with the decision in Frequent Trigger vs Union of India (2017), the place the Court docket held unequivocally that retrospective clearances are “detrimental to the atmosphere and will result in irreparable degradation of the atmosphere,” and the M.C. Mehta instances, which asserted that even the renewal of a mining lease required earlier approval. The logic was clear: if the regulation calls for scientific scrutiny first, however building proceeds sans such examination, the consequence can’t be a backdated validation of the illegality.
Equally important was Justice Oka’s account of the Union Authorities’s personal conduct. Earlier than the Madras Excessive Court docket, the State’s legal professionals gave a categorical endeavor that the 2017 notification permitting ex publish facto clearances was a one-time measure. That assurance was recorded and relied upon by a constitutional discussion board. Subsequently, one would suppose the federal government would bind itself to its solemn dedication. However because the 2021 memorandum demonstrated, it was solely too eager to liberalise compliance even additional, permitting even those that had not submitted purposes through the allotted time to hunt retrospective validation.
Regrettably, the evaluation judgment appears to be like past all this. It frames for itself a slender query: would imposing prior scrutiny inconvenience those that have already violated the regulation? In so asking, it shifts the goalposts from precept to expediency, marking, as Justice Bhuyan factors out, a transparent retrograde step.
The dissenting opinion additionally lays naked the assorted different inconsistencies within the majority’s method. It factors to the chief justification for repelling predated ECs: the concept our legal guidelines are constructed to anticipate hurt reasonably than accommodate it. Changing prior scrutiny with backdated lenience dismantles the guardrails that the Court docket itself helped assemble over many years.
If the actual fact of a violation turns into grounds for erasing its penalties, any incentive to conform disappears. Undertaking proponents might be blissful to proceed with out an EC, safe within the data that the federal government, aided by the court docket, will assist normalise their lapses by means of the cost of fines reasonably than the imposition of any severe penalties. In impact, what’s rewarded is illegal conduct with a declaration that the sheer scale of the wrongdoing compels the regulation to bend.
An extra weakening of accountability
The evaluation judgment’s implications for environmental governance are stark. First, it hollows out the EIA course of. A way of fait accompli attaches itself to the necessities of public participation, knowledgeable appraisal and scientific analysis. Scrutiny turns into ceremonial. Second, compliance is handled as voluntary. The state’s regulatory hand weakens, and enforcement loses its deterrent drive.
However, finally, probably the most troubling consequence of the judgment is the sign it sends. We live in a time of intensifying local weather change and ecological fragility. However India’s prime court docket desires to dilute the already-flailing instruments to make sure accountability. For an establishment that has lengthy prided itself on pioneering environmental safety, the evaluation marks a decidedly disquieting step backwards.
The Court docket will now need to reassemble to listen to the challenges anew. When it does so, it would do effectively to do not forget that the validity of the 2 notifications just isn’t the one factor at stake right here, but additionally the credibility of India’s rule of regulation.
Suhrith Parthasarathy is an advocate practising within the Madras Excessive Court docket
Printed – December 04, 2025 12:16 am IST
