On 18 November 2025, the Supreme Court recalled the Vanashakti vs Union of India judgement dated 16 May 2025. The review petition was heard by a bench comprising the then Chief Justice of India, BR Gavai, Justice Ujjal Bhuyan, and Justice K Vinod Chandran. CJI Gavai and Justice Chandran formed the majority, while Justice Bhuyan dissented.
The case, i.e Confederation of Real Estate Developers of India (CREDAI) vs Vanashakti, revolves around the legality of granting ex post facto (retrospective) Environmental Clearances (ECs) to projects that commenced without obtaining the mandatory prior EC required under the Environment Impact Assessment (EIA) Notification, 2006. The Ministry of Environment, Forest and Climate Change (MoEF&CC) had issued a Notification in 2017 and an Office Memorandum (OM) in 2021, creating a mechanism for such projects to be regularised. In its judgment of Vanashakti vs Union of India, dated 16 May 2025 (hereinafter referred to as JUR), the Supreme Court struck down the 2017 Notification and the 2021 OM as illegal, holding that the concept of ex post facto EC is alien to environmental jurisprudence. However, it protected ECs that had already been granted under this mechanism. This review petition was filed by CREDAI seeking a recall of that judgment.
The majority allowed the review petition and recalled the judgment of 16 May 2025 on several grounds:
- Judgment Rendered Per Incuriam: The JUR was passed in ignorance of binding precedents from co-equal benches in D. Swamy v. Karnataka State Pollution Control Board and Pahwa Plastics Private Limited v. Dastak NGO, which had explicitly upheld the validity of the 2017 Notification and the 2021 OM. In light of this, the majority felt that the JUR was passed in ignorance of law.
- Incomplete Reading of Precedents: The JUR selectively relied on paragraphs from landmark environmental cases such as Common Cause v. Union of India; Alembic Pharmaceuticals Ltd. v. Rohit Prajapati; and Electrosteel Steels Ltd. v. Union of India to conclude that ex post facto EC is impermissible. However, it overlooked other crucial parts of the same judgments where the Court, despite condemning the violations, adopted a “balanced approach” by allowing projects to continue after paying penalties and obtaining clearances, rather than ordering outright demolition.
- Breach of Judicial Discipline: The bench that delivered the JUR, being of co-equal strength to the benches in Electrosteel, D. Swamy, and Pahwa Plastics, should have referred the matter to a larger bench if it disagreed with their findings, instead of taking a contrary view.
- Adverse Consequences and Public Interest: The CJI held that enforcing the JUR would have “devastating effects,” leading to the demolition of vital public infrastructure projects (such as an AIIMS hospital and a greenfield airport) worth nearly Rs. 20,000 crore, resulting in a massive waste of public funds.
- Counter-Productive Environmental Impact: A rigid approach of “demolish first, then apply for EC” for projects that are otherwise permissible would be counter-productive. It would generate more pollution from demolition and reconstruction, which could not have been the intention of the JUR.
Justice Bhuyan dissented, arguing that there were no valid grounds to review the JUR and that the review petition should be dismissed for the following grounds:
- JUR correctly Applied the Law: The dissent held that the foundational precedents in Common Cause and Alembic Pharmaceuticals had unequivocally established that ex post facto EC is an “anathema” to environmental law. The JUR correctly followed this binding ratio.
- Later Judgments were Per Incuriam: The judgments in Electrosteel, Pahwa, and D. Swamy were themselves per incuriam because they had deviated from the stronger, earlier precedents of Common Cause and Alembic. Therefore, the JUR was correct to not follow them.
- Principle of Non-Regression: The majority’s decision represents a “step in retrogression” that weakens decades of progressively strengthening environmental jurisprudence in India.
- Illegality Cannot be Justified by Economic Arguments: Arguments about economic loss or pollution from demolition cannot be used to justify or sustain a blatant illegality. Law violators should not be allowed to benefit from their own wrongdoing.
- Government’s Acceptance: The fact that the Ministry of Environment Forest and Climate Change failed to file a review petition is itself an indication of its acceptance of the original JUR.
Conclusion: By a 2:1 majority, the Supreme Court recalled its judgment of 16 May 2025. The original writ petitions and civil appeal challenging the 2017 Notification and 2021 OM were restored to the file for a fresh hearing before an appropriate bench.