Vanashakti III | Judgement Summary

On 29 July 2026, a three-judge Bench of Chief Justice Surya Kant and Justices Joymalya Bagchi and V.M. Pancholi held that prior environmental clearance (EC) remains the rule under the Environment Impact Assessment Notification, 2006 (EIA Notification). The Justice Bagchi authored judgement stated that projects commencing construction or operations without EC cannot ordinarily be retained through post-facto approval. At the same time, it held that Section 3 of the Environment (Protection) Act, 1986 empowers the Union Government to introduce, through delegated legislation, a narrowly tailored and time-bound statutory regime to address exceptional cases where post-facto EC is justified by supervening public interest. Such a regime, the Court clarified, cannot be created through an executive office memorandum.

The Bench upheld a notification dated 14 March 2017 (2017 Notification). It described the notification as  “a valid narrowly tailored… delegated legislation” engrafting a violation-management scheme, which granted six months to apply for an EC for projects in breach. This did not disturb the prior EC regime.It quashed the Office Memorandum dated 7 July 2021 (OM), holding that it created a perpetual administrative mechanism for post-facto EC and failed the tests of proportionality and reasonableness under Articles 14 and 21.

Justice Bagchi framed the issue as one requiring a balance between “an existential right of all living beings both present and future to a pollution-free environment” and “an aspirational right to development of a sixth of the world’s population”. The Court adopted what it termed an approach of “eco-centric proportionality”.

Background

The petitions challenged two measures introduced by the Ministry of Environment, Forest and Climate Change to address projects that had commenced without prior EC under the EIA Notification, 2006.

The first was the 2017 Notification issued under Section 3 of the Act. It created a one-time statutory window permitting eligible project proponents to seek EC subject to environmental damage assessment, remediation measures and payment of compensation. The second was the 2021 OM prescribing a Standard Operating Procedure for “violation cases”. Unlike the 2017 Notification, the OM established a continuing administrative mechanism for processing post-facto EC applications.

In Vanashakti v Union of India (2025), a Bench of Justices A.S. Oka and Ujjal Bhuyan struck down both measures, holding that post-facto EC was “alien to environmental jurisprudence”. It held that the EIA Notification, 2006 embodied the precautionary principle and that entities without prior EC could claim no equity in their favour.

On review, a Bench led by then Chief Justice B.R. Gavai recalled that judgement, observing that it appeared to be in conflict with earlier Supreme Court decisions which held that there is no absolute prohibition of post-facto ECs under the Act. 

Prior EC remains the rule

Citing the precautionary principle, the Bench held that environmental consequences must be evaluated before a project begins. The judgement held that the stages of screening, scoping, public consultation and appraisal prescribed under the EIA Notification are intended to operate before construction commences. This enables authorities to assess environmental consequences before ecological damage becomes irreversible.

The Court rejected the contention that payment of penalties under Section 15 of the Act exhausts the consequences of commencing a project without prior EC. It held that the Jan Vishwas (Amendment of Provisions) Act, 2023 decriminalised only the penal consequences of environmental violations and neither altered the architecture of the EIA Notification nor authorised administrative regularisation of illegal projects. It held that projects commenced without prior EC remain liable to restoration of the status quo ante, including closure, demolition where necessary, remediation of environmental damage and recovery of environmental costs. The only way around it is to amend the statutory framework.

Section 3 permits a limited statutory exception

With prior EC established as the rule, the Court examined whether the Act permits a post-facto EC regime. Justice Bagchi noted that Section 3 confers “the widest amplitude” of power on the Union to take necessary measures “for protecting and improving the quality of the environment.” Read with Section 21 of the General Clauses Act, 1897, the provision authorises the government to amend the EC framework through delegated legislation where supervening public interest so requires. The Court stressed that the power is not unqualified. Any departure from the prior EC regime must remain “narrowly tailored”, satisfy proportionality, and preserve the precautionary principle underpinning the EIA Notification. A statutory violation-management scheme, the Court held, may therefore be framed only in exceptional circumstances to secure environmental restoration, remediation and accountability, not routine regularisation of illegal projects.

Reconciling the Court’s precedents

A substantial part of the judgement addresses what appeared to be conflicting strands in the Court’s environmental jurisprudence.

The Court held that Common Cause v Union of India (2017)  and Alembic Pharmaceuticals v Rohit Prajapati (2020) correctly declared that ex post facto EC is “alien to environmental jurisprudence”, but explained that those observations reflected the statutory framework then in force. At the time, the EIA Notification admitted no statutory exception to the requirement of prior EC. Those decisions, the Court held, did not prevent Parliament or the Union,, acting under Section 3 of the Act, from introducing a narrow statutory exception.

The judgement also noted that neither decision had adopted an absolutist approach to relief. In Common Cause, mining leaseholders were permitted to resume operations after obtaining EC and paying compensation. In Alembic Pharmaceuticals, although the Court struck down the executive circular permitting post-facto EC, it declined to revoke clearances already granted, instead directing payment of environmental compensation under Article 142. The Bench observed that these decisions show that while prior EC remains the norm, relief must still be moulded on principles of proportionality.

Why the 2017 Notification survives

The Court attached significance to the 2017 notification’s limited operation. It applied only to projects already in violation as on 14 March 2017. It sought applications within a prescribed period and had consistently been represented as a one-time measure. It therefore addressed a closed class of existing violations rather than creating a continuing mechanism for regularisation.

The Court held that the notification sought to bring existing violators within the environmental regulatory framework rather than allow them to continue operating outside it. In doing so, it advanced the object of the Act by securing remediation, accountability and future compliance without abandoning the requirement of prior EC.

The 2021 Office Memorandum fails

The Court reached the opposite conclusion in relation to the 2021 OM. It held that the OM  was an administrative instruction, not delegated legislation. While such instructions may regulate the exercise of statutory powers, they cannot create substantive rights or obligations inconsistent with the statutory framework. The memorandum, the Court held, “supplants an earlier delegated legislation through an administrative instruction”, something executive directions cannot achieve. 

Unlike the 2017 Notification, the OM established a continuing administrative mechanism through which projects commencing without prior EC could repeatedly seek regularisation. It ceased to be a limited violation-management scheme and became “a perpetual amnesty scheme”. As per the judgement, this fundamentally altered the statutory scheme under the EIA Notification. Instead of requiring environmental impacts to be assessed before a project commenced, it permitted environmental appraisal after the violation had already occurred.

Applying the doctrine of proportionality, the Court held that although environmental restoration and economic continuity are legitimate objectives, the means adopted by the OM were neither necessary nor appropriately balanced. 

Prospective overruling and directions

To avoid unsettling ECs already granted under the 2017 Notification and the 2021 OM the Court held such clearances would remain valid unless challenged on grounds independent of the validity of those instruments. The Bench noted that setting aside those clearances would affect public projects worth nearly Rs 20,000 crores, including a 962 bed AIIMS hospital in Odisha, a greenfield airport at Vijayanagar in Karnataka and common effluent treatment plants. As these projects were otherwise permissible in law and had been stalled only because of the Court’s interim order, the Bench observed that demolishing them and requiring reconstruction after fresh environmental clearance would generate more environmental harm than it would prevent.

Pending applications were directed to be decided in accordance with the principles laid down in the judgement, while applications rejected solely because of the earlier Vanashakti decision may be reconsidered. Further, it directed that no fresh applications may be entertained under either the 2017 Notification or the 2021 OM. The Court also restrained the Union from issuing administrative orders granting post-facto EC in future, clarifying that any such regime must be introduced only through a valid statutory notification under Section 3 of the Act.