Vanashakti Review: Demoting the law to a suggestion

“I think we’re lucky to be living when we are, because things are going to get worse.”
― David Attenborough

Since the mid-1980s, the Supreme Court has held that the right to a clean environment is a concomitant of the right to life under Article 21—this has been the premise of environmental jurisprudence in India since its earliest days. Even while the actual outcomes of cases have sometimes diverged from the legal reasoning they propound, the Supreme Court has not been known to upset the foundations (both constitutional and legal) to which environmental jurisprudence is tethered. That is, until last month. 

What was the Review judgement? 

On 18 November 2025, the Court, in Confederation of Real Estate Developers of India v Vanashakti (“the Review”) overturned the May 2025 decision in Vanashakti v Union of India (“Vanashakti”). The Review, authored by former Chief Justice B.R. Gavai with a concurring opinion by Justice K.V. Chandran, upheld executive action permitting the grant of environmental clearances after the commencement or expansion of activities without the mandatory prior permission under the Environmental Impact Assessment (EIA) Notification, 2006. 

While the practical consequences of the judgement are significant in the havoc it will wreak upon an already-vulnerable environment, how the Court arrives at its conclusion is equally significant and damaging. The manner in which the Supreme Court has dealt with the rule of precedents, the sanctity of Government undertakings and the enforcement of environmental law leaves a critic spoilt for choice. 

What was the Vanashakti judgement?

The original challenge in Vanashakti involved two Office Memoranda (OM) issued by the Union Government in 2017 and 2021. The 2017 OM stated that ex post facto clearances could be granted to projects or activities that started work on site, expanded production beyond the limits of an existing clearance or changed the product-mix without prior clearance. In effect, this meant that activities which commenced or continued illegally would be allowed to proceed with a retrospective permission.

The 2017 OM was only applicable to projects or activities that had commenced prior to 14 March 2017. It provided a limited window of six months for eligible applicants, which was later extended to April 2018. In a challenge to the 2017 OM before the Madras High Court, the Union Government gave an undertaking stating that it was a one-time measure—the undertaking obviated a consideration of the challenge. Then came the 2021 OM.

The 2021 OM was said to be issued after the National Green Tribunal directed the Ministry of Environment, Forests and Climate Change (MoEFCC) to prepare a Standard Operating Procedure for granting environmental clearances in cases of violation. It was not limited in time or operation. Even the briefest acquaintance with how environmental law—or any law—must operate is enough to reveal these OMs as fundamentally unsustainable.

On 16 May 2025, a Supreme Court Bench of Justices A.S. Oka and Ujjal Bhuyan struck down the OMs and held that the concept of ex post facto environmental clearance is alien to Indian environmental jurisprudence and anathema to the law. In doing so, it relied on Common Cause v Union of India (2017), Alembic Pharmaceuticals v Rohit Prajapati (2020), and Electrosteel Limited v Union of India (2023). A word on these decisions is essential to the understanding of Vanashakti and the decision in the Review. 

Common Cause dealt with large-scale mining in Orissa and held that a mining plan is subordinate to environmental clearance. The Supreme Court held that environmental clearances cannot be treated as a mechanical exercise and cannot be retrospective. However, despite arriving at the legal findings on the necessity of prior environmental clearance, the Court permitted mining leaseholders to restart operations upon compliance with statutory requirements and payment of compensation. 

In Alembic, the Court held that an ex post facto environmental clearance is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA, 2006. Similarly, in Electrosteel the Court held that “the need to comply with the requirement to obtain environmental clearance is non-negotiable” and that “ex post facto clearance should not ordinarily be granted and certainly not for the asking.” However, after a consideration of facts involving the petitioning industries that were before the Court, it exercised powers under Article 142 and permitted the grant of environmental clearances in both cases. 

In all three prior decisions, the outcome strays from the logical consequence of the legal principles established by the Court. Not to put too fine a point upon it, this divergence is often encountered in Indian constitutional law jurisprudence—the Supreme Court states the law, but often stops short of applying it.

Perhaps the most famous example of this is Maneka Gandhi v Union of India (1978) where the petitioner challenged the retention of her passport by state authorities and their refusal to allow her to travel. The Court held that the right to travel abroad is referable to the right to life under Article 21. However, the Court did not grant relief, leaving it to the Government to consider her representation expeditiously. A more recent example is Anuradha Bhasin v Union of India (2020) where the Supreme Court held that indefinite internet shutdowns are illegal. While it meticulously traced the contours of judicial review, it failed to strike down government action. Common Cause, Alembic and Electrosteel operate in a similar universe. 

Vanashakti did that rare thing we all long to see—it brought the outcome in line with judicial reasoning. It did not merely state the law, it applied it.

Court’s reasoning in the Vanashakti Review 

But the Review overturns Vanashakti on the ground (amongst others) that it has “not correctly followed” Common Cause and Alembic because it has “not noticed” paragraphs that dealt with the outcomes of those cases and “could have persuaded it to take a different view.” This is a novel test for a review—one that results in the subordination of universal legal principles (which bind all) to individual results (which bind parties to the lis). 

While facts, no doubt, colour the application of legal principles, they are not—and ought never to be—the sole determinant of what those principles are. If what constitutes binding legal precedent is determined by operative orders alone, it is hard to see what remains of legal standards that courts lay down. Bluntly put, the Review turns the rule of precedents on its head. Applied in the manner the Court would have it, landmark legal precedents would collapse, in the words of Eddie Izzard, like a flan in a cupboard.

As regards Electrosteel, the Review finds that the decision clearly stated that though ex post facto sanction should not ordinarily be granted, it could be granted in some cases. If Vanashakti sought to diverge from the finding of a bench of co-equal strength, the only course open to it would have been to refer it to a larger bench. This is perhaps the sole ground on which the Review can be defended, but the Court ought to have set this apparent conflict of judicial opinion straight, rather than uphold the retrograde interpretation of the law enunciated in Electrosteel and successive judgements that followed it. 

Review sidelines established law 

The Review is at pains to explain that the OMs only work to allow otherwise permissible industries to continue operating and would result in the levy of huge penalties for violations. It also emphasises the loss to the public exchequer that would result if certain Union- and State-level projects (over 50 in number, aggregating to Rs. 20,000 crores) were disrupted. But what it does not consider is arguably more important.

The structure of the EIA Notification contemplates a four-stage process before environmental clearances are granted, particularly for those projects that have a significant potential impact on the environment. The four-stage process includes determining comprehensive terms of reference that list environmental concerns that must be addressed in an EIA Report. It also includes a public consultation through a public hearing and invitation of responses in writing. These steps, to be effective, must necessarily be antecedent to operations. Were this to be done after the fact, the only meaningful result would be damage-control. The whole point of the law is that it must be followed as written. The Review demotes the law to a suggestion, and elevates the payment of monetary penalties to compliance.

How the Review grapples with the solemn undertaking of the Union Government to the Madras High Court also leaves much to be desired. Vanashakti deprecated the conduct of the Union in issuing the 2021 OM to allow acts which were impermissible even under the 2017 OM. The Review merely holds that a “statement made by counsel in court would not prevent the authority concerned from making amendments or modifications”. It does not deal with the fact that it was not a “statement by counsel” at all, but an undertaking given by the Government that the OM was “certainly and clearly…a one-time measure.”

A reading of the Review Judgement leaves one with the feeling that the Supreme Court has not fully appreciated what its conclusions mean for environmental law and constitutional rights. Though it refers to certain projects (namely an AIIMS hospital, the Vijayanagar Airport in Karnataka and a SAIL project) which would suffer if Vanashakti were not reviewed, it does not confine its judgement to exempt Government projects alone. It leaves the door open for private actors to whom no consideration of public funds would apply. Small wonder then that the Review does not so much as refer to Article 21, the touchstone on which environmental law jurisprudence, upto this point, has revolved.

Gulnar A. Mistry is a civil litigator working in Bombay, India. She has appeared in matters concerning environmental law for non-governmental organisations such as the Bombay Environmental Action Group and the Conservation Action Trust for protection of mangroves in the State of Maharashtra.