The discussion on ex post facto environmental clearances in India centres on one basic question. Can a project that has started work without prior environmental clearance (EC) later be regularised through an alternate mechanism. This issue arose because of the notification dated March 14, 2017 and the Office Memorandum dated July 7, 2021 issued under the Environment Impact Assessment (EIA) Notification 2006. These circulars created a route for projects that had begun or expanded work without prior environmental clearance. Under the circulars, such projects could be treated as violation cases and issued an ex post facto EC through a stricter process that included damage assessment, remedial plans and financial guarantees before any clearance was considered. However, this was contrary to the principle behind the EIA Notifications which required EC to be applied for and obtained ‘prior’ to commencement of the Projects.

In Vanashakti v. Union of India, 2025 SCC OnLine SC 1139, judgment dated May 16, 2025, the Supreme Court held that this system, so far as it allowed ex post facto environmental clearances, could not be reconciled with the basic idea of prior scrutiny under the EIA regime and with the right to a clean environment under Article 21 of the Constitution. The Court set aside the notification dated March 14, 2017 and the Office Memorandum dated July 7, 2021. It held that the requirement of prior environmental clearance cannot be weakened by letting project proponents first violate the law and then come forward to seek regularisation. The Court only gave a limited relief to certain persons while making it clear that only those environmental clearances which were already granted under this specific regime would not be cancelled, as certain rights had vested in them. Those clearances were allowed to stand, even though the legal basis for granting them was struck down.

This created a serious difficulty. Projects which had already received ex post facto environmental clearance were safe. But many other projects were already in the pipeline as violation cases, or maybe those which had not applied for them could not be protected. In many cases, terms of reference may have been issued, public hearings had taken place, EIA and environment management plans had been filed and the expert bodies had started examining them. After Vanashakti, these projects were left in an uncertain position. This difference between completed and pending violation cases, within the same State created framework, led to several review petitions and miscellaneous applications. Public sector undertakings, industry associations and other project proponents asked the Court to consider the economic and administrative problems that would arise if such projects were abruptly stopped or undone.

These review petitions were finally decided in Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti & Anr., vide judgment dated November 18, 2025. A three Judge bench of the Supreme Court, allowed the main review petition and recalled the judgment in Vanashakti v. Union of India in full. The majority held that the earlier bench had not properly considered previous decisions of coordinate benches which had accepted, in limited situations, the possibility of ex post facto environmental clearance. In their view, any departure from those earlier rulings should have been placed before a larger bench. By recalling the judgment, the Court restored the writ petitions and civil appeals to the file for a fresh hearing. As a result, the earlier order that had struck down the notification dated March 14, 2017 and the Office Memorandum dated July 7, 2021 is no longer in force, at least until the Court decides the matter again.

Justice Ujjal Bhuyan, who had been on the bench in Vanashakti, wrote a separate dissenting opinion in the review. He repeated his view that ex post facto environmental clearance does not fit within Indian environmental law, which is based on the precautionary principle and on the idea that prior environmental scrutiny is a safeguard that cannot be relaxed. In his opinion, any hardship faced by particular projects could at most justify a limited clarification of directions but could not be a ground to recall the earlier judgment and reopen the bar against retrospective clearances.