SC revives retrospective environmental clearances

The Supreme Court on Tuesday restored the legal framework that allows retrospective grant of environmental clearances (EC) for projects that began or expanded without prior approval under the 2006 Environmental Impact Assessment (EIA) notification.

A Bench comprising Chief Justice of India B R Gavai, and Justices Ujjal Bhuyan and K Vinod Chandran pronounced three separate judgments, allowing a review petition against the Court’s earlier ruling of May 2025, which had struck down the 2017 notification and 2021 Office Memorandum permitting ex post facto environmental clearances.

Advertisement

CJI Gavai and Justice Chandran allowed the review plea, while Justice Bhuyan delivered a strong dissent, refusing to reopen the earlier judgment.

“There are three judgments. In my judgment, I have allowed the recall. My judgment has been criticised by my brother Justice Bhuyan,” CJI Gavai observed while pronouncing the verdict.

The earlier judgment delivered on May 16, 2025, by a Bench of Justices Abhay S. Oka (since retired) and Ujjal Bhuyan had held that permitting retrospective clearance violated previous Supreme Court directions, stating that project proponents who carried out polluting activities without prior approval did so knowing their actions were illegal.

The review petition was filed by the Confederation of Real Estate Developers’ Association of India (CREDAI), which argued that the judgment had caused severe hardship to the real estate sector and other dependent industries.

Allowing the review, CJI Gavai observed that public projects worth Rs 20,000 crore could face demolition if the mechanism for retrospective ECs was not revived, warning that such demolition would itself contribute to further pollution.

He also noted that the 2021 Office Memorandum was issued pursuant to directions of the National Green Tribunal (NGT).

“I have observed that all such projects where such EC has been granted stand protected. So all projects where EC was stalled can begin,” the CJI stated.

However, Justice Bhuyan held that no ground for review was made out, reiterating that the Court had consistently held that ex post facto environmental clearance is alien to environmental jurisprudence. He further noted that the union Government did not seek a review of the 2025 judgment, but only filed an affidavit supporting CREDAI.

In a separate concurring opinion with the CJI, Justice Chandran said the review was not only justified but “imperative and expedient.”
The judgment is expected to have significant implications for large-scale construction, infrastructure, and industrial projects that were previously left in limbo due to the 2025 ruling.