Authored By: Nameera Meraj
Aligarh Muslim University
Case Information
Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti and Another, 2025 INSC 1326, Supreme Court of India (B.R. Gavai, C.J. and Ujjal Bhuyan and K. Vinod Chandran, JJ.)
Introduction.
This review arises from the judgment dated 16 May 2025 (the Vanashakti judgement[1] which struck down the 2017 EIA Notification and the 2021 Office Memorandum (OM), and held that environmental clearances (ECs) granted ex post facto are impermissible. By the present review, CREDAI seeks recall of Vanashkati Judgement and restoration of related writ petitions and civil appeals. Two opinions were placed before this Court: one allowing the review and the other rejecting it. After consideration, the Court allows the review for the reasons set out below.
Facts – This is Review Petition (C) No. 2025 arising out of Writ Petition (C) No. 1394 of 2023 (CREDAI v. Vanashakti) challenging the Vanashakti judgment dated 16 May 2025 (referred to as JUR).
The Vanashakti judgment had held the 2017 EIA Notification issued by the Ministry of Environment, forest and Climate Change (MoEFCC) and the 2021 Office Memorandum (OM dated 7-7-2021) illegal, struck them down, and declared that ex post facto Environmental Clearances (ECs) are impermissible; it envisaged possible penalties, remediation, closure or demolition for non-compliant projects.
CREDAI (petitioner) sought recall of the Vanashakti judgment and restoration of related writ petitions/civil appeals, arguing misreading/omission of key precedents and catastrophic public consequences if Vanashakti decision remained.
Two opinions emerged in the review: a majority endorsing recall and a dissent opposing it.
The Review Petition was allowed: Impugned Judgment was recalled; writ petitions/civil appeals were restored to file; the matter was to be placed before the Chief Justice of India for administrative orders.
Issues – This review petition is centered around the following issuses : –
Whether the Vanashakti judgment (JUR) recalling/striking down the 2017 Notification and 2021 OM was per incuriam and therefore warrants recall.
Whether the 2017 Notification and 2021 OM were properly struck down or could be upheld consistent with evolving environmental jurisprudence and binding decisions.
Whether ex post facto Environmental Clearances can ever be justified in exceptional circumstances and whether balance between environmental protection and development justifies recall of JUR.
Whether potential demolition of completed/near-completed projects and associated public expenditure would be in the public interest, and how law should treat projects otherwise permissible but undertaken without prior EC.
Arguments Presented – Both parties advanced competing arguments, each supporting their respective positions on the issue.
Petitioner (CREDAI) arguments – Vanashakti Judgement failed to properly consider or distinguish important precedents (Common Cause,[2] Alembic[3], Electrosteel[4]), and omitted later decisions (D. Swamy[5], Pahwa Plastics[6]), making Vanashakti Judgment per incuriam. The 2017 Notification and 2021 OM were issued within the statutory EP Act/Rules framework and are lawful for dealing with violation cases, consistent with polluter-pays and remediation objectives. Implementation of Impugned Judgement would force demolition or stoppage of largely completed/near-completed public projects (examples cited: AIIMS in Odisha, a greenfield airport at Vijayanagar, CETPs), causing enormous public expenditure and undermining public interest. Ex post facto ECs can, in exceptional circumstances, be warranted under the EP Act to preserve public welfare; penalties and remediation are preferable to wholesale demolition. The EP Act does not categorically prohibit ex post facto EC; a balanced, principled approach should be applied rather than categorical closure.
Respondent (Vanashakti and others) arguments – Ex post facto EC is contrary to environmental jurisprudence and would undermine the mandatory prior EC regime established under the 1994[7] and 2006 EIA Notifications[8]. Vanashakti Judgment correctly followed precautionary and constitutional environmental mandates and upheld non-regression; recalling it would weaken environmental protection and legal discipline. Permitting retrospective EC would legalise non-compliance, risk irreparable environmental harm, and contradict foundational judgments (Common Cause, Alembic) that emphasize that ex post facto EC is alien to environmental jurisprudence. The Court should not revive retroactive relaxations that contravene the EIA regime; consistency of precedent and protection of environment must prevail over development-driven exceptions.
Court’s reasoning and analysis (majority view) – The Court found two opinions in the review proceedings; the majority held recall was warranted.
The principal ground for recall was that JUR (Judgement Under Review) was rendered per incuriam: it allegedly relied on selective extracts from precedents without considering other central passages in authorities such as Common Cause and Alembic, and it did not take note of subsequent relevant decisions (D. Swamy, Pahwa Plastics), thereby failing to follow binding precedents and lacking requisite rigour.
A judgment rendered in ignorance of binding authority or statute may be per incuriam and therefore lacks precedential value; such a decision can be recalled to preserve coherence in the Court’s jurisprudence.
Practical and policy consequences influenced the majority: JUR’s possible effects (mass demolition of completed/near-completed public projects and severe public expenditure) were policy-relevant, could be counterproductive to environmental protection if applied rigidly, and called for a measured approach that balances environmental safeguards with legitimate development.
The Court emphasized harmonizing with the established trajectory of environmental jurisprudence (as expressed in Common Cause and Alembic) that seeks a balanced approachpreserving development where permissible while ensuring accountability through penalties and remediation rather than endorsing a categorical ban on ex post facto routes. – Preservation of judicial discipline, precedent coherence, and prevention of destabilizing impacts on public projects justified restoring the prior regulatory regime pending fuller consideration.
Dissenting View: Justice Ujjal Bhuyan dissented, maintaining that allowing retrospective clearances undermines the “precautionary principle” intended to prevent ecological harm before it begins.
Judgment and ratio decidendi – In Judgement the Review Petition was allowed and the Vanashakti judgment (JUR) was recalled. The writ petitions and civil appeals were restored to file and the matters placed before the Chief Justice of India for necessary administrative orders. – Ratio decidendi (as derived from the Court’s reasoning provided):
A judgment rendered per incuriame., in ignorance of a binding statute or binding precedent or without due consideration of essential aspects of controlling authorities does not have binding precedential value and may be recalled.
Where a prior decision has failed to analyse or distinguish controlling authorities and that failure affects the correctness and precedential effect of the decision, recall is appropriate to maintain coherence in the law.
Environmental adjudication requires balancing environmental protection with legitimate public interest and development concerns; remedial measures, penalties, and proportional responses (rather than categorical demolition) are appropriate tools, and the regulatory regime governing ex post facto clearances must be approached in light of established precedents that permit measured balancing in exceptional circumstances.
Critical Analysis
The November 2025 decision[9] of the Supreme Court of India raises important questions about the Court’s constitutional role as a guardian of environmental rule of law. At the heart of the issue lies the doctrine of prior Environmental Clearance (EC), which has been consistently treated as a mandatory safeguard under the Environmental Impact Assessment framework. In Common Cause v. Union of India[10] and Alembic Pharmaceuticals Ltd. v. Rohit Prajapati,[11] the Court categorically held that ex post facto environmental clearances are “alien” to environmental jurisprudence, as they defeat the preventive purpose of environmental regulation. These decisions grounded the prior-EC requirement in the precautionary principle and sustainable development, both recognized as integral to Article 21 jurisprudence.[12]
The view taken in the review petition that development and environment are adversaries reflects a false binary. In reality, they are not inherently conflicting; rather, the principle of sustainable development recognises that economic growth and environmental protection must coexist in a mutually reinforcing manner. This approach does not permit the dilution of environmental safeguards in the name of development, but instead requires that development itself be carried out within ecologically sustainable limits.
Within this framework emerges a clear clash of precedents between two distinct lines of judicial authority. Initially, Common Cause v. Union of India[13] and Alembic Pharmaceuticals Ltd. v. Rohit Prajapati[14] established that ex post facto environmental clearances violate the precautionary principle. However, the trilogy of cases relied upon by the Court Electrosteel Steels Ltd. v. Union of India,[15] Pahwa Plastics Pvt. Ltd. v. Dastak NGO,[16] and D. Swamy [17]adopts a pragmatic approach, permitting ex post facto environmental clearances in exceptional cases, often subject to penalties. This approach departs from the strict preventive framework and creates a tension between rule-based environmental protection and flexible, consequence-based regulation.
Against this backdrop, the majority’s acceptance of post-facto ECs in limited circumstances reflects a shift toward a more pragmatic, consequence-oriented approach. The Court’s concern is not without merit: as seen in Electrosteel Steels Ltd. v. Union of India (2023) 6 SCC 615 and Pahwa Plastics Pvt. Ltd. v. Dastak NGO(2023) 12 SCC 774, strict enforcement of prior EC requirements can lead to drastic consequences such as demolition of large-scale projects, affecting employment, investment, and third-party rights. The majority thus attempts to balance environmental compliance with economic stability, aligning with the broader understanding of sustainable development as a principle of integration rather than prohibition.
However, this reasoning is open to serious critique. First, permitting ex post facto EC risks undermining the deterrent function of environmental law. If violations can later be regularized, regulatory compliance becomes optional rather than mandatory, creating a moral hazard. Second, reliance on penalties or remedial measures cannot substitute the prior-authorization requirement. As the statutory scheme indicates, penal provisions are designed to punish violations, not to legitimize them. To treat them otherwise risks blurring the separation between judicial and executive functions, with the Court effectively endorsing administrative regularization.
Moreover, the doctrinal inconsistency with earlier precedents raises concerns regarding judicial discipline. While the Court is not bound by its previous benches of equal strength, departures from settled law require strong justification, particularly in environmental matters where the principle of non-regression discourages dilution of existing protections.
In conclusion, while the judgment commendably seeks to avoid disproportionate economic harm and reflects sensitivity to practical realities, it risks weakening the foundational principle that environmental compliance must precede, not follow, development. A more constitutionally consistent approach would have preserved the mandatory nature of prior EC while allowing narrowly tailored, case-specific relief without legitimizing retrospective clearances.
Conclusion –
On the basis of the content provided, the Court concluded that Vanashakti Judgment was per incuriam for not adequately considering and applying binding authorities, and that recalling it was necessary to restore coherence between precedent, statutory regulatory mechanisms (including the 2017 Notification and 2021 OM), and the practical public-interest consequences of strict application of Vanashakti Judgement. The Review Petition was therefore allowed, Vanashkati Judgment recalled, and the related matters restored for further adjudication/administration.
Footnote(S):
[1] Vanashakti v. Union of India 2025 SCC INSC 718 (Vanashakti I);
[2] Common Cause V. Union of India, (2017) 9 SCC 499;
[3] Alembic Pharmaceuticals Ltd. v. Rohit Prajapati (2020 INSC 326);
[4] Electrosteel Castings Limited Vs Union Of India & Ors. Delhi High Court. Listed, (2023) 6 SCC 615;
[5] D Swamy v. Karnataka State Pollution Control Board, (2023) 20 SCC 469;
[6] Pahwa Plastics Pvt. Ltd. And Another v. Dastak NGO And Others (2023) 12 SCC 774;
[7] EIA Notification, 1994, Ministry of Environment, Forest and Climate Change, Environmental Impact Assessment Notification, Government of India, https://share.google/mnMZeNAa4r4WreuPS;
[8] EIA Notification 2006, Ministry of Environment, Forest and Climate Change, Environmental Impact Assessment Notification, Government of India, https://share.google/phkRoMKiClMv1PZQn;
[9] Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti and Another, 2025 INSC 1326;
[10] Supra note at 2;
[11] Supra note at 3;
[12] INDIA CONST. art. 21;
[13] Supra note at 2;
[14] Supra note at 3;
[15] Supra note at 4;
[16] Supra note at 6;
[17] Supra note at 5;
