Authored By: Tanvi Firodiya
ILS law college
The Supreme Court of India’s judgment in Vanashakti v. Union of India (2025 SCC OnLine SC 718) is a watershed moment for the country’s environmental rule of law. In a decisive move, the Court struck down administrative policies that essentially offered an “amnesty scheme” for environmental violations, reaffirming that protecting the planet must be a priority before a shovel hits the ground—not as an afterthought.
This ruling doesn’t just change policy; it restores the fundamental principle of preventive governance and elevates the mandatory requirement for environmental scrutiny into a constitutional imperative.
The Facts: A Legal Shield for Violators
The legal battle was initiated by Vanashakti, an environmental Non-Governmental Organization (NGO), via a Public Interest Litigation (PIL).Their target was a deeply problematic administrative trend managed by the Ministry of Environment, Forest and Climate Change (MoEF&CC). This trend manifested in two key instruments:
The 2017 Notification: This measure introduced a ‘one-time’ amnesty allowing projects that had already commenced construction or operation without the legally required Environmental Clearance (EC) to apply for regularization.
The 2021 Office Memorandum (OM): This subsequent measure institutionalized the process, laying out the procedural framework for granting these retrospective, or ex-post facto, approvals. In essence, these policies allowed developers to skip mandatory pre-project environmental reviews, gamble on getting caught, and then retroactively legalize their violations—a system the Court ultimately deemed a “legal shield for violators”.
Legal Issue(s): The Core Conflict
The Supreme Court synthesized the challenge into three core questions:
Validity of Policy: Was the administrative policy enabling ex-post facto clearance, specifically the 2017 Notification and 2021 OM, legally permissible and constitutional?
Statutory Overreach: Could subordinate administrative orders lawfully dilute or nullify the explicit, mandatory requirement for prior EC under the superior Environmental Impact Assessment (EIA) Notification, 2006?
Constitutional Alignment: Did the practice of granting retrospective clearance violate the Precautionary Principle and the constitutional guarantee of the right to a pollution-free environment under Article 21 of the Constitution?
Legal Reasoning: Prevention is Non-Negotiable
The Court delivered a powerful and unanimous rationale, centred on the foundational purpose of environmental law:
EC is a Substantive Right, Not a Technicality: The judges ruled that prior EC is not merely a bureaucratic hurdle but a “mandatory substantive legal safeguard”.This safeguard is inextricably linked to the fundamental right to life (Article 21), which jurisprudence has long held includes the right to a clean environment.
The Flaw of Retrospection: The Court pointed out that the Environmental Impact Assessment (EIA) is designed as a “forward-looking instrument meant to prevent irreversible harm.” Assessing damage after a project is built transforms the process from prevention into mere post-damage analysis, a function for which it was never intended.
Violation of the Precautionary Principle: Crucially, the ruling confirmed that ex-post facto clearance is “fundamentally incompatible with the precautionary principle” and “alien to environmental jurisprudence”.
Checking Executive Power: The Court criticized the MoEF&CC for using the 2021 OM as a “regulatory instrument” without statutory backing.It categorically stated that administrative actions cannot be used to nullify mandatory statutory requirements, thus upholding the legislative scheme against executive overreach.
Ratio Decidendi: The Binding Precedent
The binding legal principle established by Vanashakti v. Union of India is definitive: Prior Environmental Clearance (EC) under the EIA Notification, 2006, is a mandatory substantive legal safeguard, and granting EC after a project has already commenced (ex-post facto clearance) violates the very rationale of the EIA framework and is fundamentally incompatible with the precautionary principle, which forms a part of the environmental rule of law in India.
Outcome: An Immediate Ban on Future Amnesty
The Supreme Court delivered a final verdict that reverberated across the regulatory landscape: The Instruments Struck Down: The Court declared both the 2017 Notification and the 2021 Office Memorandum illegal, arbitrary, and unconstitutional.
Future Barred: The judgment categorically bars all future attempts by regulatory authorities to grant ex-post facto environmental clearances.
Stability Maintained: Acknowledging the need for legal and economic stability, the Court clarified that ECs that were already granted under the old scheme before the date of the judgment will not be invalidated.
Conclusion
The verdict signals that for all projects currently seeking retrospective approval, or those yet to apply, the door to administrative amnesty has been permanently shut. Regulatory bodies are now “firmly restrained” from entertaining such applications, ensuring that environmental compliance becomes a mandatory pre-condition, not a post-violation penalty.
