Vanashakti v. Union of India (2025 INSC 718)

 Introduction

The case of Vanashakti v. Union of India is considered a major milestone in the evolution of Environmental Law, and was significant because it addressed whether or not the grant of Ex post facto Environmental Clearances (E.C.s) to projects that were already operating without having received prior E.C.s was in accordance with the law. The Supreme Court held that an individual’s right to live in a pollution-free environment is found in Article 21 of the Constitution.

The case arose from government notifications permitting industries and developmental projects to receive E.C.s retrospectively for projects that had begun operation prior to the issue or receipt of E.C.s. Thus, the Court was tasked to determine whether this action violated any of the environmental protections provided for by statute or the Constitution. In its analysis, the Court considered multiple decisions from previous cases and provided the Government with a number of international decisions that they felt supported their ruling for the Government. The effect of this case is far-reaching with respect to the precautionary principle in relation to environmental governance, as well as the necessity for strict compliance with regulatory schemes.

Facts of the Case

Environmental concerns became more widely known after the Stockholm Conference of 1972, resulting in the creation of an Environmental (Protection) Act in India in 1986 to protect environmental quality. Following this action, the Environment Impact Assessment (EIA) Notification of 2006 required all designated projects to receive a prior environmental clearance before they could commence construction or extension activities. On March 14, 2017, the Ministry of Environment, Forests and Climate Change published a notification encouraging projects to apply for ex-post facto EC (Environmental Clearances) within a period of six months after work had commenced without prior clearance. Later, in response to a directive from the National Green Tribunal, the Ministry was ordered to develop a Standard Operating Procedure for dealing with violations, which result in the issuance of an Office Memorandum (OM) on or before July 7, 2021.

Multiple petitions challenged these measures:

• One petition sought to quash the 2021 OM as illegal and ultra vires.
• Another challenged the 2017 notification itself.
• A third petition requested prohibition against future notifications permitting ex post facto EC.

The previous judgment of the Madras High Court set aside the earlier 2021 OM and resulted in petitions being filed in the Supreme Court. The basic issue was whether it is legally possible for projects that are found to be in violation of environmental laws to obtain retrospective environmental approvals to be legalised.

4. Legal Issues

1. Whether the 2017 notification permitting ex post facto environmental clearance is legally valid.
2. Whether the 2021 Office Memorandum effectively allows retrospective clearance in violation of environmental law.
3. Whether granting such clearances infringes the fundamental right to a pollution-free environment under Article 21.

Arguments Presented

Petitioner’s Arguments

The petitioner claim that retrospective environmental clearances (EC’s) are contrary to already established environmental legal principles and require prior approval under the Environmental Impact Assessment (EIA) Notification, 2006 as a requirement, thus are effectively an approval of illegal constructions and activities that started without a permit under the law. As a result of this approval, it will give constructing and operating without the law to continue, causing people to not follow rules and regulations concerning the environment and to not follow the regulations because they will not be filed correctly at all. After an entity (the owner of the property or project) violates the law, then penalties may be paid but, in reality, do not authorize or allow the entity to move forward with a project. Therefore; environmental harm could exist from the violation already occurred. The actions taken by the Government and the Office Memorandum have violated the fundamental right to live in a pollution-free environment as stated in Article 21 of the Constitution of India and violate the Environment (Protection) Act, 1986.

Respondent’s Arguments

According to the Government of India, the OM of 2021 does not give them any retroactive approvals; the OM simply established a Standard Operating Procedure for identifying violations of the regulations and restoring regulated control. In addition to imposing fines based on the “Polluter Pays” principle, the Government indicated that all projects without previous authorization would be closed; all projects with unauthorized work would be demolished; and all projects would be subject to civil penalties. The Government also indicated that the proponent of each of these projects would also have to take certain measures to remedy those violations and augment the surrounding community’s needs caused by those projects’ environmental impacts. The Participants contended that the “environmental clearance” that had been obtained under this procedure would only apply from the date of the environmental clearance being issued and, therefore, there would be no legal backdating associated with it. In addition, the Participants contended that this Plan specifically evaluated the investment risks associated with these large projects in an attempt to avoid, mitigate or lessen the impact of an investor accessing the advantages of supplying a service, and subsequently not facing the negative economic consequences related to the other large investors (i.e. local, state and federal governments) who provided funding to construct these projects. Thus, the Government provided the OM, which was intended to achieve a level of compliance to the regulations without an unreasonable expectation of economic loss.

Court’s Reasoning and Analysis

The Court reiterated that the requirement for obtaining an environmental clearance is not merely a formalities, rather there has to be an exercise of due diligence, as damage done to the environment has long term effects and cannot be undone. Further, the Court reiterated previous authorities, which held that giving retrospective approvals for environmental clearances is “completely alien to environmental law”. The judges found that approval for work done without approval (whether given at the time or after the fact) would condone illegal activity, and would run the risk of causing irreparable harm to the environment, as there can only be a pre-clearance examination of safety processes. The Court determined that the purpose of the 2017 notification, was to provide protection to persons engaging in illegal occupation of land prior to the EIA Notification. The Court concluded that giving a onetime relaxation of this rule would also be illegal, as it would contravene the case law on the subject. The Court also examined the 2021 OM, and found that while it avoided using the term “ex post facto,” it in effect made illegal behaviour legal. the 2021 OM was held to be arbitrary and one of the reasons for being held to be arbitrary was that under it there was a retroactive scheme or environmental clearances in contravention of existing binding precedent.

Finally, as a result of the numerous decisions of the Supreme Court and the fact that environmental clearances have been available under the EIA Notification for more than fifteen years, the Court noted that those engaging in unlawful activity were aware that they were unlawfully disregarding requirements of the EIA Notification. The most significant finding of the Court however, was that the introduction of the 2021 OM, which sought to give persons who had previously engaged in unlawful activities, by virtue of their unlawful conduct, would violate the right to live in an environment free from pollution and the right to health as provided for under Article 21.The Court warned that development cannot occur at the cost of environmental conservation and that constitutional courts must adopt a strict stance against such violations.

Judgment and Ratio Decidendi

Decision

The Supreme Court determined:

•That the ex post facto environmental clearance notification of 2017 violates statutory law and will not apply for any future projects.

•That the 2021 Office Memorandum is arbitrary, unlawful, and violates environmental jurisprudence.

The court also held that previous environmental clearances granted under these notifications/office memorandum would not be disturbed.

Ratio Decidendi

Environmental clearance shall be required prior to starting any projects. Retrospective approvals that legitimize or “legalize” unlawful project activity violate established law and violate the fundamental human right to a pollution-free environment.

Critical Analysis

As a result of its reaffirmation of the precautionary principle, this judgment enhances the regulatory framework for environment protection in India. By declining to validate previous approvals, the Court has helped to ensure that environmental protection safeguards function as a preventive mechanism rather than a corrective one. One of the most important aspects of the ruling is that it has a constitutional basis. The link between environmental protection and Article 21 creates an obligation to adhere to environmental laws, from merely being a statutory obligation to being an obligation to ensure compliance with the fundamental rights of individuals. The Court implemented a practical method for avoiding harm to the economy by allowing all clearances already granted to remain in effect in order not to negatively affect the economy further than the economy was already going to be negatively affected due to a company’s non-compliance with regulations while also acting as a deterrent to the future violation of regulations. On the other hand, the ruling may create potential challenges for businesses that will try to seek regulatory flexibility when there is no environmental harm that results from a company’s non-compliance with regulations. Some critics may argue that an equal compliance mechanism would make it easier to create a balance between the pursuit of economic development and the need to protect the environment. What this ruling does accomplish is sending a very strong message to those who violate regulatory requirements, that favourable retroactive reinstatement will not be permitted to grant legitimacy to violations of any regulation.

Conclusion

The landmark judgement of CCT v. State of Madya Pradesh (2016) reaffirmed the need for prior environmental clearance and rejected attempts to regularise illegal projects under law (the Court held that it must govern the environment by focusing on the long term over the short term).

Takeaway: Compliance with environmental laws is a legal requirement, and allowing for retrospective approvals would not only infringe on the statutory protections offered by law but also violate the fundamental rights of individuals.

Long-Term Impact: The decision will shape future litigation related to the environment and environmental policy by ensuring that the courts will maintain a heightened level of scrutiny with respect to the government’s ability to relax the law.

Future Implications: Regulatory authorities must create a regulatory framework that will prevent the violation of existing laws rather than provide for their retrospective approval in order to promote sustainable development.