Petitioners Seek Reference Of 'Vanashakti' Matter On Post Facto Environmental Clearances To Supreme Court's 5-Judge Bench

In the Vanashakti matter, the petitioners opposing the grant of post-facto environmental clearances today argued before a 3-judge bench of the Supreme Court that the matter should be referred to a 5-judge bench, since they questioned the findings of the 3-judge bench's review judgment given in November last year.

The petitioners argued that the review bench's findings exceeded the scope of review jurisdiction; also, its observations that the grant of post-facto clearance was not barred was per incurium.

A bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice Vipul M Pancholi was hearing the case, where the Court, in November 2025, by majority, had recalled the May 2025 Vanshakti judgment, which barred the grant of post-facto environmental clearance. 

In the November order, the three-judge bench, sitting in review, restored the matters to the file, and therefore, the present bench was hearing the matter. During the last hearing, the bench said it will examine whether the Vanashakti review has the effect of upholding the Office Memorandums(OMs) issued by the Union Government dated March 14, 2017 and 2021, respectively, allowing the grant of ex-post facto clearances. 

Senior Advocate Gopal Sankaranarayanan(for petitioners) and Senior Advocate Sanjay Parekh made brief arguments, but not concerning the merits of the case.

Sankaranarayanan submitted that the 2017 notification only gave a small window of six months to the violators to apply for clearance. This notification was challenged in the Madras High Court, but since the then Additional Solicitor General gave an undertaking that this would be the last opportunity, the High Court conceded. Eventually, the High Court extended the period of notification to April 13, 2018.

"Effectively, after 13 April 2018, there is no legal regime in the country that permits somebody to come and apply for an EC. There isn't one," he submitted.

He added that the second is an OM dated July 7, 2021. It arose from an order passed by the National Green Tribunal(NGT) saying that for applications requiring ex-post facto clearance, there must be some kind of procedure and penalties that need to be laid down. This resulted in an SoP, which was challenged in the Madras High Court and rendered unconstitutional on August 30, 2024. The High Court allowed the SoP to apply prospectively in regards to three projects. 

He referred to an early notification of 2002, similar to the 2017 notification, but it was struck down in Alembic Pharmaceuticals (2020).

Sankaranarayanan pointed out that no special leave petition has been filed against this order of the Madras High Court. The three petitioners who succeeded before the High Court filed an SLP in the Supreme Court, which resulted in the May 2025 Vanashakti judgment. 

First point that he argued was that the three-judge bench wrongly concluded that the vires of the 2017 notification was under challenge in the  D. Swamy v. Karnataka State Pollution Control Board(2021). He further added that the review bench also wrongly concluded that the 2021 OM has also been upheld in D Swamy.

"...however three judge bench decision has come to the conclusion that the 2017 notification is a valid statutory notification and that D Swamy judgment is valid as such. Now this stands in the way when I have to argue the validity of that very notification. The only way I can persuade your lordship to sum up this is by coming to a different interpretation regarding D Swamy, which I will have to do before a five-bench or before this bench. I don't have a third option because the minute I open my writ and start arguing my writ this is staring me in the face," he said.

Lastly, he said that the review bench held that the Common Cause (2018), which disallowed ex-post facto clearance, cannot be considered as precedent. Sankaranarayanan also cited Sheo Nandan Paswan vs State of Bihar(1987) judgment and said that in review, if a detailed hearing is given, it would prejudice the losing party.

CJI Kant interrupted and said that this judgment may not apply because the review bench did not give a cryptic but well-reasoned order. "This issue may not arise Mr Sankaranarayanan, because three-judge bench's judgment is not cryptic. It is a reasoned judgment."

After he concluded, another counsel(who appeared for petitioners who challenged the Madras HC's order) argued that ex-post facto clearance can't be given through administrative instructions as it creates a "backdoor entry" for violaters. It has to be through a statutory notification. He was speaking in reference to the 2021 OM.

On this, CJI Kant: "So you do not want any project to be launched in the country?...In which century, by the way, do you expect the country to survive, sir?" The Counsel responded that he was only concerned about those projects where have been given post facto clearance.

Parekh then briefly stated that he supports all arguments made by Sankaranarayanan. He explained that Sankaranarayanan was supposed to open on merits, but since he couldn't, it would be proper to argue once arguments on merits are made. 

"The very concept of protection and preservation read with precautionary principle and intergenerational equity envisages preventive action prior in time and not action after damage is done, sometimes irreversibly. What, my Lord, shocked me was certain observations that are made in these judgments that the EIA notification conceals off, my Lord, ex post facto clearance."

Parekh also warned against using the General Clauses Act and proportionality principle in environmental law and remarked that the effect would be "catastrophic". He supported that the matter should be heard before a larger bench.

Another counsel, on behalf of Sankaranarayanan, opened arguments on the merits. He took the Court through the chronology. Before starting his arguments, he asked if the Court was referring the matter to five judge bench.

On this, CJI Kant said: "What is the question of referring to five judges unless we doubt the three-judge bench."

He argued comprehensively. The counsel notably pointed out that the 2017 notification requires giving details of buildings that will be demolished, closure or diversion of routes, etc, as is there under the EIA, which is an oxymoron because in post-facto clearances, this information becomes irrelevant.

Arguments will be continued tomorrow.

Case Details: Vanashakti v Union of India W.P.(C) No. 1394/2023 and connected cases.