Ex Post Facto Environmental Clearances: From Ban to Recall to the 2026 Settlement — The Vanashakti Trilogy

The Environment Impact Assessment regime rests on one sequencing rule: appraisal before construction. The 2017 notification and a 2021 OM created a path for projects that had started without clearance to seek it afterwards — on payment and conditions — and environmental groups led by Vanashakti challenged that as a licence for fait accompli development.

The Key Question Before the Court

Can environmental clearance ever be granted after a project has commenced — and do the 2017 notification and 2021 OM survive?

Act I — May 2025: The Ban

Justice Oka's judgment for the bench declared the 2017 notification and the 2021 OM illegal and struck them down, restraining the Centre from issuing similar measures: ex post facto clearance is alien to a regime whose whole point is prior appraisal, and development that begins in violation cannot buy legitimacy later.

Act II — November 2025: The Recall

On review by the Confederation of Real Estate Developers' Associations of India, the majority (Chief Justice Gavai and Justice Chandran) recalled the May judgment as per incuriam — it had overlooked co-equal benches taking a different view — and invoked the public interest against demolishing completed projects housing lakhs of people. Justice Bhuyan's dissent held the line of the original ruling: retrospective clearances, he maintained, have no place in environmental law. The recall restored the matters for fresh hearing.

Act III — July 2026: The Settlement

The re-heard matters were decided in July 2026 by a bench led by Chief Justice Surya Kant. The outcome holds the regime's core while sparing its past: prior environmental clearance remains mandatory, and projects commenced without it generally cannot be regularised; at the same time, the 2017 notification — as a measure of delegated legislation — was upheld as valid. The sequencing rule stands for the future, with the notification's one-time regularisation window treated as lawfully made.

What the Courts Actually Held

• May 2025: the 2017 notification and 2021 OM permitting ex post facto ECs were struck down; the Centre restrained from similar measures.
• November 2025: that judgment was recalled on review, 2:1, as per incuriam, with completed projects' fate weighing in the public interest; Bhuyan J dissented.
• July 2026: prior EC reaffirmed as mandatory — violators generally cannot be regularised — while the 2017 notification was upheld as valid delegated legislation.

Why This Trilogy Matters

• It is the defining environmental-law contest of 2025–26, pitting the polluter-pays logic of prior appraisal against the human cost of demolition.
• The final position gives project proponents no comfort for the future: starting without clearance remains unregularisable as a rule.
• The review round is a study in per incuriam doctrine — and in how finality yields when co-equal precedent is overlooked.
• For the EIA bar, pending violation cases now turn on which regime — the notification's window or the general bar — covers them.

What Should Advocates Take Away From the Judgments?

For Environmental Petitioners

• The principle survives: press the mandatory-prior-EC rule against every post-commencement application outside the upheld notification's confines.

For Project Proponents

• Treat clearance as a condition precedent in fact, not just law — the 2026 ruling forecloses regularisation as a strategy, whatever the 2017 notification once allowed.

Key Takeaways

Frequently Asked Questions

As the law stands after July 2026, prior clearance is mandatory and such projects generally cannot be regularised; only what falls within the upheld 2017 notification's own scheme ever could.

The review majority found it per incuriam for overlooking co-equal precedent, and weighed the public interest against demolishing completed projects; Justice Bhuyan dissented.

The July 2026 decision upheld it as valid delegated legislation, even while reaffirming that prior clearance is the rule — read the final judgment for how the two holdings interact in a given case.

Conclusion