Supreme Court Reserves Decision On Plea To Review 'Vanashakti' Judgment That Barred Grant Of Ex-Post Facto Environmental Clearances

The Supreme Court today (October 9) reserved its decision on the pleas to recall/review the Vanashakti judgment, which barred the Union from granting post-facto environmental clearances.

The bench of CJI BR Gavai and Justices Ujjal Bhuyan and K Vinod Chandran considered the matter. 

In Vanashakti v. Union of India, the bench of Justice Abhay S Oka and Justice Ujjal Bhuyan, by judgment delivered on May 15, restrained the Central Government from granting "ex-post facto" Environmental Clearances (EC) in future and set aside the previous Office Memoranda and notifications which allowed for the grant of ex-post facto Environmental Clearance for mining projects.

During the hearing, the CJI remarked that the issue was whether the two-judge bench ought to have referred the matter to larger bench, given that a coordinate bench had earlier held that post-facto EC can be granted in exceptional cases in the D Swamy case.  

In D Swamy vs Karnataka State Pollution Control Board, the bench of Justices Indira Banerjee and JK Maheshwari observed that ex post facto clearances and/or approvals cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operations.

CJI also observed whether a Court can issue a writ restraining an authority from exercising its quasi-legislative power.

 Solicitor General Tushar Mehta, appearing for PSU SAIL, argued that the judgment suffered from an "error apparent on record." He said that the judgment was rendered without noticing the D Swamy judgment which upheld the 2017 Office Memorandum.

Additional Solicitor General of India Aishwarya Bhati stressed that due to the decision, several projects worth crores were getting affected. 

Sr Advocates Kapil Sibal, Mukul Rohatgi etc, also argued for petitioners seeking review of the judgment.

Senior Advocate Gopal Sankarnarayanan, opposing the review, stated that way back in 2020, a two-judge bench, in Alembic Pharmaceuticals Ltd had ruled that post-facto environmental clearances were bad in law. He pointed out that the Vanshakti judgment merely followed the judgment in Alembic. In Vanshakti, the Court merely restrained the perpetuation of the mischief of granting post-facto ECs through circulars, considering the fact that such post-facto approvals were previously held to be illegal.

Senior Advocates Sanjay Parikh, Anand Grover, Anita Shenoy, Raju Ramachandran etc also argued against the review.

Case Details : VANASHAKTI vs. UNION OF INDIA | Diary No. - 32452/2025