In a majority judgment, Supreme Court recalls own verdict striking down retrospective environmental clearances

The Supreme Court, in a majority judgment on Tuesday (November 18, 2025), recalled its May 16 judgment declaring that the grant of ex post facto or retrospective Environmental Clearances (EC) by the Centre to building projects and constructions was a “gross illegality” and an “anathema”.

Chief Justice of India B.R. Gavai and K. Vinod Chandran, in separate but concurrent opinions, upheld the review petition filed by a Builders Association of India (BAI) against the May 16, 2025 judgment.

The third member of the Bench, Justice Ujjal Bhuyan, in a dissenting opinion, found no cause to upset the verdict. Justice Bhuyan was part of the two-judge Bench headed by Justice A.S. Oka (now retired) which delivered the May 16 judgment.

One of the reasons to recall the judgment is the massive exercise of demolishing constructions that have been built on the strength of ex post facto environmental clearances over the years. Chief Justice Gavai pointed out that many of these structures were part of public projects and were worth over ₹20,000 crore.

Such an extensive exercise of demolition would harm the environment more than protect it, the CJI reasoned. The majority opinion held that permissible projects could be given ex post facto clearances.

The CJI and Justice Chandran agreed that there were earlier Apex Court judgments both upholding and rejecting ex post facto clearances, the Bench of Justices Oka and Bhuyan should have ideally referred the case to a larger Bench in exercise of “judicial discipline”.

Justice Bhuyan, in his dissent, said he completely disagreed with the “line of reasoning” of the CJI. Justice Bhuyan said the case was not fit for a review.

The Justice said, ‘ex post facto environment clearance’ was a concept alien to environmental jurisprudence.

“The grant of such clearance is derogatory to the environment. The grant of ex post facto environmental clearance is anathema to the environment. ‘Anathema’ means a curse,” Justice Bhuyan said in a stinging dissent.

The May judgment had restrained the Union government from granting ex post facto clearances in any form to regularise illegal constructions. The Court had struck down a 2017 notification and 2021 Office Memorandum (OM) of the Centre, which in effect recognised the grant of ex post facto ECs, and connected government circulars, orders, and notifications as illegal and completely arbitrary.

However, the Bench had clarified that ECs already granted till date under the 2017 notification and the 2021 OM would be unaffected by the judgment.

Accusing the Centre of “crafty drafting” to clear illegal constructions through retrospective ECs, the Court had said the government was only protecting project proponents who had committed gross illegality by commencing construction or operations in these illegal constructions without obtaining prior EC.

The judgment has said the government issued the 2017 notification despite a clear declaration of the law in favour of prior EC by the Supreme Court in the Common Cause judgment, the very same year.

“The reason why a retrospective EC or an ex post facto clearance is alien to environmental jurisprudence is that before the issuance of an EC, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment,” Justice Oka, who authored the judgment, had explained.

The Court had explained in the judgment that the effect of granting an ex post facto clearance would amount to permitting to completion of the construction of a project which had started without prior EC. In cases in which the construction was already completed and activities had begun, the retrospective EC would facilitate continuation.