ON JULY 29, 2026, a three-judge bench of the Supreme Court in Vanashakti v. Union of India (‘Vanashakti III’), struck down the 2021 Office Memorandum that had permitted violators to regularise ex post facto breaches of environmental law. Read quickly, this appears to be an environmental victory. But is it? A closer reading yields something else: a blueprint for the next round of regularisation.
There is a moment in Vanashakti III where the Supreme Court states a rule and then spends the following fifteen paragraphs reasoning its way out of it. At paragraph 36, Justice Joymalya Bagchi holds that a project built without prior clearance is void ab initio, that the wrongdoer cannot retain the “usufruct” of the wrong, and that the breach must therefore, “by necessary implication lead to the restoration of status quo ante extending to closure, demolition, remediation of environmental damage and recovery of costs”. This is the maximalist environmental position, and it is almost a verbatim reproduction of what the first decision, authored by Justice A.S. Oka in Vanashakti v. Union of India delivered on May 16, 2025 (‘Vanashakti I’), had held.
The judgment in Vanashakti III then sets about dismantling it. By paragraphs 38 and 39, the power to “control and abate” pollution under Section 3 of the Environment Protection Act (‘EPA’) has become wide enough to sustain a “violation-management mechanism” that brings errant units back into the fold “not by excusing the breach but by subjecting them to appraisal, penalty, environmental compensation remediation and future compliance”. By paragraph 40, the Jan Vishwas Act, 2023, which substituted criminal prosecution with civil penalty for various offences across 42 central Acts, is read as Parliament supplying a “relaxed legislative space” in which a “breach need not invariably result in dismantling, demolition or closure”. The movement between these two passages is the whole judgment, and it is the place to begin if one wants to grasp the long-term implications of the judgment.
Not against Regularisation, only against the wrong vehicle
Vanashakti III upholds a 2017 notification, which opened a six month window for violators to obtain ex post-facto clearances, and quashes the 2021 Office Memorandum, which extended this relief indefinitely. What separates them, however, is not a reasoning about the environment, but a reasoning about legal form.
The 2017 Notification survives because it is a piece of delegated legislation of the same rank as the 2006 EIA notification it amends and can therefore alter that notification through the power to amend under Section 21 of the General Clauses Act, 1987 (as discussed across paragraphs 51 to 52 and 66). The 2021 Office Memorandum is not saved, however, because it is merely an executive instruction, which cannot amend, dilute, or contradict a notification.
In a detailed eight-row table at paragraph 70, the judgment seeks to demonstrate that the Office Memorandum “supplants” rather than “supplement[s]” the 2006 regime. Ignore the table for a moment, and one sees that the operative defect is only that the wrong kind of instrument was used.
We must pause for a moment to think about what this means for the environment: a completed project pollutes identically whether it is saved by a notification or by an office memorandum as the harmful environmental footprint is not dependent on the official gazette. What the Court has held unlawful is not post-facto regularisation as such. It is only regularisation through the wrong vehicle that attracts its scorn.
The 2017 Notification, which does the same set of substantive things for the projects within its window, is approved (at paragraph 80(v)), and Common Cause (2017) which had declared retrospective clearance alien to environmental jurisprudence, is read down to the point where its holding that ex-post-facto clearance is “alien to environmental jurisprudence” is recast as describing merely “the scheme of the law as it then stood”. A categorical principle is thereby converted into a contingent observation about an unamended statute.
A template with three routes
The classic realist tell is when a substantive question is recast as a question of technical hierarchy. A live conflict over substance – whether the breach should be regularised at all – is resolved as a technical question of hierarchy and of which instrument may regularise it. The answer to the technical question then becomes the implicit answer to the substantive question, on conditions the Court itself then supplies. When one reads the operative directions of Vanashakti III in this light, the architecture becomes immediately visible. The judgment does not seal the “violate first, regularise later” route, even though it condemns it in ringing terms (at paragraphs 8 and 73). It only relocates that route into a more prestigious instrument and hands the executive a working template for the future.
The template offers three routes:
First, the 2017 Notification is validated as the model of a lawful amnesty: a closed eligibility date, a fixed time window, centralised appraisal, damage assessment, and no cap on compensation (at paragraphs 62-64). Any future government now knows, with precision, how to draft a regularisation scheme that will survive.
Second, the restraint order is drafted with an escape hatch. The Union Government is barred from future administrative orders granting ex-post-facto clearance “save and except by way of a valid notification in exercise of powers under S.3 of the EPA” (paragraph 80(ix)). The bar falls on the wrong kind of gazette instrument, not on the amnesty itself.
Third, there is the preservation of the Court’s own power under Article 142 of the Constitution to grant ex-post-facto clearances, the very device through which completed projects have been saved on several occasions before.
Vanashakti I had welded the door shut, restraining the government from ever issuing such an instrument “in any form”. The decision in CREDAI v. Vanashakti delivered by then Chief Justice B.R. Gavai in November 2025 (‘Vanashakti II’) recalled that judgment cutting through the welding to reopen the controversy and reviving the 2017 Notification and the 2021 Office Memorandum. Vanashakti III now replaces the weld with a lock and issues three keys. This is the reconciliation the Court needed in order to strike down the Office Memorandum while sparing public and private projects worth thousands of crores.
What Vanashakti III vindicates and what it leaves undisturbed
None of this is to say that the judgment is a complete washout. For instance, the Court ruled that a class defined merely by the fact that a project is “otherwise permissible”, or by the proponent's willingness to pay compensation, bears no rational nexus with the object of the EPA, and that such a class would impermissibly equate the compliant with the defiant (paragraphs 53 and 73). This is a meaningful advance on the rulings in Pahwa Plastics (2023) and D. Swamy (2023) – both of which had let projects, being otherwise permissible and non-polluting, stand in for the prior clearances that they had never obtained. The Court also insists, rightly, that some injuries, to biodiversity or to displaced indigenous communities, cannot be bought off, noting that “such cases call for deeper scrutiny, and an industry is not regularised merely because the polluter will pay.”(paragraph 57).
And yet one cannot but notice that every completed project that was before the Court was saved. The stricter test only catches the next regularization scheme and the applicants waiting in line in future. It does nothing to the projects already built and does not disturb the accumulated stock of the fait accompli. Capital already on the ground keeps its gains, while the law on ex-post facto clearances now looks tougher than it did a year ago. As it is the case very often, the justification for clearing the project rests on public interest and the “innocent third parties” who would be hurt if the project were pulled down (paragraph 58). The proponent’s completed construction is said to generate no equity in his favour (paragraph 60), yet completion is precisely what triggers continuance in practice.
Justice Bagchi’s judgment is careful, and its refusal to let permissibility and ability to pay masquerade as a valid class is a genuine constraint on the cruder regularisation instincts. But in the end, while the judgment vindicates the rule of law at the level of form (statutory hierarchy is respected, coordinate bench contradictions are resolved) it leaves the underlying settlement undisturbed – that projects built in breach will be regularised rather than removed. The form is not merely left intact but doctrinally enriched and equipped with a compliant template.
This is what is worth thinking about - the move between paragraphs 26 and 40; the judgment holding the strong rule in its rhetoric while delivering the weak rule in its operation, and, read together, telling us exactly how the next amnesty should be drafted to survive. Vanashakti III, far from closing the route to ex-post-facto clearances, has now standardised it.
