WHEN THE SUPREME COURT'S three-judge bench assembled on Wednesday to hear the Vanashakti matter, the petitioners opposing ex-post facto environmental clearances (‘ECs’) came not to argue the merits of their case, but to argue that they could not argue it at all. The reason, Senior Advocate Gopal Sankaranarayanan, told the bench of Chief Justice of India Surya Kant, and Justices Joymalya Bagchi, and Vipul M. Pancholi, was that a prior three-judge bench, sitting in review jurisdiction in November 2025, had already decided the very questions that the petitioners needed to argue.
“I stand here only because your review has been allowed,” Sankaranarayanan, representing Vanashakti, a Mumbai-based NGO, told the Court. “Otherwise, I was outside the court as a happy litigant having succeeded before two judges. I'm back here because the review reopened it but decided fully on the merits against me.”
It was, by any measure, an unusual position to be in.
The Madras High Court judgment
Running through the entire day's proceedings was a judgment that has received surprisingly little attention given its centrality to the dispute – the Madras High Court's final judgment of August 30, 2024, which struck down the 2021 Standard Operating Procedure (‘SOP’) by Ministry of Environment, Forest and Climate Change (‘MoEFCC’) on ex-post facto clearances as unconstitutional.
Significantly, the Union government chose not to challenge this judgment. No Special Leave Petition (‘SLP’) was filed by the MoEFCC against it. It was the petitioners themselves, who after succeeding in the High Court, came before the Supreme Court by way of Special Leave Petition, seeking to extend the High Court's ruling to the three projects for which the Court had allowed prospective operation of the SOP.
The Madras High Court judgment, as per the petitioners, was itself a comprehensive exercise which had considered all five Supreme Court judgments that later became the battleground in the review proceedings: Common Cause v. Union of India (2017), Alembic Pharmaceuticals v. Rohit Prajapati (2020), Electrosteel Steels v. Union of India (2021), D. Swamy v. Karnataka State Pollution Control Board (2022), and Pahwa Plastics v. Dastak NGO (2022). It extracted their true ratio by referring to the facts of the case law, and examining the historical pattern of the Ministry repeatedly issuing clearance windows for violators. And it had concluded, after detailed analysis, that neither the Environment Protection Act, 1986 nor the Environmental Impact Assessment (‘EIA’) Notification, 2006 contained any enabling provision for the grant of ex-post facto EC.
“The Madras High Court judgment considers, in fact, those very judgments which the three-judge bench says were not considered,” Sankaranarayanan submitted, “So I believe that is also a ground for review, because that was a point which is squarely taken and should have been at least noted.”
When the bench pointed out that since leave had been granted in the SLP, the Madras High Court judgment had merged with the Supreme Court's proceedings, Sankaranarayanan responded that the merger made the High Court's reasoning even more significant, not less.
“The effect of the merger is precisely that the very reasoning which is used in the Madras [High Court’s decision] becomes the reasoning of this Court. This is why I believe the three-judge bench missed an opportunity to consider the Madras High Court judgment,” he argued.
Can this bench still decide the matter?
Sankaranarayanan identified three specific findings of the November 2025 review judgment that he said foreclosed the petitioners’ ability to argue their case. The first was the review bench's conclusion that the 2017 notification is a valid statutory notification, derived from its reading of D. Swamy. Sankaranarayanan's objection was fundamental. In D. Swamy, he argued, the validity of the 2017 notification was never in question. No party had challenged its vires and no argument had been advanced on the subject. The observation that the notification was valid was therefore made in the context of its application, not its challenge.
“In D. Swamy, this notification was not under challenge. There was no argument on vires. There was no objection taken by the Government of India, when this matter was first heard, that this matter has already been decided,” he submitted. “It's a very fundamental point of ratio. There is a difference between cases where you challenge the vires of a law and cases where the law is being applied. Where the law is being applied, the presumption across the board is that the law is valid. That's all this sentence is.”
Yet the review bench had treated this observation as a definitive holding. “The three-judge bench decision has come to the conclusion that the 2017 notification is a valid statutory notification and that the D. Swamy judgment has said so. Now this stands in my way when I have to argue the validity of that very notification. The only way I can persuade your lordships is by coming to a different interpretation regarding D. Swamy which I will have to do before a five-judge bench or before this bench in review. I don't have a third option. Because the minute I open my writ and start arguing, this is staring me in the face.”
The second obstacle was the review bench's finding that the 2021 OM had also been “considered and approved” in D. Swamy, a conclusion Sankaranarayanan disagreed with. The OM of 2021, he submitted, merely noted that the window under the 2017 notification was available only until April 13, 2018. Therefore, it could not, by any reading, be said to have been upheld by D. Swamy.
The third obstacle was the review bench's holding that Common Cause cannot be considered a precedent for the proposition that no ex-post facto EC can be granted. This, Sankaranarayanan argued, was plainly incorrect. Common Cause had expressly held that there is no concept of a retrospective EC, that its validity starts only from the date of its grant, and that “the concept of an ex-post facto or retrospective EC is completely alien to environmental jurisprudence.” “Clearly it is precedent for the fact that post-facto clearance is not permitted,” he submitted. “In any event, whichever way it will be argued by both sides, that argument is not available to me now, because three judges have decided that Common Cause is also not a precedent available to me."
Sankaranarayanan proposed two routes out of this impasse:
a) either a reference to a five-judge Constitution Bench since the issue touched upon Article 21, or,
b) a clarification by the present bench, in the pending review against the November 2025 judgment, that the three findings were obiter and did not bind the hearing on merits.
He also raised a broader constitutional question about the nature of review jurisdiction itself, relying on the 1987 Constitution Bench judgment in Sheo Nandan Paswan v. State of Bihar. That judgment had observed that where a review bench allows a review petition and sets aside an order, it would be “considerably prejudicial” to the losing party if the review bench were to give detailed reasons because doing so would amount to a full discussion of the case and expose the reasoning of the original bench, inevitably resulting in prejudgment of the matter on rehearing.
“In this judgement, it was a cryptic order, the review order. So, Mr. [Fali] Nariman's argument (who argued in Sheo Nandan Paswan) was [that] it's such a cryptic order, it needs to be set aside. Your lordship said, it has to be a cryptic order, because in a review jurisdiction, if I give a detailed hearing, it does injustice and prejudice to the losing party,” Sankaranarayanan submitted. “That is precisely what this very prescient judgment has foretold, that it would happen. And it has happened.”
He further posed three constitutional questions that he said arose from the facts of this case and warranted consideration by a larger bench.
First, whether in a review, a bench of larger strength than the bench whose judgment is under review can be constituted;
Second, whether, if such a larger bench renders findings on the merits, it would amount to an intra-court appeal; and
Third, whether a bench constituted for review can render opinions beyond the limited scope of whether the review ought to be allowed.
“Review judgment’s interpretation is disastrous”: Senior Advocate Sanjay Parekh
Senior Advocate Sanjay Parekh, appearing for other petitioners, warned specifically against importing the proportionality principle and the General Clauses Act, 1897 into environmental law. Individual hardship cases, he submitted, could always be addressed under Article 142, which empowers the special powers of the Supreme Court to do “complete justice”, but that could never become the ratio of a judgment or the basis of a general regime.
“The very concept of protection and preservation read with the precautionary principle and intergenerational equity envisages preventive action prior in time and not action after damage is done, sometimes irreversibly,” he argued.
On the review judgment's suggestion that the EIA notification itself conceives of ex-post facto clearances, Parekh was unsparing: “What shocked me was certain observations that are made in these judgments that the EIA notification conceives of post facto clearance. That interpretation, according to me, is disastrous, because that goes against hundreds of judgments which have been given by your lordships to strengthen environmental jurisprudence.”
A “backdoor entry”?
Another counsel, appearing for petitioners who had challenged the Madras High Court's order, argued that the ex-post facto clearance regime, whether through the 2017 notification or the 2021 OM, amounted to a “backdoor entry” for violators that could only be created through a statutory notification under Section 3 of the Environment Protection Act, not through an administrative circular.
He pointed to a pattern spanning two decades with a circular in 2002 described as a “last and final opportunity” for violators, followed by further circulars in 2010, 2012 and 2013, each struck down, and then the 2017 notification and the 2021 OM. “The Ministry of Environment clears more than three to four thousand projects a year. Most of them obtain prior EC after a public hearing, after an EIA. These are violators who do not go through the process. The Ministry creates a backdoor entry for them.”
The form that makes ex-post facto clearance an oxymoron
Another counsel, who opened arguments on the merits of the challenge, traced the evolution of India's EIA framework from the Stockholm Conference, 1972 through the Rio Declaration of 1992 and the EIA notifications of 1994 and 2006. He focused particularly on the application Form 1 prescribed under the 2006 notification. The same form is required to be submitted for ex-post facto clearance applications under both the 2017 notification and the 2021 SOP.
Walking the Court through the form's requirements, which include pre-construction investigations and soil testing, details of demolition works, anticipated environmental impact and mitigation measures, assessment of noise and emissions from proposed construction, identification of vulnerable groups affected, and public consultation, he submitted that not one of these requirements can be meaningfully fulfilled after a project is already built and operating. “A prior EC and a post-facto EC are an oxymoron, mutually destructive. They cannot coexist.”
He also submitted that the word “prior” appears thirty-four times in the 2006 notification in the context of obtaining EC, and that the law is settled in Life Insurance Corporation of India v. Escorts (1985), where the word “prior” is specifically used, that the requirement is mandatory and non-waivable.
The matter is listed again to be heard today on February 26, 2026.
