ON WEDNESDAY, as the Supreme Court reserved its verdict on the legal regime on grant of ex-post facto environmental clearance (‘EC’), the fundamental query before it stands to be this – is ex post facto clearance absolutely opposed to India’s environmental jurisprudence, or is it actually in furtherance of its environmental interests?
Before the Court reserved its judgment, Additional Solicitor General (‘ASG’) Aishwarya Bhati, for the Union government, extensively questioned the correctness of the Court’s May 2025 decision, authored by Justice A.S. Oka, which had struck down a 2017 notification and a 2021 Office Memorandum that granted post facto environmental clearance to projects. Bhati argued that the May judgment not only incorrectly interpreted five precedents of the Supreme Court, but also misunderstood the scope of Section 15 of the Environment (Protection) Act, 1986. She argued that the government was only seeking to relax the prior EC regime, and was not imposing a post facto regime at all.
A bench of Chief Justice Surya Kant and Justices Joymalya Bagchi and V.M. Pancholi has been hearing the matter afresh, after the Court’s November 2025 review judgement, authored by then CJI Gavai, recalled the May 2025 judgment that had prohibited retrospective environmental approvals.
