INTRODUCTION
Environmental Impact Assessment (EIA) is the cornerstone of India’s environmental governance. Mandated by the Environment (Protection) Act, 1986 and operationalised through the EIA Notification, 2006, it requires certain categories of projects to obtain prior environmental clearance (EC) before commencing construction or operations.[1] The growing use of ex post facto clearances has become controversial because it allows projects to commence operations without obtaining prior approval, raising concerns about weakened environmental accountability. The rationale underlying this requirement is that environmental harm is best addressed before it occurs. However, India’s environmental clearance regime has increasingly departed from this logic by allowing projects that commence operations without EC to seek ex-post facto environmental clearance later.
The recent decision of the Supreme Court in Vanashakti v. Union of India (May and November 2025) brings this conflict into light.[2] While the May 2025 judgment sought to restrict post-facto clearances to exceptional circumstances, the recall order in November 2025 reopened the possibility of retrospective regularisation on a case-by-case basis. Together, these judgments expose a deeper doctrinal problem: whether India’s environmental law is drifting away from deterrence and towards administrative regularisation, thereby converting a criminal regulatory regime into a mere procedural formality.
This blog argues that post-facto environmental clearances effectively amount to the decriminalisation of environmental violations. A brief comparison with the United Kingdom environmental permitting system further demonstrates why routine regularisation undermines both the rule of law and environmental protection.
THE LEGAL FRAMEWORK
Under the EIA Notification, 2006, projects listed in its Schedule require prior environmental clearance before construction, expansion or modification.[3] This requirement is not merely an administrative task but is rooted in the precautionary principle as recognised by the Supreme Court as part of Article 21 of the Constitution.[4] Prior EC enables regulators to assess environmental risks, impose safeguards, and, where necessary, modify or even reject proposed projects.
A project is considered to be in violation if it commences construction or operations without EC, expands beyond approved limits, changes its product mix without approval or conceals or misrepresents information during the clearance process. To address such violations, India has developed a separate mechanism for the appraisal of violations through notifications, office memoranda, and judicial interventions.
Typically, once a violation is detected, State Pollution Control Boards may issue closure directions under the Air Act or Water Act, impose penalties, or approach courts for enforcement.[5] Violation cases are appraised by specialised committees, require mandatory public hearings and involve environmental compensation, remediation, and restoration plans. Projects causing irreversible damage, operating in prohibited areas or involving deliberate concealment may be denied clearance altogether. On paper, this framework appears stringent. In practice, however, the availability of post-facto EC has weakened the law’s deterrent effect.
THE VANASHAKTI JUDGMENTS (MAY 2025 AND NOVEMBER 2025)
In May 2025, the Supreme Court addressed the legality of ex-post facto environmental clearances in Vanashakti v. Union of India.[6] [7] The court held that while the Environment (Protection) Act 1986 does not expressly prohibit post-facto clearances, they cannot be treated as a matter of right and may be granted only in strict and exceptional circumstances. The court emphasised that the environmental law is meant to regulate and prevent harm, not merely to regularise violations after the damage has occurred. The judgment identified situations in which retrospective EC would be impermissible: elaborate violations, concealment or misrepresentation, projects in ecologically sensitive or prohibited areas, irreversible environmental damage, repeated non-compliance, or harm to the public interest. It also laid down rigorous conditions for considering post-facto EC, including environmental damage assessments, remediation and natural resource augmentation plans, environmental compensation, public hearing, and scrutiny by a special violation appraisal committee.
The court struck down the 2017 Notification and 2021 Standard Operating Procedure, which had provided broad windows for violators to regularise projects.[8] According to the court, these instruments transformed an exceptional remedy into a routine administrative procedure, undermining the very purpose of the EIA regime.
However, in November 2025, the Supreme Court recalled its earlier May 2025 judgment after allowing a review petition.[9] The court held that the May ruling was per incuriam for overlooking earlier binding precedents that had permitted post-facto EC in limited circumstances.[10] It also expressed concern that rigid enforcement of the May judgment could lead to widespread demolition or closure of projects, causing severe economic, social, and public interest harm.
It is pertinent to note that the recall did not declare all post-facto ECs valid, nor did it reinstate the invalidated notifications. Instead, it reopened the issue for fresh adjudication and restored a flexible, case-by-case approach, signalling that the May judgment may have been too strict.
WHY POST-FACTO CLEARANCES AMOUNT TO DE FACTO DECRIMINALISATION?
Environmental violations are criminalised under the Environment (Protection) Act 1986.[11] Commencing a project without prior EC is not a procedural lapse; it is an offence. However, when violators are permitted to obtain clearance after the fact, the offence is effectively neutralised. Allowing post-facto EC sends a clear message: start first, legalise later. This erodes the law’s deterrent effect. A rule without meaningful consequences becomes ineffective, and the violation is decriminalised in practice, even if not in form. The Supreme Court has previously warned that ex-post facto clearances defeat the very object of the EIA regime.[12]
Allowing post facto clearance allows violators to benefit from illegality while avoiding closure or demolition. This creates a perverse incentive structure in which non-compliance becomes economically advantageous, especially when penalties are lower than the cost of prior compliance. As a result, environmental offences effectively become non-offences. This makes the preventive mandate of the EIA regime futile.
THE UK CONTRAST: DETERRENCE OVER REGULARISATION
A brief comparison with the United Kingdom highlights the weaknesses of India’s approach. Under the Environmental Permitting (England and Wales) Regulations, 2016, operators must obtain the requisite environmental permit before commencing any regulated activity.[13] Operating without a permit constitutes a crime punishable by substantial fines, imprisonment of up to five years, immediate shutdowns, and remediation orders.[14] Unlike the Indian system, UK law does not provide a routine mechanism for retrospective regularisation. Applying for a permit after operating illegally does not erase liability for the offence. This preserves deterrence and reinforces the rule of law, ensuring that environmental regulation remains preventive rather than curative.
CONCLUSION
The evolution of India’s environmental clearance regime reveals a troubling doctrinal tension. While the law mandates prior environmental scrutiny and criminalises violations, the administrative practice has increasingly relied on post-facto regularisation. The Vanashakti judgments illustrate the stakes of this shift. The May 2025 decision attempted to restore deterrence by restricting retrospective approvals, while the November recall reopened the door to flexibility in the name of economic and public interest.
If post-facto clearances become routine, environmental law risks being reduced from a criminal enforcement regime to a mere administrative formality. This undermines the precautionary principle, weakens the rule of law and normalises illegality. A deterrence-based model closer to the UK approach is essential if India is to preserve the integrity of its environmental governance and ensure that “prior environmental clearance” remains a meaningful legal requirement rather than an optional administrative or procedural step.
Author: Malika Agarwal (National Forensic Sciences University, Delhi)
References:
[1] Environment (Protection) Act 1986, ss 3 and 5; Environmental Impact Assessment Notification, 2006 (Ministry of Environment, Forest and Climate Change, 2006)
[2] Vanashakti v Union of India (2025) INSC 718; Confederation of Real Estate Developers of India (CREDAI) v Vanashakti & Anr (2025) INSC 1326
[3] Confederation of Real Estate Developers of India (CREDAI) v Vanashakti & Anr (2025) INSC 1326
[4] Vellore Citizens’ Welfare Forum v Union of India & Ors (1996) 5 SCC 647; The Constitution of India 1950, art 21
[5] Narmada Bachao Angolan v Union of India & Ors (2000) 10 SCC 664
[6] Vanashakti v Union of India (2025) INSC 718
[7] Ibid
[8] Ibid
[9] Confederation of Real Estate Developers of India (CREDAI) v Vanashakti & Anr (2025) INSC 1326
[10] Ibid
[11] Environment (Protection) Act 1986
[12] Alembic Pharmaceuticals Ltd v Rohit Prajapati (2020) 17 SCC 157
[13] Environmental Permitting (England and Wales) Regulations 2016
[14] Environmental Protection Act 1990; Environmental Damage (Prevention and Remediation) Regulations 2015
