Supreme Court Justice Ujjal Bhuyan penned a dissenting judgment on Tuesday in the case concerning legality of retrospective environmental clearances (EC).

While the majority on the Bench comprising Chief Justice of India (CJI) BR Gavai and Justice K Vinod Chandran permitted review petition seeking retrospective grant of environmental clearances (EC) for projects, Justice Bhuyan dissented and upheld the Court's May 2025 verdict.

The Court in its May verdict had quashed a 2017 notification and 2021 Office Memorandum that permitted retrospective grant of ECs.

Justice Bhuyan upheld that verdict and said that Supreme Court, as the highest constitutional court of the country, has the duty and obligation under the Constitution of India to safeguard the environment.

Justice Bhuyan further stated that the review judgment is an innocent expression of opinion and it overlooks the very fundamentals of environmental jurisprudence.

“Precautionary principle is the cornerstone of environmental jurisprudence. Polluter pays is only a principle of reparation. Precautionary principle cannot be given a short shrift by relying on polluter pays principle.” He concluded that “The review judgment is a step in retrogression,” the dissenting judgment said.

On May 16, a bench of Justices Abhay S Oka (since retired) and Bhuyan had found that the decision to allow such retrospective clearance was in violation of the orders of the top court.

The Court had reasoned that those who carried out polluting development activity without prior environmental approvals would have been well aware that their actions were illegal.

A review petition was later moved by the Confederation of Real Estate Developers of India (CREDAI), arguing that the judgment caused significant hardship to real estate industry and interdependent sectors.

This review plea came up before the current three-judge Bench.

Justice Bhuyan noted that the review petitioner’s own pleadings showed that its members had started their projects without EC but had applied under the 2021 Office Memorandum.

Referring to the 2017 Notification, he recorded that only those projects or activities which were in violation of the 2006 EIA Notification as on the date of the 2017 notification i.e. March 14, 2017, were eligible to apply for EC.

The application period closed on September 13, 2017, and was extended only up to April 13, 2018.

He held that if that be the position, there is no question of any project proponent applying for EC after April 13, 2018, the Court said.

Further, no details were provided about when the projects began or whether prior environmental clearance was required.

He stated that on that ground itself, the review petition is liable to be dismissed.

On the 2021 Office Memorandum, Justice Bhuyan ruled that members of the review petitioner are not entitled to any benefit under the 2021 OM.

On the submission by Senior Advocate Mukul Rohatgi for CREDAI that demolition of constructions would create further pollution, Justice Bhuyan recorded that though at the first blush, the argument appears to be attractive, it really has no merit at all.

He described it as a "very novel submission” .

“More particularly, it does not lie in the mouth of law violators to advance such a kind of justification to sustain the illegality which goes to the root," Justice Bhuyan opined.

Interestingly, Justice Bhuyan also referred to the Delhi air pollution and used it to stress that the Supreme Court has a constitutional responsibility to protect the environment.

For him, this review plea cannot be a route to dilute long-standing environmental principles, especially when the applicants themselves have ignored legal requirements.

“Before parting with the record, I would like to painfully observe that the deadly Delhi smog reminds us everyday about the hazards of environmental pollution," said Justice Bhuyan.

He added that the Court cannot be seen backtracking on the sound environmental jurisprudence that has evolved in this country, that too, on a review petition filed by persons who have shown scant regard for the rule of law.

Justice Bhuyan also noted the position of the Union government. He stated that Environment Ministry has accepted the verdict of the Court in Vanashakti.

He also referred to the assurance given before the Madras High Court that the 2017 notification “shall certainly and clearly be a one time measure” and observed that Central Government has not made a single statement disowning such an assurance.

“A solemn assurance given by one of the highest law officers of the country that too after obtaining instructions from the Central Government is certainly binding on the Central Government and it is clearly discernible that Central Government has accepted this position,” Justice Bhuyan noted.

Hence, he asked why the Court should be prodding the Central government to grant ex-post facto EC to all the law violators.

[Read Judgment]