Supreme Court brings back retrospective environment clearance; Justice Bhuyan dissents

The Supreme Court on Tuesday revived the legal mechanism that permitted retrospective grant of environmental clearances (EC) for projects that had commenced or expanded without prior approvals under the 2006 Environmental Impact Assessment (EIA) notification [Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti and another]..The Court allowed a review petition against its May 2025 decision which had quashed a 2017 notification and 2021 Office Memorandum that permitted retrospective grant of ECs.The Bench of Chief Justice of India (CJI) BR Gavai, Justice Ujjal Bhuyan and Justice K Vinod Chandran delivered three judgments today. While CJI Gavai and Justice Chandran allowed the review petition, Justice Bhuyan dismissed it with a strong dissent."There are three judgments...In my judgment, I have allowed the recall. My judgment has been criticised by my brother Justice Bhuyan," CJI Gavai 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..Today, allowing the review, CJI Gavai said that public projects of ₹20,000 crore will have to be demolished if the clearance is not revived, adding that such demolitions would add to further pollution.CJI Gavai noted that the 2021 OM had been issued in compliance of the National Green Tribunal (NGT) directions."I have observed that all such projects where such EC has been granted stands protected. So all projects where EC was stalled can begin," Justice Gavai said..However, Justice Bhuyan held that no case for review was made out as the top court in two earlier decisions has held that ex post facto EC is alien to environmental jurisprudence. The top court judge also noted that the Union government had accepted the verdict by not filing a review plea but only an affidavit supporting CREDAI.On the other hand, Justice Chandran said the review was not only warranted but imperative and expedient..[Read Judgment]