SC recalls order that halted retrospective green permits

The Supreme Court on Tuesday, by a 2-1 majority, recalled its May 16 judgment that barred grant of ex-post-facto environment clearance (EC) to development projects, holding that the previous ruling failed to consider binding earlier precedent and thereby violated judicial discipline.

- Utkarsh Anand and Abraham Thomas

Chief Justice of India (CJI) Bhushan R Gavai and Justice K Vinod Chandran, writing separate but concurring opinions, allowed a batch of review petitions and declared that the May verdict, delivered by a two-judge bench of justices Abhay S Oka (since retired) and Ujjal Bhuyan in the Vanashakti case, could not stand in the face of earlier Supreme Court rulings that had recognised limited situations where post-facto EC may be permissible. The majority judgment further noted that the May ruling produced consequences that were legally unsustainable and "devastating" for numerous public projects across the country.

Justice Bhuyan dissented firmly, emphasising that ex-postfacto EC is "an anathema to environmental jurisprudence" and that the earlier ruling took the only legally correct view. Justice Bhuyan described the majority judgment a "step in retrogression".

The review verdict, issued on a plea by the Confederation of Real Estate Developers' Association of India (CREDAI) and others, means that the 2017 notification and 2021 office memorandum (OM), which permit post-facto EC in limited situations with heavy penalties, revive. The challenges to them will now be placed before an appropriate bench for a fresh consideration, upon administrative orders of the CJI.

In his opinion, CJI Gavai said the May judgment relied only on selective portions of earlier rulings and missed crucial paragraphs of the judgments in Common Cause (2017), Alembic Pharmaceuticals (2020), and Electro steel Steels (2023), which, if considered, would have led the court to a "different view". All these judgments, the CJI noted, favoured a "balanced approach" and recognised the legitimacy of post-facto approvals in limited circumstances.