Development and clean air are not binary choices

Last week, the Supreme Court of India handed developers a surprising reprieve in Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti & Ors. 2025. In a 2:1 verdict authored by former Chief Justice of India BR Gavai and Justice K Vinod Chandran (with Justice Ujjal Bhuyan dissenting), the Court reopened the door to ex post facto environmental clearances (ECs), i.e., approvals granted to a project after construction has already begun, without the mandatory prior environmental scrutiny.

- Ashish Bharadwaj

The move is controversial not just because of what it allows, but because of what it overturns—a hard-hitting judgment from May that categorically banned the practice. In this original Vana-shakti v. Union of India ruling, a two-judge bench (comprising retired Justice Abhay S Oka and Justice Bhuyan) had struck down the Union environment, forest, and climate change ministry’s 2017 Notification and 2021 Office Memorandum allowing ex post facto ECs under strict conditions, calling the practice contrary to the principles of environmental protection.

The ruling was hailed as a progressive milestone in environmental jurisprudence, reinforcing the principle that environmental protection must come before economic gain. But shortly after, CREDAI (India’s largest association of real estate developers) filed for review with support from Union and state governments. They argued that the judgment had failed to consider precedents where the Supreme Court had approved ex post facto clearances in exceptional situations. The Court has now reopened that door.