Vanashakti v. Union of India
Background
Environmental NGO Vanashakti and others challenged two instruments issued by the Ministry of Environment, Forest and Climate Change, a 2017 Notification and a 2021 Office Memorandum, that allowed developers who had started or completed construction projects without first obtaining mandatory environmental clearance to seek clearance retroactively. The petitioners argued this "ex post facto" clearance regime undermined the precautionary purpose of India's environmental clearance law (the 2006 EIA Notification), which requires clearance before a project begins. The case consolidated multiple related petitions and appeals raising the same core question, including a challenge to a Madras High Court ruling and a case involving the closure of a shopping mall.
Decision Breakdown
The Supreme Court held that the requirement of prior environmental clearance under the 2006 Notification is mandatory, and that Common Cause and Alembic (earlier Supreme Court rulings) correctly held ex post facto clearance to be alien to environmental law under the ordinary regime. However, it upheld the validity of the 2017 Notification as a narrowly tailored, time-bound amnesty scheme that the Central Government was empowered to issue under Section 3 of the Environment (Protection) Act, 1986. By contrast, it struck down the 2021 Office Memorandum, finding it was merely an administrative order (not proper delegated legislation) that created a perpetual, open-ended amnesty scheme without any rational criteria: this violated the constitutional guarantees of equality and life under Articles 14 and 21, though the Court quashed it only prospectively to avoid disrupting settled matters. It clarified that clearances already granted under either instrument remain valid unless separately challenged, and that no further applications for post-facto clearance can be made under these instruments going forward, while preserving the Supreme Court's own power under Article 142 to grant such relief in exceptional cases.
Lesson Learnt
Environmental clearance in India must ordinarily be obtained before a project begins, not after; the government can create a one-time, tightly limited amnesty window for past violations through a proper legal notification, but it cannot use an informal administrative order to create an indefinite "build first, get clearance later" system, as that undermines constitutional environmental protections.