Ex-post facto environmental clearance is once again at the centre of a high-stakes legal battle in the Supreme Court, with the top court urging lawyers to act as “responsible citizens” while weighing the broader consequences of its recent ruling. The matter, which involves the Centre’s 2017 and 2021 notifications allowing environmental clearance (EC) to be granted to projects after they have commenced operations, has significant implications for infrastructure, real estate, and environmental governance across India.
On Thursday, a bench led by Chief Justice of India (CJI) Surya Kant said the court would take up the matter on Monday, indicating that it would first hear applications filed by project developers seeking the benefit of the court’s November 18, 2025 judgment. That ruling had revived the Centre’s notifications permitting ex-post facto environmental clearance.
The court had clubbed the original petitions challenging these notifications with applications filed by various public and private project proponents seeking relief under the November decision.
Also read: UGC caste discrimination rules stayed as Supreme Court halts new equity regulations
Supreme Court to First Hear Applications Seeking Relief
The bench, also comprising Justices Joymalya Bagchi and Vipul M Pancholi, signalled that it would first consider applications seeking revival of projects under the restored 2017 and 2021 notifications.
Solicitor General Tushar Mehta, appearing for certain public projects, argued that applications filed by states and both public and private entities must be heard regardless of conflicting rulings. He maintained that the three-judge bench had concluded that the May 2025 judgment did not lay down the correct law and had overlooked earlier precedents upholding the validity of ex-post facto EC.
When senior advocate Gopal Sankaranarayanan, representing NGO Vanashakti, questioned the scope of the November ruling, the bench observed, “When the review stands allowed, the earlier order stands effaced.” Mehta responded that what was being sought amounted to “a review of a review order,” which, he said, was not permissible.
NGO Questions Scope of November Verdict
Vanashakti, the original petitioner challenging the Centre’s notifications, contended that the November 18 order was delivered by a three-judge bench by a 2:1 majority on a review petition against a May 16, 2025 judgment of a two-judge bench. The May ruling had struck down the same notifications, holding that ex-post facto environmental clearance was contrary to established environmental jurisprudence.
Sankaranarayanan argued that the review petition, filed by real estate developers’ body CREDAI, was limited to examining whether the May 2025 judgment had correctly interpreted the law in light of past precedents. However, he submitted that the November order went further and effectively decided the matter on merits.
“The order has come on merits that if the judgment is allowed to operate, it will lead to demolition of structures, which cannot be allowed,” he told the court, adding that the ruling left little room for further argument on the substantive issues.
Court Warns of Broader Consequences
During the hearing, the bench reminded lawyers of their broader responsibilities, stating, “You are not only officers of this court but responsible citizens of this country. Let us see the consequences that the nation will suffer.”
The court also expressed concern about maintaining consistency in judicial pronouncements. “There should not be a view that there is no predictability in judgments passed by us or courts are passing inconsistent orders,” it said.
At the same time, the bench cautioned against any decision that might undermine environmental jurisprudence. “Standing before the highest court of the country, we must also minimize the scope of committing any mistake that will have a chilling effect on the environmental law laid down by us,” it observed.
Public Projects in Limbo
Appearing for the Tamil Nadu government, senior advocate P Wilson urged the court to consider public interest, noting that an 11,000-bed hospital in the state remains stalled after ex-post facto environmental clearances were put on hold and subsequently quashed by the May judgment a position now reversed by the November ruling.
The majority opinion in the November verdict, delivered by then CJI BR Gavai and Justice K Vinod Chandran, restored the March 2017 and July 2021 notifications. It observed that public infrastructure projects including hospitals, airports and effluent treatment plants worth nearly ₹20,000 crore would face demolition if the review petition had not been allowed.
Justice Bhuyan dissented, supporting the earlier May 2025 ruling that had invalidated the notifications.
The majority further noted that the 2021 notification was issued after the National Green Tribunal directed the Centre to frame a standard operating procedure for projects that had failed to apply for environmental clearance under the 2017 notification. It pointed to the “serious consequences” of allowing the May judgment to stand, including substantial financial losses and the potential waste of thousands of crores of rupees.
With competing concerns of environmental protection and economic impact at stake, the Supreme Court’s forthcoming hearing is expected to shape the future of ex-post facto environmental clearance and regulatory certainty for development projects nationwide.