The CREDAI vs Vanashakti Judgment, How India’s Supreme Court Undermined a Half-Century of Environmental Jurisprudence

The CREDAI vs Vanashakti Judgment, How India’s Supreme Court Undermined a Half-Century of Environmental Jurisprudence

In a stunning reversal that has sent shockwaves through India’s environmental and legal communities, a two-judge majority of the Supreme Court, on November 18, 2025, reviewed and recalled its own landmark judgment from May of the same year. The original ruling in CREDAI vs Vanashakti had unequivocally declared government notifications permitting ex post facto (retrospective) environmental clearances (ECs) as illegal. Hailed as a rare, robust enforcement of environmental discipline, the May judgment represented a high-water mark for India’s environmental jurisprudence. Its reversal mere months later, however, marks what dissenting Justice Ujal Bhuyan termed a “clear retrograde step”—a dismantling of the very foundation of environmental regulation in India. This decision does more than greenlight specific projects; it fundamentally subverts the rule of law, rewards illegality, and signals a perilous retreat from the Court’s self-proclaimed role as the guardian of the right to a clean environment. It is a moment of profound constitutional and ecological crisis.

The Core Conflict: Prior Permission vs. Retrospective Forgiveness

At the heart of this saga lies a simple, non-negotiable principle of India’s environmental legal framework: the requirement of prior Environmental Clearance (EC). Mandated by the Environment (Protection) Act, 1986, and operationalized through the Environmental Impact Assessment (EIA) Notification of 2006, this rule stipulates that specified industrial and development projects—be they large mines, dams, highways, or real estate complexes—must undergo a rigorous, scientific, and public process before a single brick is laid.

This process is not a bureaucratic formality. It is a critical safeguard designed to:

• Prevent Irreversible Harm: To assess potential damage to forests, water sources, air quality, and biodiversity before it occurs.

• Ensure Public Participation: To mandate public hearings where affected communities can voice concerns and demand mitigation.

• Incorporate Expert Scrutiny: To subject project proposals to independent expert appraisal committees.

• Embed the Precautionary Principle: To act cautiously in the face of scientific uncertainty, erring on the side of environmental protection.

The alternative—allowing construction first and seeking clearance later—renders all these safeguards moot. It creates a fait accompli, where the massive sunk cost of a completed or near-completed project exerts immense pressure on regulators to simply rubber-stamp the violation, making a mockery of the assessment process.

The Government’s Dilution and the Court’s Initial Stand

Despite the clarity of the law, the Union Ministry of Environment, Forest and Climate Change (MoEFCC) systematically watered it down:

• The 2017 Notification: This permitted projects that had commenced or expanded without EC to apply for a retrospective clearance within a six-month window, upon payment of a penalty. The government explicitly gave a “solemn undertaking” before the Madras High Court that this was a one-time measure.

• The 2021 Office Memorandum: Breaking its own undertaking, the Ministry issued a “Standard Operating Procedure” in 2021, further liberalizing the process. It allowed even those who missed the 2017 window to seek regularization, effectively institutionalizing retrospective clearance as a permanent feature.

In May 2025, a Supreme Court bench led by Justice A.S. Oka struck down both the 2017 and 2021 instruments. The judgment was a masterclass in constitutional and environmental principle. Justice Oka grounded his ruling in a half-century of progressive jurisprudence, citing:

• The embedding of a right to a clean environment within Article 21 (Right to Life).

• The Precautionary Principle and the Public Trust Doctrine, which obligate the state to protect natural resources.

• The principle of Sustainable Development and Intergenerational Equity.

• Binding precedents like Common Cause vs Union of India (2017), which held retrospective clearances “detrimental to the environment and could lead to irreparable degradation.”

The Court affirmed that the requirement of prior EC was the “central pillar” of the statutory scheme. To allow ex post facto clearance, it reasoned, was to legalize the illegal, incentivize violation, and utterly defeat the preventive purpose of the law. It was a victory for environmental integrity over administrative expediency.

The Review Judgment: Circular Logic and the Triumph of Expediency

The November review, passed by a 2:1 majority (with Justice Bhuyan dissenting), overturned this clear precedent. The majority’s reasoning, as critically analyzed in the article, employs wholly circular logic.

The Core Fallacy: The Court argued that denying retrospective clearances could “undermine public welfare” by compelling authorities to halt or demolish completed projects. Therefore, the illegality itself—the act of building without permission—becomes the justification for granting the permission. As the author notes, “the fact of a violation winds up forming the rationale for granting the very clearance that the law requires in advance.”

This is judicial sanction for blackmail by concrete and steel. It sends an unequivocal message to project proponents: Build first, worry about the law later. The larger and more expensive the illegal construction, the stronger the argument becomes that it must be regularized to avoid “public inconvenience” or economic loss. The law, in this framework, bends to the violator, not the violator to the law.

The majority framed the question narrowly: would enforcing the law inconvenience violators? By focusing solely on this expediency, it abandoned the foundational principles—prevention, precaution, and public trust—that had guided environmental law for decades. Justice Bhuyan’s dissent forcefully called this out, arguing that the majority had failed to appreciate that the very architecture of the law was built to anticipate and prevent harm, not to accommodate it after the fact.

The Grave Implications: A Dismantling of Accountability

The repercussions of this review judgment extend far beyond the specific notifications it revived.

1. The EIA Process Becomes a Charade: If a project can be built and then cleared, the entire EIA process—public hearings, expert studies, conditional approvals—is stripped of meaning. It becomes a post-facto paperwork exercise to justify an already-existing reality. Public participation is rendered a cruel joke, as communities are asked to give feedback on a project that is already altering their landscape.

2. Compliance Becomes Optional: The judgment eviscerates the deterrent power of environmental law. The signal to industry is clear: non-compliance is a calculated business risk, not a legal red line. The worst-case scenario is a manageable fine and a delayed clearance, a cost often factored into project budgets. The incentive to meticulously follow the law from the outset vanishes.

3. The Weakening of the Regulatory State: The judgment empowers the violator and cripples the regulator. It tells environmental authorities that their primary role is not to prevent damage through strict oversight, but to manage and regularize violations after they occur. It transforms the MoEFCC from a guardian of the environment into a clearing house for illegalities.

4. A Betrayal of Constitutional Promise and Climate Reality: For nearly 50 years, the Supreme Court has used soaring rhetoric to expand the right to a clean environment under Article 21. It has recognized rights against climate change and spoken of duties to future generations. This judgment hollows out that grandiloquent jurisprudence. At a time of intensifying climate crisis, biodiversity collapse, and extreme pollution, the Court has chosen to dilute one of the few legal tools designed to impose discipline on reckless development. It prioritizes the convenience of today’s violators over the ecological security of tomorrow’s citizens.

5. A Crisis for the Rule of Law: Ultimately, this is about more than the environment. It is about the integrity of law itself. When the highest court validates a process where illegal action creates its own legal remedy, it undermines a basic tenet of the rule of law: that the law is supreme and applies equally to all, prospectively. It establishes a dangerous precedent where scale and sunk costs can trump legal procedure, a principle that could be invoked in contexts far beyond environmental regulation.

The Path Forward: Reclaiming Principle in a Time of Expediency

The battle is not entirely over. The review bench has sent the matter to a larger bench for a final hearing on the merits. This provides a crucial opportunity for course correction.

What the Larger Bench Must Do:

1. Reaffirm the Absolute Primacy of Prior Clearance: It must restore Justice Oka’s original reasoning, declaring that the requirement of a prior EC is a mandatory, non-derogable pillar of the environmental legal regime. Any notification that allows circumvention of this principle is ultra vires the parent Act.

2. Uphold the Precautionary Principle: It must center its judgment on the established environmental law principle that it is better to prevent environmental damage than to try to remedy it later—a task that is often impossible.

3. Reject the Fait Accompli Doctrine: It must explicitly condemn and reject the logic that completed illegal projects create an obligation to regularize them. The remedy for illegal construction without EC must be stringent penalty and, where the project causes irreparable harm, dismantling—not retrospective blessing.

4. Hold the Government to Its Word: It must note the bad faith demonstrated by the government in breaking its 2017 “one-time measure” undertaking, viewing such conduct as weakening the state’s claim to be a trustworthy steward of the environment.

The credibility of India’s Supreme Court, the effectiveness of its environmental laws, and the health of its people and ecosystems hang in the balance. The Court now faces a choice: will it be remembered as the institution that, in a critical decade for the planet, chose to dismantle the very tools of ecological accountability it helped build? Or will it reclaim its legacy as a progressive force, affirming that in the conflict between unchecked development and environmental survival, the law must unequivocally protect the latter? The CREDAI saga is a test not just of legal interpretation, but of civilizational priorities.

Q&A: Deepening the Understanding of the CREDAI Judgment and Its Implications

Q1: The article states the Supreme Court’s original May 2025 judgment was grounded in “first principles.” What are these core legal and philosophical principles of India’s environmental jurisprudence that the review judgment disregarded?

A1: The “first principles” disregarded by the review judgment form the bedrock of India’s environmental law:

• The Right to a Clean Environment under Article 21: Evolved through cases like Subhash Kumar v. State of Bihar (1991), this principle holds that the Right to Life encompasses the right to live in a pollution-free environment. Any state action that degrades the environment impinges on this fundamental right.

• The Precautionary Principle: Formalized in Vellore Citizens Welfare Forum v. Union of India (1996), this principle mandates that where there are threats of serious or irreversible environmental damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Ex post facto clearance fundamentally violates this by allowing damage to occur first.

• The Public Trust Doctrine: Established in M.C. Mehta v. Kamal Nath (1997), this doctrine holds that the state is a trustee of all natural resources (air, water, forests) for the benefit of the public. Its role is to protect these resources, not facilitate their exploitation through retrospective regularization.

• Sustainable Development and Intergenerational Equity: Enunciated in cases like State of Tamil Nadu v. Hind Stone (1981), this principle balances developmental needs with environmental protection, ensuring we meet present needs without compromising the ability of future generations to meet theirs. Retrospective clearance sacrifices future ecological security for present-day illegal gains.

• The Polluter Pays Principle: This requires the polluter to bear the cost of remedying pollution. The review judgment reduces this to a mere “penalty fee” for regularization, which rarely covers the full cost of ecological restoration.

Q2: The dissenting judge, Justice Ujal Bhuyan, argued the majority’s approach was a “retrograde step.” What specific inconsistencies or flaws in the majority’s logic did the dissent likely highlight?

A2: Based on the article’s analysis, Justice Bhuyan’s dissent likely highlighted these critical flaws:

• Circular Justification: Exposing the majority’s fallacy that the consequences of an illegal act (a built project) justify legitimizing the illegal act itself. This turns legal reasoning on its head.

• Erosion of Deterrence: Arguing that the judgment destroys any incentive for pre-emptive compliance. If the penalty is just a fine and a delayed clearance, it becomes a business calculation, not a legal obligation.

• Negation of Preventive Intent: Emphasizing that the entire statutory scheme of the EIA is preventive. The majority’s ruling converts it into a curative or regularizing mechanism, which it was never designed to be.

• Disregard of Binding Precedent: Pointing out that the majority overlooked or incorrectly distinguished clear precedents like Common Cause (2017), which explicitly condemned retrospective clearances.

• Abandonment of Doctrinal Commitment: Arguing that the Court’s decades of building a progressive environmental jurisprudence through the principles mentioned above were rendered meaningless by the majority’s focus on narrow expediency.

• Rewarding Bad Faith: Likely criticizing the majority for not holding the government accountable for breaking its 2017 “one-time measure” undertaking, thereby encouraging executive capriciousness.

Q3: The author mentions that the 2021 Office Memorandum was issued despite a prior “solemn undertaking” by the government. Why is this point of “good faith” and governmental conduct legally significant in this context?

A3: This point is crucial for several reasons:

1. Estoppel and Legitimate Expectation: In administrative law, when a public authority makes a formal representation or gives an undertaking, and a person relies on it, the authority can be estopped (legally prevented) from going back on its word to the detriment of that person. Here, the public and environmental groups relied on the undertaking that the 2017 window was a one-time amnesty. The 2021 Memorandum breached this, creating a legitimate expectation that was violated. A court should view such capricious state action with great skepticism.

2. Assessing Legislative/Executive Intent: The government’s own conduct reveals its intent. The initial undertaking admitted that retrospective clearance was an exceptional, undesirable measure. By later making it permanent, the government showed its intent was not to solve a one-time problem, but to systematically weaken the regulatory regime. This bad faith should inform the Court’s interpretation of the vires (validity) of the notifications.

3. Credibility of the State as a Regulator: Environmental regulation depends on trust in the regulator’s commitment to the law. A government that casually breaks its own solemn assurances recorded in a High Court undermines its credibility as a protector of the environment. The Court, as the guardian of constitutional values, has a duty to censure such conduct and refuse to sanction its outcomes.

Q4: Beyond immediate project approvals, how does this judgment impact the strategic behavior of real estate developers, mining companies, and infrastructure firms in India?

A4: The judgment fundamentally alters the risk-reward calculus for all large-scale project proponents:

• Strategic Non-Compliance Becomes Viable: Companies may now deliberately choose to not apply for EC before starting work, especially for projects in ecologically sensitive areas where obtaining a prior EC would be difficult, costly, or come with stringent conditions. They can calculate that the cost of a potential fine (which is often a fraction of project cost) and the delay in getting a retrospective clearance is preferable to a rigorous, uncertain prior process.

• Muted Community Resistance: The fait accompli strategy severely weakens community opposition. It is harder to mobilize against a project that is already built, with jobs created and investments made. The public hearing becomes a powerless formality.

• Pressure on Honest Actors: Companies that scrupulously follow the law, incurring costs and delays for prior clearance, are put at a competitive disadvantage compared to those who flout it and are later regularized. This creates a perverse market that rewards illegality.

• Increased Litigation: While this judgment seems to favor violators, it will likely spawn more litigation. Environmental groups will challenge each individual retrospective clearance on its merits, arguing that the fait accompli should not dictate the outcome. This leads to a more chaotic, project-by-project legal battlefield.

Q5: The article concludes by stating the “credibility of India’s rule of law” is at stake. How does a judgment that legitimizes ex post facto environmental clearance pose a broader threat to the rule of law beyond environmental regulation?

A5: The threat is systemic and profound:

• Principle of Legality: The rule of law requires that state action be authorized by law and that laws be applied prospectively. Here, the Court is sanctioning an executive process that legalizes past illegalities. This erodes the very notion that one can know the law and act accordingly, as the law can be changed retroactively to forgive violations.

• Equality Before Law: It creates a two-tier system: one rule for those who comply prospectively (subject to full scrutiny), and a more lenient, negotiable rule for those with the resources and audacity to violate first. This privileges powerful economic actors over ordinary citizens and smaller businesses.

• Incentive for Lawlessness: It establishes a dangerous precedent that could be invoked in other regulatory spheres—building safety, tax, land use zoning. The argument could become: “The violation is so vast and entrenched that striking it down would cause public inconvenience, therefore it must be regularized.” This makes lawbreaking a viable strategy for achieving desired ends.

• Erosion of Judicial Consistency and Authority: When the Supreme Court reverses its own clear, principled ruling within months without a change in law or facts, based on expediency, it damages public confidence in the Court’s consistency and its role as an impartial arbiter. It makes the law seem unpredictable and subject to the whims of a particular bench’s policy preferences, which is anathema to the rule of law.