The Supreme Court’s recent decision to recall its May 16 judgment barring ex-post-facto environmental clearances (EC) has reignited a longstanding debate over the balance between development and environmental protection. The ruling, passed by a 2-1 majority, has drawn attention from legal experts, environmentalists, and policymakers alike, with many warning that it risks undermining India’s environmental governance framework.

While the majority cited judicial discipline and the need to allow a larger bench to examine the matter, critics say the ruling opens the door for projects to be regularized after environmental damage has already occurred, potentially incentivizing developers to bypass due process.

Understanding the Recall

The Supreme Court’s recall does not overturn the May 16 judgment on its merits. Rather, it sends the matter to a larger bench for reconsideration. The original judgment had prohibited post-facto environmental clearances, marking a significant step in ensuring that projects are evaluated for ecological risk before construction or operation begins.

Debadityo Sinha, lead on climate and ecosystems at the Vidhi Centre for Legal Policy, emphasized the interim risks posed by the recall. “An ex-post facto EC fundamentally weakens the framework meant to ensure a project is evaluated before any work begins. Securing an EC is designed as a safeguard to decide whether a project should be allowed at a particular site at all, taking into account the ecology, biodiversity, and the risks of permanent environmental harm,” Sinha explained.

According to Sinha, the EC process is not merely about pollution control; it serves a broader purpose: assessing the feasibility of a project in its intended location, ensuring that development does not come at the cost of irreparable environmental loss. “The recall may be technical, but the interim period should not be misused to push through projects that can destroy ecosystems or livelihoods. What we choose to protect today will define what remains for tomorrow,” he added.

The Vanshakti Judgment and Its Significance

Experts note that the original May judgment, often referred to in discussions as the Vanshakti judgment, played a corrective role in curbing the growing trend of fait accompli projects, where construction begins first and clearances are sought later. By barring ex-post-facto approvals, the judgment enforced the principle that environmental considerations must precede development activities.

“This judgment was a crucial step in preventing administrative shortcuts and regulatory capture from eroding India’s ecological safeguards,” Sinha said. “Without such judicial interventions, the risk of irreversible damage to forests, wetlands, rivers, and communities is high.”

The recall, however, temporarily reinstates the 2017 notification and the 2021 office memorandum, both of which allow for post-facto environmental clearances under certain circumstances. Experts argue that these mechanisms are environmentally regressive, as they prioritize procedural legality over ecological prudence.

Criticisms from Environmentalists and Legal Experts

Several retired officials and environmental lawyers have expressed strong opposition to the concept of retrospective ECs. A retired Indian Forest Service officer, speaking on condition of anonymity, noted, “There may exist one or two exceptions, but in most cases, the damage is enough to not warrant or allow an EC afterwards. Retrospective clearances serve no real purpose and indirectly promote loopholes and environmental destruction.”

Ritwick Dutta, founder of the Legal Initiative for Forest and Environment (LIFE), echoed these concerns. “Post-facto clearances are contrary to every principle of environmental jurisprudence. They violate the rule of law itself. This recall does not amount to a reversal, but it does allow developers, for the time being, to seek retrospective clearances, which is worrying,” Dutta said. He stressed that while status quo returns until a fresh judgment is passed, the interim period may be exploited by developers seeking to circumvent due environmental assessment.

Environmental activists also warned that the recall could revive loopholes that have long been challenged by civil society. Bhavreen Kandhari, an activist engaged in environmental advocacy, said, “The majority judgment risks giving developers an open license, even temporarily, to violate environmental norms and then seek approval after the fact. This was already happening in some cases, but the recall may re-establish it as an acceptable practice. We hope the larger bench addresses this and ensures that such clearances do not happen in the future.”

Risks of Retrospective Approvals

Ex-post-facto environmental clearances pose multiple risks, both ecological and procedural. First, they undermine the principle of preventive environmental governance, which is central to India’s environmental laws. Projects that begin without prior scrutiny can cause irreversible harm to forests, wetlands, rivers, and biodiversity hotspots.

Second, retrospective clearances can weaken public accountability. Communities and civil society organizations often have limited ability to intervene once a project has already commenced, reducing transparency and participation in environmental decision-making.

Finally, these approvals may incentivize a pattern of deliberate violations, where developers calculate that starting work without clearance is less risky than awaiting full compliance. Over time, this can erode trust in regulatory institutions and compromise the integrity of India’s environmental governance framework.

The Broader Implications

The recall of the May judgment comes at a time when India is grappling with significant environmental challenges, including deforestation, air and water pollution, and climate change impacts. Legal and environmental experts stress that decisions like these have far-reaching implications beyond individual projects, shaping the broader trajectory of sustainable development in the country.

“Environmental clearances exist not as a bureaucratic formality but as a fundamental check against unplanned and destructive development,” Sinha said. “India cannot afford to lose more ecosystems and livelihoods because of administrative shortcuts or regulatory capture.”

Legal experts also note that the larger bench hearing offers an opportunity to clarify the limits and conditions under which retrospective ECs may be permissible, if at all. However, until a fresh judgment is delivered, the interim period remains fraught with uncertainty, with the potential for developers to exploit procedural gaps.

Conclusion

The Supreme Court’s recall of its May 16 judgment on ex-post-facto environmental clearances has sparked a renewed debate about the balance between economic development and ecological protection. While the recall is procedural, experts warn that it temporarily reopens avenues for projects to seek approval after causing environmental damage, weakening the safeguards that ECs are designed to provide.

Legal and environmental professionals stress the need for vigilance during the interim period, ensuring that developers do not take advantage of the ruling to circumvent environmental regulations. The larger bench’s forthcoming deliberations will be closely watched, as the decision could redefine India’s approach to environmental governance and determine whether preventive safeguards or retrospective approvals will guide future development projects.

For now, the recall has reminded all stakeholders — from policymakers to environmentalists to developers — of the critical role of due process, judicial oversight, and ecological prudence in safeguarding India’s natural heritage.