Legal body fears ecological fallout as top court leaves door open for amnesty-style green clearances

By A Representative 

The National Alliance for Justice, Accountability and Rights (NAJAR), a pan-Indian coalition of legal professionals and environmental justice advocates, has expressed strong opposition to the Supreme Court's recent judgment in the Vanashakti v. Union of India case, which it says raises grave questions of constitutional import that need to be placed before a Constitution Bench for fresh adjudication.

In a statement, NAJAR said that while the Court had rightly reaffirmed that prior environmental clearance remains mandatory and that an executive Office Memorandum cannot override the EIA Notification of 2006, it had raised a "deeply disturbing red flag" by leaving open a future statutory route for retrospective regularization of environmental violations in the name of public interest. The coalition said the judgment severely undermines the environmental rule of law and threatens ecological and democratic futures.

NAJAR noted that the Supreme Court's own environmental jurisprudence has consistently proceeded on the basis that prior appraisal is not a procedural technicality but a substantive safeguard, with judgments such as Vellore Citizens' Welfare Forum v. Union of India incorporating the precautionary principle and sustainable development into Indian law, M.C. Mehta v. Kamal Nath affirming the public trust doctrine, and Common Cause v. Union of India and Alembic Pharmaceuticals Ltd. v. Rohit Prajapati making clear that ex post facto environmental clearance is alien to environmental jurisprudence because it defeats the preventive logic of environmental regulation.

The judgment in question was delivered on July 29, 2026, by a three-judge bench comprising the Chief Justice and Justices Bagchi and Pancholi, following the recall of an earlier Vanashakti judgment from May 2025 that had struck down both the 2017 Notification and the 2021 Office Memorandum. The earlier judgment, delivered by Justices Oka and Bhuyan, had held that the grant of an ex post facto environmental clearance was alien to environmental jurisprudence and had restrained the Central Government from issuing any similar instrument in the future. After the Confederation of Real Estate Developers of India (CREDAI) filed a review petition, the earlier judgment was recalled and the matter was reheard.

The July 2026 judgment quashed the 2021 Office Memorandum, holding that such power cannot be wielded on the administrative side, but upheld the 2017 notification as a valid delegated measure and further empowered the Central Government to issue valid notifications under the Environment Protection Act of 1986 laying down conditions and procedures for grant of ex post facto environmental clearances to projects which have commenced in violation of the 2006 Notification.

NAJAR said this allowance of post facto clearances is alarming because once a project is built and the environment is altered, the pressure to regularise illegality becomes overwhelming, and the law begins to respond to a fait accompli rather than prevent harm at the outset. The coalition said public reporting indicates that the 2017 one-time scheme regularised 53 central and State projects worth nearly ₹19,500 crore, and the July 2026 judgment preserves the legal effect of those clearances while also wrongly recognising a future statutory route for similarly structured exceptional schemes.

The coalition identified five serious concerns arising from the judgment: the weakening of the prior-clearance rule, as a continuing legal route for retrospective regularization undermines the normative force of the rule itself; departure from the Court's own precautionary jurisprudence, which has treated precaution, public trust and inter-generational equity as substantive constitutional principles; creation of perverse incentives where the bigger the violation and the greater the sunk investment, the stronger the later plea against demolition becomes; expansion of amnesty through the language of exception, where what is described as "exceptional" will become normalised in practice; and weakening of deterrence under the Jan Vishwas framework, where civil penalties replace criminal consequences and retrospective regularization remains legally imaginable, making violation more easily calculable as a financial risk.

NAJAR noted that the Jan Vishwas Act of 2023 had already stripped the EIA notification of any criminal consequences for defaulters proceeding with construction without first obtaining a prior environmental clearance, and that the possibility of a post-facto environmental clearance read together with the Jan Vishwas decriminalization framework risks converting environmental compliance into a cost of doing business rather than a constitutional duty.

The coalition demanded that the Central Government ensure no recurring or sector-wide amnesty schemes are permitted, that strict exclusion of deliberate and irreversible violations is maintained, that restoration, accountability and public disclosure are enforced with monetary penalties alone never treated as sufficient, and that the rule of prior environmental clearance must remain a real safeguard and not a formality capable of later cure.

"As legal professionals committed to a progressive environmental jurisprudence, we feel judicial pronouncements from the higher courts should strengthen and not weaken the environmental governance regime, which is already under immense stress in India, today," NAJAR said in its statement.