The recall rests on a point of judicial discipline that a two-judge bench cannot appear to contradict earlier two-judge benches that had, in limited and exceptional circumstances, considered the possibility of retrospective EC. Whether such exceptions are legally sustainable and whether they can coexist with the stricter reasoning of earlier judgments now goes to a larger bench.

Crucially, the recall must not be interpreted as endorsement of retrospective approvals, nor does it dilute the principles that guided the original Vanashakti ruling. Unless a larger bench decides otherwise, environmental governance in India remains firmly anchored to the logic that EC must be prior, because ecological damage is often permanent, irreparable, and impossible to offset.

The irreplaceable value of ‘prior’ EC

Environmental Clearance was never meant as a post-construction compliance certificate. It is a scientific and legal safeguard, rooted in the Environment Impact Assessment (EIA) Notification, 2006, to evaluate whether a project should be approved at all — not merely how to mitigate harms after the fact. And it must not be compared to consent to establish/operate granted by Pollution Control Boards, which only focus on limiting emissions and discharge of industrial activity.

The EIA framework is grounded in the precautionary principle and the mitigation hierarchy, which prioritise avoiding harm over minimising, repairing or compensating for it later. The EIA process goes beyond pollution control and is supposed to critically assess and predict the ecological risk, such as loss of natural ecosystems, biodiversity, livelihoods of nature-dependent communities, cumulative impacts of any project at the location and its surroundings. The process mandates early-stage screening and scoping to assess site feasibility and alternatives before detailed studies begin. Public hearing is central to the process — a mandatory stage where affected communities can review EIA findings and raise concerns before the expert appraisal and final decision-making.

Also Read | Trump shrugs off Khashoggi’s killing. How very presidential of him

It must be understood that once a pristine forest is cleared, or a hill is mined, or a wildlife corridor blocked, no penalty, remedial plan, or compensatory afforestation can recreate the ecological integrity or ecosystem services that are lost. Public hearings, too, become a hollow ritual when bulldozers have already flattened the landscape.

This is precisely why ex-post-facto EC has long been viewed as incompatible with environmental jurisprudence. The Supreme Court’s earlier decisions in Common Cause (2017) and Alembic Pharmaceuticals (2020) were categorical in holding that retrospective clearances are alien to the EIA framework.

The problem of fait accompli

India’s regulatory practice — marked by a near-zero rejection rate, consultant-driven EIA reports funded by the project proponents themselves, and a growing reliance on administrative shortcuts to “reinterpret” the law — has encouraged a troubling culture of fait accompli. Violations are no longer deterrents; they are treated as manageable, negotiable, and ultimately regularisable through back-door amendments to the law, away from any parliamentary approval or even public consultations.

The Vanashakti judgment disrupted this drift by striking down the 2017 “amnesty” notification and the 2021 Standard Operating Procedure that effectively institutionalised post-facto regularisation. It reaffirmed a basic legal reality that the Environment (Protection) Act cannot be amended by administrative fiat to legitimise what is illegal at the outset.

However, the review order notes that earlier benches — in Electrosteel Steels (2023), D. Swamy (2023) and Pahwa Plastics (2023) — had discussed limited exceptions for ex-post-facto approvals. Whether these exceptions stand scrutiny, and whether they can be harmonised with Alembic and Common Cause, is now a question for a larger bench of the Supreme Court.

Prudence in the interim

What the recall does not do is restore the 2017 or 2021 notifications, or uphold the retrospective regularisation, or permit the Ministry of Environment, Forest and Climate Change (MoEFCC) to issue fresh instruments enabling post-facto approvals. This makes the coming months critical. Vacuums in judicial clarity often invite administrative adventurism, and pressure from industries and state agencies to bypass Vanashakti’s core safeguards is inevitable. That temptation must be resisted.

Until the larger bench decides the matter, the MoEFCC must exercise restraint, and refrain from issuing any instrument that attempts to reinterpret or dilute the requirement of prior EC. The recall must not become an opportunity to weaken safeguards, undermine public participation, or incentivise illegal construction in expectation of later condonation.

India cannot afford another cycle of environmental damage born out of procedural shortcuts. The Vanashakti judgment may be paused, but its underlying principles — precaution, prevention and democratic oversight — must continue to define the legal architecture of environmental decision-making. This moment calls for prudence, not opportunism. The MoEFCC’s conduct in this interim will determine whether it learns from past failures or doubles down on them. And while the Constitution obligates the state to protect and improve the environment and safeguard the country’s forests and wildlife, the Supreme Court remains the ultimate guardian of that constitutional promise.

The writer is a conservationist and leads the Climate & Ecosystems team at the Vidhi Centre for Legal Policy, New Delhi. Views are personal