Petitioners opposing post-facto environmental clearances on Wednesday urged the Supreme Court to refer the Vanashakti matter to a five-judge Constitution Bench. They said they must challenge key findings recorded in a three-judge Bench review judgment delivered in November 2025.
A Bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi, and Justice Vipul M. Pancholi heard the matter.
The hearing follows the November 2025 review decision. By a majority, the three-judge Bench recalled the Court’s May 2025 Vanashakti judgment. The May 2025 ruling had barred post-facto environmental clearances. The review Bench restored the matters to the file.
In the previous hearing, the Court indicated it would consider an important issue. It asked whether the November 2025 review effectively upholds Office Memorandums issued by the Union Government. These include the OM dated March 14, 2017, and another OM issued in 2021. The OMs permit ex-post facto environmental clearances.
Petitioners Say Only A Larger Bench Can Resolve The Conflict
Senior Advocate Gopal Sankaranarayanan appeared for the petitioners. Senior Advocate Sanjay Parekh also addressed the Court. At this stage, they made brief submissions. They did not enter the merits in detail.
Sankaranarayanan argued that the 2017 notification gave violators only a limited six-month window to apply for environmental clearance. He said parties challenged this notification in the Madras High Court.
He added that the then Additional Solicitor General reportedly assured the High Court that the notification would be the “last opportunity.” After that, the High Court later extended the period under the notification until April 13, 2018.
“Effectively, after 13 April 2018, there is no legal regime in the country that permits somebody to come and apply for an EC. There isn’t one,” he submitted.
Petitioners Point To 2021 OM, NGT Order, And Madras HC Ruling
Sankaranarayanan referred to the OM dated July 7, 2021. He said it flowed from an order of the National Green Tribunal. According to him, the NGT had said applications seeking ex-post facto clearance needed a prescribed procedure and penalties.
That process led to a Standard Operating Procedure (SoP). Parties challenged the SoP before the Madras High Court. The High Court struck it down as unconstitutional on August 30, 2024.
However, the High Court allowed the SoP to operate prospectively for three projects.
Sankaranarayanan also referred to an earlier 2002 notification. He said it resembled the 2017 notification. He added that the Supreme Court struck down the 2002 notification in Alembic Pharmaceuticals (2020).
He also told the Court that nobody has filed a special leave petition against the Madras High Court’s August 30, 2024 judgment. He added that the successful petitioners before the High Court filed an SLP in the Supreme Court. That SLP culminated in the May 2025 Vanashakti judgment.
Dispute Over D. Swamy And Common Cause
Sankaranarayanan argued that the three-judge Bench made incorrect assumptions in the review judgment. He said it wrongly held that D. Swamy v. Karnataka State Pollution Control Board (2021) involved a challenge to the vires of the 2017 notification.
He also said the review Bench proceeded on an incorrect footing. According to him, it treated D. Swamy as having upheld the 2021 OM.
He told the Court that these findings now block his challenge to the 2017 notification. He said he can only persuade the Court by giving a different interpretation of D. Swamy. For that, he sought a larger Bench.
He also objected to the review Bench’s treatment of Common Cause (2018). The review judgment held that Common Cause—where the Court disallowed ex-post facto clearances—could not operate as a precedent.
Sankaranarayanan relied on Sheo Nandan Paswan v. State of Bihar (1987). He argued that a detailed review hearing can prejudice the party that lost earlier.
At this point, CJI Surya Kant questioned the applicability of the proposition. The CJI noted that the review judgment contained reasons. He said it did not resemble a cryptic order.
Counsel Calls Ex-Post Facto Clearance A “Backdoor Entry”; CJI Responds
After Sankaranarayanan, another counsel addressed the Court. He appeared for petitioners who challenged the Madras High Court order. He argued that the government cannot introduce ex-post facto clearances through administrative instructions.
He called it a “backdoor entry” for violators. He added that only a statutory notification can create such a mechanism.
CJI Surya Kant responded with a query. “So you do not want any project to be launched in the country?…In which century, by the way, do you expect the country to survive, sir?” he asked.
The counsel replied that he only opposed projects that already received post-facto clearances.
Parekh Supports Reference; Warns Against General Clauses Act And Proportionality
Senior Advocate Sanjay Parekh supported the request for reference. He said Sankaranarayanan would ordinarily open arguments on merits. However, given the procedural posture, he said the Court should first decide the reference request.
Parekh emphasised environmental law principles. He referred to the precautionary principle and intergenerational equity. He said these principles demand preventive action before damage occurs.
He also cautioned against applying the General Clauses Act and proportionality in this context. He said such application could have “catastrophic” consequences in environmental law. He reiterated support for placing the matter before a larger Bench.
Merits Begin; CJI Questions Premise Of Reference
Thereafter, another counsel appearing for Sankaranarayanan began arguments on merits. Before starting, he asked whether the Court would refer the matter to a five-judge Bench.
CJI Surya Kant responded: “What is the question of referring to five judges unless we doubt the three-judge bench.”
During arguments, counsel took the Court through the chronology. He highlighted features of the 2017 notification. He said it requires disclosure of details such as proposed demolition and closure or diversion of routes.
He argued that these requirements resemble the Environmental Impact Assessment framework. He added that they make little sense in a post-facto regime, because the activity has already occurred. He described the post-facto approach as an “oxymoron.”
The hearing will continue tomorrow.
Case Details: Vanashakti v Union of India
