Environmental clearance in India operates on a simple premise codified in the Environmental Impact Assessment Notification of 2006 (EIA Notification): before a category of listed projects breaks ground, the project proponent must secure prior approval from the relevant regulatory authority. For much of the past decade, however, successive administrations have experimented with mechanisms that invert this sequence, allowing projects that began construction without clearance to seek approval after the fact. When the Supreme Court struck down the latest of these mechanisms on 29 July 2026, headlines across the country described the ruling as a decisive win for environmental jurisprudence (Business Standard, 2026; The Tribune, 2026). This article argues that such framing, while not inaccurate, is incomplete. The judgment did close a specific administrative loophole, but it simultaneously opened, or more precisely left ajar, a different and potentially more durable one. Understanding the distinction between the two requires situating the ruling within the three-round litigation saga from which it emerged.

The Decade-Long Dispute Over Ex Post Facto Clearance

The controversy predates the 2026 judgment by nearly a decade. In March 2017, the Ministry of Environment, Forest and Climate Change issued a notification creating a one-time window for project proponents who had commenced construction without clearance to apply for regularisation. Rather than functioning as the narrow, exceptional measure it was presented to be, the mechanism proved durable: in July 2021 the Ministry issued an Office Memorandum that converted the ostensibly one-time window into what amounted to a standing, recurring procedure for post-facto approval (Down To Earth, 2026; NextIAS, 2026). Environmental groups, led by the non-governmental organisation Vanashakti, challenged both instruments. In May 2025, a two-judge Bench of the Supreme Court comprising Justices Abhay S. Oka and Ujjal Bhuyan struck down both the 2017 notification and the 2021 Office Memorandum in forceful terms, holding that the very concept of ex post facto clearance was alien to environmental jurisprudence (LawBeat, 2026; Mondaq, 2026). The Union government sought review. In a turn that itself attracted criticism, a differently constituted Bench, led by the then Chief Justice B. R. Gavai, allowed the review petitions, holding that the May 2025 verdict had not adequately accounted for earlier precedent recognising limited circumstances in which post-facto clearance might be permissible (LawBeat, 2026). The matter was then referred for fresh hearing before the Bench led by Chief Justice Surya Kant, whose judgment of 29 July 2026 is the subject of this article.

What the Court Actually Decided on 29 July 2026

Writing for a unanimous Bench that also included Justices Joymalya Bagchi and Vipul Pancholi, Justice Bagchi held that prior environmental clearance under the 2006 EIA Notification remains the governing rule, and that this requirement "is mandatory unless amended through a statutory notification" (kbssidhu.substack.com, 2026). On this basis, the Court quashed the 2021 Office Memorandum as ultra vires the Environment (Protection) Act, 1986, reasoning that it had attempted to substantially alter the criteria for granting environmental clearance through mere administrative instruction rather than delegated legislation (ETV Bharat, 2026). The Bench directed that no further applications under either the 2017 notification or the 2021 Memorandum would be entertained, and restrained the Union government from issuing any future administrative order granting ex post facto clearance (ETV Bharat, 2026; Business Standard, 2026). At the same time, the Court declined to disturb clearances already granted under the two instruments, holding that these would remain valid unless individually challenged (Civilsdaily, 2026). The Bench also preserved its own authority under Article 142 of the Constitution to grant equitable relief in appropriate cases, a reservation that itself signals the Court's reluctance to treat prior clearance as an absolute, exceptionless rule (LawBeat, 2026).

The Narrow Door Left Ajar

The operative distinction in the judgment, and the one most often lost in summary reporting, lies in what the Court said about the source of regulatory authority rather than its existence. The Bench did not hold that retrospective clearance is impermissible as a matter of environmental law; it held that retrospective clearance cannot be created through an executive memorandum. The judgment expressly affirmed that the central government retains the power, under Section 3 of the Environment (Protection) Act, to frame a statutory scheme for violation management, provided such a scheme is confined to exceptional circumstances directed at environmental restoration and accountability rather than routine regularisation (Supreme Court Observer, 2026). In reinterpreting the Court's own earlier precedents, including Alembic Pharmaceuticals Ltd. v. Rohit Prajapati (2020) and the May 2025 Vanashakti ruling, the Bench clarified that their description of ex post facto clearance as alien to environmental jurisprudence had to be read against the statutory framework then in force, which admitted no exception for prior clearance; the 2026 judgment effectively reopens that exception through the statutory, rather than administrative, channel (Supreme Court Observer, 2026; LawBeat, 2026). Put plainly, the Court has not closed the loophole so much as relocated it, specifying that any future regularisation scheme must be dressed in the formality of delegated legislation rather than the informality of an office memorandum. For a government that has twice attempted such schemes within a decade, the procedural bar of issuing a notification under Section 3, a step that requires public notice and is itself open to judicial challenge, is a meaningful but not insurmountable obstacle (NextIAS, 2026).

The Lawyers' Rebuttal and the Case for a Constitution Bench

The ambivalence in the ruling did not go unnoticed by the environmental legal community. On 5 August 2026, the National Alliance for Justice, Accountability and Rights, a pan-Indian coalition of lawyers, issued a statement expressing concern that the judgment had departed from the Court's own settled position that post-facto clearance was incompatible with environmental law (Mongabay India, 2026). Ritwick Dutta, founder of the Legal Initiative for Forest and Environment, observed that the July 2026 ruling treats the requirement of prior clearance as a feature of the 2006 notification that can be modified through further notification, rather than as a constitutional or statutory floor that no instrument, however formal, can lower (Mongabay India, 2026). The coalition has argued that a question of this constitutional significance, touching as it does on the right to a healthy environment as an element of the fundamental right to life under Article 21, ought properly to be settled by a Constitution Bench of at least five judges rather than a three-judge Bench revisiting an earlier two-judge ruling through the review jurisdiction (Mongabay India, 2026). This procedural objection runs alongside the substantive one: critics note that the oscillation between the May 2025 ruling, its reversal on review, and the July 2026 judgment has produced three materially different statements of law on the same question within fourteen months, a pattern that undermines the predictability regulators and project proponents alike are entitled to expect from the apex court (LawBeat, 2026). Political reaction has been similarly divided. Congress leader Jairam Ramesh welcomed the judgment as closing the door on future retrospective approvals, while simultaneously criticising the Court's decision to let previously granted clearances stand as having diluted the practical effect of the ruling (The Tribune, 2026).

Why the Framing of Victory Matters

The gap between the headline characterisation of the judgment and its operative text is not a semantic quibble. Indian environmental governance has, over the past decade, repeatedly demonstrated an institutional capacity to convert narrow exceptions into standing practice: the 2017 notification, framed explicitly as a one-time measure, evolved within four years into the recurring mechanism of the 2021 Memorandum (Down To Earth, 2026). Given this pattern, a ruling that forecloses one specific instrument while affirming the underlying legislative competence to create its functional equivalent offers comparatively modest protection against repetition. The practical safeguard going forward rests less on judicial pronouncement than on the procedural requirements attached to statutory notification, including the obligation to publish draft rules and invite objections under the ordinary rule-making process, and on the willingness of courts to scrutinise any future notification against the narrow, exceptional purpose the Bench has prescribed (Supreme Court Observer, 2026). Whether that scrutiny will be forthcoming is itself uncertain, given that the same apex court reversed its own position once already within this litigation. For environmental lawyers and policy analysts, the lesson of the Vanashakti saga is that institutional victories in environmental law are frequently conditional and reversible, turning on the specific legal instrument challenged rather than on the underlying governmental intent, which in this case has remained consistent across three rounds of litigation and nine years of administrative practice.

The Supreme Court's judgment of 29 July 2026 in Vanashakti v. Union of India is best understood not as the closing of a loophole but as its relocation from administrative to statutory ground. The Court was unambiguous in holding that the 2021 Office Memorandum could not stand, and in restraining the executive from issuing further orders of its kind. It was equally unambiguous, however, in preserving the Union government's power to achieve a materially similar outcome through the more formal, but not categorically different, instrument of a statutory notification. The lawyers' coalition that has called for a Constitution Bench reference is, in effect, asking the Court to resolve the deeper question the July 2026 judgment left untouched: whether prior environmental clearance is a constitutional floor that no instrument can lower, or a statutory default that can be modified by any body possessing delegated legislative power. Until that question receives an authoritative answer, the September 2026 judgment stands less as a final verdict than as an interim settlement in a dispute that has already outlived two Chief Justices and three distinct Benches, and that shows every sign of returning to the Supreme Court's docket once the government exercises the very power the Court has just confirmed it retains.

References:

1. Business Standard. (2026, July 29). Supreme Court bars executive route for post-facto environmental clearances. https://www.business-standard.com
2. Civilsdaily. (2026, July 30). SC restricts 'retrospective' green clearances. https://www.civilsdaily.com
3. Down To Earth. (2026, July 30). Daily court digest: Major environment orders (July 30, 2026). https://www.downtoearth.org.in
4. ETV Bharat. (2026, July 29). SC quashes 2021 office memorandum allowing Centre to grant retrospective environmental clearances to projects. https://www.etvbharat.com
5. kbssidhu.substack.com. (2026, July 30). Three rounds, one verdict: Supreme Court shuts the administrative door on retrospective environmental clearances. https://kbssidhu.substack.com
6. LawBeat. (2026, July 29). Centre can grant retrospective environmental clearances through a statutory notification: Supreme Court. https://lawbeat.in
7. Mondaq. (2026, August 11). The law comes full circle on the issue of ex post facto environmental clearance. https://www.mondaq.com
8. Mongabay India. (2026, August 8). Supreme Court upholds Centre's power to notify post-facto clearance. http://india.mongabay.com
9. NextIAS. (2026, July 30). SC restricts 'retrospective' environmental clearances. https://www.nextias.com
10. Supreme Court Observer. (2026, August 6). Vanashakti III judgment summary. https://www.scobserver.in
11. The Tribune. (2026, September). Congress slams Centre over retrospective green nod, welcomes SC intervention. https://www.tribuneindia.com
12. Vanashakti v. Union of India, 2026 INSC 761 (Supreme Court of India, July 29, 2026).

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