Vanashakti III Doesn't Close the Door on Ex-Post Facto Environmental Clearance — It Standardises It

ON JULY 29, 2026, a three-judge bench of the Supreme Court in Vanashakti v. Union of India (‘Vanashakti III’),  struck down the 2021 Office Memorandum that had permitted violators to regularise ex post facto breaches of environmental law. Read quickly, this appears to be an environmental victory. But is it? A closer reading yields something else: a blueprint for the next round of regularisation.

There is a moment in Vanashakti III where the Supreme Court states a rule and then spends the following fifteen paragraphs reasoning its way out of it. At paragraph 36, Justice Joymalya Bagchi holds that a project built without prior clearance is void ab initio, that the wrongdoer cannot retain the “usufruct” of the wrong, and that the breach must therefore, “by necessary implication lead to the restoration of status quo ante extending to closure, demolition, remediation of environmental damage and recovery of costs”. This is the maximalist environmental position, and it is almost a verbatim reproduction of what the first decision, authored by Justice A.S. Oka in Vanashakti v. Union of India delivered on May 16, 2025 (‘Vanashakti I’),  had held.

The judgment in Vanashakti III then sets about dismantling it. By paragraphs 38 and 39, the power to “control and abate” pollution under Section 3 of the Environment Protection Act (‘EPA’) has become wide enough to sustain a “violation-management mechanism” that brings errant units back into the fold “not by excusing the breach but by subjecting them to appraisal, penalty, environmental compensation remediation and future compliance”. By paragraph 40, the Jan Vishwas Act, 2023, which substituted criminal prosecution with civil penalty for various offences across 42 central Acts, is read as Parliament supplying a “relaxed legislative space” in which a “breach need not invariably result in dismantling, demolition or closure”. The movement between these two passages is the whole judgment, and it is the place to begin if one wants to grasp the long-term implications of the judgment.

Not against Regularisation, only against the wrong vehicle

Vanashakti III upholds a 2017 notification, which opened a six month window for violators to obtain ex post-facto clearances, and quashes the 2021 Office Memorandum, which extended this relief indefinitely. What separates them, however, is not a reasoning about the environment, but a reasoning about legal form. 

The 2017 Notification survives because it is a piece of delegated legislation of the same rank as the 2006 EIA notification it amends and can therefore alter that notification through the power to amend under Section 21 of the General Clauses Act, 1987 (as discussed across paragraphs 51 to 52 and 66). The 2021 Office Memorandum is not saved, however, because it is merely an executive instruction, which cannot amend, dilute, or contradict a notification. 

In a detailed eight-row table at paragraph 70, the judgment seeks to demonstrate that the Office Memorandum “supplants” rather than “supplement[s]” the 2006 regime. Ignore the table for a moment, and one sees that the operative defect is only that the wrong kind of instrument was used.

We must pause for a moment to think about what this means for the environment: a completed project pollutes identically whether it is saved by a notification or by an office memorandum as the harmful environmental footprint is not dependent on the official gazette. What the Court has held unlawful is not post-facto regularisation as such. It is only regularisation through the wrong vehicle that attracts its scorn. 

The 2017 Notification, which does the same set of substantive things for the projects within its window, is approved (at paragraph 80(v)), and Common Cause (2017) which had declared retrospective clearance alien to environmental jurisprudence, is read down to the point where its holding that ex-post-facto clearance is “alien to environmental jurisprudence” is recast as describing merely “the scheme of the law as it then stood”. A categorical principle is thereby converted into a contingent observation about an unamended statute.