Hindi English Translation || Editorial || Breaking the rules: On the reversing of the Vanashakti ruling

Breaking the rules: On the reversing of the Vanashakti ruling

Post-facto clearance must remain the exception, not the rule

The majority decision by a Bench of the Supreme Court to reverse its May 2025 order, which had stayed the grant of post-facto (कार्योत्तर) environmental clearances, illustrates the difficulty of dealing with the seemingly irreversible (अपरिवर्तनीय) consequences of a much-abused law. The controversy is also about the form of the Environment Ministry’s instruments that normalised those exceptions. The Environment (Protection) Act 1986 and EIA notifications of 1994 and 2006 are framed around prior environmental clearance (EC), which means that large construction and industrial projects must not start work until an authority has assessed their consequences. Decisions by the Court including Common Cause (2017) and Alembic Pharmaceuticals (2020) treated post-facto EC as impermissible (अनुचित, अस्वीकार्य) where prior EC was mandatory. The order in May, in Vanashakti, read this as ruling out post-facto ECs altogether for such projects. The new majority does not say ‘EC first’ is no longer the rule but locates a narrow space for post-facto clearances by relying on Alembic, D. Swamy, and others to allow ‘regularisation’ when considerable resources have already been committed, usually with fines. This still means that the Ministry can maintain ‘EC first’ as the legal default (Failure to fulfill an obligation, especially to repay a loan or appear in a court of law; a pre-selected option adopted by a computer program or system when no alternative is specified) and allow post-facto clearances only in rare, highly constrained cases. In any case the spirit (The nonphysical part of a person which is the seat of emotions and character; the nonphysical part of a dead person; the prevailing temper or mood of a community or period) of the EC regime (शासन) remains ex ante.

A clearance granted after construction has begun or finished cannot replicate the EIA’s rationale, which is to make environment-related decisions before the potential cumulative (संचयी) consequences are underway. Post-facto clearances can only impose penalties, prescribe mitigation or order closure or demolition (तोड़फोड़). Even if the judiciary permits such ECs in some circumstances now, the clearances will be remedial and sit uneasily with the structure of environmental jurisprudence (न्यायशास्त्र) in India since the 1990s. The majority’s concern about differential treatment of past and future violators is also understandable, even if its remedy is not. Vanashakti struck down the 2017 notification and subsequent Environment Ministry office memoranda that facilitated post-facto ECs, but it let existing post-facto ECs stand. The majority treated this as discriminatory, which is fair, but unequal treatment during a shift from a permissive to a stricter regime is to be expected during regulatory (विनियामक) housekeeping. Its existence does not by itself require that an old route be revived. The Court has also recalled the bar on post-facto ECs and reopened the legal question, indicating that limited post-facto regularisation is not in itself untenable. In the end, the Ministry must treat post-facto ECs as exceptional not least because they are inherently (स्वाभाविक रूप से) at odds with the legal framework. Any complaint about discrimination between past and future violators should be addressed by tightening legacy (विरासत) clearances, not by normalising post-facto regularisation.

Courtesy: The Hindu

Important Word List With Meaning

1.Post-facto (Adjective)

Hindi Meaning – कार्योत्तर
English Meaning – After the fact; taking effect after the event has occurred. This term is often used in law regarding acts that make something illegal retroactively.

2.Irreversible (Adjective)

Hindi Meaning – अपरिवर्तनीय
English Meaning – Impossible to reverse, undo, or change back to a previous condition.

3.Impermissible (Adjective)

Hindi Meaning – अनुचित, अस्वीकार्य
English Meaning – Not permitted or allowed; unacceptable.

4.Regime (Noun)

Hindi Meaning – शासन
English Meaning – A government, especially an authoritarian one; a system or planned way of doing things, especially one imposed from above.

5.Cumulative (Adjective)

Hindi Meaning – संचयी
English Meaning – Increasing or increased in quantity, degree, or force by successive additions.

6.Demolition (Noun)

Hindi Meaning – तोड़फोड़
English Meaning – The action or process of pulling or knocking down a building.

7.Jurisprudence (Noun)

Hindi Meaning – न्यायशास्त्र
English Meaning – The theory or philosophy of law; a legal system.

8.Inherently (Adverb)

Hindi Meaning – स्वाभाविक रूप से
English Meaning – In a permanent, essential, or characteristic way.

9.Legacy (Noun)

Hindi Meaning – विरासत
English Meaning – An amount of money or property left to someone in a will; something transmitted by or received from a predecessor or from the past.

10.Regulatory (Adjective)

Hindi Meaning – विनियामक
English Meaning – Relating to the supervision and control of a system or industry, often by the creation and enforcement of rules.

11.Default (Noun)

English Meaning – Failure to fulfill an obligation, especially to repay a loan or appear in a court of law; a pre-selected option adopted by a computer program or system when no alternative is specified.

12.Spirit (Noun)

English Meaning – The nonphysical part of a person which is the seat of emotions and character; the nonphysical part of a dead person; the prevailing temper or mood of a community or period.