The Vanashakti judgment had previously barred the granting of ex-post-facto environmental clearances (EC).

• Under Vanashakti Judgment, court had struck down a 2017 notification and 2021 Office Memorandum (OM) of Centre, which in effect recognised the grant of ex post facto ECs.

Reasoning for Recalling the Vanashakti Judgment:

• Legal precedents ignored: CJI observed that the Vanashakti judgment was rendered without taking notice of previous judgments of coordinate benches, thus rendering it per incuriam. 
  • E.g. D Swamy vs Karnataka State Pollution Control Board (2021) held that post-facto EC can be granted in exceptional cases
  • SC in Alembic Pharmaceuticals Ltd (2020) while discouraging post-facto EC, had regularized existing post-facto ECs with directions to pay monetary penalties.
• Economic costs: Adhering to the Vanashakti ruling would lead to the demolition of completed public projects.
  • Also demolishing large structures may cause more pollution e.g. debris, reconstruction emissions etc.

About Ex-Post Facto Environmental Clearance:

• An ex-post facto EC essentially allows a project proponent to continue with its project without obtaining an EC prior to project commencement.
• The Environmental Impact Assessment (EIA) Notification, 2006, clearly requires ‘prior environmental clearance’ before a project can start.
• Previously, in Common Cause v. UoI & Ors. (2017), Supreme Court held that the concept of ex post facto or retrospective environmental clearance is completely alien to environmental jurisprudence.