New Delhi (ABC Live): For more than two decades, India’s environmental clearance (EC) regime under the Environment (Protection) Act, 1986 and the EIA Notification framework has rested on one basic rule: projects must usually obtain environmental clearance before construction or operation begins. In essence, this rule reflects the precautionary principle that guides Indian environmental law.

However, over time, regulatory practice and judicial interpretation have allowed limited flexibility. In some cases—especially those involving older projects, public sector undertakings, or procedural lapses rather than serious environmental harm—authorities have permitted post-facto (ex-post facto) environmental clearances, subject to strict conditions.

Nevertheless, this uneasy balance between principle and pragmatism reached a breaking point in Vanashakti v Union of India. In May 2025, a two-judge bench of the Supreme Court imposed a blanket bar on post-facto ECs and also invalidated Union Government Office Memorandums (OMs) issued in 2017 and 2021 that had allowed such clearances in limited situations.

As a result, thousands of operational and under-construction projects—many involving public infrastructure—suddenly became legally vulnerable. Consequently, in November 2025, a three-judge bench recalled the May judgment in review and restored the petitions for fresh adjudication, citing conflicts with earlier coordinate-bench precedents (see ABC Live’s detailed explainer: https://abclive.in/2025/11/18/explained-why-sc-recalled-the-vanashakti-eia-judgment/).

Against this backdrop, Justice Surya Kant, the Chief Justice of India, made an unusually candid institutional admission: the Supreme Court itself had contributed to unpredictability by failing to fully engage with its own precedents.

Background: The Procedural Journey of Vanashakti

The present Bench comprises:

• Justice Surya Kant
• Justice Joymalya Bagchi
• Justice Vipul Pancholi

CJI Surya Kant’s Observations: A Rare Institutional Introspection

First, CJI Surya Kant directly criticised the approach of the earlier two-judge bench:

“It was the duty of the 2-judge bench that they should have considered the entire case law at that time before taking a view instead of unnecessarily creating uncertainty.”

Further, he added:

“We ourselves are leading to unpredictability, and that is unfortunate.”

Importantly, the CJI also agreed that the review bench was right in treating the May 2025 ruling as per incuriam, meaning that it ignored binding precedent.

Moreover, he made a pointed remark on judicial priorities:

“We have enough time to refer to various parts of the Constitution, but we don’t have enough time to refer to our precedents!”

The Precedent Conflict at the Heart of the Case

At the same time, Justice Joymalya Bagchi clarified that a review court normally only recalls an earlier judgment and does not decide the merits:

“The lis comes alive after the review.”

Therefore, many observations in the review judgment may operate as obiter dicta, rather than binding law.

Real-World Impact Highlighted in Court

Meanwhile, the Union Government, represented by Tushar Mehta, told the Court that the May ruling placed several major projects under uncertainty.

Macro Exposure: Why the Stakes Are High

(Indicative estimates based on sectoral and parliamentary disclosures)

Interpretative Paths Before the Court

Why This Case Now Transcends Environmental Law

Today, the Vanashakti litigation tests:

• Judicial consistency
• Respect for coordinate-bench precedent
• Balance between environmental protection and development
• Institutional credibility of the Supreme Court

Ultimately, CJI Surya Kant’s remarks underline one central idea: certainty in law is itself a constitutional value.

What Happens Next

The Supreme Court will hear detailed arguments on February 25 to decide:

• Status of 2017 & 2021 OMs
• Scope of post-facto ECs
• Binding nature of review observations

Conclusion

By recognising internal inconsistency and committing to a fresh, open-minded hearing, the Supreme Court has a chance to restore clarity to environmental clearance jurisprudence. At the same time, it can reaffirm a simple truth: the rule of law depends not only on what courts decide, but also on how consistently they decide it.

ABC Live Editor’s Note

This report analyses Chief Justice Surya Kant’s courtroom observations as part of a wider institutional moment for the Supreme Court of India. The focus extends beyond environmental clearance policy to judicial consistency, precedent discipline, and regulatory certainty—issues that directly shape India’s infrastructure pipeline, public investment, and environmental governance.