New Delhi : The National Alliance for Justice, Accountability & Rights (NAJAR) has expressed strong opposition to the statutory pathway for granting post-facto environmental clearances recognised by the Supreme Court in its recent judgment in Vanashakti v. Union of India. NAJAR, a pan-India coalition of lawyers, law students, faculty members, legal researchers and environmental justice advocates, said the judgment delivered on July 29, 2026, raised serious constitutional and environmental concerns that should be reconsidered by a Constitution Bench of the Supreme Court.
The Supreme Court reaffirmed that prior environmental clearance under the Environmental Impact Assessment Notification, 2006, remains mandatory. It also quashed the Union government’s 2021 Office Memorandum, holding that an administrative instruction could not establish a continuing mechanism for projects that had begun operations without obtaining prior clearance. However, the Court recognised that the Centre could introduce a narrowly tailored scheme through a valid statutory notification under the Environment (Protection) Act, 1986, in appropriate cases involving overriding public interest. The ruling also protected environmental clearances already granted under the earlier framework unless separately challenged in accordance with law. ‘Retrospective regularisation undermines preventive law’
NAJAR said its principal concern was the possibility that projects which violated environmental clearance requirements could subsequently seek legal regularisation after construction had begun or ecological damage had occurred. The organisation argued that environmental assessment is intended to take place before land is altered, construction begins or affected communities face the consequences of a project.
Under the EIA Notification, 2006, projects falling within its scope must obtain prior environmental clearance through processes that may include screening, scoping, public consultation and appraisal. These procedures are designed to assess environmental consequences, consult affected communities and prescribe measures for limiting or compensating for environmental damage. “Once the project is built and the environment is altered, the pressure to regularise illegality becomes overwhelming,” NAJAR said, warning that environmental regulation could then begin responding to a fait accompli instead of preventing harm. The coalition maintained that such an approach could reward non-compliance by allowing project proponents to begin work first and seek legal approval later.
Coalition cites earlier environmental jurisprudence
NAJAR referred to a series of Supreme Court judgments that, according to the organisation, established precaution, sustainable development and environmental protection as substantive legal principles. It cited Vellore Citizens’ Welfare Forum v. Union of India on the precautionary principle and sustainable development, and M.C. Mehta v. Kamal Nath on the public trust doctrine. The statement also referred to Common Cause v. Union of India and Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, arguing that the earlier decisions treated prior environmental appraisal as an essential safeguard rather than a procedural formality.
Background to the dispute
In 2017, the Union government introduced a one-time mechanism under which projects operating in violation of environmental clearance requirements could apply for clearance within a specified period, subject to conditions including damage assessment, remediation and community augmentation. A subsequent Office Memorandum issued in 2021 prescribed procedures for considering environmental clearances for projects that had commenced operations or expanded without securing the required approvals.
The earlier Vanashakti judgment had struck down the 2017 notification and the 2021 Office Memorandum and restrained the government from introducing a similar mechanism. The judgment was subsequently recalled following review proceedings, after which the issue was reheard by a three-judge Bench. In its July 29 ruling, the Court invalidated the 2021 Office Memorandum as an administrative measure but upheld the legal effect of the 2017 notification and recognised the Centre’s authority to introduce a valid statutory framework in narrowly defined circumstances.
NAJAR flags five major concerns
NAJAR said permitting any continuing route for retrospective regularisation could weaken the mandatory character of prior environmental clearance. It argued that the judgment’s recognition of a possible statutory pathway appeared inconsistent with the preventive reasoning underlying the requirement for prior approval. The coalition also warned that such a framework could create “perverse incentives” by allowing project proponents to use completed construction, sunk investment and claims of public interest as arguments against closure, demolition or ecological restoration.
According to NAJAR, the larger and more advanced a project becomes, the stronger the pressure may be to preserve it despite the original violation. The organisation further cautioned that an exceptional amnesty could gradually become normalised unless terms such as “public interest”, “narrowly tailored” and “time-limited” were defined with precision.
Jan Vishwas framework could weaken deterrence
NAJAR also linked the ruling to the decriminalisation of several environmental violations under the Jan Vishwas Act, 2023. It contended that replacing criminal consequences with civil penalties, while simultaneously leaving open the possibility of retrospective approval, could turn environmental compliance into a calculable financial cost for businesses. “Violation becomes more easily calculable as a financial risk,” the organisation said, warning that ecological harm could increasingly be treated as something capable of being priced, settled and absorbed.
Constitution Bench review sought
NAJAR called for the July 2026 judgment to be placed before a Constitution Bench for what it described as fresh and fair adjudication. The organisation said the recognition of a statutory route for retrospective regularisation was difficult to reconcile with the Court’s finding that prior environmental clearance was mandatory, preventive and central to environmental rule of law. It maintained that environmental protection formed part of constitutional guarantees and that departures from prior-clearance requirements should not be allowed to undermine safeguards built through decades of environmental jurisprudence.
Demands placed before Centre
NAJAR urged the Union government not to introduce recurring or sector-wide amnesty schemes for projects that had violated environmental clearance requirements. It demanded that deliberate, repeated or strategic violations—and projects causing irreversible ecological harm, serious community injury or damage to ecologically sensitive areas—be excluded from any exceptional regularisation mechanism. The coalition also said monetary penalties should not be treated as sufficient. Any exceptional case considered by the authorities, it said, must involve an independent damage assessment, mandatory public disclosure, ecological restoration, continuous monitoring and accountability for officials who enabled or ignored the violation.
NAJAR stressed that prior environmental clearance must remain a substantive safeguard rather than a formality capable of being cured after environmental damage has taken place. “Environmental rule of law requires prevention, not post-hoc negotiation after ecological damage has already occurred,” the coalition said. The statement was issued by NAJAR’s Land, Forests and Ecology Thematic Group.
