Written by Aamir KhanNew Delhi | November 18, 2025 04:55 PM IST 4 min readJustice Ujjal Bhuyan recorded a sharp dissent while disagreeing with CJI BR Gavai and Justice K Vinod Chandran on the issue of retrospective green clearances to construction projects.While Chief Justice of India BR Gavai and Justice K Vinod Chandran agreed to recall the judgment prohibiting the Centre from granting retrospective environmental clearances (ECs) to projects found violating environmental norms, Justice Ujjal Bhuyan sharply dissented from the majority view.CJI Gavai and Justice Chandran, in separate concurring verdicts, recalled the May 16 judgment and placed the matter before an appropriate bench for reconsideration of the issues afresh. Justice Bhuyan, on the other hand, called the review judgment a “step in retrogression” in his contrarian view.The May 16 verdict of an erstwhile Supreme Court bench struck down and held as “illegal” a 2017 Ministry of Environment notification that allowed grant of ECs to projects ex-post facto, i.e., after commencement of work. It also struck down a 2021 Office Memorandum (OM) issued by the Ministry in pursuance of the 2017 notification.Here are 10 crucial observations in the dissenting notes of Justice Bhuyan:Not only it is the fundamental duty of every citizen to protect the environment under Article 51A(g) of the Constitution of India, right to have a safe environment is now a facet of Article 21.Concept of ex post facto EC is completely alien to environmental jurisprudence including the 1994 EIA notification and the 2006 EIA notification.Environmental compliance should not be seen as an obstacle to development but as a measure towards achieving sustainable development and inter-generational equity.Ex post facto EC is an anathema to environmental jurisprudence which cannot countenance such a notion or concept.No concept of ex post facto EC in environmental jurisprudence.It is unfortunate that a false narrative is being created pitting environment against development. It is a completely untenable binary in as much as ecology and development are not adversaries.The deadly Delhi smog reminds us everyday about the hazards of environmental pollution. The Supreme Court as the highest constitutional court of the country has the duty and obligation under the Constitution of India and the laws framed thereunder to safeguard the environment.It cannot be seen as backtracking on the sound environmental jurisprudence that has evolved in this country, that too, on a review petition filed by persons who have shown scant regard for the rule of law.The review judgment is an innocent expression of opinion. It overlooks the very fundamentals of environmental jurisprudence.Precautionary principle is the cornerstone of environmental jurisprudence. Polluter pays is only a principle of reparation. The review judgment is a step in retrogression.Justice Bhuyan further noted that the review petition was filed by the Confederation of Real Estate Developers Association of India (a body of real estate developers) before the court, and the author of the 2017 notification and 2021 OM, i.e., the Ministry of Environment and Forests and Climate Change, did not file any review petition for review of the Vanashakti judgment.“MOEF&CC has accepted the verdict of this Court in Vanashakti,” the judge said.BackgroundOn October 9, a bench headed by the CJI had reserved the verdict after hearing several senior advocates, including Kapil Sibal, Mukul Rohatgi, and Solicitor General Tushar Mehta, appearing for various industrial and infrastructural entities as well as government bodies, in favour of the review or modification of the impugned judgment.On May 16, a bench of Justices A S Oka and Bhuyan restrained the Centre from issuing circulars/ orders/ OMs/ notifications providing for grant of ex-post facto EC or for regularising acts done in contravention of the 2006 Environment Impact Assessment (EIA) notification.Story continues below this adThe bench, however, clarified that environmental clearances already granted till date under the 2017 notification and the 2021 office memorandum “shall…remain unaffected.”The 2017 notification had offered a one-time amnesty window of sorts, and allowed approvals for projects where work had commenced without obtaining prior environment clearance under the 2006 EIA notification.The 2017 amnesty was applicable for six months between March 2017 and September 2017. In 2021, citing compliance of a National Green Tribunal order, the Ministry issued an office memorandum spelling out a standard operating procedure (SOP) “for dealing with violation cases”.The erstwhile bench struck these down. The judgement came on a clutch of petitions, including one by Mumbai-based NGO Vanashakti, challenging the notification.Aamir Khan is Head-Legal Project, Indian Express digital and is based in New Delhi. Before joining Indianexpress.com, he worked with Press Trust of India as News Editor, editing legal stories from the Supreme Court and various High Courts. He also worked as an Associate Editor with Bar and Bench, where he led long-form storytelling, ran series on crucial and interesting legal issues, conducted exclusive interviews and wrote deep-dive stories. He has worked for the Indian Express print between 2013 and 2016, when he covered law in Mumbai and Delhi. Aamir holds an LLB degree, PG Diploma in Journalism (New Media) and a Bachelor's in Life Sciences and Chemistry. You can reach him at: aamir.khan@indianexpress.com. ... Read More© IE Online Media Services Pvt Ltd