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In an anthropocentric world where man shapes nature to meet his wants… we need to examine the issue through the prism of eco-centric proportionality”—thus opens the Supreme Court’s judgement in Vanashakti v Union of India, delivered on July 29, 2026. Authored by Justice Joymalya Bagchi on behalf of a bench that also comprised Chief Justice Surya Kant and Justice Vipul Pancholi, the judgement addresses the legality of Union government orders that regularised constructions carried out without prior environmental clearance.
The judgement starts with what can be termed an incorrect legal foundation: “The Bench is entrusted with the solemn duty to strike a balance between the existential right of all living beings both present and the future to a pollution free environment and an aspirational right to development of a sixth of the world’s population.” It is unclear how ‘striking a balance’ becomes a judicial function to be discharged by the court. Decades ago, in Tarun Bharat Sangh v Union of India (1993), the Supreme Court sounded a cautionary note in adjudicating environmental issues: “...we are called upon to ensure observance of enacted laws made by the State to protect the environment and ecology of the area. In such a case, we need not be oppressed by considerations of balancing the interests of economy and ecology. That has already been done by the Legislature and Parliament”.
Before the court were two principal legal issues: First, whether ex post facto clearances can be justified by issuing a notification under the Environment (Protection) Act, 1986. Second, whether the same can be done through an office memorandum (OM). With respect to the first question, the court held that the 2017 notification is a “valid narrowly tailored and time bound delegated legislation traceable to Section 3 of the 1986 Act read with Section 21 of the General Clauses Act. On the second question, the court was categorical: the OM is an administrative instruction contrary to the Environmental Impact Assessment (EIA) Notification, 2006, and deserves to be quashed.
Strong as it may sound, what the Supreme Court did was nothing that had not been done in the past...
This article was originally published in the August 16-31, 2026 print edition of Down To Earth