The Supreme Court on Tuesday, in a rare 2:1 verdict, recalled its May 16 ruling that had invalidated the Centre’s move to grant ex post facto environmental clearances, with the majority citing overriding public interest and the risk of wasting nearly ₹20,000 crore in public projects. The decision, which drew a sharp dissent warning of a “retrogression” in environmental jurisprudence, puts the contentious issue back before the Chief Justice for further action.

While Chief Justice of India B R Gavai and Justice K Vinod Chandran backed the recall, Justice Ujjal Bhuyan dissented saying the majority decision “overlooks the very fundamentals of environmental jurisprudence” and “is a step in retrogression”, according to a report by The Indian Express.

The matter will now be placed before the CJI for further action.

Tuesday’s decision came on a petition filed by the Confederation of Real Estate Developers of India (CREDAI) and applications by the Steel Authority of India (SAIL) and State of Karnataka, seeking review of the May 16 verdict in Vanashakti vs Union of India, delivered by a bench of Justices A S Oka and Justices Bhuyan — Justice Oka has since retired. The May 16 ruling also struck down a 2021 Office Memorandum issued in pursuance of the 2017 notification.

During the hearing, it was pointed out to the court that 24 projects already initiated, involving expenditure to the tune of Rs 8,293 crore, were awaiting EC at the Central level, while at the state level, 29 projects worth Rs 11,168 crore remained pending. These included construction of hospitals/medical colleges/airports including the 962-bed AIIMS Medical College and Hospital in Odisha, and the greenfield airport in Vijayanagar in Karnataka. There were also common effluent treatment plants, awaiting post facto clearance.

Writing for the majority, CJI Gavai said if the May 16 judgment “is not recalled, it will result in demolition of various buildings/projects constructed out of public exchequer to the tune of nearly Rs 20,000 crore”. He asked “whether it would be in the public interest to demolish all such projects and permit the money spent from the pocket of the public exchequer to go in the dustbin” and whether demolishing and constructing them again “would be in the larger public interest or would in fact be counter-productive to the public interest”.

The CJI said such a step, “rather than being in public interest would result in throwing the valuable public resources in the dustbin”.