The November 2025 Vanashakti review altered a settled environmental precedent by subtly loosening the rule on when the Court may disregard its own past judgments. This shift is termed ‘persuadability per incuriam’ and is identified as the true damage.
I. Introduction
Indian environmental law rests on one simple command, that a project must obtain clearance before work begins, so that harm is weighed before it happens rather than after. In May 2025, a two-judge bench of the Supreme Court of India (“SCI”) in Vanashakti v. Union of India (“Vanashakti”) enforced that command. It held that ex post facto clearances violate the Environment Impact Assessment Notification, 2006 and Article 21 of the Constitution. Six months later, a three-judge bench in Confederation of Real Estate Developers of India v. Vanashakti (“CREDAI”, the judgment being “the Review”) recalled it. The majority found Vanashakti per incuriam (HMJ. Ujjal Bhuyan dissenting), the narrow rule that lets a court disown a decision reached in ignorance of binding law.
Most commentary reads the Review as a clash of values. An earlier piece on this blog reads it through environmental balancing. In a more recent piece on this blog, Aman Anand reads the majority’s demolition-pollution and sunk-cost reasoning as result-oriented adjudication. He also warns that after-the-fact regularisation erodes prior compliance incentives. Gulnar Mistry shows that the Review treats case outcomes as binding precedent and calls this a novel test but does not measure it against the settled law of per incuriam.
Each of these readings captures something true, yet none isolates the move that made the recall possible, a quiet loosening of per incuriam itself. The doctrine reaches only judgments that ignored binding law, a statute or a precedent, yet the Review faults Vanashakti for ignoring paragraphs that “would have had a direct bearing”. This piece calls that loosened trigger persuadability per incuriam, because the Court no longer asks whether the earlier bench ignored binding law, only whether it ignored something a later bench finds persuasive. That single shift allows non-binding parts of old judgments to pass for binding law.
The same shift explains why the dissent, for all its force, lands too softly. It contests which line of cases is per incuriam, a question that arises only once the loosened test is granted, so answering it leaves the test untouched. This piece analyses the test instead, sorting the five cited cases by what actually binds, measuring the Review’s trigger against authority the Review itself quotes, and showing through Rafiq Masih that there was no conflict to cure.
II. Three Categories and One Label
The Review faults Vanashakti for ignoring five judgments, which do not bind in the same way and fall into three groups.
The first group contains Common Cause v. Union of India (“Common Cause”) and Alembic Pharmaceuticals v. Rohit Prajapati (“Alembic”), and consists of precedents which grant relief rather than lay down a rule. In Alembic (¶ 43) the SCI let three polluting industries keep running without prior clearance, and said it did so “under Article 142 of the Constitution”. State of Punjab v. Rafiq Masih (¶ 11) draws the line that decides this case, holding that Article 142 directions do not constitute binding precedent, since such directions do equity on the facts of one dispute rather than declare law that Article 141 makes binding on all courts. Common Cause sits here too, and awkwardly for the Review, because it let miners restart only after they first obtained clearances and paid their dues.
The second group contains Electrosteel Steels v. Union of India (“Electrosteel”) and Pahwa Plastics v. Dastak NGO, and consists of a rule being applied to particular facts, and here the Review undermines its own charge. It admits (¶ 59) that Vanashakti “rightly relied on paragraph 72 of Electrosteel” for the rule that prior clearance is “non-negotiable”, faulting the earlier bench only for missing paragraphs 73 to 87, which hold the relief that let one steel plant run pending fresh approval. Vanashakti therefore took the rule and passed over only its softening. The line from Electrosteel that “the 1986 Act does not prohibit ex post facto” clearance (¶ 75) is a case-specific conclusion drawn from statutory silence that bound no later bench on the validity question, and Pahwa simply follows Electrosteel.
The third group consists of a passing remark and contains only D. Swamy v. Karnataka State Pollution Control Board, a petition to close a bio-medical waste plant in which no party challenged the 2017 Notification, the retrospective window struck down by Vanashakti. The line that it is “a valid statutory notification” (¶ 22) is therefore obiter, an aside the dissent describes as “…de hors any challenge and adjudication…” (¶ 42.1).
The Review nonetheless gathers these three kinds of material, the relief, the application and the aside, under one label and treats each as binding ratio whose omission triggers per incuriam. That is a category error and, Rafiq Masih removes even the appearance of a conflict, holding that a clash between an Article 142 line and a declared-law line is illusory, so that a reference was “unnecessary”. Vanashakti followed the ratio of Common Cause and Alembic, and the outcomes it supposedly ignored never bound anyone.
III. The Test That Was Not There
The settled test is narrow, and the Review acknowledges it. A five-judge bench in Bajaj Alliance General Insurance Co. v. Rambha Devi (¶ 161) which the Review majority itself quotes, requires the ignored authority to be “central to the legal issue”, the omission to be a “glaring case of obtrusive omission”, the reasoning to be “demonstrably wrong”, and the doctrine to reach only the ratio. State of Bihar v. Kalika Kuer puts the point more bluntly, holding that a decision is not rendered per incuriam merely because “a possible aspect of the matter was not considered”. On this law, the cure for disagreement is a larger bench rather than a recall.
Yet the Review recites this narrow test and then abandons it in application. The Chief Justice of India’s (“CJI”) opinion (¶ 121) finds Vanashakti per incuriambecause “various relevant paragraphs which would have had a direct bearing” were not placed before the earlier bench, and relevant paragraphs are not the same thing as binding authority centrally ignored. The Review offers no authority for this lower threshold, and the gap between the test it states and the test it applies is persuadability per incuriam.
IV. The Cost of Persuadability
The damage transcends environmental law, and it shows in two ways. The first is that persuadability per incuriam turns review into appeal. CREDAI was already a party and sought review under Article 137, the power to correct the Court’s own judgments rather than to hear a fresh challenge. Kamlesh Verma v. Mayawati (¶¶ 15–16) confines that power, holding that “… a review is by no means an appeal in disguise …” and that “… the mere possibility of two views on the subject is not a ground for review”. Persuadability per incuriam, by contrast, allows a recall whenever a later bench reads the same cases differently, turning review into appeal.
This is also where Anand’s result-oriented reading, persuasive as diagnosis, remains incomplete as explanation. He rightly notes that per incuriam declarations can become a device for sidestepping inconvenient rulings, yet his framework treats the declaration as one symptom of outcome-driven reasoning among several, when it is the only move that could do the work. An outcome preference is not a ground of review, and the demolition dust and sunk costs he critiques could at most have moulded relief in a live case. Only per incuriam could recall a precedent, so the loosened test carries the entire weight of the result. The gap between Bajaj Alliance and “direct bearing” also marks where pragmatism turns “unjudicial” in Simonett’s (p. 209) sense, the standard Anand invokes, since a court crosses that line when it loosens its own doctrine to reach its preferred result.
The second is that the loosened test supplies a shortcut for weakening settled environmental law where the apt route is a larger bench. The dissent calls the recall “a step in retrogression” (¶ 57) and invokes non-regression. Anand’s deterrence warning describes the same slide from the other side, and it is the loosened test that converts it from a one-case accommodation into a repeatable rule.
V. Conclusion
The dissent insists that relief under Article 142 cannot be ratio, and it is right, yet the point answers the majority on ground the majority had already left, since the recall never needed relief to be ratio. It needed only paragraphs with “a direct bearing” and a test loose enough to make them count, and persuadability per incuriam supplied both quietly. The restored petitions have since been reheard by a three-judge bench led by CJI Surya Kant, and verdict was reserved in April 2026 after the petitioners pressed for a reference to a Constitution Bench. The bench cannot undo the recall, but it can still prevent the method from hardening into doctrine, by restoring per incuriam to where Bajaj Alliance and Kamlesh Verma left it and deciding validity on the merits rather than on a past bench’s omissions. If it does, the rule of prior clearance can stand again on its own reasoning. If it does not, no judgment is ever quite final, and each holds until the next bench would have read the old cases differently.
Manraj Singh Chandpuri is a third-year B.A. LL.B. student at the University Institute of Legal Studies, Panjab University
