BREAKING| Supreme Court Says Centre Can Allow Post-Facto Environmental Clearances Through Statutory Notification, Quashes 2021 Office Memorandum

The Supreme Court on Wednesday held that while the Central Government has the power to provide for the grant of post-facto environmental clearances (ECs) through valid statutory notifications issued under Section 3 of the Environment (Protection) Act, 1986, it cannot do so through a mere administrative office memorandum.

A bench of Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi accordingly quashed the Union government's 2021 Office Memorandum (OM), which created a mechanism for granting environmental clearance to projects that had commenced operations without obtaining prior EC. However, the Court gave the ruling prospective effect and protected clearances already granted under the impugned regime.

The Bench held that the 2021 OM was ultra vires the Environment (Protection) Act, 1986 because it sought to alter the existing environmental clearance framework through an administrative order rather than a statutory notification.

"The prior EC regime under the 2006 notification is mandatory unless amended through a statutory notification," Justice Bagchi said at the time of pronouncement.

Clarifying the legal position on post-facto environmental clearances, the Court observed that its earlier decisions in Common Cause and Alembic Pharmaceuticals were rendered in the context of the then prevailing law. These judgments did not create an absolute prohibition on the Central Government's power to frame a narrowly tailored amnesty scheme in appropriate cases.

The Court said the observations in Common Cause and Alembic that ex-post facto environmental clearance is "alien" to environmental jurisprudence must be understood in the statutory context of the 2006 Environmental Impact Assessment (EIA) Notification, which mandated prior environmental clearance.

"The observation in Common Cause and Alembic that ex-post facto EC is alien must be seen in the statutory context of the 2006 notification. They do not put a clog on the power of the Centre to issue a narrowly tailored amnesty scheme in the supervening public interest," the Bench observed.

The Court explained that while Common Cause and Alembic laid down the normative legal position under the then prevailing statutory framework, later decisions in Pahwa Plastics and D Swami must be understood in that context. It further noted that the ruling in Electrosteel turned on the peculiar facts of that case and "cannot be read as statutes."

The Bench approved the reasoning in Pahwa Plastics and D Swami insofar as they upheld the validity of the 2017 notification providing a limited mechanism for dealing with violations. However, it overruled those decisions to the extent they upheld the validity of the 2021 Office Memorandum.

According to the Court, unlike the 2017 notification issued under the statutory framework, the 2021 OM was merely an administrative order that envisaged a perpetual regime for granting environmental clearance to projects that had commenced without prior approval.

"The 2021 OM is an administrative order, and envisages a perpetual regime for grant of EC for projects undertaken without prior EC. The 2021 OM supplants an earlier executive regime through an administrative order, which is impermissible," the Court held.

The Bench further held that the OM failed the constitutional test and was therefore liable to be struck down. Accordingly, the Court declared the 2021 OM ultra vires the Environment (Protection) Act, 1986 and quashed it prospectively.

At the same time, it protected environmental clearances already granted under both the 2017 notification and the 2021 OM, observing that they would continue to remain valid unless individually challenged in accordance with law. The Court also directed that no further applications would be entertained under either the 2017 notification or the 2021 OM.

The judgment made it clear that while the Union Government cannot create a post-facto environmental clearance mechanism through an administrative order, it retains the power to frame such a scheme, if necessary, through a valid statutory notification issued under Section 3 of the Environment (Protection) Act, 1986.

Background

In May 2025, a bench comprising Justice Abhay S Oka and Justice Ujjal Bhuyan, in the writ petition filed by Vanashakti and other NGOs, had barred the grant of post-facto ECs in future. However, in November 2025, a bench comprising CJI BR Gavai, Justice K Vinod Chandran and Justice Ujjal Bhuyan (dissenting) recalled the Vanashakti judgment, observing that it prima facie appeared to be contrary to other precedents, and posted the matter for fresh hearing.

The fresh hearing of the writ petitions was held before the present bench led by CJI Surya Kant, and judgment was reserved on April 1, 2026.

Arguments

Vanashakti challenged the Ministry of Environment, Forest and Climate Change's Office Memorandum dated July 7, 2021, which lays down a Standard Operating Procedure (SOP) for identifying and dealing with violation cases under the Environmental Impact Assessment (EIA) Notification, 2006.

The NGO argued that Section 3 of the Environment (Protection) Act, 1986 cannot be used to create a framework for regularising projects that commenced operations without prior environmental clearance. It further contended that the regime violates Articles 14 and 21 of the Constitution by placing compliant project proponents at a disadvantage while allowing violators to seek regularisation later.

The Union Government defended the SOP, maintaining that it is not a mechanism for granting ex-post-facto environmental clearances but for dealing with violation cases. It submitted that impermissible projects are liable to be closed, while permissible projects are subjected to environmental damage assessment, remediation measures, compensation and appraisal under the EIA Notification, 2006 before any prospective environmental clearance is granted.

During the hearings, the Court questioned whether courts could adopt a blanket rule prohibiting post-facto environmental clearances and whether the legislature or a delegated law-maker could provide for such a regime. The Court also expressed concern that permitting projects to continue until authorities identify violations under the Office Memorandum could dilute the requirement of obtaining prior environmental clearance.

Case: Vanashakti v. Union of India

Case No.: W.P.(C) No. 1394/2023 (Diary No. 50009/2023)