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 Pharmaceuticals v. Rohit Prajapati 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 v Dastak NGO and D Swami v Karnataka State Pollution Control Board (which permitted post-facto EC) 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 tests of proportionality and reasonableness because it created an open-ended amnesty for all eligible projects without any intelligible basis linked to overriding public interest. It was therefore declared ultra vires the Environment (Protection) Act as well as Articles 14 and 21 of the Constitution.

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. Pending applications under both instruments are to be processed to their logical conclusion, including applications that were rejected solely because of the Supreme Court's earlier interim orders or the now-recalled Vanashakti-I judgment.

The judgment further held that the 2023 Jan Vishwas amendments, which decriminalised several regulatory violations under the Environment (Protection) Act, reinforce the Centre's power under Section 3 of the Act to frame appropriate statutory amnesty schemes for specified categories of non-compliant projects where larger public interest so demands.

The Court also restrained the Central Government from issuing future administrative orders granting ex post facto environmental clearances to projects commenced in violation of the 2006 Notification. It clarified, however, that the Centre remains free to issue a valid statutory notification under Section 3 of the Environment (Protection) Act if circumstances warrant such an exceptional amnesty scheme. The judgment also preserved the Supreme Court's own power under Article 142 of the Constitution to grant ex post facto environmental clearance in appropriate cases to do complete justice.

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.

Headnote

Environment (Protection) Act, 1986 — Section 3, Section 5, Section 15 — Environment Impact Assessment (EIA) Notification, 2006 — Office Memorandum dated 07.07.2021 — Ex Post Facto Environmental Clearance (EC) - Mandatory Nature of Prior EC Regime - The requirement of obtaining prior Environmental Clearance (EC) under the EIA Notification, 2006 is mandatory - The core philosophy of the notification ("look before you leap") encapsulates the precautionary principle - A project proponent commencing construction, expansion, or process without prior EC acts in breach of a non-negotiable statutory prerequisite - Such an unauthorized act is void ab initio, and penal consequences (whether criminal or civil penalties under the Jan Vishwas Act, 2023) do not automatically purge or condone the breach. [Paras 34 - 80]

Distinction Between Notification (Delegated Legislation) and Office Memorandum (Executive Instruction) - 2017 Notification (S.O. 804(E) dt. 14.03.2017) - Held that It is delegated legislation promulgated under Section 3(1) and Section 3(2)(v) read with Rule 5(3)(d) of the Environment (Protection) Rules, 1986 - It carved out a narrowly tailored, time-bound, closed-ended amnesty/violation-management mechanism for projects non-compliant as on its date - It satisfies the tests of reasonable classification under Article 14 and proportionality under Article 21 of the Constitution. [Paras 50, 63, 64, 66, 80]

2021 Office Memorandum (OM dt. 07.07.2021): Held to be ULTRA VIRES and QUASHED - Issued as an administrative order, it provided a perpetual, open-ended parallel route to regularize non-compliant projects upon payment of capped compensation - An executive instruction cannot alter, supplant, or dilute delegated legislation (the 2006 Notification) - It fails the test of proportionality and Article 14 as it treats unequal's equally by equating compliant and non-compliant proponents without establishing a supervening public interest. [Paras 68 - 80]

Application of Article 142 and Prospective Quashing -To protect supervening public interest (e.g., hospitals, public infrastructure, AIIMS Odisha, airports, slum rehabilitation projects) and resolve legal uncertainty resulting from conflicting interim orders, the quashing of the 2021 OM is made prospective - All ECs already granted under the 2017 Notification and 2021 OM remain valid - All pending applications filed under the 2017 Notification/2021 OM shall be taken to their logical conclusion in accordance with law - No fresh applications for post-facto EC under these instruments shall be entertained. [Relied on Common Cause v. Union of India (2017) 9 SCC 499; Alembic Pharmaceuticals Ltd. v. Rohit Prajapati (2020) 17 SCC 157; Electrosteel Steels Ltd. v. Union of India (2023) 6 SCC 615; Paras 77-80]

Case: Vanashakti v. Union of India

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

Citation : 2026 LiveLaw (SC) 735

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