The Supreme Court on Wednesday held that the Central Government has the legislative competence to introduce a mechanism for granting post-facto environmental clearances (ECs), but such a framework can only be created through a valid statutory notification issued under Section 3 of the Environment (Protection) Act, 1986, and not through an executive or administrative office memorandum.
The three-judge Bench comprising Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi struck down the Ministry of Environment, Forest and Climate Change’s Office Memorandum (OM) dated July 7, 2021, which had laid down a Standard Operating Procedure (SOP) for dealing with projects that had commenced construction or operations without obtaining prior environmental clearance under the Environmental Impact Assessment (EIA) Notification, 2006.
While declaring the 2021 OM ultra vires the Environment (Protection) Act, 1986 and constitutionally invalid, the Court clarified that its ruling would operate prospectively. Consequently, environmental clearances already granted under the 2021 OM and the 2017 statutory notification will remain valid unless challenged individually in accordance with law. The Court also directed that no fresh applications shall be entertained under either the 2017 notification or the 2021 Office Memorandum.
Delivering the judgment, the Bench reiterated that the prior environmental clearance regime introduced through the EIA Notification, 2006, is mandatory and cannot be diluted through executive instructions. It held that delegated legislation issued under statutory authority cannot be amended, modified or supplanted by an administrative order. Since the 2021 OM attempted to alter the statutory environmental clearance framework through an executive instruction, it was legally unsustainable.
The Court observed that the Office Memorandum effectively created a perpetual mechanism enabling projects that had commenced without mandatory environmental approval to subsequently seek regularisation. Such an administrative framework, it held, fundamentally altered both the nature of scrutiny and the eligibility criteria prescribed under the 2006 EIA Notification, thereby replacing delegated legislation with executive instructions, which is impermissible in law.
The Bench further held that the 2021 OM failed to satisfy the constitutional standards of proportionality and reasonableness and consequently violated Articles 14 and 21 of the Constitution. It concluded that the administrative framework undermined the statutory requirement of obtaining prior environmental clearance and could not withstand constitutional scrutiny.
At the same time, the Court clarified that there is no absolute legal prohibition preventing the Central Government from introducing a narrowly tailored post-facto environmental clearance mechanism in appropriate circumstances. It held that Parliament has authorised the Union Government under Section 3 of the Environment (Protection) Act, 1986, to issue statutory notifications in public interest. Therefore, if the Government considers it necessary, it may formulate a limited amnesty scheme through a valid statutory notification rather than an executive office memorandum.
Clarifying the scope of earlier precedents, the Bench observed that the judgments in Common Cause v. Union of India and Alembic Pharmaceuticals Ltd. v. Rohit Prajapati were rendered in the context of the statutory regime prevailing under the 2006 EIA Notification, which mandated prior environmental clearance. The observations in those decisions describing ex-post facto environmental clearances as alien to environmental jurisprudence could not be interpreted as imposing an absolute restriction on the Central Government’s statutory powers to frame a limited scheme in supervening public interest through delegated legislation.
The Court also examined subsequent decisions in Pahwa Plastics Pvt. Ltd. and D. Swami, observing that they correctly upheld the validity of the 2017 statutory notification dealing with environmental violations. However, it overruled those judgments to the extent they had upheld the validity of the 2021 Office Memorandum. It further clarified that the decision in Electrosteel was based on its peculiar facts and could not be treated as laying down a binding legal principle.
The Bench emphasised that although the executive cannot establish a post-facto environmental clearance regime through administrative instructions, constitutional courts may, in exceptional cases, exercise their powers under Article 142 of the Constitution to grant appropriate relief in order to do complete justice.
The litigation arose from a batch of writ petitions filed by environmental organisation Vanashakti and other petitioners challenging the Ministry’s Office Memorandum dated July 7, 2021. The petitioners argued that Section 3 of the Environment (Protection) Act could not be invoked to create a mechanism for regularising projects that had violated the mandatory requirement of obtaining prior environmental clearance. They further contended that the framework discriminated against law-abiding project proponents and violated Articles 14 and 21 by permitting defaulting entities to seek regularisation after commencing operations.
The Union Government defended the SOP by contending that it was not intended to grant ex-post facto environmental clearances but merely established a procedure for identifying and processing violation cases. According to the Centre, projects found environmentally impermissible would face closure, while permissible projects would undergo environmental damage assessment, remediation measures, compensation and appraisal under the EIA Notification, 2006 before being considered for prospective environmental clearance.
During the hearings, the Supreme Court examined whether courts could impose a blanket prohibition on post-facto environmental clearances and whether the legislature or delegated law-making authority could legally provide such a mechanism. The Bench also expressed concern that allowing projects to continue until violations were detected under the Office Memorandum could weaken the mandatory requirement of obtaining prior environmental clearance before commencement of any project.
The judgment also settles the legal uncertainty that had arisen after a series of conflicting decisions. In May 2025, a Bench comprising Justice Abhay S. Oka and Justice Ujjal Bhuyan had ruled in the Vanashakti case that no post-facto environmental clearances could be granted in future. Subsequently, in November 2025, a three-judge Bench led by the then Chief Justice B.R. Gavai recalled that judgment after observing that it appeared prima facie inconsistent with earlier precedents. Justice Ujjal Bhuyan had dissented from the recall order. The present Bench heard the fresh batch of writ petitions and review petitions, reserved judgment on April 1, 2026, and has now authoritatively clarified the legal position by holding that while post-facto environmental clearances are not inherently prohibited, any such regime must originate from valid delegated legislation and cannot be created through executive instructions.
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