The Supreme Court on Wednesday quashed the 2021 Office Memorandum (OM) that permitted the grant of environmental clearances (ECs) to projects which had commenced operations without obtaining prior environmental clearance, holding that the executive instruction impermissibly created a perpetual post facto clearance regime in derogation of the statutory framework under the Environment (Protection) Act, 1986 and the EIA Notification, 2006.
At the same time, the Bench clarified that while prior environmental clearance remains the governing rule, the Central Government is not denuded of its powers under Section 3 of the 1986 Act to frame narrowly tailored, time-bound amnesty notifications in exceptional situations where overriding public interest so warrants. It further upheld the validity of the 2017 notification, overruled parts of earlier judgments to the extent they upheld the 2021 OM, protected environmental clearances already granted under the existing regime and restrained the Centre from issuing similar administrative orders in future.
Ex Post Facto Environmental Clearances is alien to environmental jurisprudence
Delivering the judgment, Justice Joymalya Bagchi observed that its earlier decisions declaring ex post facto environmental clearances to be alien to environmental jurisprudence had to be understood in the statutory context in which they were rendered. According to the Court, those rulings affirmed the mandatory nature of prior environmental clearance under the 2006 Notification but did not completely foreclose the Central Government’s statutory powers to formulate limited amnesty schemes in exceptional circumstances. The Court observed:
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“Ex-post facto EC is alien to environmental jurisprudence must be seen in the statutory context in which they were made, namely the 1986 Act and the clear and unequivocal words ‘prior environmental clearance’ in the 2006 notification. They do not place a clog on the power of the Central Government to issue an appropriate narrowly tailored amnesty notification in supervening public interest as an exception to the 2006 notification.”
The Bench further held that the Jan Vishwas (Amendment of Provisions) Act, 2023, which decriminalised several regulatory contraventions under the Environment (Protection) Act, strengthened the conclusion that Parliament had left sufficient room for the Central Government to devise narrowly tailored regularisation schemes where larger public interest justified such an exercise. It observed:
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“The decriminalization of regulatory contraventions under the 1986 Act through the Jan Vishwas Act, 2023 reinforces our conclusion that the Central Government has ample power under Section 3 to issue appropriate notifications formulating amnesty schemes with regard to such classes or categories of non-compliant projects whose sustainability is necessary to subserve larger public interest.”
Precedential Value of Earlier Precedents
The Court clarified the precedential value of earlier decisions dealing with environmental clearances. The Court also clarified the precedential value of its earlier decisions on ex post facto environmental clearances. It held that while Common Cause v. Union of India (2017) 9 SCC 499 and Alembic Pharmaceuticals Ltd. v. Rohit Prajapati (2020) 17 SCC 157 laid down the normative legal position requiring prior environmental clearance, subsequent decisions in Pahwa Plastics Pvt. Ltd. v. Dastak NGO (2022) 10 SCC 742 and D. Swamy v. Karnataka State Pollution Control Board 2022 SCC OnLine SC 1293 dealt with the consequences of violations in the context of the 2017 Notification and the 2021 Office Memorandum, and therefore could not be treated as laying down universally applicable principles.
In the same vein, the Bench overruled part of its decision in Electrosteel Steels Ltd. v. Union of India, 2021 SCC OnLine SC 1247, holding that its observation suggesting that the Environment (Protection) Act, 1986 and the EIA Notification, 2006 accommodated the grant of ex post facto environmental clearances ignored the mandatory requirement of obtaining prior environmental clearance and did not lay down the correct legal position. The Court held:
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“We further hold Electrosteel was decided in the facts of the case and the observation therein that the 1986 Act and the 2006 notification accommodate grant of ex post facto EC ignores the mandatory character of the prior EC requirement and does not lay down a correct interpretation of either the Act or the notification.”
However, the Bench approved the observations in Pahwa Plastics Pvt. Ltd. v. Dastak NGO (2022) 10 SCC 742 and D. Swamy v. Karnataka State Pollution Control Board 2022 SCC OnLine SC 1293 insofar as they upheld the validity of the 2017 Notification, holding that the notification constituted a valid, narrowly tailored and time-bound exercise of delegated legislative power traceable to Section 3 of the Environment (Protection) Act, 1986.
2021 OM Created Impermissible Permanent Amnesty Regime
Turning to the validity of the 2021 Office Memorandum, the Court held that the executive instruction fundamentally altered the statutory environmental clearance regime by creating a perpetual mechanism through which projects that had commenced without obtaining prior environmental clearance could subsequently seek regularisation. According to the Bench, such a substantial departure from the statutory scheme could only be achieved through delegated legislation and not by way of an executive instruction.
Explaining the defect in the Office Memorandum, the Court observed:
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“The 2021 OM is an administrative order and envisages a perpetual regime for grant of ECs to projects undertaken without prior EC. It substantially alters the nature of inquiry as well as the criteria for grant of EC under the 2006 notification. The 2021 OM thereby supplants an earlier delegated legislation through an administrative instruction which is impermissible in law.”
The Court further held that the policy failed to satisfy constitutional requirements because it indiscriminately extended the benefit of post facto environmental clearances without identifying any distinct class of projects whose regularisation was necessary in larger public interest. Such an approach, the Bench said, undermined the object of environmental protection embedded in the 1986 Act. The judgment states:
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“Being a perpetual amnesty scheme applicable to all permissive projects, it fails to lay down an intelligible differentia for selection of projects for grant of post facto EC having rational nexus to supervening public interest and is thereby ultra vires the object of the 1986 Act, namely preservation of environment through a balanced approach between precautionary principle and sustainable development. Given these circumstances, the OM does not satisfy the test of proportionality and reasonableness and is violative of Articles 14 and 21 of the Constitution.”
Consequential Directions Following Quashing of 2021 OM
Consequently, the Bench quashed the 2021 Office Memorandum. However, recognising the uncertainty that had prevailed regarding the legal position and the public interest involved, it directed that the judgment would operate prospectively. The Court observed:
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“Thus the 2021 OM is quashed but with prospective effects keeping in mind the prevailing confusion with regard to the validity of the impugned instruments and supervening public interest.”
Recognising that numerous projects had already obtained environmental clearances under the impugned regime, the Court protected those approvals from automatic invalidation. It held that all environmental clearances granted under the 2017 Notification or the 2021 Office Memorandum would continue to remain valid unless individually challenged in accordance with law. The Court further directed that all pending applications made under the impugned instruments, including those kept pending or dismissed following the Court’s interim orders in Vanashakti-I, would be dealt with in accordance with the criteria laid down in paragraph 79 of the judgment.
The Bench also made it clear that no fresh applications seeking environmental clearances under either the 2017 Notification or the 2021 Office Memorandum would be entertained henceforth. It restrained the Central Government from issuing administrative orders in future granting post facto environmental clearances to projects that commenced in violation of the 2006 Notification, while clarifying that a valid notification issued under Section 3 of the Environment (Protection) Act would still be permissible where the statutory requirements were satisfied.
At the same time, the Court clarified that the judgment would not curtail the Supreme Court’s extraordinary constitutional powers under Article 142. It observed:
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“It is clarified that our directions shall not constrain the powers of this Court to grant ex post facto EC under Article 142 to do complete justice in appropriate cases.”
Disposing of the batch of matters, the Court dismissed the civil appeals challenging the prospective operation of the Madras High Court’s judgment in Fatima v. Union of India, Civil Appeal Nos. 381–382 of 2025, directed that the appeals filed by the State of Tamil Nadu in State of Tamil Nadu v. Fatima, Civil Appeal No. 8253 of 2026, be disposed of in terms of the present judgment, and ordered that SLP (C) No. 8187 of 2026, arising out of a Bombay High Court judgment concerning the closure of a mall, be de-tagged and placed before the appropriate Bench since it raised issues extending beyond the question of post facto environmental clearances.