Subject: GS Paper 3: Environment
Context: The Supreme Court quashed the 2021 Office Memorandum (OM) that institutionalised ex post facto environmental clearances.
About Ex Post Facto Environmental Clearances
- Ex Post Facto Environmental Clearances are environmental approvals granted after a project has already commenced or been completed without obtaining the mandatory prior Environmental Clearance (EC).
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About Environmental Impact Assessment (EIA)
- EIA is a process to identify, predict and evaluate the environmental impacts of proposed projects before decision-making.
- Objectives:
- Ensure environmentally sound and sustainable development.
- Integrate environmental concerns into project planning.
- Minimise adverse environmental impacts.
- EIA Notification, 2006: Issued under the Environment (Protection) Act, 1986.
- Makes prior Environmental Clearance (EC) mandatory for notified categories of projects.
- Classifies projects into:
- Category A: Appraised by the Ministry of Environment, Forest and Climate Change (MoEFCC).
- Category B: Appraised by the State Environment Impact Assessment Authority (SEIAA).
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Policy Timeline: Ex Post Facto Environmental Clearances
- 2006: Environmental Impact Assessment (EIA) Notification, 2006 mandates prior Environmental Clearance (EC) for specified projects.
- March 2017: Ministry issues a statutory notification providing a one-time six-month amnesty for projects without prior Environmental Clearance (EC).
- September 2017: Amnesty window ended.
- The Centre assured the Madras High Court (HC) that the 2017 statutory notification was a one-time measure, not a permanent mechanism for regularising violations.
- March 2018: Ministry issues an Office Memorandum (OM) extending the application window for eligible violation cases following the Appaswamy Real Estates judgment.
- July 2021: Office Memorandum (OM) introduces a Standard Operating Procedure (SOP) for granting ex post facto Environmental Clearance (EC) to violation cases.
- January 2024: Supreme Court stays the 2021 Office Memorandum (OM).
- July 2026: Supreme Court (SC) quashes the 2021 Office Memorandum (OM) while allowing scope for a limited statutory amnesty in exceptional public interest cases.
Judicial Evolution on Ex Post Facto Environmental Clearances
- Common Cause v. Union of India (2017): Held that projects requiring Environmental Clearance (EC) cannot commence without prior approval, reaffirming the preventive nature of the EIA framework.
- Alembic Pharmaceuticals v. Rohit Prajapati (2020): Ruled that ex post facto ECs are contrary to environmental jurisprudence, as they undermine the precautionary principle by allowing projects to seek approval after starting operations.
- Pahwa Plastics v. Dastak (2022): Adopted a pragmatic approach, holding that closure of projects lacking prior EC should not be automatic where compliance and environmental remediation are feasible.
- Vanashakti v. Union of India (2025): Struck down the 2017 notification and 2021 Office Memorandum, declaring that ex post facto ECs are impermissible and that the one-time amnesty could not be used for continued regularisation.
- Review Judgment (2025): The Supreme Court recalled the Vanashakti ruling, holding that it required fresh consideration in light of earlier binding precedents.
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Key Observations of the Supreme Court
- 2021 OM Quashed Prospectively: The Court struck down the 2021 OM but did not invalidate clearances already granted under it.
- Administrative orders cannot override delegated legislation: The 2021 OM impermissibly altered the EIA Notification, 2006, which is delegated legislation.
- Prior EC is Mandatory: Environmental clearance before project commencement is an essential safeguard under the precautionary principle.
- Violation of Constitutional Principles: The OM was held to be ultra vires the Environment (Protection) Act, 1986 and violative of Articles 14 and 21, as it lacked a reasonable and proportionate basis.
- Centre Restrained: The Union Government cannot issue future administrative orders granting ex post facto environmental clearances.
- Article 142 Exception: The Supreme Court may still grant such relief in exceptional cases using its plenary powers under Article 142.
- Validity of Amnesty Schemes: The Court upheld the Centre’s power to frame one-time amnesty schemes through an appropriate legal notification (not an administrative order).
- Conditions for Amnesty Schemes: Such schemes must:
- Apply only to select and deserving projects.
- Be justified by supervening public interest.
- Satisfy the tests of reasonableness, proportionality, and intelligible differentia.
- Status of Existing Clearances: Environmental clearances granted under the 2017 one-time amnesty notification and the 2021 OM will remain valid, unless challenged individually before a competent forum.
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Issues with Ex Post Facto Environmental Clearance
- Defeats EIA Objective: Defeats the preventive purpose of the EIA by allowing environmental assessment only after a project has already commenced.
- Encourages Violations: Incentivises project proponents to begin construction or operations without obtaining mandatory prior environmental clearance.
- Weakens Governance: Undermines the credibility and effectiveness of the environmental regulatory framework.
- Reduces Accountability: Dilutes the accountability of project proponents for complying with statutory environmental norms.
- Limits Public Participation: Restricts meaningful public consultation, as environmental impacts may have already occurred before public scrutiny.
30 Jul 2026
