Supreme Court quashes 2021 office memorandum allowing ex post facto environmental clearances

New Delhi: In a landmark judgment strengthening India’s environmental regulatory framework, the Supreme Court has quashed the Centre’s 2021 Office Memorandum (OM) that permitted the grant of ex post facto environmental clearances to projects that had commenced without obtaining mandatory prior environmental approval.

A Bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi held that the Central Government cannot substantially alter statutory environmental safeguards through an executive or administrative order.

The Court ruled that the 2021 OM was legally unsustainable as it attempted to replace the mandatory provisions of the Environmental Impact Assessment (EIA) Notification, 2006, which requires prior environmental clearance before the commencement of specified projects.

Delivering the judgment, Justice Joymalya Bagchi observed that the 2021 Office Memorandum created a perpetual mechanism for regularising projects that had violated environmental laws by starting operations without prior approval. Such a measure, the Court said, fundamentally altered the nature of environmental scrutiny prescribed under the 2006 Notification.

The Bench stated that the 2006 EIA Notification is a form of delegated legislation and therefore cannot be amended, diluted, or overridden by an administrative order. Any relaxation or amendment to its provisions could only be introduced through a fresh statutory notification issued in accordance with law, and only in exceptional cases where continuation of a project serves a compelling or overriding public interest.

The Court noted that the 2021 OM effectively institutionalised a system of retrospective environmental clearances, extending beyond the limited one-time amnesty provided under the 2017 notification.

It covered a wide range of sectors, including highways, airports, ports, mining, real estate and township projects, energy, heavy industry, and resource extraction, allowing projects that had commenced without prior environmental clearance to seek approval after construction or operations had already begun.

The Supreme Court held that this perpetual amnesty violated the objectives of the Environment (Protection) Act, 1986 which is founded on the principles of environmental protection, sustainable development, and the precautionary principle.

Justice Bagchi observed that the 2021 OM failed to establish any intelligible differentia or rational criteria for selecting projects eligible for post facto environmental clearance.

Consequently, it was held to be ultra vires the Environment (Protection) Act and unconstitutional for violating Articles 14 and 21 of the Constitution, which guarantee equality before law and the right to life, including the right to a healthy environment.

The Court also restrained the Central Government from issuing any future administrative orders that grant ex post facto environmental clearances. However, it clarified that this judgment would not limit the Supreme Court’s own extraordinary powers under Article 142 of the Constitution, under which it may grant appropriate relief, including ex post facto clearances, in exceptional circumstances to ensure complete justice.

At the same time, the Bench protected legal certainty by ruling that environmental clearances already granted under the 2017 one-time amnesty notification and the 2021 Office Memorandum would continue to remain valid unless challenged individually before the appropriate forum in accordance with law.

The judgment marks the latest development in a prolonged legal battle over retrospective environmental approvals. In May 2025, a Division Bench of the Supreme Court had declared ex post facto environmental clearances to be fundamentally illegal and contrary to environmental jurisprudence.

However, in November 2025, a larger Bench had moderated that view, observing that the complete abolition of retrospective clearances could severely affect ongoing public infrastructure projects worth thousands of crores of rupees.

With the present ruling, the Supreme Court has reaffirmed that prior environmental clearance is a mandatory legal requirement, and that executive authorities cannot weaken statutory environmental safeguards through administrative instructions. The judgment is expected to have significant implications for future infrastructure, industrial, mining, and real estate projects across the country, reinforcing the principle that environmental compliance must precede development rather than follow it.