Supreme Court Upholds Centre's Power to Notify Post-Facto Clearance

The Supreme Court has dealt a blow to environmental activists by upholding the centre's power to notify post-facto clearance for projects that have violated prior environmental clearance norms.

The Court struck down the central government's 2021 Office Memorandum (OM) that created a mechanism for granting post facto environmental clearances to projects that had started construction or operations without obtaining prior environmental clearance. However, the Court stated that the central government has the power to frame statutory amnesty schemes for specified categories of such violations under the Environment (Protection) Act, 1986.

The ruling has been met with criticism from environmental experts who say it weakens the principle of prior environmental clearance. Ritwick Dutta, founder of the Legal Initiative for Forest and Environment (LIFE), said that the judgment departs from earlier Supreme Court rulings that treated post facto environmental clearances as incompatible with environmental law.

The case began when Vanashakti, a Mumbai-based non-profit, challenged the 2021 OM before the Supreme Court in 2023. The petitioner argued that prior environmental clearance and post facto environmental clearance cannot coexist because the two concepts are "mutually destructive" and an "oxymoron."

The Supreme Court's judgment is the outcome of a rehearing, where the apex court said that the 2021 OM could not create a continuing mechanism for granting post facto environmental clearances as it is an administrative instruction. At the same time, it ruled that the central government has ample powers under Section 3 of the Environment (Protection) Act, 1986, to issue statutory notifications framing amnesty schemes for specified categories of non-compliant projects whose continuation serves a larger public interest.

Dutta said the Court drew a distinction between the two instruments based on their nature. According to him, the 2021 OM created an open-ended mechanism that could apply to virtually any project violating environmental clearance norms, whereas the 2017 notification was a one-time measure with a fixed timeline, specific conditions and defined restrictions.

However, the judgment has also been praised by some who see it as a way to balance environmental protection with development. The Supreme Court began its judgment by acknowledging the tension between environmental protection and development, saying that the bench is entrusted with the duty to strike a balance between an existential right of all living beings, both present and future, to a pollution-free environment, and an aspirational right to development of a sixth of the world's population.

But environmental activists are not convinced. Vanashakti described the judgment as a dilution of environmental law, saying that it sends the wrong message and encourages lawlessness. Stalin D., director of the Mumbai-based non-profit, said that the judgment marks a departure from earlier Supreme Court rulings and that the Court has veered shy of taking a stringent approach.

The judgment also protected environmental clearances already granted under the two schemes. It states that environmental clearances issued under the 2017 notification or the 2021 OM will remain valid unless challenged individually before the appropriate forum.

The Supreme Court's ruling has left open a statutory route for future regularisation of projects that violate prior environmental clearance requirements. Environmental experts say that this leaves the government with the power to issue another statutory notification in the future.

**The Case Unfolded**

The EIA Notification, 2006 requires prior Environmental Clearance (EC) before any construction work or land preparation begins in connection with projects under its ambit.

| Scheme | Year | Description | | --- | --- | --- | | 2017 Notification | 2017 | One-time six-month window to seek clearance for projects that had violated prior environmental clearance requirements | | 2021 OM | 2021 | Standard Operating Procedure (SOP) for granting post facto environmental clearances to projects that had violated prior environmental clearance requirements |

The central government introduced two mechanisms, in 2017 and 2021, to deal with projects that had already violated this requirement. Following this, Vanashakti challenged the 2021 OM before the Supreme Court in 2023, arguing that "prior environmental clearance" and "post facto environmental clearance" cannot coexist because the two concepts are "mutually destructive" and an "oxymoron."

In response to the PIL, the apex court stayed the SOP until further orders in an interim order on January 2, 2024. Later, in May 2025, the Supreme Court's two-judge bench comprising Justices Abhay S. Oka and Ujjal Bhuyan struck down the 2017 notification and the 2021 OM, calling ex post facto environmental clearance "illegal."

The Confederation of Real Estate Developers' Associations of India (CREDAI) and few others sought a review of the judgment. As Justice Oka had retired by then, the then Chief Justice of India, B.R. Gavai, constituted a three-judge bench comprising himself, Justices K.V. Chandran and Bhuyan to hear the review petition. In November 2025, the bench, by a 2:1 majority, allowed the review petition, recalled the earlier judgment and restored the writ petitions for a fresh hearing. Justice Bhuyan dissented from the call.

The present judgment is the outcome of that rehearing, where the apex court said that the 2021 OM could not create a continuing mechanism for granting post facto environmental clearances as it is an administrative instruction. At the same time, it ruled that the central government has ample powers under Section 3 of the Environment (Protection) Act, 1986, to issue statutory notifications framing amnesty schemes for specified categories of non-compliant projects whose continuation serves a larger public interest.

Dutta said the Court drew a distinction between the two instruments based on their nature. According to him, the 2021 OM created an open-ended mechanism that could apply to virtually any project violating environmental clearance norms, whereas the 2017 notification was a one-time measure with a fixed timeline, specific conditions and defined restrictions.

However, the judgment has also been praised by some who see it as a way to balance environmental protection with development. The Supreme Court began its judgment by acknowledging the tension between environmental protection and development, saying that the bench is entrusted with the duty to strike a balance between an existential right of all living beings, both present and future, to a pollution-free environment, and an aspirational right to development of a sixth of the world's population.

But environmental activists are not convinced. Vanashakti described the judgment as a dilution of environmental law, saying that it sends the wrong message and encourages lawlessness. Stalin D., director of the Mumbai-based non-profit, said that the judgment marks a departure from earlier Supreme Court rulings and that the Court has veered shy of taking a stringent approach.

The judgment also protected environmental clearances already granted under the two schemes. It states that environmental clearances issued under the 2017 notification or the 2021 OM will remain valid unless challenged individually before the appropriate forum.

The Supreme Court's ruling has left open a statutory route for future regularisation of projects that violate prior environmental clearance requirements. Environmental experts say that this leaves the government with the power to issue another statutory notification in the future.

**Industry Pushes for Reinstatement of Amnesty for Environmental Violations**

The Confederation of Real Estate Developers' Associations of India (CREDAI) and few others have sought a review of the judgment, arguing that the reinstatement of amnesty for environmental violations is necessary for the development of the country. However, environmental activists are opposed to this move, saying that it will only encourage lawlessness and undermine environmental protection.

The Supreme Court's ruling has sparked a debate on the balance between environmental protection and development. While some see it as a way to balance the two, others argue that it will only lead to environmental destruction. The judgment has left open a statutory route for future regularisation of projects that violate prior environmental clearance requirements, leaving the government with the power to issue another statutory notification in the future.

**Environment vs Aspiration**

The Supreme Court began its judgment by acknowledging the tension between environmental protection and development. It said that the bench is entrusted with the duty to strike a balance between an existential right of all living beings, both present and future, to a pollution-free environment, and an aspirational right to development of a sixth of the world's population.

However, environmental activists are not convinced. Vanashakti described the judgment as a dilution of environmental law, saying that it sends the wrong message and encourages lawlessness. Stalin D., director of the Mumbai-based non-profit, said that the judgment marks a departure from earlier Supreme Court rulings and that the Court has veered shy of taking a stringent approach.

The judgment also protected environmental clearances already granted under the two schemes. It states that environmental clearances issued under the 2017 notification or the 2021 OM will remain valid unless challenged individually before the appropriate forum.

The Supreme Court's ruling has left open a statutory route for future regularisation of projects that violate prior environmental clearance requirements. Environmental experts say that this leaves the government with the power to issue another statutory notification in the future.