Supreme Court quashes 2021 ex post facto clearance memorandum, upholds 2017 amnesty notification
A three-judge Bench struck down the 2021 Office Memorandum as an impermissible perpetual post-facto clearance regime while sustaining the 2017 Notification as a valid time-bound amnesty.
The Supreme Court has held that the prior environmental clearance regime under the EIA Notification, 2006 is mandatory, and that a project which commences without such clearance cannot ordinarily be regularised on payment alone. Deciding a batch led by Vanashakti v. Union of India, a Bench of Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice Vipul M. Pancholi quashed the Office Memorandum dated 07.07.2021 as an executive instruction that supplanted delegated legislation, but upheld the notification dated 14.03.2017 as a narrowly tailored, time-bound amnesty measure.
The Court, speaking through Justice Bagchi, framed the dispute as one of striking a balance between the right to a pollution-free environment and the right to sustainable development. It applied what it termed eco-centric proportionality and tests of reasonable classification under Article 14, quashing the 2021 OM with prospective effect while protecting clearances already granted and pending applications.
How the dispute reached the Court
Three writ petitions challenged the 2017 Notification and the 2021 OM, both issued by the Ministry of Environment, Forest and Climate Change. W.P.(C) No. 1394 of 2023 attacked the 2021 OM as ultra vires the Environment (Protection) Act, 1986. W.P.(C) No. 118 of 2019 challenged the 2017 Notification. W.P.(C) No. 115 of 2024 challenged both instruments.
Civil Appeal Nos. 381–382 of 2025 assailed the judgment dated 30.08.2024 of the Madras High Court in Fatima v. Union of India, which quashed the 2021 OM and an Office Memorandum dated 19.02.2021 but with prospective effect. The appeals challenged only the prospective operation of that judgment.
A two-judge Bench had earlier stayed the 2021 OM on 02.01.2024, and by judgment dated 16.05.2025 struck down both instruments, holding an ex post facto clearance to be alien to environmental jurisprudence. That judgment, Vanashakti-I, was recalled by a review Bench on 18.11.2025 by a 2:1 majority, with Justice Bhuyan dissenting. The matters were then placed before the present Bench.
What the review left open
The Court held that the review had been allowed on two grounds alone: that Vanashakti-I had missed the paragraphs where Common Cause, Alembic and Electrosteel moulded relief, and that it had not considered Pahwa and D. Swamy. Since Justice Chandran had concurred on those two grounds and expressly left the merits open, the observations of the lead opinion on the validity of the two instruments did not bind the present Bench.
The Court found that the recall gave a clean slate, and that the validity of the 2017 Notification and the 2021 OM fell to be decided afresh in accordance with law.
The prior clearance mandate and consequences of breach
The Court held that the 2006 Notification articulates the precautionary principle, employs the word “prior” and forbids construction before clearance. Following Asha John Divianathan, it read the prior EC requirement as a non-negotiable pre-requisite whose breach renders the act void.
Neither the Act nor the notification states what becomes of the offending project itself. On that silence, the Court held, much of the controversy turned. It rejected the argument that prescribed penalty exhausts the consequence, holding that breach would by necessary implication lead to restoration of status quo ante, extending to closure, demolition, remediation and recovery of costs.
The Court then held that Section 3, a delegating provision, permits the Central Government to carve an exception. The words “control” and “abate” are of the widest import and include remedial measures. The Jan Vishwas (Amendment of Provisions) Act, 2023, which replaced prosecution with civil penalty from 01.04.2024, was held to reinforce this power without diluting the prior clearance mandate.
Reconciling the precedents
The Court held that Common Cause and Alembic declared the norm that prior EC is mandatory, but each itself moulded the consequence of breach, withholding demolition upon terms of compensation. Lafarge, Electrotherm, Electrosteel, Pahwa and D. Swamy operated at the stage of consequence.
It departed from one step of that reasoning. The 2021 OM did not trace its source to the 2017 Notification but to the National Green Tribunal's direction in Tanaji B. Gambhire, and the 2017 window had closed on 13.04.2018. To the extent Pahwa and D. Swamy read the OM as issued in pursuance of the 2017 Notification, they did not lay down the correct law. The Court also held that the observation in Electrosteel that the Act does not prohibit ex post facto clearance was incorrect as it ignored the mandatory character of the 2006 Notification.
Why the 2017 Notification survives
The Court held the 2017 Notification to be delegated legislation made under Sections 3(1) and 3(2)(v) read with Rule 5(3)(d), following the prescribed procedure of draft publication and parliamentary laying. It survived the test of reasonable classification, subjecting violation cases to centralised appraisal, ecological damage assessment, remediation and compensatory liability, with eligibility confined to projects in breach as on its date and a six-month window.
The measure was “closed at both ends” and satisfied proportionality. The Court rejected the challenge on non-regression, holding that principle to be of persuasive character alone, and noted that developed nations had themselves resiled from binding commitments.
Why the 2021 OM fails
The Court held the 2021 OM to be an executive instruction that could not amend, supersede or dilute the 2006 Notification. A comparison exposed a glaring incompatibility: the notification operates before the first irreversible act on site, while the OM operates after the prohibited act has taken place, leaving no genuine screening, no alternative site and no meaningful public consultation.
The Court held that the OM supplants rather than supplements the 2006 Notification. It failed proportionality, having no cut-off date and no finite class, converting an exceptional response into a permanent parallel route. Permissibility of a project was held to be a lower threshold than supervening public interest, so the OM equated the compliant and the defiant and offended Article 14. The Court said the OM yielded to a principle of “pollute and then pay” rather than sustainable development.
It also flagged that where the State is itself the violating proponent, the preserver of the rule of law is seen violating it, and pointed to Section 15B inserted by the Jan Vishwas Act, 2023 fixing accountability on the Head of the Department.
Order
The Court quashed the 2021 OM with prospective effect under Article 142, citing prevailing legal uncertainty and supervening public interest in projects including an AIIMS Medical College and Hospital in Odisha, a Centre of Excellence for Cancer Diseases in Tamil Nadu, Vijayapura Airport in Karnataka, slum rehabilitation and irrigation projects.
ECs already granted under the 2017 Notification and the 2021 OM were held to remain valid unless individually assailed. Pending applications were directed to be taken to their logical conclusion in accordance with law. Applications dismissed solely with reference to the stay of 02.01.2024 or to Vanashakti-I may be reconsidered. No fresh application under the instruments shall be entertained, and the Government was restrained from issuing future administrative orders for such clearances, save by a valid notification under Section 3 of the 1986 Act.
The writ petitions and miscellaneous applications were disposed of. Civil Appeal Nos. 381–382 of 2025 were dismissed. Civil Appeal No. 8253 of 2026 filed by the State of Tamil Nadu was directed to be disposed of in light of the findings. Pahwa and D. Swamy were overruled to the extent they treated the 2021 OM as valid and traceable to the 2017 Notification. SLP (C) No. 8187 of 2025 concerning a mall closure was directed to be de-tagged and listed separately.