Supreme Court Strikes Down Notifications Allowing Ex‑Post Facto Environmental Clearances and Bars Future Regularisation

A bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan heard challenges to the 2017 Environment Impact Assessment (EIA) notification and the Ministry of Environment, Forest and Climate Change’s 2021 Office Memorandum (SOP) that guided grant of environmental clearances (EC) in cases of prior violation. The petitions and appeals canvassed the legality of permitting ex post facto or retrospective ECs and sought directions to restrain further regularisation of projects that proceeded without prior clearance.

The Court held that the 2017 notification and the 2021 OM were illegal and struck them down, concluding that the State could not permit retrospective regularisation of projects that proceeded without prior EC as mandated by the EIA Notification 2006 and the Environment (Protection) Act, 1986. The bench clarified that ECs already granted under the 2017 notification and the 2021 OM "shall, however, remain unaffected." The Court emphasised the constitutional duty to protect environment and public health, observing that measures allowing retrospective clearance would be “detrimental to the environment and could lead to irreparable degradation.”

The Court, in its reasoning, observed: “The concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA Notification dated 27-1-1994. It is, as the judgment in Common Cause [Common Cause v. Union of India, (2017) 9 SCC 499] holds, detrimental to the environment and could lead to irreparable degradation. The reason why a retrospective EC or an ex post facto clearance is alien to environmental jurisprudence is that before the issuance of an EC, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment. ... Allowing for an ex post facto clearance would essentially condone the operation of industrial activities without the grant of an EC.”

Background The dispute arose from a 14 March 2017 notification that permitted a time‑limited window for projects that had already commenced work or expanded production without prior EC to apply for ex post facto clearance, and a subsequent 7 July 2021 Office Memorandum framing an SOP to process such violation cases. Petitioners, including Vanashakti, challenged the legality of these measures as being contrary to the EIA Notification and the Environment (Protection) Act, 1986. The Madras High Court had earlier dealt with a challenge and recorded the Union’s undertaking that the 2017 notification was a “one time measure,” an undertaking treated as decisive in that disposal; extensions thereafter prompted further litigation.

The Supreme Court reviewed statutory provisions (Section 3 of the 1986 Act and Rule 5 of the 1986 Rules), earlier precedents including Common Cause v. Union of India and Alembic Pharmaceuticals v. Rohit Prajapati, and noted that this Court had repeatedly held that the concept of retrospective or ex post facto EC was "completely alien to environmental jurisprudence." The 2021 OM’s SOP, while avoiding the phrase “ex post facto,” effectively contemplated appraising such projects and issuing ECs “effective from the date of issue,” while imposing compensatory obligations under the Polluter Pays principle and other remedial conditions. The Court found that, in substance, the SOP sought to regularise prior illegality and thereby contravened settled law and constitutional protections under Article 21 and Article 51A(g). The bench therefore struck down the 2017 notification, the 2021 OM and all instruments issued to give them effect; restrained the Central Government from issuing any future circulars, OMs or notifications providing for ex post facto EC; and left intact the ECs already granted under those instruments.

Case Details: Case No.: 2025 INSC 718 (Writ Petition (C) No.1394 of 2023 and connected matters) Case Title: Vanashakti v. Union of India (and connected petitions/appeals) Appearances: For the Petitioner(s): Senior counsel (not named in the reported judgment) For the Respondent(s): Additional Solicitor General for the Union (not named in the reported judgment)