Supreme court upholds centre’s power to notify post

- The Supreme Court struck down the central government’s 2021 Office Memorandum on post facto environmental clearances. - The Court, however, stated that the central government can frame statutory amnesty schemes under the Environment (Protection) Act. - Experts say the ruling weakens the principle of prior environmental clearance. The Supreme Court has struck down the centre’s 2021 Office Memorandum (OM) that created a mechanism for granting post facto environmental clearances to projects that violated prior environmental clearance norms. At the same time, it 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. On July 29, the Supreme Court decided three connected writ petitions questioning the centre’s two amnesty schemes introduced in 2017 and 2021 to regularise projects that had started construction or operations without obtaining prior environmental clearance. The first scheme came through a notification issued in 2017, which gave projects that had violated prior environmental clearance requirements a one-time six-month window to seek clearance. In 2021, the Ministry of Environment, Forest and Climate Change issued an OM prescribing a Standard Operating Procedure (SOP) for granting post facto environmental clearances to such projects. Delivering the judgment, the three-judge Bench comprising Chief Justice of India Surya Kant, Justices Joymalya Bagchi and Vipul M. Pancholi said, “…the OM does not satisfy the test of proportionality and reasonableness and is violative of Articles 14 and 21 of the Constitution”. The Court quashed the OM, although the ruling will operate only prospectively, the judgement said. However, the bench also stated that the central government could exercise its powers under Section 3 of the Environment (Protection) Act, 1986, to issue statutory notifications framing amnesty schemes for specified categories of non-compliant projects. Environmental experts said this leaves open a statutory route for future regularisation of projects that violate prior environmental clearance requirements. Ritwick Dutta, founder of the Legal Initiative for Forest and Environment (LIFE), a legal initiative, said the judgment depar,ts from earlier Supreme Court rulings that treated post facto environmental clearances as incompatible with environmental law. He said the present judgment leaves the government with the power to issue another statutory notification in the future. “Earlier judgments, including Alembic Pharmaceuticals and Justice Oka’s judgment in Vanashakti-I, had clearly held that post facto environmental clearance is alien to environmental law. That was the foundation of environmental jurisprudence,” he said. Vanashakti, one of the petitioners in the case, described the judgment as a dilution of environmental law. “It is a complete dilution of environmental law. If people knowingly violate the law and the Court still adopts this approach, it sends the wrong message. It encourages lawlessness,” said Stalin D., director of the Mumbai-based non-profit. On August 5, the National Alliance for Justice, Accountability & Rights (NAJAR), a pan-Indian coalition of lawyers, expressed concern over the judgment. In a statement, it said the ruling leaves open a future statutory route for the “retrospective regularisation” of environmental violations in the name of public interest and argued that the matter should be referred to a Constitution Bench for fresh adjudication. How 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. The central government, however, introduced two mechanisms, in 2017 and 2021, to deal with projects that had already violated this requirement. Following this, Vanashakti, a Mumbai-based non-profit, 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.” The petitioner argued that EC is an approval taken prior to the commencement of activity and emanates from the ‘precautionary principle’, which is one of the cornerstones of environmental jurisprudence. 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. “That is why the Court treats the two differently,” he said. Dutta, however, argued that the judgment marks a departure from earlier Supreme Court rulings. Earlier decisions, including Alembic Pharmaceuticals and Justice Oka’s judgment in Vanashakti-I, had held that post facto environmental clearance was “alien to environmental law.” The present judgment, he said, instead treats prior environmental clearance as a requirement under the EIA Notification that could be modified through another statutory notification. Questioning the Court’s interpretation of Section 3 of the Environment (Protection) Act, Dutta said, “Section 3 says the central government shall have all the powers to improve, prevent and control pollution. I don’t understand how post facto clearance can come within the definition of control of pollution.” Read more: Industry pushes for reinstatement of amnesty for environmental violations 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. Ritwick Dutta, however, argued that this was not the question before the court. According to him, the case was about the legality of the 2017 notification and the 2021 OM, not about weighing environmental protection against development. Vanashakti also criticised the Court’s emphasis on “balancing” competing interests. “This language of balancing has become routine in environmental cases. Every judgment that ultimately permits environmental destruction invokes two expressions, sustainable development and national importance,” said Stalin D. “It doesn’t merely weaken the precautionary principle, it destroys it.” 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. “All ECs granted under the 2017 Notification or the 2021 OM shall remain valid unless individually assailed in accordance with law,” it said. Stalin said that was unrealistic because affected communities and environmental groups lacked the resources to challenge every project separately. “The SC has upheld indirectly that the polluter pays principle will override the precautionary principle, which means a polluter or destroyer of the environment can walk away if he has money. In light of the Jan Vishwas bill, the SC should have taken a stringent approach but it has veered shy of taking the tough call. In the end those real estate giants with money and politicians in their pockets won the day,” he said. NAJAR, the lawyers’ coalition, also criticised the ruling. In a statement, it said the judgment weakens the principle of prior environmental clearance, departs from the Supreme Court’s earlier precautionary jurisprudence and creates incentives for projects to seek legal approval after violating environmental laws. The coalition has called for the matter to be referred to a Constitution Bench for fresh adjudication. Read more: Upholding the law, Supreme Court halts amnesties for EIA violators, jolts industry Banner image: Labourers work at a metro line project in Aarey colony in Mumbai, Maharashtra, amid protests against felling of trees. Representative image. (AP Photo/Rafiq Maqbool)