The Supreme Court has delivered a significant judgment clarifying the scope of ex post facto environmental clearances (ECs) under India’s environmental law.
While upholding the validity of the Union Government’s 2017 Notification as a one-time statutory measure for dealing with projects that had commenced without prior environmental clearance, the bench of Chief Justice Of India Surya Kant, Justice Joymalya Bagchi and Justice Vipul M. Pancholi struck down the 2021 Office Memorandum (OM) that created an ongoing mechanism for granting post-facto environmental clearances to violators.
The Court reconciled earlier decisions on environmental jurisprudence and emphasized that prior environmental clearance remains a mandatory requirement under the Environment (Protection) Act, 1986 and the Environmental Impact Assessment (EIA) Notification, 2006. However, it held that the Central Government possesses limited statutory authority to devise a mechanism to deal with past violations, provided such measures further environmental protection rather than dilute it.
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The litigation arose from challenges to two separate governmental measures.
The first was the Notification dated March 14, 2017, issued by the Ministry of Environment, Forest and Climate Change (MoEFCC), which allowed projects that had commenced construction or operations without obtaining mandatory prior environmental clearance to seek regularisation within a limited time window, subject to environmental appraisal, damage assessment, remediation measures, and payment of compensation.
The second was the Office Memorandum dated July 7, 2021, which prescribed a Standard Operating Procedure enabling authorities to process environmental clearance applications in cases where projects had already commenced without obtaining prior approval. Environmental groups argued that the 2021 OM effectively institutionalised a “violate first, regularise later” approach that undermined the precautionary principle embedded in environmental law.
The Supreme Court reaffirmed that the EIA Notification, 2006 unequivocally requires prior environmental clearance before any construction or project activity begins.
According to the Court, the environmental clearance process—which includes screening, scoping, public consultation, and appraisal—is fundamentally preventive in nature and is designed to assess environmental impacts before irreversible damage occurs.
The Bench observed that the philosophy underlying the environmental clearance regime can best be described as “look before you leap.” Since environmental harm is often irreversible, the precautionary principle demands assessment before commencement of projects rather than after violations have already taken place.
While reiterating that obtaining prior environmental clearance is mandatory, the Court examined the consequences of violating that requirement.
It held that commencement of projects without prior EC attracts statutory penalties under the Environment (Protection) Act. However, the Court rejected the argument that payment of penalty alone automatically regularises an illegal project.
The Bench explained that the statute remains silent on the ultimate fate of projects commenced without prior approval, leaving scope for regulatory measures that balance environmental protection, remediation, deterrence, and sustainable development. It clarified that penalties punish the violation but do not, by themselves, validate an otherwise unlawful project.
The Supreme Court upheld the 2017 Notification, holding that it was a valid exercise of statutory power under Sections 3(1) and 3(2)(v) of the Environment (Protection) Act.
The Court noted that the notification was not intended to permanently legalise violations but rather served as a one-time corrective measure to bring existing non-compliant projects within the regulatory framework.
The notification required violators to undergo fresh environmental appraisal, undertake damage assessment, prepare remediation plans, and compensate for environmental degradation before any clearance could be considered.
According to the Court, such a limited statutory mechanism was consistent with the Government’s obligation to control pollution and restore environmental damage rather than leaving non-compliant projects entirely outside the regulatory framework.
However, the Court reached a different conclusion regarding the 2021 Office Memorandum.
It observed that unlike the 2017 Notification, the OM was not a one-time measure. Instead, it created a continuing administrative mechanism allowing projects that violated environmental clearance requirements to seek regularisation without any statutory cut-off date.
The Bench held that this effectively transformed what should have been an exceptional remedy into an ordinary administrative process, thereby undermining the mandatory requirement of prior environmental clearance.
The Court ruled that such an administrative instrument exceeded the powers available under the Environment (Protection) Act and was therefore ultra vires the statute and the EIA Notification, 2006.
A major aspect of the judgment involved reconciling earlier Supreme Court rulings including Common Cause, Alembic Pharmaceuticals, Electrosteel Steels, Pahwa Plastics, and D. Swamy.
The Court clarified that these decisions do not endorse routine post-facto environmental clearances.
Instead, they recognise that courts may, in exceptional circumstances and applying the principle of proportionality, permit projects to continue after imposing stringent environmental safeguards, compensation, remediation measures, and fresh appraisal where demolition or closure would itself cause greater environmental or public harm.
Thus, while prior clearance remains the rule, limited regularisation may be permissible where expressly authorised by law and consistent with environmental protection.
The judgment repeatedly emphasises the need to balance environmental conservation with developmental requirements.
Opening the judgment with Mahatma Gandhi’s famous observation that “The world has enough for everyone’s need, but not enough for everyone’s greed,” the Court stated that environmental adjudication must reconcile the constitutional right to a clean environment with the country’s developmental aspirations.
The Bench held that environmental governance should neither reward deliberate violations nor impose remedies that ultimately inflict greater environmental damage than the violations themselves. Instead, regulators must adopt proportionate measures grounded in environmental restoration, compensation, deterrence, and sustainable development.
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