The Supreme Court ruled that ex post facto environmental clearances (ECs) violate environmental jurisprudence and are alien to the Environment (Protection) Act, 1986, and the EIA Notification, 2006. Stressing the precautionary principle and Article 21 (right to a pollution-free environment), the Court struck down the 2017 notification and 2021 OM permitting retrospective ECs, holding them arbitrary and illegal. It reiterated that prior EC is mandatory, and no regularization of violations is permissible, aligning with its earlier judgments in Common Cause and Alembic Pharmaceuticals. The Court barred future exemptions but spared already granted ECs.
Facts Of The Case:
The case involved multiple writ petitions and a civil appeal challenging the legality of the 2017 notification and 2021 Office Memorandum (OM) issued by the Ministry of Environment, Forests and Climate Change (MoEFCC), which allowed industries to obtain ex post facto environmental clearances (ECs)—approvals granted after projects had already begun operations without prior clearance. The petitioners, including environmental groups like Vanashakti, argued that these provisions violated the Environment (Protection) Act, 1986, and the EIA Notification, 2006, which mandate prior EC for projects. The Madras High Court had earlier quashed the 2021 OM, prompting an appeal by the Union of India.
The Supreme Court examined whether retrospective ECs could be permitted under environmental laws. It noted that the 2017 notification was introduced as a “one-time measure” to regularize violations but was repeatedly extended, contrary to the government’s assurances. The Court highlighted that such exemptions undermined the precautionary principle and sustainable development, as established in precedents like Common Cause v. Union of India (2017) and Alembic Pharmaceuticals v. Rohit Prajapati (2020). The bench, led by Justice Abhay S. Oka, ruled that ex post facto ECs are illegal, arbitrary, and violate Article 21 (right to a healthy environment). While striking down the 2017 notification and 2021 OM, it exempted already granted clearances but barred future regularization of violations.
Procedural History:
The case originated with Writ Petition (C) No. 118 of 2019, challenging the 2017 notification permitting ex post facto environmental clearances (ECs). Later, Writ Petition (C) No. 1394 of 2023 was filed against the 2021 Office Memorandum (OM), which introduced a Standard Operating Procedure (SOP) for granting ECs to violators. The Madras High Court, in Puducherry Environment Protection Association v. Union of India (2017), had initially recorded the government’s undertaking that the 2017 notification was a one-time measure, but subsequent extensions led to fresh litigation.
In 2024, the Madras High Court, in another judgment, quashed the 2021 OM, prompting the Union of India to file Civil Appeal No. 381-382 of 2025 before the Supreme Court. The apex court consolidated all related petitions, including Writ Petition (C) No. 115 of 2024, which sought a complete prohibition on ex post facto ECs. After hearing arguments, the Supreme Court, in its May 16, 2025 judgment, upheld the Madras High Court’s decision, declaring the 2017 notification and 2021 OM illegal, while sparing already granted ECs from retrospective invalidation. The ruling reinforced the mandatory nature of prior ECs under environmental law.
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Court Observation:
In its landmark judgment, the Supreme Court made several critical observations while striking down the ex post facto environmental clearance mechanism. The Court emphatically reiterated that prior environmental clearance is mandatory under the Environment (Protection) Act, 1986 and EIA Notification, 2006, noting that the very concept of retrospective approval is “alien to environmental jurisprudence”. The Bench strongly affirmed that such post-facto regularizations violate the precautionary principle and sustainable development doctrine, which form the bedrock of India’s environmental governance framework.
The Court observed that the 2017 notification and 2021 OM created a dangerous precedent by rewarding violators while penalizing law-abiding entities that diligently obtained prior clearances. It noted with concern how these measures undermined public trust in environmental regulations and created an uneven playing field. Significantly, the judgment highlighted that such exemptions contravene Article 21 of the Constitution, which guarantees the right to a healthy environment, particularly when violations contribute to the deteriorating air quality and ecological damage witnessed across Indian cities. The Bench also expressed dismay at the government’s attempt to circumvent its own solemn undertaking before the Madras High Court that the 2017 notification would remain a one-time measure.
In a scathing remark, the Court observed that the polluter pays principle cannot be reduced to mere monetary compensation, as the 2021 OM attempted to do through its penalty provisions. It emphasized that environmental damage is often irreversible, and financial penalties cannot substitute for the mandatory prior scrutiny that environmental clearance processes are designed to ensure. The judgment serves as a stern reminder that environmental compliance cannot be compromised for expediency or economic considerations, and that the rule of law must prevail in environmental governance.
Final Decision & Judgement:
In its final judgment delivered on May 16, 2025, the Supreme Court unequivocally struck down the 2017 notification and 2021 Office Memorandum (OM) that permitted ex post facto environmental clearances (ECs), declaring them ultra vires the Environment (Protection) Act, 1986, and a violation of constitutional principles. The Court held that the concept of retrospective ECs is fundamentally incompatible with India’s environmental legal framework, emphasizing that prior clearance remains mandatory for all projects under the EIA Notification, 2006. While the Bench, led by Justice Abhay S. Oka, refused to invalidate ECs already granted under the impugned provisions to avoid disruption, it imposed a complete prohibition on future regularization of violations. The judgment reinforced that environmental laws cannot be diluted to accommodate violators, and directed the Central Government to strictly enforce the requirement of prior ECs without exception. This landmark ruling reaffirmed the judiciary’s commitment to upholding the precautionary principle, sustainable development, and the fundamental right to a healthy environment under Article 21 of the Constitution, setting a decisive precedent against any form of retrospective environmental approvals.
Case Details:
Case Title:Vanashakti vs. Union of India & Ors. Citation:2025 INSC 718 Civil Appeal No.:Civil Appeal No. 381-382 of 2025 Date of Judgment:May 16, 2025 Bench: Justice Abhay S. Oka & Justice Ujjal Bhuyan
Download The Judgement Here