Supreme Court quashes 2021 OM allowing ex post facto environmental clearance, but upholds Centre’s power to provide ‘amnesty schemes’
The Supreme Court quashed the 2021 Office Memorandum (OM) that had permitted the Centre and other authorities to grant ex post facto (retrospective) environmental clearances to projects and undertakings that had commenced operations without prior clearance
The Bench held that such a mechanism cannot be created through an executive OM and must instead flow from a valid statutory notification
The Court simultaneously upheld the Centre's power to frame a time-bound "amnesty scheme" for regularising past violations, provided it is issued as a formal notification under the governing environmental law rather than an internal administrative memo
Clearances already granted under the 2017 notification (which had provided a one-time amnesty window) and under the now-quashed 2021 OM will continue to remain valid unless individually challenged before a competent forum
Ex Post Facto Environmental Clearance and the Precautionary Principle
Environmental Clearance (EC) is a mandatory prior approval required before a listed project can start construction or operation, under the Environment (Protection) Act, 1986. "Ex post facto" or retrospective clearance refers to granting this approval after a project has already begun operating without it — a practice the Supreme Court has repeatedly held to be contrary to environmental jurisprudence, since it defeats the very purpose of prior impact assessment.
Key Details
- In Alembic Pharmaceuticals Ltd. v. Rohit Prajapati (2020), the Supreme Court held that 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 process, being contrary to both the precautionary principle and the goal of sustainable development
- The precautionary principle (recognised in Indian environmental law since Vellore Citizens' Welfare Forum v. Union of India, 1996) requires anticipatory environmental action rather than remedial regularisation after harm has occurred
- The 2021 OM had sought to create a fresh window for such retrospective regularisation after the 2017 notification's one-time scheme lapsed
The present ruling reaffirms the Alembic line of reasoning — the Court will not allow retrospective clearance to become a routine administrative practice, and any exception must be tightly bound by statute, not issued as a discretionary executive circular.
Environment (Protection) Act, 1986 — Section 3 and the EIA Notification, 2006
The Environment (Protection) Act, 1986 is the umbrella legislation enacted after the Bhopal Gas Tragedy (1984) that empowers the Central Government to take all measures necessary to protect and improve the environment. Section 3 authorises the Central Government to issue rules and notifications, including constituting authorities and imposing restrictions on the location and operation of industries.
Key Details
- The EIA Notification, 2006 was issued under Section 3(3) read with Rule 5(3)(d) of the Environment (Protection) Rules, 1986, and requires prior environmental clearance for listed Category A and Category B projects
- Category A projects require clearance from the Ministry of Environment, Forest and Climate Change (MoEFCC) via the Expert Appraisal Committee (EAC); Category B projects are appraised at the state level by the State/Union Territory Environment Impact Assessment Authority (SEIAA) through the State Expert Appraisal Committee (SEAC)
- The distinction between an "Office Memorandum" (an internal administrative instruction with no independent statutory force) and a "notification" (a formal instrument issued under a specific statutory provision, subject to due process and often legislative scrutiny) was central to the Court's reasoning — only the latter can validly alter the EC regime
The Court's core objection to the 2021 OM was procedural — an internal memo cannot substitute for a notification under Section 3, since a notification carries statutory backing and is subject to greater accountability than an executive circular.
Article 14 and Article 21 — Constitutional Basis for Environmental Regulation
Article 21 (Right to Life) has been judicially expanded to include the right to a clean and healthy environment, while Article 14 (Right to Equality) requires that executive action be non-arbitrary, reasonable, and proportionate. Both provisions anchor judicial review of environmental executive instruments such as the 2021 OM.
Key Details
- The right to a healthy environment as part of Article 21 was first articulated in cases such as Subhash Kumar v. State of Bihar (1991) and reaffirmed in numerous subsequent rulings
- Arbitrary or disproportionate executive action that dilutes environmental safeguards can be struck down as violative of Article 14's reasonableness requirement, following the "manifest arbitrariness" test laid down in Shayara Bano v. Union of India (2017)
- The Court's finding that a blanket ex post facto clearance mechanism fails the test of proportionality connects the environmental question directly to fundamental rights jurisprudence
By testing the 2021 OM against Articles 14 and 21, the Court signalled that environmental clearance procedures are not merely administrative matters but engage constitutional rights, raising the bar for any future regularisation scheme.
- Environment (Protection) Act enacted: 1986, in the aftermath of the Bhopal Gas Tragedy (1984)
- Governing framework for prior clearance: EIA Notification, 2006, issued under Section 3 of the EPA, 1986
- Alembic Pharmaceuticals Ltd. v. Rohit Prajapati decided: 2020, by the Supreme Court
- 2017 notification: provided a one-time amnesty window for projects operating without prior clearance
- 2021 Office Memorandum: sought to extend a similar retrospective clearance mechanism; now quashed
- Project categories under EIA Notification 2006: Category A (Central appraisal via EAC) and Category B, split into B1 (requires EIA report, state-level SEIAA/SEAC) and B2 (no EIA report required)