The Supreme Court on Wednesday restrained the Centre from issuing any fresh order to grant post-facto environmental clearance or entertaining pending applications from projects that broke ground without the mandatory prior clearance.
Striking down a 2021 administrative order issued in this regard by the Union ministry of environment, forest and climate change (MoEFCC), the court saved the projects that already received post-facto ECs under the 2021 order as well as under a prior notification of 2017, and directed the Centre to process all pending applications under the two regimes strictly in accordance with the Environment Protection Act.
A three-judge bench headed by Chief Justice of India (CJI) Surya Kant said: “No further application for grant of ECs under the 2017 Notification and the 2021 OM shall be entertained. The Central Government is also restrained from passing administrative orders in future to grant ex post facto ECs to projects which commenced in violation of 2006 Notification, save and except by way of a valid notification in exercise of powers under section 3 of the 1986 Environment Protection Act.”
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Experts described the ruling as a partial but significant course correction that nonetheless left room for environmental damage, noting that the court had upheld the mandatory prior-clearance regime against administrative dilution but left a statutory pathway open for the Centre to legitimise past violations.
The court passed the order while considering the fate of two legal instruments — a notification granting post-facto EC of March 14, 2017 and an office memorandum (OM) of July 7, 2021 issued by the MoEFCC — that were under challenge in a set of public interest litigations.
A two-judge bench of the top court in May 2025 struck down the twin notifications, against which a review petition was filed by an apex body of real estate developers as the effect of the order would have led to demolition of development projects worth over ₹20,000 crore, including hospitals, bridges, highways and civic amenities. A three-judge bench on November 18, 2025, by a 2:1 majority, set aside the May judgment and directed the matter to be heard again, resulting in the present judgment.
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The court upheld the 2017 notification issued under Section 3 of the 1986 Act, distinguishing it from the 2021 order, observing that while prior EC is the rule, the 2017 notification provides for an amnesty scheme that is “narrowly tailored” and is issued in “supervening public interest” that favours protection of environment. It said: “The exception (under 2017) is not founded upon indulgence to the wrongdoer, but upon the need to reconcile environmental enforcement with a demonstrable public interest.” While striking down the 2021 order, the bench held that it had no relation to the 2017 notification, as it envisaged a “perpetual regime for grant of EC” to projects undertaken without prior EC. It failed to prescribe any cut-off date or identify any class of eligible projects, the judgment said.
“It (2021 OM) equates the compliant and the defiant, treats unequals as equals and to that extent offends Article 14. It yields to a principle of ‘pollute and then pay’ rather than to sustainable development,” the bench said. This alters the nature of enquiry and the criteria for grant of prior EC under the 2006 Environment Impact Assessment (EIA) notification, the judgment said.
The bench, also comprising justices Joymalya Bagchi and Vipul M Pancholi, said: “The 2021 OM does not satisfy the test of proportionality and reasonableness and is violative of Articles 14 and 21 of the Constitution. Thus, the 2021 OM is quashed but with prospective effect, keeping in mind the prevailing confusion with regard to validity of the impugned instruments and supervening public interest.”
The court said that the order must be made to apply prospectively as the projects that benefitted under it included multi-specialty hospitals such as AIIMS Medical College and Hospital in Odisha, the Centre of Excellence for Cancer Diseases in Tamil Nadu, several medical colleges, Vijayapura Airport in Karnataka, slum rehabilitation projects and irrigation projects intended for drought-prone areas, among other public interest facilities.
“Unless the 2021 OM is prospectively overruled, projects already undertaken would have to be undone, adversely affecting the overarching public purpose they serve,” the judgment said.
Justice Bagchi, writing the judgment for the bench, said: “ECs granted to project proponents under the 2017 Notification and the 2021 OM till date shall remain valid, unless otherwise challenged on merits.”
The court further observed: “Future amnesty schemes, if any, should provide effective deterrent measures against individual public servants, including disciplinary action and personal liability for environmental damage, wherever the state or its instrumentalities, as project proponents, violate the prior EC regime.”
The Centre, represented by Additional Solicitor General (ASG) Aishwarya Bhati, argued that the 2021 OM supplements the 2006 notification. However, the bench ruled that it “supplants” and not supplements it.
Solicitor General Tushar Mehta appeared for public sector enterprises and state projects that commenced work without prior EC, and said prior judgments of the court provide legal sanction to grant post-facto EC.
The petitioners — non-profit organisations Vanashakti and One Earth One Life, led by senior advocates Gopal Sankaranarayanan and Sanjay Parikh — argued that the top court in Common Cause (2017) and Alembic Pharmaceuticals (2020) held that post-facto EC is alien to environmental jurisprudence.
The court overruled two such orders passed by the top court in Pahwa Plastics (2022) and D Swamy (2022) to the extent that they incorrectly treated the 2021 OM as valid and traceable to the 2017 notification. However, the court clarified: “Our directions shall not constrain the powers of this court to grant ex post-facto EC under Article 142 of the Constitution to do complete justice in appropriate cases.”
The bench noted that even the Common Cause and Alembic rulings do not place a clog on the power of the Central Government to issue an “appropriate narrowly tailored amnesty notification in supervening public interest.”
Debadityo Sinha, lead, climate and ecosystems at Vidhi Centre for Legal Policy, said: “By holding that the Centre may create a post facto EC regime through a statutory notification, the judgment leaves open a pathway to legitimise projects that commenced in violation of the law. In doing so, it weakens the precautionary principle and the principle of prevention that lie at the top of the mitigation hierarchy in Environmental Rule of Law,” he said.
Environmental activist Bhavreen Kandhari made a similar assessment. “By recognising that post facto clearances may still be granted through a statutory notification under Section 3 of the Environment (Protection) Act, the judgment paves the way for the possibility of future statutory notifications regularising and encouraging violations. The challenge now is to ensure that this remains an exceptional remedy and does not become another route to dilute prior EC,” she said.
