New Delhi: The Supreme Court has held that ex post facto environmental clearance cannot be granted through an executive Office Memorandum, ruling that only a validly issued notification under Section 3 of the Environment (Protection) Act, 1986 can carve out a narrow, time-bound exception to the mandatory 'prior environmental clearance' regime under the Environment Impact Assessment Notification, 2006. A Bench of Surya Kant, CJI, Joymalya Bagchi and Vipul M. Pancholi, JJ., speaking through Bagchi, J., upheld the validity of the notification dated 14.03.2017 as a narrowly tailored amnesty measure, but struck down the office memorandum dated 07.07.2021 as ultra vires the parent Act, quashing it with prospective effect under Article 142 of the Constitution.
The batch of petitions arose out of three writ petitions. The first, Writ Petition (C) No. 1394 of 2023, challenged the office memorandum dated 07.07.2021 as arbitrary and beyond the rule-making power under the 1986 Act. The second, Writ Petition (C) No. 118 of 2019, assailed the notification dated 14.03.2017 and sought identification of real estate projects executed without prior clearance. The third, Writ Petition (C) No. 115 of 2024, challenged both instruments. Both instruments enabled appraisal and grant of post facto environmental clearance to projects which had commenced construction, expansion or operation without the prior clearance mandated by the 2006 Notification. Connected Civil Appeal Nos. 381-382 of 2025 assailed the judgment of the Madras High Court in Fatima v. Union of India, where the 2021 OM (along with a related coastal-zone office memorandum) was quashed but given only prospective effect, protecting pending applications.
The matters were first decided by a two-Judge Bench in Vanashakti v. Union of India (2025 INSC 718), which struck down both instruments in their entirety, holding the grant of an ex post facto EC to be alien to environmental jurisprudence and restraining the Central Government from issuing any similar instrument in future. On review sought by the Confederation of Real Estate Developers of India, a three-Judge Bench, by a majority of 2:1, recalled that judgment (Confederation of Real Estate Developers of India v. Vanashakti, 2025 INSC 1326), holding that material paragraphs of Common Cause v. Union of India, Alembic Pharmaceuticals Ltd. v. Rohit Prajapati and Electrosteel Steels Ltd. v. Union of India moulding relief had not been considered, and that the coordinate Bench decisions in Pahwa Plastics (P) Ltd. v. Dastak NGO and D. Swamy v. Karnataka State Pollution Control Board had gone unnoticed. The matters were accordingly restored to file and placed before the present Bench for fresh hearing.
Petitioners, led by Shri Gopal Sankaranarayanan and Shri Sanjay Parikh, argued that the word 'prior' in the 2006 Notification makes an anterior environmental impact assessment the sine qua non of clearance, and that both impugned instruments permit a course of 'violate first, regularise later' that offends Articles 14 and 21. The 2017 Notification, they submitted, was itself a one-time measure confined to a six-month window, extended only once until 13.04.2018, on the strength of an undertaking recorded by the Madras High Court in Puducherry Environment Protection Association v. Union of India. The 2021 OM, in contrast, was an unbounded, perpetual regime dressed up as a standard operating procedure.
The Union, represented by learned Solicitor General Shri Tushar Mehta and learned ASG Ms. Aishwarya Bhati, along with counsel for several States and project proponents, contended that Common Cause and Alembic must be read alongside the relief actually moulded in those very decisions, and that Electrosteel, Pahwa and D. Swamy confirm that the 1986 Act does not bar regularisation in appropriate cases, particularly for public projects such as hospitals, airports and effluent treatment plants where demolition would cause greater ecological harm than continuance.
Framing the questions for determination, the Bench clarified at the outset that the review order had recalled Vanashakti-I on two limited grounds alone, namely the omission to notice the relief-moulding paragraphs of the earlier trilogy and the failure to consider Pahwa and D. Swamy. Since Chandran, J. had concurred only on that narrow footing and expressly left the merits open, the observations of the lead opinion on the validity of the two instruments did not bind the present Bench, leaving the questions to be determined afresh.
On the merits, the Court held that the prior environmental clearance requirement under the 2006 Notification is mandatory, being anchored in the precautionary principle and the constitutional guarantee of a clean environment under Article 21. The Act and the Notification being silent on the fate of an offending project, the Court rejected the submission that prosecution or civil penalty under Section 15 exhausts the consequence of breach.
We are unable to subscribe to the view that such silence would permit a wrongdoer to continue enjoying the usufructs of his wrongdoing.
At the same time, the Court held that the words 'control' and 'abate' in Section 3 of the 1986 Act are of wide amplitude and empower the Central Government to address the consequences of breach through a properly framed notification, provided the measure is directed towards environmental protection, damage assessment, remediation and deterrence. Any such measure, the Bench held, must pass the twin tests of reasonable classification under Article 14 and proportionality, and must remain an exceptional, finite and closed departure from the general rule rather than a standing alternative route.
Tested on this standard, the 2017 Notification was upheld as valid delegated legislation under Section 3 read with Rule 5(3)(d) of the Environment (Protection) Rules, 1986. The Court noted that it was confined to projects in violation as on its date, subjected them to centralised appraisal by the sectoral Expert Appraisal Committee, mandated ecological damage assessment by accredited laboratories, and closed the application window within a fixed period. These features, the Bench held, mark it out as a narrowly tailored, time-bound amnesty rather than a parallel regime.
The 2021 Office Memorandum fared differently. Drawing a detailed comparison with the 2006 Notification, the Court found that the OM was a bare executive instruction that did not invoke the notification-making power at all, carried no cut-off date, and applied to any project found otherwise permissible, regardless of when the violation occurred. Unlike the 2017 Notification, it converted an exceptional violation-management response into a permanent parallel track that allowed proponents to build first and seek appraisal later upon payment of a capped, foreseeable levy. The direction of the National Green Tribunal in Tanaji B. Gambhire v. Chief Secretary, Government of Maharashtra, the Court held, authorised only a procedure to address enforcement gaps in the existing regime, not an open-ended regularisation mechanism.
A project must survive upon its own strength, and not because the polluter has paid.
Holding that the OM equated compliant and defiant project proponents without any intelligible differentia bearing a rational nexus to the object of the 1986 Act, the Bench concluded that it failed the tests of reasonable classification and proportionality and was violative of Articles 14 and 21. It accordingly quashed the 2021 OM, but only with prospective effect, invoking Article 142 in view of the prolonged legal uncertainty surrounding the instrument since the interim stay of 02.01.2024, and the supervening public interest in large public projects awaiting clearance, including a 962-bed AIIMS hospital in Odisha and a greenfield airport at Vijayanagar in Karnataka.
Consequently, the Court directed that all ECs already granted under the 2017 Notification and the 2021 OM shall remain valid unless independently challenged; pending applications under either instrument shall be taken to their logical conclusion in accordance with law; applications dismissed solely on account of the interim stay or Vanashakti-I may be reconsidered; no fresh application under either instrument shall be entertained; and the Central Government stands restrained from issuing any further administrative order granting ex post facto clearance except by way of a valid notification under Section 3 of the 1986 Act.
The Court clarified that Electrosteel does not correctly hold that the 1986 Act permits ex post facto clearance, and overruled Pahwa and D. Swamy to the limited extent that they treated the 2021 OM as validly traceable to the 2017 Notification. Civil Appeal Nos. 381-382 of 2025, challenging the prospective operation of the Madras High Court's judgment in Fatima, were dismissed, and the connected appeal filed by the State of Tamil Nadu was left to be disposed of in light of the present judgment. The Special Leave Petition arising from the closure of a mall in Maharashtra was de-tagged for separate hearing, the challenge there not being confined to the 2017 Notification.
Case Title: Vanashakti v. Union of India, Writ Petition (C) No. 1394 of 2023, with Writ Petition (C) No. 118 of 2019, Writ Petition (C) No. 115 of 2024, Civil Appeal Nos. 381-382 of 2025, SLP (C) No. 8187 of 2025 and connected matters.
