Ex Post Facto Environmental Clearance Struck Down: SC Restores Rule of Law in Green Jurisprudence

In a judgment that will resonate across India’s environmental governance landscape, the Supreme Court in Vanashakti v. Union of India has decisively struck down the controversial policy of granting ex post facto environmental clearances. The verdict, authored by Justice Abhay S. Oka and Justice Ujjal Bhuyan, invalidates both the 2017 notification issued by the Ministry of Environment, Forests and Climate Change (MoEFCC) and its subsequent operationalization through the 2021 Office Memorandum (OM), declaring them unconstitutional, illegal, and antithetical to the fundamental right to a clean environment under Article 21.

The Court held, in no uncertain terms, that allowing industries and infrastructure projects to seek environmental clearance after construction or operation begins is not only contrary to statutory mandates under the Environment (Protection) Act, 1986, but also violates the bedrock principles of environmental law—particularly the precautionary principle and sustainable development.

At the heart of the case lay the dubious practice of granting environmental clearances retrospectively an administrative workaround that effectively allowed violators of the Environment Impact Assessment (EIA) Notification, 2006, to regularize illegal constructions and operations.

The 2017 notification had opened a one-time window for such “violators” to apply for post-facto clearance. The 2021 OM, in turn, operationalized this by providing a Standard Operating Procedure that, though carefully avoiding the term “ex post facto,” effectively allowed the same practice to flourish under a bureaucratic veil.

The Court was unequivocal: both instruments were not just procedurally flawed but substantively unconstitutional. Referring to its earlier rulings in Common Cause v. Union of India and Alembic Pharmaceuticals v. Rohit Prajapati, the Court reaffirmed that the concept of post-facto environmental clearance is fundamentally alien to Indian environmental jurisprudence. Such clearance, the Court observed, rewards non-compliance and undermines the core objective of environmental regulation preventing harm, not mitigating it after the damage is done.

The judgment also highlighted the Central Government’s own duplicity. When the 2017 notification was challenged before the Madras High Court, the government had assured that it was a one-time measure.

Relying on this solemn assurance, the High Court allowed the notification to survive prospectively. Yet, despite that undertaking, the MoEFCC introduced the 2021 OM, thereby breaching both judicial confidence and the constitutional duty under Article 51A(g) to protect and improve the environment.

What makes the judgment even more significant is its systemic critique of the very logic behind retrospective regularization.

The Court observed that the industries and entities that flouted the EIA notification were not uneducated or unaware they included real estate giants, mining companies, and public sector undertakings, who knowingly acted in defiance of environmental mandates.

Such illegality, the Court held, not only causes irreversible damage to air and water quality but directly violates the fundamental rights of citizens to health and a pollution-free environment.

While the Court chose not to disturb the clearances already granted under the impugned instruments citing institutional stability and legitimate expectations it firmly closed the door on any future attempt to revive the ex post facto regime. It categorically restrained the Central Government from issuing any further orders, circulars, or memoranda that could authorize such retrospective environmental clearances.

The judgment reorients the conversation on development and environmental protection. It makes clear that "development at the cost of law" is no development at all. Environmental law, the Court reminded, is not a mere administrative formality but a constitutional safeguard to protect both current and future generations

In a time where ecological concerns are often brushed aside in the name of economic urgency, Vanashakti serves as a timely judicial reminder: the right to breathe clean air and drink safe water cannot be bartered for bureaucratic convenience.