1. Challenge to notifications and office memoranda permitting the grant of ex post facto environmental clearance for projects violating the EIA Notification, 2006. (Para 5 , 6 , 7 , 9 , 10 , 11 , 12 )
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2025 Supreme(SC) 858
SUPREME COURT OF INDIA
ABHAY S. OKA, UJJAL BHUYAN, JJ.
Vanashakti - Appellant
Versus
Union Of India - Respondent
Writ Petition (C) No.1394 of 2023, Writ Petition (C) No.118 of 2019, Writ Petition (C) No.115 of 2024 And Civil Appeal No.381-382 of 2025
Decided on : 16-05-2025
Important Points
Ex post facto environmental clearance is illegal as it undermines the fundamental right to a pollution-free environment and contravenes established environmental laws.
Subject
Environmental Law - Environmental Clearance
Act Referred
CONSTITUTION OF INDIA: Art.14, Art.142, Art.21
ENVIRONMENT PROTECTION ACT: S.3, S.5
ENVIRONMENT PROTECTION RULES: R.5(3)(d)
ENVIRONMENT PROTECTION ACT: S.3, S.5
ENVIRONMENT PROTECTION RULES: R.5(3)(d)
Headnote
(A) The Constitution of India - Article 21, Article 51A(g) - Environment (Protection) Act, 1986 - Ex post facto environmental clearance - The 2017 notification allowing ex post facto environmental clearance was deemed illegal as it violates Article 21's guarantee of the right to a pollution-free environment and negates the precautionary principle. The 2021 OM was also struck down for being arbitrary and for allowing ex post facto clearance contrary to established environmental laws. (Paras 35, 36)
(B) Environmental Law - Fundamental Right - The right to live in a pollution-free environment is an integral part of the fundamental right to life. This judgment reinforces this principle and reiterates the need for strict compliance with environmental regulations. (Paras 32, 34)
Facts of the case:
Several writ petitions were filed challenging the legality of the 2017 notification by the MoEFCC regarding ex post facto environmental clearance and the 2021 OM that sought to regulate projects commenced without prior clearance under the EIA. The Central Government had given submissions indicating that the 2017 notification was a one-time measure, which was called into question.
Findings of Court:
The Court found both the 2017 notification and the 2021 OM illegal and unconstitutional as they allowed for violations of the EIA notification and undermined the right to a pollution-free environment.
Issues: The main issues included whether the ex post facto environmental clearance under the 2017 notification was legally permissible, the implications of the 2021 OM, and the overarching legal principles regarding environmental protection.
Ratio Decidendi: The Court held that environmental protection measures, including the requirement for prior environmental clearance, are essential to safeguarding public health and the environment. Ex post facto clearances were inconsistent with environmental jurisprudence and the principles laid out in earlier judgments.
Result: The petitions were allowed, and the notifications were struck down.
(B) Environmental Law - Fundamental Right - The right to live in a pollution-free environment is an integral part of the fundamental right to life. This judgment reinforces this principle and reiterates the need for strict compliance with environmental regulations. (Paras 32, 34)
Facts of the case:
Several writ petitions were filed challenging the legality of the 2017 notification by the MoEFCC regarding ex post facto environmental clearance and the 2021 OM that sought to regulate projects commenced without prior clearance under the EIA. The Central Government had given submissions indicating that the 2017 notification was a one-time measure, which was called into question.
Findings of Court:
The Court found both the 2017 notification and the 2021 OM illegal and unconstitutional as they allowed for violations of the EIA notification and undermined the right to a pollution-free environment.
Issues: The main issues included whether the ex post facto environmental clearance under the 2017 notification was legally permissible, the implications of the 2021 OM, and the overarching legal principles regarding environmental protection.
Ratio Decidendi: The Court held that environmental protection measures, including the requirement for prior environmental clearance, are essential to safeguarding public health and the environment. Ex post facto clearances were inconsistent with environmental jurisprudence and the principles laid out in earlier judgments.
Result: The petitions were allowed, and the notifications were struck down.
Legal Category Hierarchy
- constitutional law
- environmental law
- administrative law
Advocates appeared:
For the Petitioner(s): Mr. Gopal Sankaranarayanan, Sr. Adv. Mr. Vanshdeep Dalmia, AOR Ms. Anisha Jain, Adv. Ms. Shambhavi Singh, Adv. Ms. Trisha Chandran, Adv. Ms. Natasha Dalmia,Adv. Mr. Shourya Dasgupta,Adv. Mr. Dhaval Mehrotra, Adv. Mr. Rahul Garg, Adv. Mr. Abhishek Singh, Adv. Ms. Aditi Desai, Adv. M/S. K Ashar & Co., AOR Mr. Sanjay Parikh, Sr. Adv. Ms. Sanjana Grace Thomas, Adv. Ms. Kritika, Adv. Mr. D.P. Singh, Adv. Ms. Tara Elizabeth Kurien, Adv. Ms. Srishti Agnihotri, AOR Mr. T.V.S. Raghavendra Sreyas, Adv. Mr. Naveen Hegde, AOR
For the Respondent(s):Ms. Aishwariya Bhati, A.S.G. Ms. Ruchi Kohli, Sr. Adv. Ms. Swarupama Chaturvedi, Sr. Adv. Mr. Gurmeet Singh Makker, AOR Mr. Ketan Paul, Adv. Mr. Rajat Nair, Adv. Mr. Kanu Agrawal, Adv. Mr. Rohan Gupta, Adv. Ms. Sharmishtha Shukla, Adv. Mr. Abhinav Aggarwal, Adv. Mr. Vinay Navare, Sr. Adv. Mr. Saket Mone, Adv. Ms. Anshula Vijay Kumar Grover, AOR Mr. Lenpithang Sithlou, Adv. Mr. Vanshdeep Dalmia, AOR Mr. T.V.S. Raghavendra Sreyas, AOR Mr. Naveen Hegde, Adv. Mrs. Gayatri Gulati, Adv. Mr. Prabhat Ranjan Raj, AOR Mr. Devadatt Kamat, Sr. Adv. Mr. Ayush P Shah, Adv. Mr. Arijit Dey, Adv. Mr. Mehul Kumar Garg, Adv. Mr. Nishanth Patil, AOR Dr. A.M. Singhvi, Sr. Adv. Mr. Mahesh Agarwal, Adv. Mr. Arshit Anand, Adv. Mr. Shashwat Singh, Adv. Mr. Siddhant Sahay, Adv. Mr. E.C. Agrawala, AOR Mr. Anuj Bhandari, AOR M/S. S-legal Associates, AOR Mr. Atmaram N.S. Nadkarini, Sr. Adv. Mr. Samit Shukla, Adv. Ms. Saakshi Saboo, Adv. M/S. Trilegal Advocates On Record, AOR Mr. Tarun Gupta, AOR Mr. Satyajit A. Desai, Adv. Mr. Abhinav K. Mutyalwar, Adv. Mrs. Anagha S. Desai, Adv. Ms. Neha Bhosale, Adv. Ms. Anuja Divadkar, Adv. Mr. Yashwant Singh, Adv. Mr. Satya Kam Sharma, AOR Ms. Shivangi Bhatwadekar,Adv. Ms. Laveena Tejwani,Adv. Mr. Pallav Mongia, AOR Ms. Mayuri Raghuvanshi, AOR Mr. Vyom Raghuvanshi, Adv. Ms. Akanksha Rathore, Adv. Ms. Kinjal Sharma, Adv. Mr. V. Chitambaresh, Sr. Adv. Mr. Karthik S.D., AOR Mr. C. Govind Venugopal, Adv. Mr. Siddhant Kohli, Adv. Mr. Kaustabh Bhattacharjee, Adv. Ms. Garima Jain, AOR Mr. Sanjay Upadhyay, Sr. Adv. Mr. Shubham Upadhyay, AOR Ms. Mansi Bachani, Adv. Mr. Anand Varma, AOR Ms. Apoorva Pandey, Adv. Ms. Aishwarya Bhati, Sr. Adv. Mr. Vivek Chib, Sr. Adv. Mr. Vipul Ganda, Adv. Mr. Kunal Cheema, AOR Ms. Anuradha Arputham, Adv. Ms. Aishwarya Bhati, ASG Mr. Gudapati G. Kashyap, Adv. Ms. Manisha Ambwani, AOR Mr. Sandeep Sudhakar Deshmukh, AOR Mr. Nishant Sharma, Adv. Mr. Ankur S. Savadikar, Adv. Mr. Kunal Mimani, AOR Mr. Amar Dave, Sr. Adv. Ms. Nandini Gore, Adv. Ms. Sonia Nigam, Adv. Mr. Akhil Abraham Roy, Adv. Mr. Mohammad Shahyan Khan, Adv. For M/S. Karanjawala & Co., AOR Ms. Charanya Lakshmikumaran, AOR Mr. Yogendra Aldak, Adv. Ms. Tamanna Sharma, Adv. Ms. Bhavya Shukla, Adv. Ms. Neha Choudhary, Adv. Ms. Umang Motiyani, Adv. Mr. Ayush Agarwal, Adv. Ms. Nandini Gore, Adv. Ms. Sonia Nigam, Adv. Mr. Akhil Abraham Roy, Adv. Mr. Mohammad Shahyan Khan, Adv. Mr. Anil Kumar Verma, AOR Mr. Aditya Soni, AOR Mr. A. Karthik, AOR
For the Petitioner(s): Mr. Gopal Sankaranarayanan, Sr. Adv. Mr. Vanshdeep Dalmia, AOR Ms. Anisha Jain, Adv. Ms. Shambhavi Singh, Adv. Ms. Trisha Chandran, Adv. Ms. Natasha Dalmia,Adv. Mr. Shourya Dasgupta,Adv. Mr. Dhaval Mehrotra, Adv. Mr. Rahul Garg, Adv. Mr. Abhishek Singh, Adv. Ms. Aditi Desai, Adv. M/S. K Ashar & Co., AOR Mr. Sanjay Parikh, Sr. Adv. Ms. Sanjana Grace Thomas, Adv. Ms. Kritika, Adv. Mr. D.P. Singh, Adv. Ms. Tara Elizabeth Kurien, Adv. Ms. Srishti Agnihotri, AOR Mr. T.V.S. Raghavendra Sreyas, Adv. Mr. Naveen Hegde, AOR
For the Respondent(s):Ms. Aishwariya Bhati, A.S.G. Ms. Ruchi Kohli, Sr. Adv. Ms. Swarupama Chaturvedi, Sr. Adv. Mr. Gurmeet Singh Makker, AOR Mr. Ketan Paul, Adv. Mr. Rajat Nair, Adv. Mr. Kanu Agrawal, Adv. Mr. Rohan Gupta, Adv. Ms. Sharmishtha Shukla, Adv. Mr. Abhinav Aggarwal, Adv. Mr. Vinay Navare, Sr. Adv. Mr. Saket Mone, Adv. Ms. Anshula Vijay Kumar Grover, AOR Mr. Lenpithang Sithlou, Adv. Mr. Vanshdeep Dalmia, AOR Mr. T.V.S. Raghavendra Sreyas, AOR Mr. Naveen Hegde, Adv. Mrs. Gayatri Gulati, Adv. Mr. Prabhat Ranjan Raj, AOR Mr. Devadatt Kamat, Sr. Adv. Mr. Ayush P Shah, Adv. Mr. Arijit Dey, Adv. Mr. Mehul Kumar Garg, Adv. Mr. Nishanth Patil, AOR Dr. A.M. Singhvi, Sr. Adv. Mr. Mahesh Agarwal, Adv. Mr. Arshit Anand, Adv. Mr. Shashwat Singh, Adv. Mr. Siddhant Sahay, Adv. Mr. E.C. Agrawala, AOR Mr. Anuj Bhandari, AOR M/S. S-legal Associates, AOR Mr. Atmaram N.S. Nadkarini, Sr. Adv. Mr. Samit Shukla, Adv. Ms. Saakshi Saboo, Adv. M/S. Trilegal Advocates On Record, AOR Mr. Tarun Gupta, AOR Mr. Satyajit A. Desai, Adv. Mr. Abhinav K. Mutyalwar, Adv. Mrs. Anagha S. Desai, Adv. Ms. Neha Bhosale, Adv. Ms. Anuja Divadkar, Adv. Mr. Yashwant Singh, Adv. Mr. Satya Kam Sharma, AOR Ms. Shivangi Bhatwadekar,Adv. Ms. Laveena Tejwani,Adv. Mr. Pallav Mongia, AOR Ms. Mayuri Raghuvanshi, AOR Mr. Vyom Raghuvanshi, Adv. Ms. Akanksha Rathore, Adv. Ms. Kinjal Sharma, Adv. Mr. V. Chitambaresh, Sr. Adv. Mr. Karthik S.D., AOR Mr. C. Govind Venugopal, Adv. Mr. Siddhant Kohli, Adv. Mr. Kaustabh Bhattacharjee, Adv. Ms. Garima Jain, AOR Mr. Sanjay Upadhyay, Sr. Adv. Mr. Shubham Upadhyay, AOR Ms. Mansi Bachani, Adv. Mr. Anand Varma, AOR Ms. Apoorva Pandey, Adv. Ms. Aishwarya Bhati, Sr. Adv. Mr. Vivek Chib, Sr. Adv. Mr. Vipul Ganda, Adv. Mr. Kunal Cheema, AOR Ms. Anuradha Arputham, Adv. Ms. Aishwarya Bhati, ASG Mr. Gudapati G. Kashyap, Adv. Ms. Manisha Ambwani, AOR Mr. Sandeep Sudhakar Deshmukh, AOR Mr. Nishant Sharma, Adv. Mr. Ankur S. Savadikar, Adv. Mr. Kunal Mimani, AOR Mr. Amar Dave, Sr. Adv. Ms. Nandini Gore, Adv. Ms. Sonia Nigam, Adv. Mr. Akhil Abraham Roy, Adv. Mr. Mohammad Shahyan Khan, Adv. For M/S. Karanjawala & Co., AOR Ms. Charanya Lakshmikumaran, AOR Mr. Yogendra Aldak, Adv. Ms. Tamanna Sharma, Adv. Ms. Bhavya Shukla, Adv. Ms. Neha Choudhary, Adv. Ms. Umang Motiyani, Adv. Mr. Ayush Agarwal, Adv. Ms. Nandini Gore, Adv. Ms. Sonia Nigam, Adv. Mr. Akhil Abraham Roy, Adv. Mr. Mohammad Shahyan Khan, Adv. Mr. Anil Kumar Verma, AOR Mr. Aditya Soni, AOR Mr. A. Karthik, AOR
Table of Contents
2. Petitioners contend ex post facto clearance is illegal; Government argues the 2021 OM is a non-retrospective SOP based on the Polluter Pays Principle. (Para 24 , 25 )
3. Ex post facto clearance regularizes illegalities, violates the precautionary principle, and infringes the fundamental right to a pollution-free environment under Article 21. (Para 15 , 16 , 17 , 18 , 19 , 20 , 28 , 29 , 30 , 31 , 33 , 34 )
4. The concept of ex post facto or retrospective environmental clearance is fundamentally alien to environmental jurisprudence and contrary to the mandatory requirement of prior clearance. (Para 17 , 18 , 29 )
5. The 2017 notification and 2021 OM are struck down, and the government is restrained from issuing future notifications for ex post facto environmental clearance. (Para 36 )
6. Is ex post facto environmental clearance permissible under Indian environmental law?
No. The court held that ex post facto or retrospective EC is alien to environmental jurisprudence, as it condones operations without prior safeguards, violates the precautionary principle, and leads to irreparable environmental degradation. (Para 17 , 18 , 29 )
7. Does an SOP granting EC to permissible projects after construction start constitute ex post facto clearance?
Yes. Even if termed an SOP and effective from the date of issue, if it regularizes illegal construction or operations commenced without prior EC, it is effectively a retrospective grant of clearance. (Para 29 )
8. How does the grant of ex post facto EC relate to the fundamental right to life?
It infringes the right to live in a pollution-free environment and the right to health guaranteed under Article 21, as it encourages violations of environmental laws and increases pollution. (Para 20 , 33 , 34 )
9. Can the government issue a one-time measure to regularize environmental violations?
No. Even a one-time relaxation is illegal if it contradicts the mandatory requirement of prior EC and the established principles of environmental jurisprudence. (Para 20 )
JUDGMENT :
ABHAY S. OKA, J.
1. Part IV-A of the Constitution of India containing fundamental duties as set out in Article 51A was incorporated in the Constitution by the 42nd Amendment Act with effect from 3rd January 1977. Clause (g) of Article 51A provides that it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures. This Court in several decisions has held that the right to live in a pollution free atmosphere is a part of the fundamental right guaranteed under Article 21 of the Constitution of India.
2. The world changed rapidly after World War II. From the late 1960s and early 1970s, slowly there was a realisation about the drastic consequences of the destruction of environment and pollution of various kinds. In June 1972, at Stockholm, the United Nations Conference on Human Environment was held. In the said conference, several decisions were taken by the world community to protect the environment.
3. In our country, it took fourteen years thereafter for the legislature to come out with a law for protection and improvement of the environment. The Environment (Protection) Act, 1986 (for short, ‘the 1986 Act’) was brought into force with effect from 19th November 1986. As can be noticed from several orders of this Court and the High Courts, the progress of implementation of the 1986 Act has been very slow.
4. The 1970s and 1980s saw growth of industrialisation in our country. The activities such as mining, gas exploration, thermal power plants, petroleum refining industries, various other industries, building and construction projects, such as, highways started growing.
5. Again, it took twenty years after the 1986 Act came into force to exercise the power under sub-section (1) and clause (v) of sub-section (2) of Section 3 of the 1986 Act read with clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986 (for short, ‘1986 Rules’) for coming out with the Environment Impact Assessment Notification, 2006 (for short, ‘the EIA notification’). The EIA notification was issued on 14th September 2006. It provided that the projects or activities mentioned in clause (2) thereof shall require prior Environmental Clearance (for short, ‘the EC’) from the concerned regulatory authority. The concerned regulatory authority in the Central Government is the Ministry of Environment Forests and Climate Change (for short, ‘the MoEFCC’) for matters falling under Category ‘A’ in the Schedule, and at the State level, the State Environment Impact Assessment Authority (for short, ‘the SEIAA’) for the matters falling in Category ‘B’. In the Schedule, Categories ‘A’ and ‘B’ were incorporated setting out industries and other development work. The entire controversy in this group of petitions is about ex post facto grant of EC.
6. On 14th March 2017, a notification was issued by the MoEFCC. The said notification is hereafter referred to as ‘the 2017 notification’. The said notification was made applicable to the projects or activities that have started the work on site, expanded the production beyond the limit of the EC, or changed the production mix without obtaining EC. The 2017 notification provided that in case of such works, ex post facto EC can be granted. It provided that the projects or activities which are in violation of the EIA notification as on 14th March 2017 were eligible to apply under the 2017 notification for ex post facto EC within a period of six months from 14th March 2017.
7. The National Green Tribunal (for short, ‘the NGT’) vide order dated 24th May 2021 directed the MoEFCC to prepare a Standard Operating Procedure (for short, ‘the SOP’) for grant of EC in the cases of violation so as to address the gap in the binding law and practice being currently followed. In purported compliance with the said direction, Office Memorandum dated 7th July 2021 (for short, ‘the 2021 OM’) was issued.
8. In
