The Supreme Court on May 16 restrained the Central government from issuing any notification, circular, orders etc. that could allow the retrospective grant of environmental clearance to development projects that could pollute the environment [Vanashakti vs. Union of India].

The Bench of Justices Abhay S Oka and Ujjal Bhuyan issued the directive while striking down a 2017 notification and a 2021 Office Memorandum (OM) issued by the Centre.

These had permitted the retrospective grant of environmental clearances (EC) for certain projects that commenced or expanded without prior approvals under the Environmental Impact Assessment notification (EIA notification) of 2006.

The Court held that the grant of such ex-post factor environmental approvals are illegal and arbitrary.

"The Court must come down very heavily on the attempt of the Central Government to do something which is completely prohibited under the law. Cleverly, the words ex post facto have not been used, but without using those words, there is a provision to effectively grant ex post facto EC. The 2021 OM has been issued in violation of the decisions of this Court...Therefore, we have no manner of doubt that the 2021 OM which permits grant of EC is completely arbitrary and illegal," the Court held.

It also sharply criticised the Central government for such attempts to protect polluters.

"Apart from the fact that the very concept of grant of ex-post facto EC is illegal, it is not possible to understand why the Central Government made efforts to protect those who committed illegality by not obtaining prior EC in terms of the EIA notification."

The Court added that those who carried out polluting development activity without prior environmental approvals would have been well aware that their actions were illegal.

"The persons who acted without prior EC were not illiterate persons. They were companies, real estate developers, public sector undertakings, mining industries, etc. They were the persons who knowingly committed illegality," it observed.

The Court proceeded to order the Centre not to attempt any move in future that would allow the retrospective grant of EC.

"We, therefore, make it clear that hereafter, the Central Government shall not come out with a new version of the 2017 notification which provides for the grant of ex-post facto EC in any manner ... We restrain the Central Government from issuing circulars/orders/OMs/notifications providing for grant of ex post facto EC in any form or manner or for regularising the acts done in contravention of the EIA notification," the Court ordered.

The case involved multiple petitions challenging the legality of a 2017 notification issued by the Centre. The notification allowed the grant of EC to certain work that could not get prior EC under the 2006 EIA notification.

The benefit of this 2017 notification was only for projects that were in violation of the EIA notification on or before March 14, 2017. It provided a six-month window for such violators to apply for ECs.

A similar matter was earlier before the Madras High Court, where the Centre assured that the 2017 notification was a one-time measure to regularise certain projects. This led the High Court to refrain from striking it down.

Later, the 2021 OM was issued, which introduced a Standard Operating Procedure (SOP) for project proponents who had violated the EIA Notification, allowing them to seek ECs retroactively while imposing penalties based on the ‘Polluter Pays Principle.'

The Supreme Court, however, found this framework to be a disguised attempt to reintroduce retrospective environmental clearances.

“The 2021 OM is brought in to do something which was not permissible under the 2017 notification, the law laid down by this Court, and the solemn undertaking given by the Central Government to the Madras High Court," it said.

The Court further highlighted the pitfalls of giving any leeway in enforcing environmental norms, particularly since India is facing a pollution crisis.

It observed that the consequences of unchecked industrial growth are being felt acutely in major cities like Delhi, where air quality frequently reaches hazardous levels, endangering public health.

“Today, in the year 2025, we have been experiencing the drastic consequences of large-scale destruction of environment on human lives in the capital city of our country and in many other cities. At least for a span of two months every year, the residents of Delhi suffocate due to air pollution. The AQI level is either dangerous or very dangerous. They suffer in their health. The other leading cities are not far behind. The air and water pollution in the cities is ever increasing. Therefore, coming out with measures such as the 2021 OM is violative of fundamental rights of all persons guaranteed under Article 21 to live in a pollution-free environment,” the Court noted

The Court also dismissed the government’s justification that the 2021 OM was a necessary step to balance economic growth with environmental protection. It rejected the notion that economic development can come at the cost of environmental degradation.

“Can there be development at the cost of environment? Conservation of environment and its improvement is an essential part of the concept of development. Therefore, going out of the way by issuing such OMs to protect those who have caused harm to the environment has to be deprecated by the Courts which are under a constitutional and statutory mandate to uphold the fundamental right under Article 21 and to protect the environment. In fact, the Courts should come down heavily on such attempts,” the judgment read.

The Court proceeded to strike down the 2017 notification and the 2021 OM, along with all related circulars, orders, and notifications. However, it clarified that environmental clearances already granted under these now-invalidated provisions would remain unaffected.

[Read Judgement]