India Supreme Court Quashes 2021 Post-Facto Environmental Clearance Rule

The Supreme Court of India quashed a 2021 Office Memorandum (OM) that allowed the central government to grant post-facto environmental clearances to projects starting operations without prior approval. A three-judge bench led by Chief Justice Surya Kant ruled that the OM was ultra vires the Environment (Protection) Act, 1986, and violated Articles 14 and 21 of the Constitution by attempting to replace mandatory statutory requirements with an administrative order.

Writing the judgment, Justice Joymalya Bagchi stated that the 2021 OM established an impermissible perpetual regime for granting clearances. The court held that prior clearance remains the governing rule and restrained the government from using future administrative orders for this purpose. However, the court noted the government may still implement narrowly tailored, time-bound amnesty schemes through valid statutory notifications if an overriding public interest exists.

The ruling applies prospectively. Clearances already granted under the 2017 notification and 2021 OM remain valid unless individually challenged, ensuring that existing projects, such as an AIIMS in Odisha and a greenfield airport in Karnataka, are not disturbed. The court further maintained its own authority to grant post-facto clearances under Article 142 of the Constitution to ensure complete justice.