The middle path | Explaining Supreme Court’s latest verdict on post facto environmental clearances
The Supreme Court quashed the Union government's 2021 Office Memorandum (OM) that had created a mechanism for granting environmental clearance to projects which began operating without first obtaining prior environmental clearance
The Court held that any future dispensation permitting such "ex post facto" or after-the-fact clearance must be issued through a statutory notification under the Environment (Protection) Act, 1986, and not through an administrative office memorandum
The Court ruled that such an amnesty route, if issued as a statutory notification, must be confined strictly to projects involving "supervening public interest" under the Environmental Impact Assessment (EIA) framework
The quashing was given prospective effect — clearances already granted under the 2017 notification or the 2021 OM remain valid unless individually challenged, preventing large-scale disruption to already-operating projects
The case (Vanashakti v. Union of India, decided 29 July 2026) was brought by an environmental organisation challenging the regulatory regime that allowed retrospective regularisation of projects operating without clearance
The EIA Notification, 2006 and the "Prior Clearance" Principle
The Environmental Impact Assessment (EIA) Notification, 2006, issued under Section 3 of the Environment (Protection) Act, 1986, mandates that specified categories of projects (Category A — cleared by the Union Ministry of Environment via the Expert Appraisal Committee; Category B — cleared by the State Environment Impact Assessment Authority via the State Expert Appraisal Committee) must obtain environmental clearance before construction or operation begins. The Supreme Court has repeatedly held that this "prior" requirement is the essence of the EIA process — retrospective clearance defeats the purpose of assessing environmental impact before irreversible harm occurs.
Key Details
- EIA Notification, 2006 issued under Section 3, Environment (Protection) Act, 1986
- Category A projects: appraised by the Expert Appraisal Committee (EAC) at the central level
- Category B projects: appraised by the State/Union Territory Expert Appraisal Committee (SEAC)
- In Common Cause v. Union of India (2017), the Supreme Court held that the concept of ex post facto environmental clearance is "alien to environmental jurisprudence" and unknown to both the 1994 and 2006 EIA notifications
- In Alembic Pharmaceuticals Ltd. v. Rohit Prajapati (2020), the Court struck down a 2002 circular that had permitted post-facto clearance, reaffirming that prior clearance is a mandatory, non-negotiable condition
The 2026 ruling builds directly on Common Cause and Alembic Pharmaceuticals, closing a route (the 2021 OM) that the executive had used to sidestep those two precedents by issuing an administrative circular instead of formal delegated legislation.
Delegated Legislation: Statutory Notification vs Executive/Administrative Instruction
Under Indian administrative law, the government's power to alter or create binding legal obligations must trace back to a specific statutory source and be exercised in the form the statute prescribes — typically a notification laid before Parliament, published in the Official Gazette, and subject to procedural safeguards. An Office Memorandum (OM), by contrast, is an internal executive instruction that does not undergo the same rule-making procedure and cannot expand or dilute obligations created by a statutory notification.
Key Details
- Section 3, Environment (Protection) Act, 1986 empowers the Central Government to take measures for protecting the environment, including through statutory notifications
- Section 6 of the Act requires notifications framed under Section 3 to be laid before Parliament
- The Supreme Court held that the 2021 OM, being a mere administrative instrument, could not override or supplement the binding conditions of the EIA Notification, 2006
- The judgment found the 2021 OM's blanket regularisation mechanism to violate Articles 14 (equality before law) and 21 (right to life, which the Court has read to include the right to a clean and healthy environment) of the Constitution
The Court's central holding is procedural as much as environmental: even if a future government wants to permit a narrow, public-interest-linked category of after-the-fact clearances, it must do so via a proper statutory notification — not shortcut the process through an OM.
Right to a Healthy Environment under Article 21
Indian courts have progressively read the right to a clean and healthy environment into Article 21's guarantee of the right to life and personal liberty, beginning with cases like Subhash Kumar v. State of Bihar (1991) and M.C. Mehta litigation through the 1980s-90s, and reaffirmed more recently in M.K. Ranjitsinh v. Union of India (2024), where the Supreme Court explicitly recognised a standalone right to be free from the adverse effects of climate change, flowing from Articles 14 and 21.
Key Details
- Article 21: "No person shall be deprived of his life or personal liberty except according to procedure established by law"
- Judicial expansion of Article 21 to environmental protection began in the 1980s through Public Interest Litigation (PIL)
- M.K. Ranjitsinh v. Union of India (2024) recognised a distinct right against the adverse effects of climate change under Articles 14 and 21
- Ex post facto clearance regimes are viewed by courts as diluting this right by allowing environmental damage to occur before assessment
By invoking Articles 14 and 21 to strike down the 2021 OM, the Court situates environmental clearance procedure within the fundamental rights framework, reinforcing that procedural shortcuts in green clearances are not merely irregular but constitutionally infirm.
- Judgment delivered: 29 July 2026, in Vanashakti v. Union of India
- Statutory basis for environmental clearance: EIA Notification, 2006 issued under Section 3, Environment (Protection) Act, 1986
- Key precedents relied upon: Common Cause v. Union of India (2017) and Alembic Pharmaceuticals Ltd. v. Rohit Prajapati (2020)
- Constitutional provisions invoked: Articles 14 and 21
- Effect of the ruling: prospective only — existing clearances under the 2017 notification/2021 OM remain valid unless separately challenged
- Permitted future route: a statutory notification (not an OM), confined to projects of "supervening public interest"