The Supreme Court of India has quashed a 2021 Office Memorandum (OM) that granted ex post facto environmental clearances to infrastructure projects. The court held that the Central government cannot substantially alter protective environmental checks by issuing mere administrative orders. The 2021 OM was deemed an administrative order that envisioned a perpetual regime for granting environmental clearance to projects undertaken without prior environmental clearance.
The court noted that the 2021 OM substantially altered the nature of inquiry and criteria for granting environmental clearance under the 2006 notification, which is impermissible in law. A Bench headed by the Chief Justice of India Surya Kant stated that the requirement under the 2006 government notification for taking mandatory and prior environmental clearances for large-scale projects is mandatory in nature.
The 2006 notification’s mandate could have only been amended through a subsequent and appropriate ‘amnesty’ notification for select, deserving projects whose continuation was of ‘supervening public interest.’ The 2021 OM failed to lay down an intelligible differentia for selecting projects for grant of post facto environmental clearance having a rational nexus with supervening public interest, and is thereby ultra vires of the objectives of the Environmental Protection Act of 1986.
The apex court quashed the 2021 OM prospectively to avoid upsetting ongoing projects. It also stated that retrospective clearances given under the 2017 notification and the 2021 OM would remain valid unless individually assailed in accordance with law. The court restrained the Centre from passing administrative orders to grant ex post facto clearances in the future.
However, the court added that the present judgment would not stand in the way of the Supreme Court granting ex post facto clearances in exercise of its plenary powers under Article 142 of the Constitution. The case has had a complex history, with a Division Bench of the apex court declaring such retrospective clearances a gross illegality and an anathema to the environment in a May 2025 judgment.
