In a landmark judgment delivered on 16 May 2025, a two-judge bench of the Apex Court comprising Justices Abhay S. Oka and Ujjal Bhuyan struck down the 2017 Notification and the 2021 Office Memorandum (OM) issued by the Ministry of Environment, Forest and Climate Change (MoEFCC), which permitted ex post facto Environmental Clearances (EC).
This ruling firmly establishes that prior environmental clearance is mandatory, and any attempt to regularize violations retrospectively is illegal, unconstitutional, and violative of Article 21 of the Constitution which guarantees the right to a pollution-free environment.
Background of the Case
The petitions before the Court challenged:
- The 2017 MoEFCC Notification which allowed projects that had violated the Environment Impact Assessment (EIA) Notification, 2006, to apply retrospectively for clearance.
- The 2021 Standard Operating Procedure (SOP) issued via OM, allegedly to manage such violations, which in effect provided for ex post facto regularisation.
- The Madras High Court judgment (August 2024), which quashed the 2021 OM but applied the ruling prospectively — this was also under challenge.
Key Legal Issues
- Is the ex post facto grant of EC permissible under the Environment (Protection) Act, 1986 and the EIA Notification, 2006?
- Can MoEFCC regularize violations under the guise of SOPs and OMs without express statutory backing?
- Does allowing such regularization violate the fundamental right to life and environment under Article 21?
Arguments and Judicial Reasoning
Petitioners’ Contention:
- Ex post facto ECs contravene binding judgments in Common Cause v. Union of India (2017), Alembic Pharmaceuticals v. Rohit Prajapati (2020), and Electrosteel Steels Ltd. v. UOI (2023).
- The 2017 Notification and 2021 OM undermine the precautionary principle and defeat environmental due diligence.
- They are ultra vires the parent Act and encourage willful violations by industries and real estate developers.
Union of India’s Defense:
- The 2021 SOP was framed to avoid economic loss from demolishing structures already built.
- Claimed that the SOP did not grant ex post facto clearance, as ECs were only made effective from the date of grant.
- Argued that safeguards like penalties, remediation plans, and community augmentation protected environmental interests.
Court’s Findings
1. Ex Post Facto EC is Illegal
The Court reiterated that environmental jurisprudence mandates prior clearance. Ex post facto ECs are:
- Contrary to the precautionary principle.
- Violate mandatory procedures under the EIA Notification (e.g., public hearings, scoping, appraisal).
- A form of retrospective regularisation that enables industries to profit from illegality.
2. Violation of Fundamental Rights
- Pollution has become life-threatening in Indian cities, especially Delhi.
- The right to a pollution-free environment is an integral part of Article 21.
- Allowing such ECs is arbitrary and violates Articles 14 and 21.
3. Breach of Undertaking
The Union had specifically assured the Madras High Court that the 2017 Notification was a “one-time measure”. Issuance of the 2021 OM violated this undertaking, which was binding.
4. Government’s Role as Custodian of the Environment
Citing Article 51A(g), the Court emphasized that the State has a duty to protect and improve the environment, not dilute safeguards for violators.
Final Directions
The Court held:
- The 2017 Notification, 2021 OM, and any related circulars are illegal and struck down.
- The Union Government is restrained from issuing any future instruments permitting ex post facto ECs.
- However, ECs already granted till date under these instruments will remain valid but no new such clearances may be issued.
Legal Significance
This ruling fortifies environmental regulation and aligns Indian jurisprudence with global best practices. It also acts as a warning to violators: economic expediency can never override constitutional obligations and environmental rights.
The judgment stands as a crucial precedent reaffirming the non-negotiable nature of prior environmental clearance, ensuring sustainable development remains central to India’s growth.
FAQs:
1. What was the 2017 Notification about?
It allowed industries and real estate developers who started work without EC to apply retrospectively for clearance — a practice now declared illegal.
2. What does “ex post facto EC” mean?
It means granting environmental clearance after a project has already started — the Court has ruled this is against the law.
3. Does this affect all industries and builders?
Yes, any project that bypassed the EC process and sought clearance retrospectively cannot be regularised under law anymore.
4. What about ECs already granted under this scheme?
The Court allowed ECs already granted under the 2017 Notification and 2021 OM to remain valid, but no fresh ones can be granted this way.
5. Can the government issue another notification like the 2017 one?
No. The Court has specifically barred the Central Government from issuing any future order allowing ex post facto environment clearances.
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