Rapid Fire
SC Strikes Down Ex-Post Facto Environmental Clearances
- 20 May 2025
- 2 min read
The Supreme Court (SC) of India has declared ex-post facto environmental clearances (ECs) (granted after a project has already commenced) as illegal, and has invalidated the 2017 Environment Ministry notification and the 2021 Office Memorandum (OM) that permitted retrospective clearances for projects.
- SC noted that the concept of post-clearance approval is in derogation of Article 21 (Right to life in a pollution-free environment) and Article 14 (right to equality before law), as the OM applied to all project proponents who “were fully aware” of the consequences of violations.
- However, the judgment allowed ECs already granted under the 2017 and 2021 regime to remain valid, avoiding retroactive disruption.
- The SC criticized the post-facto clearance regime, citing past judgments (Common Cause v. Union of India (2017) and Alembic Pharmaceuticals v. Rohit Prajapati (2020)) to reaffirm that ex-post facto approvals violate environmental law.
- It held that the 2021 OM effectively legalized starting projects without prior clearance, defying earlier rulings and fundamental principles of environmental jurisprudence.
- The SC noted that prior clearance is mandatory under the Environment Impact Assessment Notification, 2006, to scrutinize a project’s impact on the environment, natural resources, human health, and social infrastructure.
- The Court emphasized that development cannot come at the cost of environmental degradation and reaffirmed the constitutional duty under Article 51A(g) to protect nature.
| Read more:Post-Facto Environmental Clearances |
