Supreme Court quashing post-facto environmental clearances is a timely reminder that long-term development rests on foresight — not shortcuts
In a judgment that was cheered by environment activists and conservationists alike, last week on May 16, the Supreme Court ruled that a prior Environmental Clearance (EC) is the only legal recourse to set up or modify industries in India.
In essence, the judgment implies that the government cannot grant retrospective ECs while the previous Office Memorandums (OM) and notifications that permitted such approvals for mining and industrial projects have been declared null and void.
Specifically, the bench, led by Justice Abhay S. Oka and Justice Ujjal Bhuyan struck down the 2017 notification and the 2021 OM. These documents had essentially paved the way for a system that granted environmental clearances to projects that had already started without prior permission — a mechanism known as ex post facto clearances.
In its order, the bench underlined three moot points:
a) The 2017 notification and the 2021 OM as well as all circulars/orders/OMs/notifications issued for giving effect to these notifications are illegal and are hereby struck down;
b) We restrain the Central Government from issuing circulars/orders/OMs/notifications providing for grant of ex post facto EC in any form or manner or for regularising the acts done in contravention of the EIA notification;
c) We clarify that the ECs already granted till date under the 2017 notification and the 2021 OM shall, however, remain unaffected.
Additionally, what is widely perceived as a remarkably harsh criticism of the Central government, the Court mentioned in the judgment:
"Apart from the fact that the very concept of grant of ex-post facto EC is illegal, it is not possible to understand why the Central Government made efforts to protect those who committed illegality by not obtaining prior EC in terms of the EIA notification. As the EIA notification was eleven years old when the 2017 notification was issued, there was no equity in favour of those who committed such gross illegality of not obtaining prior EC. The persons who acted without prior EC were not illiterate persons. They were companies, real estate developers, public sector undertakings, mining industries, etc. They were the persons who knowingly committed illegality. We, therefore, make it clear that hereafter, the Central Government shall not come out with a new version of the 2017 notification which provides for the grant of ex-post facto EC in any manner."
Reading the fine print
To understand the synthesis of this historic ruling, we need to look at past two cases that led the apex court to put an end to the exploitation of the erstwhile legal loopholes.
Common Cause v Union of India & Ors.
Delivered on August 2, 2017, the Court in Common Cause made clear that ex post facto or retrospective EC does not fit in environmental law, including the Environment Impact Assessment (EIA) notification from 1994 or 2006.
The Court found this concept went against basic principles of environmental law and hurt the EIA notification. The Court said that ex post facto EC could harm the environment and cause damage.
The judgment, in paragraph 125, states that an EC works only from the date it is granted. Paragraph 108 noted that the option of getting ex post facto EC made mining companies think that getting an EC was optional or that failing to get one could be fixed later.
Despite this ruling on August 2, 2017, the Central Government kept the 2017 notification that allowed ex post facto EC. The 2021 Office Memorandum (OM) tried to bring back a system that was banned by the Court in both Common Cause and Alembic Pharmaceuticals.
Alembic Pharmaceuticals v. Rohit Prajapati
The case of Alembic Pharmaceuticals v. Rohit Prajapati looked at a circular dated May 14, 2002, which allowed ex post facto EC. This circular was reviewed in light of the EIA Notification from January 27, 1994, which required prior EC for setting up and expanding certain industrial projects.
The Court found that the 2002 Circular, which let industrial units that started without an EC fix this problem later, went against the 1994 EIA Notification. The 1994 Notification said projects "shall not be undertaken... unless it has been accorded environmental clearance," which clearly meant EC must precede any on ground execution of the project.
The Court held that ex post facto EC goes against the letter and spirit of the basic principles of the environmental law principles. Like in Common Cause, such after-the-fact clearance was seen as harmful to the environment and could cause lasting damage.
The Court explained that prior EC involves careful study of likely effects, public hearings, screening, scoping, and review, which must happen before giving permission. Allowing after-the-fact clearance would excuse operations without these safeguards and could lead to harm if EC were finally refused.
The Court decided that the May 14, 2002 circular was not protected by Section 3 of the 1986 Act. Instead of protecting the environment, it weakened the requirement for prior EC under the 1994 Notification.
However, in the cases of Alembic Pharmaceuticals and Electrosteel Steels Ltd. v. Union of India and Ors., the Court used its powers under Article 142 of the Constitution to allow ex post facto EC in specific cases with unique facts.
Constitutional imperative: Environment over expedience
In its judgment, the Court emphasised the need to protect the environment based on the Constitution:
"Under Article 21 of the Constitution of India, the right to live in a pollution free environment is guaranteed. In fact, the 1986 Act has been enacted to give effect to this fundamental right. In 1977, fundamental duties of all citizens were incorporated in the Constitution which enjoined every citizen of India to protect and improve the environment as provided in clause (g) of Article 51A. Therefore, even the Central Government has a duty to protect and improve the natural environment."
The Court went on to highlight the real-world consequences of environmental degradation:
"Today, in the year 2025, we have been experiencing the drastic consequences of large-scale destruction of environment on human lives in the capital city of our country and in many other cities. At least for a span of two months every year, the residents of Delhi suffocate due to air pollution. The AQI level is either dangerous or very dangerous. They suffer in their health. The other leading cities are not far behind. The air and water pollution in the cities is ever increasing. Therefore, coming out with measures such as the 2021 OM is violative of fundamental rights of all persons guaranteed under Article 21 to live in a pollution free environment. It also infringes the right to health guaranteed under Article 21 of the Constitution."
Development with caution
In this judgment, the Court has taken a firm stand — development cannot override environmental protection.
Addressing the misuse of the 2021 OM, which sought to regularise environmental violations after they occurred, the Court reaffirmed the constitutional duty to safeguard the environment and uphold the right to life under Article 21.
“The 2021 OM talks about the concept of development. Can there be development at the cost of environment? Conservation of environment and its improvement is an essential part of the concept of development... Courts... are under a constitutional and statutory mandate to uphold the fundamental right under Article 21 and to protect the environment.”
This ruling is a clear endorsement of the precautionary principle, which requires that environmental clearance must be obtained before beginning any potentially harmful activity. It directly challenges the misuse of the polluter pays principle, which has often been wrongly interpreted to justify post-facto approvals—allowing violators to proceed first and pay for the damage later.
The Court made it clear that this approach is unacceptable. Environmental protection must not be reduced to a penalty system. It is a foundational requirement for any development process.
While the Court showed some pragmatism by not disturbing clearances already granted under the 2017 notification and the 2021 OM, it decisively struck down these provisions for future use. It also barred any attempt to bring back similar post-facto clearance mechanisms.
This judgment sets a clear direction: India’s development must be guided by prevention, not damage control. Environmental safeguards are not to be applied after the projects have begun — they must be built into the planning and approval stages.
By reinforcing the importance of prior environmental clearance, the Court has restored integrity to the environmental clearance process. It has also reaffirmed that true development must include environmental responsibility — not as a box to be ticked or a fine to be paid, but as a central principle.
As India moves forward, this idea of ‘development with caution’ must shape both policy and practice. It is a timely reminder that long-term progress depends on foresight, not shortcuts.