Holding

Ex post facto environmental clearances are illegal and ultra vires; the 2017 Notification and the 2021 Office Memorandum are struck down.

Summary

The petitioners challenged the Ministry of Environment, Forest and Climate Change's 2017 Notification and the 2021 Office Memorandum, which sought to grant ex post facto environmental clearances for projects that had commenced without prior clearance under the 2006 EIA Notification. The Court examined whether such retrospective clearances violated the Environment (Protection) Act, 1986, the EIA Notification, and fundamental rights under Articles 21, 14 and 51A(g) of the Constitution. Relying on earlier judgments (Common Cause, Alembic Pharmaceuticals, Electrosteel Steels, etc.), the Court held that the concept of ex post facto clearance is alien to environmental law and the precautionary principle. It found both the 2017 Notification and the 2021 OM to be arbitrary, illegal and ultra vires, striking them down while preserving clearances already granted. The Court restrained the Central Government from issuing any future orders that would regularise violations through retrospective clearances. The writ petitions and associated civil appeals were allowed.

Issues considered

The legality and validity of the 2017 Notification granting ex post facto environmental clearances under the 2006 EIA Notification.
The legality and validity of the 2021 Office Memorandum prescribing a SOP for granting clearances to projects already in violation.
Whether granting ex post facto clearances violates the Environment (Protection) Act, 1986 and its Rules.
Whether such retrospective clearances infringe fundamental rights under Articles 21, 14 and 51A(g) of the Constitution.

Legislation cited

Ancient Monuments and Archaeological Sites and Remains Act, 1958
Constitution of Indias. 14, s. 21, s. 51A(g)
Environment (Protection) Act, 1986s. 15, s. 19, s. 3, s. 5
Environment (Protection) Rules, 1986s. 5
Wild Life (Protection) Act, 1972

Headnote

Issue for Consideration Whether the 2017 Notification issued by the Ministry of Environment, Forest and Climate Change (MoEFCC) in the context of the EIA Notification 2006 for grant of ex post facto environmental clearances (EC) is legal and valid; Whether the 2021 Office Memorandum (OM) issued by Procedure (SOP) for projects that have commenced without an EC is legal and valid. Headnotes† Environment (Protection) Act, 1986 – EIA Notification 2006 – MoEFCC’s 2017 Notification established process for grant of ex post facto or retrospective Environmental Clearance

Subjects

Environment ProtectionEnvironmental interestEnvironmental Impact AssessmentEnvironmental clearanceBuilt up areaEducational institutionMitigation and compensatory measuresSustainable developmentSubordinate legislationConstruction projectsEx post facto

Judgment

[2025] 5 S.C.R. 2618 : 2025 INSC 718

Vanashakti
v.
Union of India
(Writ Petition (C) No. 1394 of 2023)
16 May 2025
[Abhay S. Oka* and Ujjal Bhuyan, JJ.]

Issue for Consideration
Whether the 2017 Notification issued by the Ministry of Environment,
Forest and Climate Change (MoEFCC) in the context of the EIA
Notification 2006 for grant of ex post facto environmental clearances
(EC) is legal and valid; Whether the 2021 Office Memorandum
(OM) issued by the MoEFCC laying down the Standing Operating
Procedure (SOP) for projects that have commenced without an
EC is legal and valid.

Headnotes†
Environment (Protection) Act, 1986 – EIA Notification 2006 –
MoEFCC’s 2017 Notification established process for grant
of ex post facto or retrospective Environmental Clearance
(EC) – Ex post facto EC is illegal – In violation of law laid
down by the Court – Writ petitions and appeals accordingly
allowed:
Held: Under EIA Notification 2006, construction of new projects
or activities, expansion or modernisation of existing projects or
activities cannot be undertaken with prior EC – 2017 Notification
sought to protect project proponents who committed gross
illegality by commencing construction, operation or process without
obtaining prior EC – Common Cause, Alembic Pharmaceuticals,
and Electrosteel Steels followed – Very concept of grant of ex
post facto EC is illegal – Even as a one-time measure illegal –
EIA Notification was eleven years old when 2017 Notification
issued – No equity in favour of those who committed such gross
illegality – 2017 Notification struck down. [Paras 17, 18]

EIA Notification 2006 – 2021 Office Memorandum issued by
MoEFCC – EC granted under 2021 OM regularises the illegality

* Author
[2025] 5 S.C.R. 2619

Vanashakti v. Union of India

done by commencing construction or commencing the project
without prior EC – In substance, what is provided is grant of
ex post facto EC – Completely prohibited under the law – OM
struck down:
Held: MOEFCC issued 2021 OM in purported compliance of
National Green Tribunal’s order to prepare a Standard Operating
Procedure (SOP) for grant of EC in cases of violation – Meaning
of ex post facto considered – In effect, EC granted under 2021
OM regularises illegality done by commencing construction or
commencing project without prior EC – In substance, what is
provided is grant of ex post facto EC – Prohibited under Common
Cause and Alembic Pharmaceuticals – Even though words ex post
facto not used – OM is completely arbitrary and illegal – 2021
OM does something which was not permissible under the 2017
Notification – Deprecate such effort on part of Central Government.
[Paras 29, 30]

Constitutional law – Article 21 – Right to live in a pollution-free
environment – Right to health – Infringed by 2021 OM – Article
51A(g) – Even the Central Government has duty to protect and
improve the natural environment – Arbitrary action violative
of Article 14:
Held: Right to live in a pollution-free environment guaranteed
under Article 21 – Measures such as 2021 OM violate this right –
Also infringes on right to health guaranteed under Article 21 – OM
deals with project proponents who have consciously flouted EIA
Notification – Shown scant respect to the law and their duty to
protect environment – Action is completely arbitrary – Violative of
Article 14 – Article 51A(g) – Even the Central Government has a
duty to protect and improve the natural environment. [Paras 32, 33]

Environmental law – Relief – Central Government restrained
from issuing granting ex post facto EC in any form or manner –
Ex post facto ECs already granted not to be disturbed:
Held: Central Government restrained from issuing circulars/orders/
OMs/ notifications providing for grants of ex post facto EC in any
form or manner or for regularising acts done in contravention of
the EIA Notification – ECs under the 2017 Notification and the
2021 OM remain unaffected – Clarified. [Paras 35, 36]
2620 [2025] 5 S.C.R.

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Case Law Cited
Common Cause v. Union of India & Ors. [2017] 13 SCR 361 :
(2017) 9 SCC 499; Alembic Pharmaceuticals v. Rohit Prajapati
[2020] 10 SCR 677 : (2020) 17 SCC 157; Electrosteel Steels
Ltd. v. Union of India and Ors. [2021] 14 SCR 863 : (2023) 6 SCC
615; M.C. Mehta v. Union of India [2004] 3 SCR 126 : (2004) 12
SCC 118 – followed.
Puducherry Environment Protection Association v. Union of India,
2017 SCC OnLine Mad 7056; Appaswamy Real Estates Limited v.
Puducherry Environment Protection Association, 2018 SCC OnLine
Mad 1283 – followed.

List of Acts
Environment (Protection) Act, 1986; Environment (Protection) Rules,
1986; Wild Life (Protection) Act, 1972; Ancient Monuments and
Archaeological Sites and Remains Act, 1958; Constitution of India.

List of Keywords
Environment Protection; Environmental interest; Environmental
Impact Assessment; Environmental clearance; Built up area;
Educational institution; Mitigation and compensatory measures;
Sustainable development; Subordinate legislation; Construction
projects; Ex post facto.

Case Arising From
CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 1394 of 2023
Under Article 32 of The Constitution of India
With
Writ Petition (C) No. 118 of 2019, Writ Petition (C) No. 115 of 2024
and Civil Appeal No(s). 381-382 of 2025

Appearances for Parties
Advs. for the Petitioner:
Gopal Sankaranarayanan, Sanjay Parikh, P.S. Patwalia, Nikhil Goel,
Sr. Advs., Vanshdeep Dalmia, Ms. Anisha Jain, Ms. Shambhavi
Singh, Ms. Trisha Chandran, Dhaval Mehrotra, Rahul Garg,
Abhishek Singh, Ms. Aditi Desai, M/S. K Ashar & Co., Ms. Sanjana
Grace Thomas, Ms. Kritika, D.P. Singh, Ms. Tara Elizabeth Kurien,
Ms. Srishti Agnihotri, T.V.S. Raghavendra Sreyas, Naveen Hegde,
Zulfiker Ali P. S, Ms. Lakshmi Sree P., Ms. Lebina Baby.
[2025] 5 S.C.R. 2621

Vanashakti v. Union of India

Advs. for the Respondent:
Ms. Aishwarya Bhati, A.S.G. Ms. Ruchi Kohli, Ms. Swarupama
Chaturvedi, Sr. Advs., Gurmeet Singh Makker, Ketan Paul, Rajat
Nair, Kanu Agrawal, Rohan Gupta, Ms. Sharmishtha Shukla,
Abhinav Aggarwal, C. K. Sasi, Ms. Meena K Poulose, Naresh
Kumar, K. P Rajagopal, Jaimon Andrews, Piyo Harold Jaimon,
Harikrishna R.
Advs. for the Applicant:
Ms. Aishwarya Bhati, ASG, Vinay Navare, Devadatt Kamat, Dr.
A.M. Singhvi, Atmaram N.S. Nadkarini, V. Chitambaresh, Sanjay
Upadhyay, Ms. Aishwarya Bhati, Vivek Chib, Amar Dave, Sr.
Advs., Saket Mone, Ms. Anshula Vijay Kumar Grover, Lenpithang
Sithlou, Vanshdeep Dalmia, T.V.S. Raghavendra Sreyas, Naveen
Hegde, Mrs. Gayatri Gulati, Prabhat Ranjan Raj, Ayush P Shah,
Arijit Dey, Mehul Kumar Garg, Nishanth Patil, Mahesh Agarwal,
Arshit Anand, Shashwat Singh, Siddhant Sahay, E.C. Agrawala,
Anuj Bhandari, M/S. S-legal Associates, Samit Shukla, Ms. Saakshi
Saboo, M/S. Trilegal Advocates On Record, Tarun Gupta, Satyajit
A. Desai, Abhinav K. Mutyalwar, Mrs. Anagha S. Desai, Ms. Neha
Bhosale, Ms. Anuja Divadkar, Yashwant Singh, Satya Kam Sharma,
Pallav Mongia, Ms. Mayuri Raghuvanshi, Vyom Raghuvanshi, Ms.
Akanksha Rathore, Ms. Kinjal Sharma, Karthik S.D., C. Govind
Venugopal, Siddhant Kohli, Kaustabh Bhattacharjee, Ms. Garima
Jain, Shubham Upadhyay, Ms. Mansi Bachani, Anand Varma, Ms.
Apoorva Pandey, Zulfiker Ali P. S, Vipul Ganda, Kunal Cheema,
Ms. Anuradha Arputham, Gudapati G. Kashyap, Ms. Manisha
Ambwani, Sandeep Sudhakar Deshmukh, Nishant Sharma,
Ankur S. Savadikar, Kunal Mimani, Ms. Nandini Gore, Ms. Sonia
Nigam, Akhil Abraham Roy, Mohammad Shahyan Khan (for M/S.
Karanjawala & Co.), Ms. Charanya Lakshmikumaran, Anil Kumar
Verma, Aditya Soni, A. Karthik.

Judgment / Order of the Supreme Court

Judgment

Abhay S. Oka, J.

1. Part IV-A of the Constitution of India containing fundamental duties
as set out in Article 51A was incorporated in the Constitution by the
42nd Amendment Act with effect from 3rd January 1977. Clause (g)
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of Article 51A provides that it shall be the duty of every citizen of
India to protect and improve the natural environment including
forests, lakes, rivers and wildlife, and to have compassion for living
creatures. This Court in several decisions has held that the right to
live in a pollution free atmosphere is a part of the fundamental right
guaranteed under Article 21 of the Constitution of India.
2. The world changed rapidly after World War II. From the late 1960s
and early 1970s, slowly there was a realisation about the drastic
consequences of the destruction of environment and pollution of
various kinds. In June 1972, at Stockholm, the United Nations
Conference on Human Environment was held. In the said conference,
several decisions were taken by the world community to protect the
environment.
3. In our country, it took fourteen years thereafter for the legislature
to come out with a law for protection and improvement of the
environment. The Environment (Protection) Act, 1986 (for short, ‘the
1986 Act’) was brought into force with effect from 19th November
1986. As can be noticed from several orders of this Court and the
High Courts, the progress of implementation of the 1986 Act has
been very slow.
4. The 1970s and 1980s saw growth of industrialisation in our country.
The activities such as mining, gas exploration, thermal power plants,
petroleum refining industries, various other industries, building and
construction projects, such as, highways started growing.
5. Again, it took twenty years after the 1986 Act came into force to
exercise the power under sub-section (1) and clause (v) of sub-
section (2) of Section 3 of the 1986 Act read with clause (d) of
sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986
(for short, ‘1986 Rules’) for coming out with the Environment Impact
Assessment Notification, 2006 (for short, ‘the EIA notification’). The
EIA notification was issued on 14th September 2006. It provided
that the projects or activities mentioned in clause (2) thereof shall
require prior Environmental Clearance (for short, ‘the EC’) from the
concerned regulatory authority. The concerned regulatory authority
in the Central Government is the Ministry of Environment Forests
and Climate Change (for short, ‘the MoEFCC’) for matters falling
under Category ‘A’ in the Schedule, and at the State level, the State
Environment Impact Assessment Authority (for short, ‘the SEIAA’) for
[2025] 5 S.C.R. 2623

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the matters falling in Category ‘B’. In the Schedule, Categories ‘A’ and
‘B’ were incorporated setting out industries and other development
work. The entire controversy in this group of petitions is about ex
post facto grant of EC.
6. On 14th March 2017, a notification was issued by the MoEFCC. The
said notification is hereafter referred to as ‘the 2017 notification’. The
said notification was made applicable to the projects or activities that
have started the work on site, expanded the production beyond the
limit of the EC, or changed the production mix without obtaining EC.
The 2017 notification provided that in case of such works, ex post
facto EC can be granted. It provided that the projects or activities
which are in violation of the EIA notification as on 14th March 2017
were eligible to apply under the 2017 notification for ex post facto
EC within a period of six months from 14th March 2017.
7. The National Green Tribunal (for short, ‘the NGT’) vide order
dated 24th May 2021 directed the MoEFCC to prepare a Standard
Operating Procedure (for short, ‘the SOP’) for grant of EC in the
cases of violation so as to address the gap in the binding law and
practice being currently followed. In purported compliance with the
said direction, Office Memorandum dated 7th July 2021 (for short,
‘the 2021 OM’) was issued.
8. In the meanwhile, the 2017 notification was challenged by way
of a writ petition before the High Court of Madras in the case of
Puducherry Environment Protection Association v. Union of India1,
which was decided by order dated 13th October 2017. During the
course of hearing of the case before the Madras High Court, when it
was pointed out that the outer limit for making applications for grant
of ex post facto EC have been repeatedly extended, the Union of
India gave a categorical undertaking that the 2017 notification was
only a one-time measure. By recording the said submission made on
behalf of the Union of India that the 2017 notification was certainly
and clearly only a one time measure, the High Court disposed of
the petition. Later on, by order dated 14th March 2018 passed by
the High Court of Madras in another case, the time period under the
2017 notification for submission of proposals by project proponents
was extended by a further period of thirty days.

1 2017 SCC OnLine Mad 7056
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9. In Writ Petition (C) No.1394 of 2023, the first prayer is for quashing
the 2021 OM on the ground that it was arbitrary, illegal and ultra
vires the provisions of the 1986 Act. The second prayer is for issuing
a writ of mandamus directing the MoEFCC and SEIAA/SEACs not
to process and entertain any application for ex-post facto EC after
13th May 2018. As stated earlier, the time granted under the 2017
notification to apply was lastly extended till 13th April 2018.
10. In Writ Petition (C) No.118 of 2019, the challenge is to the 2017
notification issued by the MoEFCC. A prayer was made seeking
directions to the respondents to produce a list of real estate projects
and project proponents who have undertaken real estate development
projects without obtaining EC under the 2006 notification.
11. In Writ Petition (C) No.115 of 2024, the challenge is to the 2017
notification and the 2021 OM. A prayer for writ of prohibition is made
for restraining the MoEFCC from issuing any notification or office
memorandum permitting ex-post facto EC.
12. The High Court of Madras by judgment and order dated 30th August
2024 quashed the 2021 OM and another OM dated 19th February
2021. The challenge in Civil Appeal No.381-382 of 2025 is to this
decision of the High Court of Madras. In the judgment and order
dated 30th August 2024, the Madras High Court declared that
its order will operate only prospectively and applications under
consideration will remain unaffected. The challenge in this appeal
is only to the extent of giving prospective effect to the impugned
judgment.

THE EIA NOTIFICATION
13. Firstly, we come to the EIA notification. It has been issued in exercise
of powers under sub-Section (1) and clause (v) of sub-Section (2)
of Section 3 of the 1986 Act read with clause (d) of sub-Rule (3)
of Rule 5 of the 1986 Rules. Section 3 of the 1986 Act reads thus:
“3. Power of Central Government to take measures to
protect and improve environment.—(1) Subject to the
provisions of this Act, the Central Government shall
have the power to take all such measures as it deems
necessary or expedient for the purpose of protecting
and improving the quality of the environment and
[2025] 5 S.C.R. 2625

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preventing, controlling and abating environmental
pollution.
(2) In particular, and without prejudice to the generality
of the provisions of sub-section (1), such measures may
include measures with respect to all or any of the following
matters, namely:—
(i) co-ordination of actions by the State Governments,
officers and other authorities—
(a) under this Act, or the rules made thereunder; or
(b) under any other law for the time being in force
which is relatable to the objects of this Act;
(ii) planning and execution of a nation-wide programme for
the prevention, control and abatement of environmental
pollution;
(iii) laying down standards for the quality of environment
in its various aspects;
(iv) laying down standards for emission or discharge of
environmental pollutants from various sources whatsoever:
Provided that different standards for emission or discharge
may be laid down under this clause from different sources
having regard to the quality or composition of the emission
or discharge of environmental pollutants from such sources;
(v) restriction of areas in which any industries,
operations or processes or class of industries,
operations or processes shall not be carried out or
shall be carried out subject to certain safeguards;
(vi) laying down procedures and safeguards for the
prevention of accidents which may cause environmental
pollution and remedial measures for such accidents;
(vii) laying down procedures and safeguards for the
handling of hazardous substances;
(viii) examination of such manufacturing processes,
materials and substances as are likely to cause
environmental pollution;
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(ix) carrying out and sponsoring investigations and research
relating to problems of environmental pollution;
(x) inspection of any premises, plant, equipment,
machinery, manufacturing or other processes, materials
or substances and giving, by order, of such directions to
such authorities, officers or persons as it may consider
necessary to take steps for the prevention, control and
abatement of environmental pollution;
(xi) establishment or recognition of environmental
laboratories and institutes to carry out the functions
entrusted to such environmental laboratories and institutes
under this Act;
(xii) collection and dissemination of information in respect
of matters relating to environmental pollution;
(xiii) preparation of manuals, codes or guides relating to
the prevention control and abatement of environmental
pollution;
(xiv) such other matters as the Central Government deems
necessary or expedient for the purpose of securing the
effective implementation of the provisions of this Act.
(3) The Central Government may, if it considers it necessary
or expedient so to do for the purposes of this Act, by order,
published in the Official Gazette, constitute an authority or
authorities by such name or names as may be specified
in the order for the purpose of exercising and performing
such of the powers and functions (including the power to
issue directions under Section 5) of the Central Government
under this Act and for taking measures with respect to
such of the matters referred to in sub-section (2) as may
be mentioned in the order and subject to the supervision
and control of the Central Government and the provisions
of such order, such authority or authorities may exercise
the powers or perform the functions or take the measures
so mentioned in the order as if such authority or authorities
had been empowered by this Act to exercise those powers
or perform those functions or take such measures.”
(emphasis added)
[2025] 5 S.C.R. 2627

Vanashakti v. Union of India

13.1 Sub-section (1) of Section 3 sums up the very object of the
1986 Act. Therefore, the EIA notification has been issued
not only for the purposes of protecting and improving the
quality of the environment but also for preventing and abating
environmental pollution. Sub-section (1) of Section 3 confers
general power of taking measures on the Central Government.
Sub-section (2) confers specific power for taking measures in
the matters set out in clauses (i) to (ix) thereof. Clause (v) of
sub-section (2) of Section 3 empowers the Central Government
to take measures for putting restrictions of areas in which any
industries, operations or processes shall not be carried out or
shall be carried out subject to safeguards.
14. Rule 5 of the 1986 Rules reads thus:
“5. Prohibition and restriction on the location of
industries and the carrying on of processes and
operations in different areas.—(1) The Central
Government may take into consideration the following
factors while prohibiting or restricting the location of
industries and carrying on of processes and operations
in different areas:
(i) Standards for quality of environment in its various
aspects laid down for an area.
(ii) The maximum allowable limits of concentration of
various environmental pollutants (including noise) for
an area.
(iii) The likely emission or discharge of environmental
pollutants from an industry, process or operation proposed
to be prohibited or restricted.
(iv) The topographic and climatic features of an area.
(v) The biological diversity of the area which, in the opinion
of the Central Government needs to be preserved.
(vi) Environmentally compatible land use.
(vii) Net adverse environmental impact likely to be caused
by an industry, process or operation proposed to be
prohibited or restricted.
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(viii) Proximity to a protected area under the Ancient
Monuments and Archaeological Sites and Remains
Act, 1958 or a sanctuary, National Park, game reserve
or closed area notified as such under the Wild Life
(Protection) Act, 1972 or places protected under any
treaty, agreement or convention with any other country
or countries or in pursuance of any decision made in
any international conference, association or other body.
(ix) Proximity to human settlements.
(x) Any other factor as may be considered by the Central
Government to be relevant to the protection of the
environment in an area.
(2) While prohibiting or restricting the location of industries
and carrying on of processes and operations in an area,
the Central Government shall follow the procedure
hereinafter laid down.
(3) (a) Whenever it appears to the Central Government
that it is expedient to impose prohibition or restrictions on
the location of an industry or the carrying on of processes
and operations in an area, it may, by notification in the
Official Gazette and in such other manner as the Central
Government may deem necessary from time to time, give
notice of its intention to do so.
(b) Every notification under clause (a) shall give a
brief description of the area, the industries, operations,
processes in that area about which such notification
pertains and also specify the reasons for the imposition of
prohibition or restrictions on the location of the industries
and carrying on of processes or operations in that area.
(c) Any person interested in filing an objection against
the imposition of prohibition or restrictions on carrying on
of processes or operations as notified under clause (a)
may do so in writing to the Central Government within
sixty days from the date of publication in the notification
in the Official Gazette.
(d) The Central Government shall within a period of one
hundred and twenty days from the date of publication
[2025] 5 S.C.R. 2629

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of the notification in the Official Gazette consider all the
objections received against such notification and may
[within [seven hundred and twenty-five days [,and in
respect of the States of Assam, Meghalaya, Arunachal
Pradesh, Mizoram, Manipur, Nagaland, Tripura, Sikkim
and Jammu and Kashmir in exceptional circumstance
and for sufficient reasons within a further period of one
hundred and eighty days,]] from such date of publication]
impose prohibition or restrictions on location of such
industries and the carrying on of any process or operation
in an area:
[Provided that on account of COVID-19 pandemic, for
the purpose of this clause, the period of validity of the
notification expiring in the financial year 2020-2021 and
2021-2022 shall be extended up to [30th June, 2022] or
six months from the end of the month when the relevant
notification would have expired without any extension,
whichever is later.]
[(4) Notwithstanding anything contained in sub-rule (3),
whenever it appears to the Central Government that it
is in public interest to do so, it may dispense with the
requirement of notice under clause (a) of sub-rule (3).]”
14.1 For issuing the EIA notification, power has been exercised
under clause (d) of sub-rule (3) of Rule 5 which empowers
the Central Government to impose prohibition or restrictions
on location of such industries and the carrying on any process
or operation in an area. There is a power to impose complete
prohibition on carrying on any process or operation in an area.
Clause (2) of the EIA notification reads thus:
“2. Requirements of prior Environmental Clearance
(EC):- The following projects or activities shall require prior
environmental clearance from the concerned regulatory
authority, which shall hereinafter referred to be as the
Central Government in the Ministry of Environment and
Forests for matters falling under Category ‘A’ in the
Schedule and at State level the State Environment Impact
Assessment Authority (SEIAA) for matters falling under
Category ‘B’ in the said Schedule and at District level,
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the District Environment Impact Assessment Authority
(DEIAA) for matters falling under Category ‘B2’ for mining
minerals in the said Schedule, before any construction
work, or preparation of land by the project management
except for securing the land, is started on the project
or activity:
(i) All new projects or activities listed in the Schedule
to this notification;
(ii) Expansion, modernization or any change in the
product mix or raw material mix in existing projects
or activities listed in the Schedule to this notification
with addition of capacity beyond the limits specified
for the concerned sector in the said Schedule,
subject to conditions and procedure provided in the
sub-paragraph (ii) of paragraph 7.”
14.2 Therefore, without prior EC, construction of new projects or
activities, expansion or modernisation of existing projects or
activities listed in the Schedule entailing capacity addition
with change in process or technology, cannot be undertaken.
Entire procedure for grant of prior EC is laid down in the EIA
notification.

LEGALITY OF THE 2017 NOTIFICATION
15. The 2017 notification refers to the OMs dated 12th December 2012
and 27th June 2013 by which a process was sought to be established
for grant of EC in the cases of violation of the EIA notification. It
also refers to the judgment of the High Court of Jharkhand holding
these two OMs as illegal. The same OMs were also quashed by
the NGT as mentioned in the said notification. There are three
recitals in the said notification which are relevant. Recital Nos.9
to 11 read thus:
“9. And whereas, the Ministry of Environment, Forest
and Climate Change and State Environment Impact
Assessment Authorities have been receiving certain
proposals under the Environment Impact Assessment
Notification, 2006 for grant of Terms of References and
Environmental Clearance for projects which have started
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the work on site, expanded the production beyond the
limit of environmental clearance or changed the product
mix without obtaining prior environmental clearance;
10. Whereas, the Ministry of Environment, Forest
and Climate Change deems it necessary for the
purpose of protecting and improving the quality of
the environment and abating environmental pollution
that all entities not complying with environmental
regulation under Environment Impact Assessment
Notification, 2006 be brought under compliance with
in the environmental laws in expedient manner;
11. And whereas, the Ministry of Environment, Forest and
Climate Change deems it necessary to bring such projects
and activities in compliance with the environmental
laws at the earliest point of time, rather than leaving
them unregulated and unchecked, which will be more
damaging to the environment and in furtherance of this
objective, the Government of India deems it essential to
establish a process for appraisal of such cases of violation
for prescribing adequate environmental safeguards to
entities and the process should be such that it deters
violation of provisions of Environment Impact Assessment
Notification, 2006 and the pecuniary benefit of violation
and damage to environment is adequately compensated
for;”
15.1 Thus, what was sought to be done was to protect the project
proponents who committed gross illegality by commencing
construction or commencing operation or process without
obtaining prior EC as provided in the EIA notification. The
2017 notification was a one-time measure. Moreover, this
Court in the case of Common Cause v Union of India &
Ors.2, held in no uncertain terms that the concept of ex post
facto or retrospective EC is completely alien to environmental
jurisprudence including the EIA notification. The decision in
the case of Common Cause2 was delivered on 2nd August

2 (2017) 9 SCC 499
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2017. Notwithstanding the clear declaration of law which was
made on 2nd August 2017, the Central Government did not
withdraw the 2017 notification.
16. We may note here that this is not the first time that the concept of
prior EC was brought into force. For this purpose, useful reference
can be made to a decision of this Court in the case of Alembic
Pharmaceuticals v. Rohit Prajapati3. It records that there was a
notification of 27th January 1994 mandating prior EC for setting up
and expansion of industrial projects falling within thirty categories.
The issue before this Court was about the legality and validity of
the circular dated 14th May 2002, which permitted obtaining of ex
post facto EC. This Court specifically dealt with the challenge to the
circular dated 14th May 2002. In paragraph 12, this Court noted the
issue to be decided:
“12. The issue to be adjudicated is whether in view of
the requirement of a prior EC under the EIA Notification
of 1994, a provision for an ex post facto EC to industrial
units could be validly made by means of the Circular
dated 14-5-2002.”
16.1 Thereafter, this Court considered Section 3(1) of the 1986 Act.
In paragraph 21 this Court held thus:
“21. The omission in the appeal to make any attempt to
sustain the Circular dated 14-5-2002 with reference to the
provisions of Section 3 of the Environment (Protection)
Act, 1986 is significant. For an action of the Central
Government to be treated as a measure referable
to Section 3 it must satisfy the statutory requirement
of being necessary or expedient “for the purpose of
protecting and improving the quality of the environment
and preventing, controlling and abating environment
pollution”. The Circular dated 14-5-2002 in fact does
quite the contrary. It purported to allow an extension of
time for industrial units to comply with the requirement of
an EC. The EIA Notification dated 27-1-1994 mandated
that an EC has to be obtained before embarking on a

3 (2020) 17 SCC 157
[2025] 5 S.C.R. 2633

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new project or expanding or modernising an existing one.
The EIA Notification of 1994 has been issued under the
provisions of the Environment (Protection) Act, 1986
and the Environment Protection Rules, 1986, with
the object of imposing restrictions and prohibitions on
setting up of new projects or expansion or modernisation
of existing project. The measures are based on the
precautionary principle and aim to protect the interests
of the environment. The Circular dated 14-5-2002
allowed defaulting industrial units which had commenced
activities without an EC to cure the default by an ex post
facto clearance. Being an administrative decision, it is
beyond the scope of Section 3 and cannot be said to be
a measure for the purpose of protecting and improving
the quality of the environment. The circular notes that
there were defaulting units which had failed to comply
with the requirement of obtaining an EC as mandated.
The circular provided for an extension of time and
inexplicably introduced the notion of an ex post facto
clearance. In effect, it impacted the obligation of the
industrial units to be in compliance with the law. The
concept of ex post facto clearance is fundamentally
at odds with the EIA Notification dated 27-1-1994.
The EIA Notification of 1994 contained a stipulation
that any expansion or modernisation of an activity
or setting up of a new project listed in Schedule I
“shall not be undertaken in any part of India unless
it has been accorded environmental clearance”.
The language of the notification is as clear as
it can be to indicate that the requirement is of a
prior EC. A mandatory provision requires complete
compliance. The words “shall not be undertaken”
read in conjunction with the expression “unless” can
only have one meaning : before undertaking a new
project or expanding or modernising an existing one,
an EC must be obtained. When the EIA Notification
of 1994 mandates a prior EC, it proscribes a post
activity approval or an ex post facto permission. What
is sought to be achieved by the administrative Circular
dated 14-5-2002 is contrary to the statutory Notification
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dated 27-1-1994. The Circular dated 14-5-2002 does not
stipulate how the detrimental effects on the environment
would be taken care of if the project proponent is
granted an ex post facto EC. The EIA Notification of
1994 mandates a prior environmental clearance. The
circular substantially amends or alters the application
of the EIA Notification of 1994. The mandate of not
commencing a new project or expanding or modernising
an existing one unless an environmental clearance has
been obtained stands diluted and is rendered ineffective
by the issuance of the administrative Circular dated 14-
5-2002. This discussion leads us to the conclusion that
the administrative circular is not a measure protected
by Section 3. Hence there was no jurisdictional bar on
NGT to enquire into its legitimacy or vires. Moreover, the
administrative circular is contrary to the EIA Notification
1994 which has a statutory character. The circular is
unsustainable in law.”
(emphasis added)
16.2 Ultimately, in paragraph 23, this Court held thus:
The concept of an ex post facto EC is in derogation
of the fundamental principles of environmental
jurisprudence and is an anathema to the EIA
Notification dated 27-1-1994. It is, as the judgment
in Common Cause [Common Cause v. Union of
India, (2017) 9 SCC 499] holds, detrimental to
the environment and could lead to irreparable
degradation. The reason why a retrospective EC or
an ex post facto clearance is alien to environmental
jurisprudence is that before the issuance of an EC,
the statutory notification warrants a careful application
of mind, besides a study into the likely consequences of
a proposed activity on the environment. An EC can be
issued only after various stages of the decision-making
process have been completed. Requirements such as
conducting a public hearing, screening, scoping and
appraisal are components of the decision-making process
which ensure that the likely impacts of the industrial
activity or the expansion of an existing industrial activity
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are considered in the decision-making calculus. Allowing
for an ex post facto clearance would essentially condone
the operation of industrial activities without the grant of an
EC. In the absence of an EC, there would be no conditions
that would safeguard the environment. Moreover, if the
EC was to be ultimately refused, irreparable harm would
have been caused to the environment. In either view of the
matter, environment law cannot countenance the notion
of an ex post facto clearance. This would be contrary to
both the precautionary principle as well as the need for
sustainable development.”
(emphasis added)

16.3 In fact, as noted in paragraph 22.1, the word ‘prior’ was not
used in the EIA notification dated 27th January 1994. However,
the words ‘shall not be undertaken’ were used. In the 2006
EIA notification, the word ‘prior’ appears at multiple places.
17. The issue of ex post facto EC was dealt with in the case of Common
Cause2, In paragraph 108, a submission was recorded that the
possibility of getting ex post facto EC was a signal to the mining
leaseholders that obtaining an EC was not mandatory or that if it
was not obtained, the default was retrospectively condonable. In
paragraph 125, this Court held thus:
“125. We are not in agreement with the learned counsel
for the mining leaseholders. There is no doubt that
the grant of an EC cannot be taken as a mechanical
exercise. It can only be granted after due diligence
and reasonable care since damage to the environment
can have a long-term impact. EIA 1994 is therefore
very clear that if expansion or modernisation of any
mining activity exceeds the existing pollution load,
a prior EC is necessary and as already held by this
Court in M.C. Mehta [M.C. Mehta v. Union of India,
(2004) 12 SCC 118] even for the renewal of a mining
lease where there is no expansion or modernisation of
any activity, a prior EC is necessary. Such importance
having been given to an EC, the grant of an ex post
facto environmental clearance would be detrimental
to the environment and could lead to irreparable
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degradation of the environment. The concept of an ex
post facto or a retrospective EC is completely alien to
environmental jurisprudence including EIA 1994 and
EIA 2006. We make it clear that an EC will come into
force not earlier than the date of its grant.”
(emphasis added)
18. Therefore, there is already a concluded finding of this Court that the
concept of ex post facto or retrospective EC is completely alien to
environmental jurisprudence and the EIA notification. This view was
reiterated by this Court in the case of Electrosteel Steels Ltd. v.
Union of India and Ors.4,. In paragraph 72, this Court held thus:
“72. There can be no doubt that the need to comply
with the requirement to obtain environment clearance
is non-negotiable. A project can be set up or allowed
to expand subject to compliance of the requisite norms.
Environmental clearance is granted on condition of
the suitability of the site to set up the project from
the environmental angle, and existence of necessary
infrastructural facilities and equipment for compliance of
environmental norms. To protect future generations, it is
imperative that pollution laws be strictly enforced. Under
no circumstances, can industries which pollute be allowed
to operate unchecked and degrade the environment.”
(emphasis added)
18.1 In this case, as well as in the case of Alembic Pharmaceuticals3,
this Court exercised its jurisdiction under Article 142 of the
Constitution and permitted ex post facto EC in particular cases
considering the peculiar factual situation.
19. It is in this context that the legality and validity of the 2017 notification
will have to be tested. Interestingly, in paragraph 10 of the notification,
it is recorded that the MoEFCC deems it necessary for the purpose
of protecting and improving the quality of environment and abating
environmental pollution that all the entities not complying with
the environmental regulation under EIA notification be brought

4 (2023) 6 SCC 615
[2025] 5 S.C.R. 2637

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under compliance within the environmental laws in an expeditious
manner. The object of protecting and improving the environment
and preventing and abating environmental pollution was achieved
by the EIA notification. The object of the 2017 notification appears
to be to protect the industries and entities which violated the EIA
notification. In fact, paragraph 14 of the 2017 notification is material
which reads thus:
“14. The projects or activities which are in violation as on
date of this notification only will be eligible to apply for
environmental clearance under this notification and the
project proponents can apply for environmental clearance
under this notification only within six months from the date
of this notification.”
20. Moreover, the 2017 notification is completely in violation of the law
laid down by this court in the case of Common Cause2 and Alembic
Pharmaceuticals3. From the recitals of the 2017 notification, it
is apparent that it was a one-time measure to protect those who
were in violation as on the date of the 2017 notification. In view of
the settled law, even a ‘one-time measure’ or ‘one-time relaxation’
was illegal. The 2021 OM encourages the entities who contributed
to pollution by not obtaining prior EC. Whenever EC is granted, it
is always conditional. Certain conditions are imposed to abate or
reduce the pollution. Such one-time measures add to air and/or water
pollution. Such measures infringe the right to live in a pollution free
environment guaranteed by Article 21. Thus, the 2017 notification
was completely illegal.
21. The Division bench of Madras High Court by judgment dated 13th
October 2017, in the case of Puducherry Environment Protection
Association1 dealt with the issue regarding the legality of the 2017
notification which was subject matter of challenge in a Public Interest
Litigation. A very specific submission was made before the Madras
High Court on behalf of the Central Government by the learned
Additional Solicitor General, which is recorded in paragraph 4(i) of
the judgment. Relevant portion of paragraph 4(i) reads thus:
“4(i) With regard to precautionary principle, faced with the
situation that ex post facto clearance and regularization
dates have been repeatedly extended time and again
by series of notifications, learned Additional Solicitor
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General at the bar, on instructions, submits that this
impugned notification shall clearly and certainly be
only a one time measure. We record this submission
also.
………………………….............……………………………”
(emphasis added)

21.1 This statement was treated as an undertaking of the Central
Government, which is clear from paragraph 4(n) of the said
judgment:
“4(n) We are convinced that paragraphs 3,4 and 5 of
the impugned notification alluded to supra coupled with
the two undertakings made on instructions by learned
Additional Solicitor General that (a) public hearing can
be read into paragraph 5 of the impugned notification
and (b) this shall certainly and clearly be a one time
measure, this writ petition can be closed and disposed
of recording the above submissions. We do so.”
(emphasis added)

21.2 It is in view of this undertaking that the High Court did not
interfere. The Central Government is bound by this undertaking.
It is the duty of the Central Government to comply with the
undertaking in its true letter and spirit.
22. The period provided in the 2017 notification to apply for ex-post facto
EC ended on 13th September 2017. In the case of Appaswamy
Real Estates Limited v. Puducherry Environment Protection
Association5, the request of the MoEFCC for extending the time
provided in the 2017 notification was accepted. As a result, the
OM dated 16th March 2018 was issued which permitted the project
proponents to apply under the 2017 notification within thirty days
from the date of the High Court order. What is pertinent to note is
that notwithstanding the grant of extension of time to apply, there
was no modification made to paragraph 14 of the 2017 notification
which clarified that it is applicable only to those projects and activities

5 2018 SCC OnLine Mad 1283
[2025] 5 S.C.R. 2639

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which were in violation on the date of the said notification. Therefore,
any project or activity or process which required EC under the EIA
notification commenced after 14th March 2017 was not protected by
the 2017 notification.
23. 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.

LEGALITY AND VALIDITY OF THE 2021 OM

SUBMISSIONS
24. The learned senior counsel appearing for the Petitioner submitted that
post a series of judgments of this Court in Alembic3 and Common
Cause2, it is not permissible to grant ex post facto EC. He further
submits that the 2021 OM is in violation of the 1986 Act and the
EIA notification. He submits that EC must be prior and cannot be
granted ex post facto. While the 2021 OM does not expressly extend
the timeline under the 2017 notification or mention ex post facto,
the 2021 OM and its application has effectively allowed grant of ex
post facto EC.
25. The main submission of the learned Additional Solicitor General
is that the 2021 OM does not seek to grant ex-post facto EC. It is
only an SOP. The learned ASG invited our attention to the contents
of the SOP. Her submission is that it provides for the demolition of
projects not allowable or permissible for want of EC. It also provides
for the closure of projects allowable/permissible, if prior EC has not
been taken as per the EIA notification. She submitted that even if
EC is granted, it will be effective from the date of the issue, and
therefore, it is not ex post facto. She submitted that before such EC
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is granted, the project proponent will have to pay certain amounts
as provided therein based on Polluter Pays Principle. Moreover,
the project proponents will have to undertake activities relating to
remedial plan and community accommodation plan. She also pointed
out that the projects which are not allowable or permissible, shall
be demolished. She also pointed out provisions regarding penalty,
project proponents furnishing bank guarantee, etc. Thus, in short,
her submission is that the object of the 2021 OM is to protect those
projects and industries which could have been granted an EC under
EIA notification before the date of commencement of activities, but
proceeded to commence activities without EC. Her submission is
that this measure has been taken to ensure that the huge spending
on constructions is not lost and wasted.

OUR VIEW
26. The basic submission by learned ASG is based on a premise that
what is provided under the 2021 OM is not grant of ex-post facto
EC. The relevant part of the 2021 OM is in paragraph 10 and 11,
which read thus:
“10.Standard Operating Procedure-Guiding Principles:
i. Without prejudice to any other consequences, action
has to be initiated under section 15 read with section
19 of The Environment (Protection) Act, 1986 against all
violations.
ii. Projects not allowable/permissible, for grant of EC, as
per extant regulations: To be demolished.
iii. Projects allowable/permissible, if prior EC had been
taken as per extant regulations: To be closed until EC
is granted (if no prior EC has been taken) or to revert
to permitted production level (in case prior EC has
been granted).
iv. Polluter pays: Violators to pay for violation period
proportionate to the scale of project and extent of
commercial transaction.
v. Setting up a mechanism for reporting of violation to the
regulatory authority(ies).
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11. SOP for dealing with the violation cases:
Step 1: Closure or Revision

Sl no. Status of EC Actions

1 If no prior EC has been Order to close its operation
taken

2 If prior EC is available for Order to revert the activity /
existing/old unit production to permissible
limits.

3 If prior EC was not Restrict the activity /production
required for earlier to the extent to which prior EC
production level but is was not required
now required

Step 2: Action under Environment (Projection) Act,
1986
Action under section 15 read with section 19 of the
Environment (Protection) Act, 1986 shall be initiated
against the violators.

Step: 3: Appraisal under EIA Notification, 2006
The permissibility of the project shall be examined from
the perspective of whether such activity/project was at all
eligible for the grant of prior EC.

A. If not permissible:
i. The project shall be ordered for the demolition/closure
after issuing show cause notice and providing an
opportunity of hearing.
Ex. If a red industry is functioning in a CRZ-I area which
means that the activity was, in the first place, not permitted
at the time of commencement of project. Therefore, the
activity is not permissible and therefore it shall be closed
& demolished.
ii. Respective regulatory authorities shall issue directions
under section 5 of the Environment (Protection) Act, 1986
for such closure & demolition of the project/activity.
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B. If permissible:
i. As per extant regulations at the time of scoping, if it is
viewed that the project activity is otherwise permissible,
Terms of Reference (TOR) shall be issued with directions
to complete the impact assessment studies & submit
Environmental Impact Assessment (EIA) report &
Environmental Management Plan (EMP) in a time bound
manner.
ii. Such cases of violation shall be subject to appropriate
(a) Damage Assessment
(b) Remedial Plan and
(c) Community Augmentation Plan by the Central
Level Sectoral Expert Appraisal Committees or State/
Union Territory Level Expert Appraisal Committees,
as the case may be.
iii. The Competent Authority shall issue directions to the
project proponent, under section 5 of the Environment
(Protection) Act, 1986 on case to case basis mandating
payment of such amount (as may be determined based
on Polluter Pays principle) and undertaking activities
relating to Remedial Plan and Community Augmentation
Plan (to restore environmental damage caused including
its social aspects).
iv. Upon submission of the EIA & EMP report, the project
shall be appraised by the Central Sectoral Expert Appraisal
Committees or the State/Union Territory Level Expert
Appraisal Committees, as the case may be, as if it was a
new proposal. If, on examination of the EIA/EMP report,
the project is considered permissible for operation as per
extant regulations, the requisite Environmental Clearance
shall be issued which shall be effective from the date
of issue.
v. However, during appraisal after examination if it is
found that even though the project may be permissible
but not environmentally sustainable in its present
form/configuration/features then the project shall be
[2025] 5 S.C.R. 2643

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directed to be modified so that the project would be
environmentally sustainable.
vi. If, however, it is not considered appropriate to issue EC,
the project shall be directed to be demolished/ closed. If
such proposal is a case of expansion, the project shall
be directed to revert back to the extent of activity for
which EC had been granted earlier or to revert back
to the extent of activity for which EC was not required
(as the case may be).
vii. Central Sectoral Expert Appraisal Committees or the
State/Union Territory Level Expert Appraisal Committees,
as the case may be, may insist upon public hearing to be
conducted for such categories of projects for which the EIA
Notification 2006, as amended from time to time, requires
the public hearing to be conducted.
viii. The project proponent will be required to submit
a bank guarantee equivalent to the amount of
Remediation Plan and Natural & Community Resource
Augmentation Plan with Central / the State Pollution
Control Board (depending on whether it is appraised at
Ministry or by SEIAA). The quantification of such liability
will be recommended by Expert Appraisal Committee and
finalized by Regulatory Authority. The bank guarantee shall
be deposited prior to the grant of environmental clearance
and will be released after successful implementation
of the Remediation Plan and Natural & Community
Resource Augmentation Plan.”
27. In short, it provides for grant of EC to category of ‘allowable/permissible’
projects. We must remember that the 2021 OM is applicable even
to the completed projects. The 2021 OM says that grant of EC to
such projects shall be effective from the date of issue. If the project
proponent goes ahead with construction which requires EC under the
EIA notification, it will amount to violation of the provisions of 1986
Act and 1986 Rules. It will attract penalty under Section 15 of the
1986 Act. Perusal of the provisions of Section 15 shows that even if
the penalty is paid by the project proponent, it will not regularise the
project. Therefore, even after the payment of penalty, if the project
is under construction, the same has to be stopped and demolished
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and even if operation has already commenced, the same has to be
stopped and demolished. Therefore, the construction work has to
be demolished.
28. Now, we will consider what is the meaning of “ex post facto”. Various
dictionary meanings can be summarised as under:
a) Having retrospective effect or force;
b) From a thing done afterwards;
c) Retroactive or affecting something that has already happened.
29. Now, we will take a case of ex post facto EC provided under the
2017 notification. The effect of grant of ex post facto clearance is
that if without obtaining EC, construction is in progress, the same is
allowed to continue. If the construction is complete and operation and
processes are going on, the same can go on after ex post facto EC
is granted. Effect of grant of EC under clause (11) of 2021 OM will
be grant of permission to complete the construction of the project,
though construction had commenced without prior EC. Where the
construction is already complete which is being used for processes
etc., by grant of EC, the process/activities can continue. Thus, in
effect, the EC granted under clause (11) of 2021 OM regularises
something which was illegal with retrospective effect. In effect,
the EC granted under clause (11) of 2021 OM will regularise the
illegality done by commencing the construction or commencing the
project without prior EC. Therefore, in substance, what is provided
is grant of ex post facto EC. In other words what is granted is EC
with retrospective effect as it regularises illegality committed earlier.
The grant of EC under the 2021 OM, no doubt, is subject to making
payment of compensation determined based on Polluter Pays
Principle and undertaking activities relating to remedial plan. Once
there is a violation of the EIA notification, the project proponent has
to compensate following the Polluter Pays Principle. Even if, EC is
not granted to him he has to pay for remedial plan to remedy the
damage done to the environment. He has to also pay the penalty
under Section 15 of the 1986 Act. Therefore, what is done by the
2021 OM is something which was completely prohibited by this Court
in the cases of Common Cause2 and Alembic Pharmaceuticals3.
It is an attempt to bring in an ex-post facto or retrospective regime
by craftily drafting the SOP. The grant of EC under the 2021 OM in
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substance and in effect amounts to ex post facto grant of EC. The
Court must come down very heavily on the attempt of the Central
Government to do something which is completely prohibited under
the law. Cleverly, the words ex post facto have not been used, but
without using those words, there is a provision to effectively grant
ex post facto EC. The 2021 OM has been issued in violation of
the decisions of this Court in the cases of Common Cause2 and
Alembic Pharmaceuticals3. Therefore, we have no manner of doubt
that the 2021 OM which permits grant of EC is completely arbitrary
and illegal. Moreover, the 2021 OM does not refer to exercise of
any power under the 1986 Act or the 1986 Rules.
30. There is one more aspect which is required to be noted. As per
paragraph 14 of the 2017 notification, provision for grant of ex post
facto EC was made only in relation to projects or activities which
were in violation as of 14th March 2017. Therefore, grant of ex post
facto clearance was not permitted under 2017 notification for the
projects and activities which were commenced or continued after
14th March 2017. The window which was initially for a period of six
months was eventually extended till completion of 30 days from 14th
March 2018. Therefore, the 2021 OM is brought in to do something
which was not permissible under the 2017 notification, the law laid
down by this Court, and the solemn undertaking given by the Central
Government to the Madras High Court. We must deprecate such
effort on the part of the Central Government.
31. The EIA notification is of 14th September 2006. When the 2021
OM was issued, it was nearly 15 years old. Therefore, all project
proponents were fully aware of the stringent requirements under the
EIA notification. The 2021 OM seeks to protect the violations of the
EIA notification which have taken place or continue to take place
15 years after the EIA notification came into force. Thus, the 2021
OM seeks to protect violators who have acted with full knowledge
of consequences of violating the EIA notification. Those who violate
the law regarding obtaining prior EC are not only committing gross
illegality, but they are acting against the society at large. The violation
of the condition of obtaining prior EC must be dealt with heavy hands.
In environmental matters, the Courts must take a very strict view of
the violations of the laws relating to the environment. It is the duty
of the Constitutional Courts to do so.
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32. 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.
33. 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.
34. 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. Therefore, going out of the way by issuing such
OMs to protect those who have caused harm to the environment
has to be deprecated by the Courts which are under a constitutional
and statutory mandate to uphold the fundamental right under Article
21 and to protect the environment. In fact, the Courts should come
down heavily on such attempts. As stated earlier, the 2021 OM deals
with project proponents who were fully aware of the EIA notification
and who have taken conscious risk to flout the EIA notification
and go ahead with the construction/continuation/expansion of
projects. They have shown scant respect to the law and their duty
to protect the environment. Apart from violation of Article 21, such
action is completely arbitrary which is violative of Article 14 of the
Constitution of India besides being violative of the 1986 Act and
the EIA notification.
35. We are, however, conscious of the fact that ex post facto EC may
have been granted in certain cases both under the 2017 notification
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and the 2021 OM. ECs already granted under 2017 notification and
the 2021 OM, at this stage, should not be disturbed.
36. Hence, we pass the following order:
a) We hold that 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.
37. The writ petitions and civil appeals are accordingly allowed on the
above terms.

Result of the case: Writ Petitions and Civil Appeals allowed.

†
Headnotes prepared by: Harshit Anand, Hony. Associate Editor
(Verified by: Shibani Ghosh, Adv.)