SC Holds Retrospective Environmental Regularisation

The Supreme Court quashes the Centre’s 2021 Office Memorandum on ex post facto environmental clearance under the Environment (Protection) Act framework. The Court rules that any future amnesty must flow from a statutory notification, not an administrative order, and must be confined to projects of supervening public interest under the 2006 EIA framework. The judgment applies prospectively and uses the Court’s power under Article 142.

Supreme Court judgment on ex post facto Environmental Clearance (EC) and 2021 Office Memorandum:

Dimension	Key Details
Rule on amnesty mechanism	Any future amnesty under the Environment (Protection) Act provides for a statutory notification, not an administrative order.
Permissible scope under EIA framework	Any future amnesty applies to projects of supervening public interest under the EIA framework of 2006.
Administrative order limitation	An administrative order cannot create a perpetual and parallel regime to grant retrospective authorisation to big-ticket infrastructure projects commenced without prior, valid environmental clearance.
Status of retrospective ECs	The Supreme Court does not bar retrospective ECs totally and authorises measured regularisation.
Conditions for regularisation window	Ex post facto environmental regularisation comprises a narrow, time-bound, reasoned, and supervised window and applies only to projects of supervening public interest.
Applicability of the judgment	The judgment applies prospectively, thus saving projects that have got retrospective environment clearances from demolition and other punitive measures.
Constitutional power invoked	The Supreme Court uses its power under Article 142, which provides for doing complete justice in appropriate cases.
Grounds for invalidating the OM	The office memorandum does not satisfy the test of proportionality and reasonableness and is violative of Articles 14 and 21 of the Constitution.
EIA framework core principle	Projects requiring environmental clearance must obtain it before construction or operations begin.
2006 EIA Notification requirement	The 2006 EIA Notification explicitly mandates prior environmental clearance.
Regulatory functions enabled by prior EC	Prior environmental clearance authorises regulators to evaluate ecological impacts, hear public objections, and prescribe safeguards before irreversible environmental damage occurs.
Legal basis of EIA	Environmental Impact Assessment (EIA) is governed by the Environment (Protection) Act, 1986.