The Supreme Court struck down the Central government's 2021 Office Memorandum (OM) that created a framework for granting retrospective environmental clearances (ECs) to projects that had started without obtaining mandatory prior approval. The Court held that such a significant change to the environmental clearance regime could not be introduced through an administrative instruction and must instead be made by a valid statutory notification under the Environment (Protection) Act, 1986.
A Bench comprising Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice Vipul M. Pancholi clarified that while the Centre may issue a narrowly tailored notification in exceptional public interest cases, it cannot establish a permanent system of post-facto environmental clearances through an office memorandum.
Background of the Case
The dispute arose from petitions filed by environmental organisation Vanashakti, which challenged the legality of the 2021 Office Memorandum issued by the Ministry of Environment, Forest and Climate Change.
The matter has witnessed multiple rounds of litigation. In May 2025, the Supreme Court had ruled that projects could not commence without prior environmental clearance and struck down both the 2017 notification and the 2021 OM. That judgment was later recalled in review proceedings in November 2025, leading to a fresh hearing before the present Bench.
The Court was called upon to decide whether the Central Government could legally create a mechanism allowing environmental clearances after projects had already begun operations.
Court's Observations
The Bench reaffirmed that the requirement of obtaining prior Environmental Clearance under the Environmental Impact Assessment (EIA) Notification, 2006 remains mandatory unless the law itself is amended through a valid statutory notification.
Rejecting the 2021 Office Memorandum, the Court observed:
“The 2021 Office Memorandum is an administrative order and envisages a perpetual regime for grant of environmental clearances to projects undertaken without prior EC. It substantially alters the nature of enquiry as well as the criteria for grant of EC under the 2006 Notification.”
According to the Bench, an administrative instruction cannot replace or modify delegated legislation framed under the Environment (Protection) Act.
The Court further held that the 2021 OM created what amounted to a permanent amnesty scheme without laying down any clear distinction or exceptional circumstances for granting retrospective approvals. It found that such a framework failed the constitutional tests of proportionality and reasonableness.
“The 2021 Office Memorandum does not satisfy the test of proportionality and reasonableness and is violative of Articles 14 and 21 of the Constitution,” the Bench observed while declaring the memorandum unconstitutional.
2017 Notification Upheld
While invalidating the 2021 OM, the Supreme Court upheld the validity of the 2017 Notification. It noted that the notification was issued through the statutory powers available under Section 3 of the Environment (Protection) Act, 1986, making it legally distinct from the administrative office memorandum.
The Bench clarified that earlier judgments, including Common Cause and Alembic Pharmaceuticals, should not be interpreted as creating an absolute prohibition against post-facto environmental clearances. Instead, the Central Government may frame a limited and carefully structured exception through a valid statutory notification if overriding public interest demands it.
Existing Environmental Clearances Protected
To avoid uncertainty and disruption, the Court ruled that environmental clearances already granted under the 2017 Notification and the 2021 Office Memorandum will continue to remain valid unless challenged separately before the appropriate forum.
However, it directed that no fresh applications seeking environmental clearances under either of these two frameworks shall be entertained.
The Court also restrained the Central Government from issuing future administrative orders granting retrospective environmental clearances. It clarified that any such mechanism can only be introduced through a valid notification issued under Section 3 of the Environment (Protection) Act, 1986.
The Bench further added that the judgment would not limit the Supreme Court's constitutional power under Article 142 to grant appropriate relief in exceptional cases where complete justice requires it.
Decision
The Supreme Court quashed the 2021 Office Memorandum prospectively, holding that it unlawfully replaced the statutory environmental clearance framework through an administrative order.
At the same time, it upheld the 2017 Notification, protected environmental clearances already granted under the existing regime unless individually challenged, barred fresh applications under the 2017 Notification and the 2021 OM, and directed that any future mechanism for retrospective environmental clearances must be introduced only through a valid statutory notification.
Case Details
Case Title: Vanashakti v. Union of India & Connected Matters
Case Number: W.P.(C) No. 1394/2023 (Diary No. 50009/2023)
Judge: Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice Vipul M. Pancholi
Decision Date: July 29, 2026
