Ex Post Facto Environmental Clearance Is Alien to Environmental Jurisprudence: Supreme Court Quashes 2017 Notification & 2021 OM Permitting Post-Facto Regularisation

"Cleverly, the words ex post facto have not been used… but in substance, what is granted is ex post facto environmental clearance", - Supreme Court of India in a landmark ruling struck down the controversial 2017 Notification and 2021 Office Memorandum (OM) issued by the Ministry of Environment, Forest and Climate Change (MoEFCC) which allowed ex post facto environmental clearances (EC) for projects that had commenced operations without obtaining prior clearance. Declaring such clearances as illegal and contrary to the foundational principles of environmental law, the Court held them to be violative of Article 21 of the Constitution which guarantees the right to a pollution-free environment.

“Right to Live in a Pollution Free Environment Is a Fundamental Right Under Article 21”

In a powerful opening to the 41-page judgment authored by Justice Abhay S. Oka, the Court recalled that Article 51A(g) of the Constitution imposes a fundamental duty on every citizen to protect and improve the environment, and held:

“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.”

The bench, comprising Justices Abhay S. Oka and Ujjal Bhuyan, drew a historical trajectory of India's environmental legal framework — beginning with the 1972 Stockholm Declaration, the enactment of the Environment (Protection) Act, 1986, and the Environment Impact Assessment (EIA) Notification, 2006 — which mandated prior EC before undertaking specified industrial and construction activities.

“Ex Post Facto Clearance Is Fundamentally at Odds with Environmental Law”

The crux of the judgment lies in its emphatic rejection of any form of retrospective environmental clearance:

“The concept of ex post facto environmental clearance is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA Notification.”

The Court relied on its earlier decisions in Common Cause v. Union of India [(2017) 9 SCC 499] and Alembic Pharmaceuticals v. Rohit Prajapati [(2020) 17 SCC 157], reiterating that ex post facto clearances are impermissible. It stated:

“Environmental clearance is granted on condition of the suitability of the site… 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.”

“One-Time Measures to Protect Violators Are Illegal”: Supreme Court Rebukes Government’s Justification

The 2017 notification had allowed violators to regularise their activities by applying for post-facto clearance within six months. Although it was claimed to be a “one-time measure”, the Court found that the Centre had extended this timeline multiple times. The government’s assurance to the Madras High Court that the 2017 notification would not be extended was cited as binding:

“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.”

The Court noted with dismay that instead of protecting the environment, the notification's purpose was “to protect industries and entities which violated the EIA notification.”

“Polluter Pays Principle Cannot Justify Regularisation of Illegality”

Though the 2021 OM suggested that violators would be made to pay compensation based on the polluter pays principle and undertake environmental remediation, the Court found this mechanism wholly insufficient to substitute prior EC. It observed:

“Even if the penalty is paid… it will not regularise the project… The grant of EC under the 2021 OM, in substance and in effect, amounts to ex post facto grant of EC.”

The Court held that such measures were violative not just of Article 21, but also Article 14 (equality before law), the Environment (Protection) Act, 1986, and the EIA Notification, 2006.

“Development Cannot Be at the Cost of the Environment”

Emphasising the growing environmental crisis in Indian cities, especially air and water pollution in Delhi and other metros, the Court remarked:

“At least for a span of two months every year, the residents of Delhi suffocate due to air pollution… Coming out with measures such as the 2021 OM is violative of fundamental rights under Article 21.”

The Court asserted that development cannot be pursued by legalising and protecting environmentally destructive conduct.

1. The 2017 Notification and the 2021 OM, along with all circulars and orders issued under them, were declared illegal and struck down.
2. The Central Government was restrained from issuing any circulars, orders, or notifications permitting ex post facto EC in any form or manner.
3. However, ECs already granted under the 2017 Notification and 2021 OM will remain unaffected.

This ruling is being hailed as a landmark reaffirmation of India’s commitment to environmental rule of law and a stern message to industries and policymakers alike.

Date of Decision: May 16, 2025