Guwahati: The Supreme Court on Wednesday quashed the Centre’s 2021 Office Memorandum (OM) on ex post facto environmental clearances for infrastructure projects, holding that administrative orders cannot be used to fundamentally modify the environmental protection framework.
The Bench observed that the OM, being an executive order, sought to establish a permanent arrangement for approving projects that had started work without securing prior environmental clearance.
It held that the measure changed the process of assessment and the conditions for granting approval under the Environmental Impact Assessment (EIA) Notification, 2006. According to the court, an administrative order cannot override or replace delegated legislation.
The court said projects covered by the 2006 notification must obtain prior environmental clearance before beginning operations, particularly large-scale developments in sectors such as highways, airports, townships and real estate, ports, mining, resource extraction, energy and heavy industries.
Justice Joymalya Bagchi, who wrote the judgment for the Bench, said the framework under the 2006 notification could only be modified through a subsequent statutory notification. Such a relaxation, he said, could apply only to specific projects where continuation was justified by a “supervening public interest”.
The Bench found that the 2021 OM did not provide any clear basis for identifying projects eligible for post facto approval or establish a reasonable connection with overriding public interest.
It held that the OM was inconsistent with the objectives of the Environment (Protection) Act, 1986, which requires environmental protection through the precautionary principle and sustainable development.
The court also ruled that the OM failed the requirements of reasonableness and proportionality and violated Articles 14 and 21 of the Constitution.
While striking down the 2021 OM, the Supreme Court limited the effect of its decision to future cases so that ongoing projects would not be affected.
The court further ruled that clearances already granted under the 2017 notification, which provided a one-time relaxation for projects started without prior approval, and those issued under the 2021 OM would continue to remain valid unless separately challenged under the law.
It observed that the 2021 OM had been based on the 2017 notification but attempted to turn the limited relaxation into a continuing system for granting ex post facto approvals.
The Bench also prohibited the Centre from issuing administrative orders in future to permit ex post facto environmental clearances. However, Justice Bagchi clarified that the judgment would not prevent the Supreme Court from granting such relief in appropriate cases by exercising its constitutional powers under Article 142.
The dispute over retrospective environmental clearances has gone through different stages before the Supreme Court. In May 2025, a Division Bench had held such clearances to be a serious illegality and harmful to environmental protection.
Later, in November 2025, a larger Bench modified that view, observing that removing the retrospective clearance mechanism altogether could severely impact ongoing public projects worth “thousands of crores of Rupees”.