Supreme Court Strikes Down Ex Post Facto Environmental Clearances as Unconstitutional: “Violation of Article 21, an Anathema to Environmental Jurisprudence — No Development at the Cost of Environment”

Court’s Decision

The Supreme Court struck down the 2017 Notification and the 2021 Office Memorandum (OM) permitting ex post facto Environmental Clearances (ECs), declaring them “completely arbitrary and illegal” and violative of Articles 14 and 21 of the Constitution. The Court restrained the Central Government from issuing any further circulars, orders, or memoranda that permit ex post facto ECs or regularize acts done in contravention of the 2006 EIA Notification. However, ECs already granted under the impugned notifications shall remain unaffected.

Facts

After the 2006 EIA Notification mandated prior ECs for projects falling under certain categories, the Ministry of Environment issued the 2017 Notification permitting ex post facto ECs for projects that had violated these requirements as of 14 March 2017. This was initially described as a one-time measure. However, this process was continued through the 2021 OM, which set out a Standard Operating Procedure (SOP) for granting ECs even for completed or ongoing projects commenced without prior clearance. Multiple writ petitions were filed challenging the validity of the 2017 Notification and 2021 OM. One of the impugned documents was already quashed by the Madras High Court in 2024 but was allowed to operate prospectively, which became a subject of appeal.

Issues

1. Whether the 2017 Notification permitting ex post facto ECs is legal and valid under the Environment (Protection) Act, 1986.
2. Whether the 2021 OM indirectly enables the grant of ex post facto ECs despite the prohibition by law and Supreme Court judgments.
3. Whether the continuation of such a regime violates the right to a pollution-free environment under Article 21.

Petitioner’s Arguments

• The 2021 OM, though presented as an SOP, effectively allowed the continuation of illegal projects without prior ECs, circumventing statutory requirements.
• This amounts to a direct violation of the EIA Notification, the Environment Protection Act, and several judgments of the Supreme Court.
• The repeated extensions and regularisations defeat the purpose of environmental regulations and violate Articles 14 and 21.

Respondent’s Arguments

• The Additional Solicitor General argued that the 2021 OM was merely a procedural SOP, not a grant of ex post facto ECs.
• It provided for penalties, demolition of impermissible projects, and compliance measures based on the polluter pays principle.
• The intention was to prevent economic waste and ensure projects that could have obtained prior ECs were not discarded unjustly.

Analysis of the Law

• Section 3 of the Environment Protection Act and Rule 5 of the 1986 Rules empower the Centre to take measures to protect the environment.
• The 2006 EIA Notification mandated prior ECs for new and expanding projects.
• The Supreme Court clarified that this requirement is “non-negotiable” and “mandatory”, and that ex post facto ECs are fundamentally inconsistent with environmental law.
• Article 21 guarantees a right to a pollution-free environment, and ex post facto clearances nullify that right.

Precedent Analysis

1. Common Cause v. Union of India (2017): The Court held that ex post facto ECs are “completely alien to environmental jurisprudence”.
2. Alembic Pharmaceuticals Ltd. v. Rohit Prajapati (2020): The Circular permitting ex post facto ECs was held unsustainable in law.
3. Electrosteel Steels Ltd. v. Union of India (2023): Reinforced that pollution laws must be strictly enforced and environmental compliance is essential for public health and sustainable development.

Court’s Reasoning

• The 2017 Notification sought to “protect violators” of the EIA regime rather than uphold environmental integrity.
• Despite acknowledging prior Supreme Court rulings, the Centre continued to enable illegal constructions under the guise of SOPs and remedial payments.
• The Court condemned this “crafty drafting” as an “attempt to bring in a retrospective regime” without using the phrase “ex post facto”.
• It emphasized that public health, environmental sustainability, and constitutional rights cannot be compromised for convenience or economic benefit.

“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.”

Conclusion

The Supreme Court allowed the writ petitions and civil appeals and passed the following directives:

1. Struck down the 2017 Notification and the 2021 OM as illegal and arbitrary.
2. Restrained the Central Government from issuing any circulars or notifications permitting ex post facto ECs in any form.
3. Upheld the ECs already granted under the impugned provisions until the date of judgment (May 16, 2025), leaving them unaffected.

Implications

• This judgment delivers a strong message against environmental non-compliance and signals judicial intolerance for governmental regularisation of violations.
• It reaffirms the supremacy of Article 21 and the need for environmental protection in development policies.
• Entities seeking to circumvent environmental norms by post-facto justifications will now face legal invalidity and risk of demolition or closure.
• The Central Government is now constitutionally barred from introducing similar ex post facto schemes in the future.

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