India’s environmental protection framework has evolved through constitutional mandates, judicial interpretations, and international influences. However, the growing practice of granting ex post facto environmental clearances—issued after projects have already commenced—raises serious legal and policy concerns. This article traces the development of India’s environmental legal regime, examines the 2017 Notification that enabled such ex post facto environmental clearances, and analyses the resulting statutory and judicial responses.
At the core of this legal challenge is Writ Petition (Civil) No. 1394 of 2023, filed by the environmental NGO Vanashakti, along with related petitions. These petitions challenge the validity of ex-post facto environment clearances, arguing that they weaken environmental governance, violate statutory mandates, and infringe upon the constitutional right to a clean and sustainable environment.
Evolution of India’s Environmental Legal Framework
India’s environmental laws are embedded in constitutional provisions and a robust legislative framework. The 42nd Constitutional Amendment (1977) introduced Article 51A(g), imposing a fundamental duty on citizens to protect and improve the environment. The Supreme Court has interpreted Article 21 to include the right to a clean and healthy environment.
Following the 1972 Stockholm Conference, India enacted the Environment (Protection) Act, 1986 (EPA), empowering the Central Government with extensive authority to enforce environmental safeguards. Subsequently, the Environmental Impact Assessment Notification of 2006 (2006 EIA Notification), issued under the EPA, established a structured clearance mechanism.
The 2006 EIA Notification classifies projects based on their potential environmental impact:
i. Category A projects, involving higher risks, require clearance from the Central Government; and
ii. Category B projects fall under State-level authorities.
This framework institutionalises the precautionary principle by mandating prior environmental assessment and clearance before project initiation, thereby aiming to prevent environmental harm before it occurs.
The 2017 Notification: Diluting Preventive Oversight
In March 2017, the Ministry of Environment, Forest and Climate Change (MoEFCC) issued a notification (2017 Notification) allowing a one-time grant of ex post facto environmental clearances for projects that commenced or continued after 14 March 2017.
The notification applied to two categories of projects:
i. Projects operating without any environmental clearance; and
ii. Projects violating the conditions of existing environmental clearances.
Though presented as a corrective mechanism to regularise past violations, it legitimised non-compliance, undermined regulatory safeguards, and contradicted Supreme Court rulings emphasising the necessity of prior environmental review. Ex-post facto environmental clearances protect violators who proceeded with full knowledge of the legal requirements under the 2006 EIA Notification.
The 2017 Notification drew support from earlier Office Memoranda issued in 2012 and 2013—both struck down by the courts—casting doubt on its legal foundation.
Vanashakti’s Legal Challenge
Vanashakti’s petition challenges the 2021 Office Memorandum (OM), asserting that it violates the EPA as well as key constitutional provisions. The petition seeks a writ prohibiting further processing of applications for post-facto environmental clearances on four principal legal grounds:
i. Lack of Statutory Authority: The EPA does not empower the government to grant ex-post facto environmental clearances, rendering such approvals ultra vires.
ii. Contravention of the 2006 EIA Notification: The notification mandates prior clearance as a prerequisite for project initiation, making ex-post facto environmental approvals legally untenable.
iii. Violation of Article 21: Post-facto clearances endanger the fundamental right to life by compromising the right to a clean environment.
iv. Breach of Article 51A(g): Such clearances conflict with the constitutional duty of every citizen to protect and improve the environment.
Judicial Precedents Supporting the Challenge
Vanashakti’s arguments are reinforced by critical Supreme Court decisions:
i. Common Cause v. Union of India (2017): The Court held that ex-post facto environmental clearances are impermissible and underscored the necessity of prior public consultation.
ii. Alembic Pharmaceuticals Ltd. v. Rohit Prajapati (2020): The Court reiterated that even a “one-time measure” or “one-time relaxation” is unlawful under settled law.
iii. lectrosteel Steels Ltd. v. Union of India (2023): The Court reaffirmed that compliance with the requirement for prior environmental clearance is non-negotiable.
Legal Landscape and Parallel Petitions
The Vanashakti petition is part of a broader legal campaign opposing ex-post facto environmental clearances:
i. Writ Petition No. 118 of 2019 sought disclosure and action against real estate developers who began projects without prior environmental clearances.
ii. Writ Petition No. 115 of 2024 challenged the legality of ex-post facto environmental regularisation and demanded a prohibition on MoEFCC from issuing any notification or OM permitting post-facto approvals.
These petitions converge on a fundamental concern: ex post facto clearances subvert the preventive regulatory framework, compromise transparency, and incentivise non-compliance.
Statutory and Procedural Framework: EPA and EIA Norms
India’s environmental regulation is grounded in the EPA. Section 3 empowers the Central Government to take necessary steps for environmental protection. The Environment (Protection) Rules, 1986, particularly Rule 5, outline procedures for imposing restrictions and include mandatory public consultations.
The 2006 EIA Notification reinforces these safeguards by requiring prior clearance for environmentally sensitive projects. While Rule 5(4) allows public consultation to be waived in emergencies, this exception has often been misapplied, diminishing transparency and sidelining public engagement.
Madras High Court Ruling: Rejection of Post-Facto Clearances
In Puducherry Environment Protection Association v. Union of India (2024), the Madras High Court held the 2021 OM unlawful, ruling that it violated the mandatory requirement for prior clearance under the 2006 EIA Notification. However, the Court applied its decision prospectively, permitting existing clearances granted under the OM to remain valid—a position now under appeal. Petitioners argue this concession dilutes accountability and undermines enforcement.
Government Assurances and Policy Reversals
During the litigation, the Union Government assured the Court that the 2017 Notification was a one-time measure, with future clearances requiring public hearings. However, the 2021 OM reversed this commitment, reinstating ex-post facto environmental clearances.
The regulatory timeline highlights this inconsistency:
- The 2017 Notification allowed regularisation of projects initiated or continued after 14 March 2017.
- Initially valid for six months, the window was extended until 30 days from 14 March 2018.
- Despite these deadlines, the 2021 OM revived ex-post facto environmental clearances, contradicting the Central Government’s undertaking before the Madras High Court.
Legal Validity of Ex-post facto environmental Clearances
Both statutory provisions and judicial precedents make it clear that ex-post facto environmental clearances are legally untenable. They violate the fundamental right under Article 21 to a pollution-free environment. Furthermore, such approvals are arbitrary, infringing Article 14, and contravene the EPA and the 2006 EIA Notification.
Judicial Consistency in Upholding Preventive Governance
India’s judiciary has consistently endorsed preventive environmental governance. In Alembic Pharmaceuticals Ltd. (2020), the Supreme Court reaffirmed that prior clearance and public consultation are mandatory. In Common Cause (2017), the Court invalidated ex-post facto environmental approvals. Even in Electrosteel Steels Ltd. (2023), where limited relief was granted, the Court reiterated the illegality of ex post facto clearances.
Supreme Court’s Order
Accordingly, the Supreme Court ruled:
- While recognising that ex post facto clearances may have been granted under the 2017 Notification and 2021 OM, those already issued shall remain valid for the time being.
- However, the Court struck down the 2017 Notification, the 2021 OM, and all related circulars, orders, and communications authorising ex-post facto environmental approvals.
- The Central Government is barred from issuing further circulars, orders, or notifications allowing ex post facto clearances or regularising violations of the 2006 EIA Notification.
- Simultaneously, existing clearances granted under these provisions are preserved.
Conclusion
The Supreme Court’s decision to invalidate the 2017 Notification and 2021 Office Memorandum marks a pivotal reaffirmation of India’s commitment to preventive environmental governance. By declaring retrospective environmental clearances illegal, the Court has upheld the rule of law, reinforced the statutory mandate of prior environmental assessment under the 2006 EIA Notification, and protected the constitutional right to a clean and healthy environment under Article 21.
This ruling emphatically reasserts that non-compliance cannot be legitimised through post-facto regularisation. Going forward, regulatory certainty, public participation, and environmental accountability must remain the cornerstone of all developmental activity. It is imperative that both the Government and project proponents adhere strictly to the principle of prior clearance, ensuring that environmental safeguards are never compromised for administrative convenience or economic expediency.
