Centre can grant post-facto environmental nod only through statutory notification: SC

New Delhi: The Supreme Court on Wednesday quashed a 2021 Office Memorandum (OM) granting ex-post-facto environmental clearances to infrastructure projects, holding that the Central government cannot substantially alter protective environmental checks by merely issuing administrative orders.

A three-member bench, comprising Chief Justice of India (CJI) Surya Kant, Justices Joymalya Bagchi and Vipul Pancholi, ruled that the central government has the power to grant post-facto environmental clearances (ECs) through valid statutory notifications issued under Section 3 of the Environment (Protection) Act, 1986. However, the Bench held that the Centre cannot do so through a mere administrative office memorandum.

The Central government's 2021 office memorandum created a mechanism for granting environmental clearance to projects that had commenced operations without obtaining prior clearance. However, the Bench gave the ruling prospective effect and protected clearances already granted under the impugned regime.


"The 2021 OM is an administrative order and envisages a perpetual regime for grant of environmental clearance to projects undertaken without prior environmental clearance. It substantially alters the nature of enquiry and criteria for grant of environmental clearance under the 2006 notification. It supplants an earlier delegated legislation (2006 notification) through an administrative order, which is impermissible in law," the Bench held.

The top Court also ruled that the 2021 Office Memorandum was ultra vires the Environment (Protection) Act, 1986 because it sought to alter the existing environmental clearance framework through an administrative order rather than a statutory notification.

"The prior EC regime under the 2006 notification is mandatory unless amended through a statutory notification," Justice Bagchi, who authored the judgement, said on Tuesday.

Justice Bagchi added "the OM does not satisfy the threshold of reasonableness and proportionality and is violative of Articles 14 and 21".

The Bench restrained the Centre from passing administrative orders to grant ex-post-facto clearances in future.