Supreme Court quashes 2021 OM allowing ex post facto environmental clearance, but upholds Centre’s power to provide ‘amnesty schemes’

The Supreme Court on Wednesday (July 29, 2026) 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 issuing mere administrative orders.

“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 supplant an earlier delegated legislation [2006 notification] through an administrative order, which is impermissible in law,” the court noted.

A Bench headed by Chief Justice of India Surya Kant said the requirement under a 2006 government notification, a delegated legislation, to take mandatory and prior environmental clearances for large-scale projects commenced without a valid permit, and spanning across various sectors like highways, airports, real estate and township developments, ports, mining and resource extraction, energy and heavy industry, was mandatory in nature.

The 2006 notification’s mandate could have only been amended through a subsequent and appropriate “amnesty” notification for select, deserving projects whose continuation was of “supervening public interest”, Justice Joymalya Bagchi, who authored the judgment for the Bench, held.

“The 2021 OM, as a perpetual amnesty scheme applicable to all permissive projects, failed to lay down an intelligible differentia for selection of projects for grant of post facto environmental clearance having rational nexus with supervening public interest, and is thereby ultra vires of the objectives of the Environmental Protection Act of 1986, namely preservation of the environment through a balanced approach through precautionary principle and sustainable development… The OM does not satisfy the threshold of reasonableness and proportionality and is violative of Articles 14 and 21,” Justice Bagchi said.

The apex court quashed the 2021 OM prospectively in an apparent bid to not upset ongoing projects.

It further said retrospective clearances given under 2017 notification, which provided a ‘one-time amnesty’ for undertakings started without prior clearance, and the 2021 OM would remain valid unless individually assailed in accordance with law. The 2021 OM was derived from the 2017 notification, and attempted to institutionalise ex post facto clearances.

The court on Wednesday (July 29, 2026) restrained the Centre from passing administrative orders to grant ex post facto clearances in the future. Justice Bagchi added that the present judgment would not however stand in the way of the Supreme Court granting ex post facto clearances in exercise of its plenary powers under Article 142 of the Constitution.

The case has had a roller coaster ride with a Division Bench of the apex court declaring such retrospective clearances a gross illegality and an anathema to the environment in a May 2025 judgment.

In November last year, a larger Bench had diluted the judgment, reasoning that doing away with the retrospective clearance regime would have a “devastating effect” on ongoing public projects worth “thousands of crores of Rupees”.