Source : The Indian Express 

Introduction 

The Supreme Court recently struck down the 2017 notification and 2021 Office Memorandum that allowed ex-post facto Environmental Clearances, declaring them "illegal" and restraining the Central Government from issuing any future provisions for retrospective environmental approvals for projects that started without mandatory prior clearance. 

What was the Background and Court Observations of Vanashakti v. Union of India and Connected Matters? 

Background: 

• The Environment Impact Assessment (EIA) Notification 2006 mandated "prior environmental clearance" before project commencement 
• In March 2017, the Ministry issued a notification allowing ex-post facto clearances for projects that violated EIA norms, initially as a "one-time measure" 
• Despite government assurances to Madras High Court that it was only temporary, the Ministry issued another Office Memorandum (OM) in July 2021 expanding the amnesty window 
• NGO Vanashakti and others challenged these provisions as violations of environmental law 

Court’s Observations: 

• The Court observed that violators were not "illiterate persons" but were "companies, real estate developers, public sector undertakings, mining industries etc." who "knowingly committed the illegalities." The Court noted that by the time the 2021 OM was issued, the EIA notification was "nearly 15 years old," meaning "all project proponents were fully aware of the stringent requirements." 
• The Court strongly criticized the Central Government's approach, noting that the 2021 OM was brought in "to do something which was not permissible under the 2017 notification, the law laid down by this Court, and the solemn undertaking given by the Central Government to the Madras High Court." The Court stated it "must deprecate such effort on the part of the Central Government." 
• The Court emphasized that under Article 21, "the right to live in a pollution free environment is guaranteed" and noted that Article 51A(g) makes it "the duty of every citizen of India to protect and improve the natural environment." The Court observed that "even the Central Government has a duty to protect and improve the natural environment." 
• The Court made pointed observations about contemporary environmental challenges: "Today, in the year 2025, we have been experiencing the drastic consequences of large-scale destruction of environment on human lives in the capital city of our country and in many other cities. At least for a span of two months every year, the residents of Delhi suffocate due to air pollution." 
• "The 2021 OM talks about the concept of development. Can there be development at the cost of the environment? It concluded that "conservation of the environment and its improvement is an essential part of the concept of development." 
• The Court emphasized that "in environmental matters, the Courts must take a very strict view of the violations of the laws relating to the environment. It is the duty of the Constitutional Courts to do so." 

What is an Ex-Post Facto? 

Legal Definition:  

• Ex-post facto Environmental Clearance means granting environmental approval after a project has already commenced operations or construction. The Court defined various dictionary meanings: "having retrospective effect or force," "from a thing done afterwards," and "retroactive or affecting something that has already happened." 

Practical Effect:  

• The Court explained that ex-post facto clearance allows projects that started construction without prior EC to continue, and where construction is complete, and operations are ongoing, "the same can go on after ex post facto EC is granted." This effectively "regularizes something which was illegal with a retrospective effect." 

Court's Analysis of 2021 OM:  

• While the 2021 OM avoided using the term "ex-post facto," the Court found it was "craftily drafted" to achieve the same effect. The Court noted: "Cleverly, the words ex post facto have not been used, but without using those words, there is a provision to effectively grant ex post facto EC." 

Violation Categories Covered: 

The provisions covered projects that had: 

• Started work without obtaining Environmental Clearance 
• Expanded production beyond EC limits 
• Changed production mix without obtaining EC 
• Commenced operations in violation of EIA notification requirements 

Scale of Impact:  

• By the time the stay was imposed, the Ministry had already cleared over 100 projects under the "violation category," including coal, iron and bauxite mines, airports, distilleries, steel factories, cement plants, and construction sites. Another 150 projects had received Terms of Reference for impact assessment. 

Legal Precedent Violation:  

• The Court noted that the 2021 OM violated previous Supreme Court judgments in Common Cause versus Union of India (2017) and Alembic Pharmaceuticals versus Rohit Prajapati (2020), which held that ex-post facto clearance is "against the fundamental principle of environmental jurisprudence." 

Conclusion 

The Supreme Court's decision definitively closes all doors to ex-post facto environmental clearances "in any form or manner," emphasizing that environmental protection cannot be compromised for development and that those who knowingly violate environmental laws cannot seek retrospective legitimization of their illegal actions, while protecting already granted clearances to maintain legal stability.