In a landmark judgment aimed at reinforcing India’s environmental protection framework, the Supreme Court on Friday struck down a 2021 Office Memorandum (OM) issued by the Union Ministry of Environment, Forest and Climate Change (MoEFCC), which allowed retrospective environmental clearances for projects that had already violated norms. The court ruled the policy as “unconstitutional, arbitrary, and illegal.”
A bench comprising Justices Abhay S. Oka and Ujjal Bhuyan delivered a strongly worded verdict, declaring that the Centre’s move to regularise environmental violations through post-facto approvals was in direct conflict with the Environment (Protection) Act, 1986 and the Environmental Impact Assessment (EIA) Notification, 2006.
The ruling came in response to a petition filed by environmental advocacy group Vanashakti, which challenged the legality of allowing industrial projects to seek environmental clearance after they had already commenced operations in violation of environmental norms.
“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,” the bench observed, condemning the Centre’s attempt to bypass settled legal principles through administrative instruments. “The 2021 OM has been issued in violation of the decisions of this court.”
‘Retrospective EC Alien to Environmental Jurisprudence’
The court categorically ruled that the notion of retrospective or post-facto environmental clearance is “completely alien” to Indian environmental jurisprudence.
“There is already a concluded finding of this court that the concept of ex post facto or retrospective EC is completely alien to environmental jurisprudence and the EIA notification,” the bench stated.
Justice Oka, authoring the judgment, stressed that the Environment Ministry’s circulars—particularly the March 14, 2017 notification and the 2021 OM—attempted to retrospectively regularise activities that had proceeded in violation of environmental law. These actions, the court held, cannot be legitimised under any circumstances.
Environment a Constitutional Obligation
Reaffirming the constitutional right to live in a pollution-free environment, the bench reiterated that Article 21 of the Constitution includes the right to environmental protection.
“This court in several decisions has held that the right to live in a pollution-free atmosphere is a part of the fundamental right guaranteed under Article 21 of the Constitution of India,” Justice Oka wrote.
Holding the Union Government accountable, the court noted, “The Union Government, as much as individual citizens, has a constitutional obligation to protect the environment.” The judgment warned against permitting development at the expense of the environment and called for a strict approach in addressing ecological violations.
“Can there be development at the cost of the environment? Conservation of environment and its improvement is an essential part of the concept of development,” the bench asserted.
Pollution Crisis Cited
In a sobering reminder of the consequences of weak environmental enforcement, the court highlighted the severe air quality crisis in Delhi and other Indian cities.
“At least for a span of two months every year, the residents of Delhi suffocate due to air pollution. The AQI level is either dangerous or very dangerous,” the court remarked, underscoring the urgency of robust environmental governance.
Relief for Past Clearances
While the Supreme Court quashed the 2021 OM and related circulars, it provided limited relief by clarifying that clearances already granted under the 2017 and 2021 policies will not be disturbed at this stage.
