Core Verdict
- Retrospective (ex post facto) environmental clearances (ECs) are illegal, declared the Supreme Court.
- Held as “gross illegality” and against environmental jurisprudence.
- Court stressed that clearance must be obtained before starting or expanding any project.
Relevance : GS 3(Environmental Governance )
Case Background
- Petition filed by Vanashakti, an environmental NGO.
- SC invalidated the 2017 Notification and the 2021 Office Memorandum (OM) issued by the Centre allowing retrospective ECs.
- However, ECs already granted till date under these rules are protected and will not be undone.
Court’s Reasoning
- Ex post facto ECs undermine due environmental diligence:
- Violate principles of precaution and environmental impact assessment (EIA).
- Neglect environmental consequences before granting approvals.
- Retrospective clearance essentially regularises illegality—projects that started without prior EC are later approved.
- SC criticized the Centre’s “crafty drafting” to shield violators through legal loopholes.
Legal and Environmental Principles Emphasised
- Development cannot come at the cost of the environment.
- Referenced Common Cause (2017) judgment: prior EC is mandatory and non-negotiable.
- Environmental clearance must follow:
- Detailed study
- Public consultation
- Regulatory oversight before approval.
Critique of Government Actions
- The 2021 Office Memorandum (OM) avoided the phrase “ex post facto”, but effectively allowed retrospective clearances.
- Government failed in its constitutional duty to protect and improve the environment (Article 48A and 51A(g)).
- “Development” must include environmental protection, not override it.
Implications of the Judgment
- Ends the practice of regularising illegal constructions through post-approval ECs.
- Reinforces the need for environmental accountability in urban planning and infrastructure.
- Strengthens the EIA framework and judicial commitment to environmental rule of law.
