Bengaluru: Calling it unconstitutional and a violation of the Environment (Protection) Act 1986, the Supreme Court on Wednesday (July 29) quashed the Union Environment Ministry’s Office Memorandum (OM) of 2021 which permitted projects to avail of retrospective environmental clearances. However, the court upheld clearances afforded to projects till date under the OM, while also saying that the Union government can issue post-facto environmental clearances in some cases – in “larger public interest” – by issuing a statutory notification to this effect.While it is good that the apex court quashed the 2021 Office Memorandum, the order is a “mixed bag” because the court has struck down the OM only on a legal technicality; it has let violators go free by permitting existing clearances obtained under the OM, and is advising the government on how to break the law by recommending they issue a notification to enable post-facto environment clearances, the petitioner in the case told The Wire.SC terms OM ‘unconstitutional’The court was hearing a case in which Mumbai-based NGO Vanshakti had challenged the 2021 OM. The OM, issued in July 2021, had established a Standard Operating Procedure to provide retrospective environmental clearances (EC) for projects that had begun work on a site, and expanded or changed its production facilities without a prior EC, taking off from the Ministry’s notification in 2017 that called for this. Prior ECs – permits given to projects including industries by the Union environment ministry after assessing the projects’ environmental impacts – are mandated under the Environmental Impact Assessment (EIA) Notification of 2006. On Wednesday, a bench of the Supreme Court – comprising Chief Justice of India (CJI) Surya Kant, and Justices Joymalya Bagchi and Vipul Pancholi – said that prior ECs were mandatory.“The prior environmental clearance (EC) regime under the 2006 Notification is mandatory and, unless amended by an appropriate notification, does not accommodate the grant of ex post facto EC or the retention of projects where construction has commenced or operations have begun without a valid EC,” Bar And Bench quoted Justice Joymalya Bagchi as saying.“The 2021 Office Memorandum is an administrative order and envisages a perpetual regime for grant of environmental clearances to projects undertaken without prior EC. It substantially alters the nature of enquiry as well as the criteria for grant of EC under the 2006 Notification. The 2021 Office Memorandum thereby supplants delegated legislation through an administrative instruction, which is impermissible in law,” the court said, per the report.But govt can issue notification to permit ‘amnesty schemes’However, the government has a way out to provide retrospective ECs in some cases, the court said. While no further applications for the grant of ECs under the 2017 Notification or the 2021 OM would be entertained, the court upheld existing ECs obtained under these as legal. It also said that the Union government could grant retrospective ECs in future if a specific notification is issued for this under Section 3 of the 1986 Act, which, ironically, gives the government the power to take measures to protect and improve the environment.Two previous cases in which the Supreme Court held that retrospective ECs are illegal and will cause environmental degradation under the Environmental (Protection) Act 1986 does not “place a clog on the power of the Central Government to issue an appropriate, narrowly tailored amnesty notification in supervening public interest as an exception to the 2006 Notification”, Justice Bagchi said. Under Section 3 of the Jan Vishwas Act, 2023, the Union government can issue the required notifications to provide “amnesty schemes” for non-compliant projects “whose sustainability is necessary to subserve larger public interest”, he added.The Jan Vishwas Act that the Parliament passed in 2023 decriminalised (replaced criminal imprisonment with cash penalties) 183 provisions of 42 Central Acts to “boost” Ease of Living and Ease of Doing Business, according to the government. The Environment (Protection) Act 1986 was one of the Acts that underwent this decriminalisation. ‘Advising govt on how to break the law’The court has taken a very “technical route”, by arguing that an OM cannot be a notification, commented Stalin Dayanand, director of the NGO Vanashakti, the petitioner in the case. When you say that an OM is bad in law, how can its consequences be right, Dayanand asked, questioning how the ECs obtained through such an OM can be held legal.“Basically what they’ve done is allowed the violators to get away,” he told The Wire over a phone call. “It means that the rich and powerful can bend the law. And what is this business of public interest? Public interest is best served when conservation is done. Everything except conservation is in public interest [with this order]…We argued that the precautionary principle is fundamental to us, to our governments and the Constitution. They should have honored that.” Dayanand agreed that the latest order upholds post-facto environmental clearances, by saying that while an OM cannot be used to subvert the law, a notification to this effect can. “Now the government will issue a notification and we will challenge it, getting into another bout of decade long battle,” he said. “Blow hot, blow cold, that’s what they’re doing. They are advising the government on how to break the law.”How the ‘blow hot-blow cold’ has panned out so farThe Environment Ministry issued a notification in March 2017 that permitted any project (including industries) that had begun work on a site, and expanded or changed its production facilities without an environmental clearance, to avail of one ex post-facto or retrospectively. The Ministry’s OM in July 2021 established a Standard Operating Procedure for this, based on the National Green Tribunal’s directions.Following a petition by Vanashakti, the Supreme Court in January 2024 stayed the July 2021 OM and another related OM published in January 2022.In May 2025, the Supreme Court’s Justices Abhay Oka and Ujjan Bhuyan struck the July 2021 OM and March 2017 down. Citing previous orders (including Common Cause vs Union of India and Others in 2017, and the Alembic Pharmaceuticals vs Rohit Prajapati case in 1994) that held that retrospective environmental clearances are detrimental to the environment, the court held the Ministry’s 2017 notification “completely in violation of the law” and that clearances afforded to projects through OM 2021 would “regularise the illegality done by commencing the construction or commencing the project without prior EC”. “Conservation of environment and its improvement is an essential part of the concept of development. Therefore, going out of the way by issuing such OMs to protect those who have caused harm to the environment has to be deprecated by the Courts which are under a constitutional and statutory mandate to uphold the fundamental right under Article 21 and to protect the environment. In fact, the courts should come down heavily on such attempts,” Justice Oka had noted. Though the bench upheld clearances given till 2025 under the 2017 notification and 2021 OM, it restrained the Union government from issuing circulars, orders, OMs or notifications providing for the grant of ex post facto ECs “in any form or manner or for regularising the acts done in contravention of the EIA notification”.However, in November last year, a bench consisting also of the then CJI B.R. Gavai recalled the order, permitting environmental clearances to be granted retrospectively for projects initiated or expanded without approval under the 2006 Environmental Impact Assessment (EIA) notification again. Justice Bhuyan, commenting on this recalling of the order held to his stand by listing out numerous reasons why Gavai’s review judgment was “a step in retrogression”.Judiciary stepping back when it comes to environment: Former SC judgeSaying that the examples that Justice Gavai gave of cases in which the Court had permitted retrospective ECs were “in complete conflict with the principle of non-regression” (per this legal principle, governments and authorities are prohibited from weakening, rolling back, or eliminating existing environmental protections, human rights, or social welfare standards), Justice Bhuyan had noted:“It is unfortunate that a false narrative is being created pitting environment against development. It is a completely untenable binary in as much as ecology and development are not adversaries. Both are part of the constitutional construct of sustainable development. At the cost of repetition, it is reiterated that there is no antinomy between development and environment.”The issue of ex post facto clearances is one of the recent cases that a former judge of the Supreme Court, Justice Deepak Gupta, cited to argue that the judiciary was “stepping back” when it comes to the environment. The issue of ex post facto environmental clearances is something “the honest tax payer” pays for, had said in February this year. The issue was also highlighted by the Constitutional Conduct Group, a group of former civil service officers, in its open letter to the CJI on December 28 last year.Senior Congress leader and former Union environment minister Jairam Ramesh has said that retrospective approvals should never be permitted.