Supreme Court quashes 2021 order on ex post facto environmental clearances, but upholds Centre’s power to provide ‘amnesty schemes’

In a decision that could impact numerous infrastructure projects, the Supreme Court on Wednesday (July 29, 2026) struck down a 2021 Office Memorandum (OM) that granted ex post facto environmental clearances to projects that had been undertaken without the necessary prior clearance. The court held that the Central government cannot substantially alter environmental checks by merely issuing administrative orders, as the 2021 OM did.

The ruling emphasized that the 2021 OM aimed to create a perpetual regime for granting environmental clearance to projects that had been carried out without prior environmental clearance, effectively supplanting a 2006 delegated legislation. The court noted that this alteration was impermissible under the law since it replaced an earlier legislative provision with an administrative order.

The Bench, led by Chief Justice of India Surya Kant, underscored that the requirement under the 2006 notification to obtain prior environmental clearances for large-scale projects that had commenced without a valid permit was mandatory across various sectors, including highways, airports, real estate, ports, mining, energy, and heavy industry.

The court further reasoned that the 2021 OM, functioning as an indefinite amnesty scheme applicable to all permissive projects, lacked a clear differentiation in selecting projects for post facto environmental clearance based on a rational nexus with the supervening public interest. Consequently, the OM was deemed ultra vires the provisions of the Environmental Protection Act of 1986, which aims at environmental preservation through a balanced approach, precautionary principle, and sustainable development.

The court dismissed the 2021 OM prospectively but allowed retrospective clearances given under a 2017 notification, which provided a one-time amnesty for undertakings started without prior clearance. The ruling also affirmed that the Centre cannot issue administrative orders in the future to grant ex post facto environmental clearances.

While the decision does not prevent the Supreme Court from granting ex post facto clearances in its discretion under Article 142 of the Constitution, it serves as a significant check against the unbridled power to alter environmental safeguards through administrative means.