On this World Environment Day, the Supreme Court of India reminds us once again that no one, not even the government, is above the law. Article 21 of the Constitution of India (“Constitution”) guarantees the right to live in a clean and pollution-free environment, while Article 51A(g) of the Constitution places a fundamental duty on every citizen to protect and improve the natural environment.

The Supreme Court recently in a significant judgement in Vanashakti v. Union of India, 2025, struck down the practice of granting ex post facto Environmental Clearances (“ECs”), a system that allowed industries to start projects illegally and seek approval later. It held that the 2017 Notification and the 2021 Office Memorandum (“2021 OM”) were unconstitutional, arbitrary, and contrary to environmental principles, reinforcing that compliance with environmental laws is not optional, it is a constitutional mandate.

Understanding Environmental Clearance and Its Purpose

It took nearly two decades after the enactment of the Environment (Protection) Act, 1986 (“1986 Act”) for the government to introduce a structured framework to regulate environmental impacts. This came with the Environment Impact Assessment Notification, 2006 (“EIA Notification 2006”), a major step towards India’s environmental governance.

Under this EIA Notification 2006, projects such as mining, industrial expansion, infrastructure, and real estate must obtain prior EC before initiating any physical activity. The purpose is to assess and mitigate potential environmental, social, and public health impacts in advance, not after the damage is done. The EIA Notification 2006 framework categorises projects into Category ‘A’ which are assessed by the Ministry of Environment, Forest and Climate Change (“MoEFCC”) and Category ‘B’ evaluated by the respective State Environment Impact Assessment Authorities (“SEIAAs”), based on the project’s size and impact.

The importance of this framework lies in its preventive nature, it is designed to ensure that ecological considerations are factored in before development begins. However, the core issue in Vanashakti case arose from violations of this requirement. From the object and the notification, it is very clear that no development shall take place without the approval of the respective authorities.

Background: Government’s Use of Ex Post Facto Environmental Clearances

1. 2017 Notification:

To address violations of the EIA Notification 2006, the Central Government issued a Notification on 14 March 2017 allowing projects that had already commenced construction, expanded production beyond approved limits, or altered their production mix without prior EC to apply for ex post facto EC. Framed as a one-time relaxation, this was strictly limited to violations that had occurred on or before 14 March 2017, with an initial six-month window for applications. This deadline was later extended by 30 days following the Madras High Court’s ruling in Appaswamy Real Estates Ltd. v. Puducherry Environment Protection Association, resulting in an Office Memorandum dated 16 March 2018. The notification thus sought to regularise past violations, a move that was later criticised by the Supreme Court for undermining the very purpose of prior environmental assessment.

2. 2021 Office Memorandum:

Due to widespread violations of the requirement for prior EC, the National Green Tribunal (“NGT”) directed the MoEFCC on 24 May 2021 to frame an SOP to address such cases. In response, the Ministry issued the Office Memorandum dated 7 July 2021 the 2021 OM, outlining a framework that included demolition of non-permissible projects, closure of permissible ones without prior EC, and conditional processing of EC applications for ongoing or completed constructions. It also required remedial steps like financial penalties under the Polluter Pays Principle, bank guarantees, and environmental and community restoration plans. Though presented as a regulatory Standard Operating Procedure (“SOP”), the 2021 OM effectively created a route to retrospectively regularise illegal activities, which became the central constitutional issue in the Vanashakti case.

Supreme Court Verdict: Upholding the Sanctity of Environmental Law

In Vanashakti the Court unequivocally struck down the practice of granting ex post facto ECs, reaffirming that no project can legally begin without obtaining prior EC. It held that the 2017 Notification, even as a ‘one-time measure’, was illegal and limited to violations as of 14 March 2017, which was also strictly time-bound. However, the 2021 OM sought to expand this regime under the guise of an SOP, thereby enabling continued violations.

The Court noted that the 2021 OM, in effect, allowed projects that had already started without getting prior EC to continue, which meant regularising something that was illegal from the beginning. It criticised this approach violated the 1986 Act, EIA Notification 2016, and binding precedents. The Court rejected the Central Government’s argument that the 2021 OM was intended to protect projects that could have obtained prior EC but began operations without it and was issued to prevent loss of substantial investments in construction.

In Common Cause v. Union of India, the Supreme Court held that ex post facto EC is completely alien to India’s environmental jurisprudence. This was reiterated by this Court in the case of Electrosteel Steels Ltd. v. Union of India, that the need to comply with the requirement to obtain environment clearance is non-negotiable. In Alembic Pharmaceuticals v. Rohit Prajapati, the Court clarified that the phrase “shall not be undertaken unless EC is granted” in the 1994 Notification made it clear that prior prior EC mandatory, not optional. It emphasised that prior clearance is a crucial safeguard based on the precautionary principle, which focuses on preventing harm, not fixing it later. While the 2021 OM introduced penalties and remedial measures under the Polluter Pays Principle, the Court ruled that these could not cure the fundamental illegality of allowing projects to proceed without prior approval.

The judgment strongly condemned repeated attempts by the government to shield violators, noting that the beneficiaries were not innocent or uninformed individuals but corporations, public sector bodies, real estate developers and mining operators who knowingly acted in breach of the law. The Court invoked Article 21 of the Constitution, reaffirming the fundamental right to a clean and healthy environment, and Article 51A(g) of the Constitution imposes a fundamental duty on every citizen, and by extension, the State, to protect and improve the environment.

Finally, the Court warned that development cannot come at the cost of environmental degradation, especially in light of growing pollution in cities like Delhi, the Court emphasised that environmental protection must be enforced strictly and without compromise, and any government measures which harm the environment must be deprecated by Courts. It found that such mechanisms are not only violative of Article 21 of the Constitution but also arbitrary and violative of Article 14 of the Constitution, reinforcing that no one, not even the State, is above the law. While it allowed already granted clearances to stand, the Court prohibited any future revival of such mechanisms, reinforcing that the rule of environmental law must prevail for present and future generations.

Not the First Time Banning on Ex Post Facto EC

The Supreme Court’s decision in Vanashakti is not the first time of striking down ex post facto environmental clearances. In 2002, the Ministry of Environment and Forests (now MoEFCC) issued a circular dated 14 May 2002 (“2002 circular”) that also permitted the grant of ex post facto ECs for industrial and development projects. This implied that if a project had already begun operations without obtaining the mandatory EC under the 1994 EIA Notification, it could later apply for clearance and continue operations legally. The circular was intented to regularise existing violations rather than stopping or penalising them.

However, the Supreme Court had challenged the 2002 circular in the Alembic case. The Court held that the retrospective sanctions, went against the spirit of the 1994 EIA Notification which expressly states that no activity shall be taken up without the grant of environmental clearance and breaches fundamentally important considerations for the environment such as the precautionary principle. In doing so, the Court declared that environmental assessment needs to be undertaken prior to any undertaking being initiated, not subsequent to any irreversible damage which has been inflicted, thus effectively nullifying the legal foundation of the 2002 circular.

Conclusion

The Supreme Court in Vanashakti firmly declared that no development is acceptable if it comes at the cost of environmental degradation. It reiterated that all development must be sustainable, keeping in mind the well-being of future generations. The Court stressed that protecting the environment is not optional and strict adherence to environmental norms is essential and mandatory.

Importantly, the Court held that no amount of compensation, penalties, or remedial plans can reverse the damage already done. Even the Polluter Pays Principle cannot justify post-facto legalisation of environmental violations. This judgment is a strong reminder that environmental compliance must be preventive, not reactive. On this World Environment Day, it reaffirms that safeguarding nature is not just a regulatory requirement, but a responsibility we owe to every future generation.

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