Prior Environmental Clearance Is Mandatory; Ex Post Facto EC Cannot Become a Perpetual Administrative Amnesty: Supreme Court Upholds 2017 One-Time Scheme, Quashes 2021 OM Prospectively
Case Name: Vanashakti v. Union of India
Date of Judgment: 29 July 2026
Citation: 2026 INSC 761
Bench: Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice Vipul M. Pancholi
Held: The Supreme Court held that the prior Environmental Clearance (“EC”) requirement under the EIA Notification, 2006 is mandatory, and the existing regime does not permit post facto clearance or retention of a project commenced without prior EC unless the regime is validly modified through an appropriate notification. However, the Central Government retains power under Section 3 of the Environment (Protection) Act, 1986, read with Section 21 of the General Clauses Act, to create a narrowly tailored, time-bound amnesty in supervening public interest; on that basis, the 2017 Notification was upheld. In contrast, the 2021 Office Memorandum was an administrative instruction creating a perpetual ex post facto clearance regime, substantially altering the 2006 Notification and therefore impermissibly supplanting delegated legislation. It was held ultra vires, unreasonable and violative of Articles 14 and 21, but quashed prospectively in view of regulatory uncertainty and supervening public interest.
Summary: The batch of proceedings challenged the Ministry of Environment, Forest and Climate Change’s Notification dated 14 March 2017 and Office Memorandum dated 7 July 2021, both of which provided mechanisms for dealing with projects that had commenced construction or operations without obtaining the prior EC mandated by the EIA Notification, 2006. The controversy returned for fresh consideration after the Supreme Court’s earlier judgment in Vanashakti-I, which had struck down both measures, was recalled in review.
The Court reaffirmed that prior EC embodies the precautionary principle: screening, scoping, public consultation and appraisal are designed to take place before environmental damage occurs. It rejected the proposition that the Environment (Protection) Act or the 2006 Notification itself generally accommodates ex post facto ECs. In particular, the Court held that the observation in Electrosteel suggesting otherwise did not correctly interpret the mandatory nature of the prior-clearance regime. At the same time, Common Cause and Alembic were not read as completely disabling the Central Government from creating a carefully confined statutory exception in genuine supervening public interest.
This distinction determined the fate of the two impugned measures. The 2017 Notification was a one-time, closed-ended amnesty: only projects already in violation on 14 March 2017 could apply, and the application window was limited. It also contemplated environmental damage assessment, remediation and compensation. The Court therefore upheld it as valid delegated legislation traceable to Section 3 of the 1986 Act. The 2021 OM, however, contained no comparable temporal limitation and transformed an exceptional corrective mechanism into a continuing route for regularising future violations. As a mere administrative order, it could not alter the substantive prior-EC regime created by delegated legislation.
The Court nevertheless declined to retrospectively unsettle projects processed during years of regulatory and judicial uncertainty. ECs already granted under the 2017 Notification or 2021 OM remain valid unless challenged independently on merits; pending applications must be taken to their logical conclusion; and applications dismissed or delisted solely because of the Supreme Court’s earlier stay or Vanashakti-I may be reconsidered. But the door was closed prospectively: no fresh applications may be entertained under either instrument, and the Central Government cannot in future create ex post facto EC regimes through administrative orders. The Court expressly preserved its own power under Article 142 to mould relief in an appropriate individual case.
Decision: The Supreme Court upheld the 2017 Notification as a valid, narrowly tailored and time-bound statutory amnesty, while declaring the 2021 Office Memorandum invalid and quashing it prospectively. Existing ECs were protected, pending applications were permitted to conclude, but no fresh applications under either regime may be entertained. The Central Government was restrained from issuing future administrative orders granting ex post facto ECs to projects commenced in breach of the 2006 Notification, though a valid notification under Section 3 of the 1986 Act and the Supreme Court’s Article 142 jurisdiction were expressly preserved.