SC restricts ‘retrospective’ green clearances

Why in the News?

The Supreme Court on 29 July 2026 quashed, with prospective effect, the Centre’s 2021 Office Memorandum (OM) that allowed ex post facto environmental clearances for projects built without prior approval. It held that the government cannot alter the mandatory environmental clearance regime through a mere administrative instruction. The ruling closes a route that had let project proponents regularise unauthorised construction through a recurring “amnesty,” while leaving open a narrow exception issued through proper notification.

What did the 2021 Office Memorandum allow, and why did the court strike it down?

1. What the OM did: The 2021 OM created a standard operating procedure allowing perpetual, recurring ex post facto environmental clearance for projects undertaken without prior environmental clearance under the Environment (Protection) Act, 1986.
2. Why it failed the legal test: The Bench, led by Chief Justice of India Surya Kant, held that the OM was “an administrative order” that “envisages a perpetual regime” and “supplants an earlier delegated legislation through an administrative instruction, which is impermissible in law.”
3. No selection criteria: The OM applied indiscriminately to all permissible projects without laying down an intelligible differentia connecting selection to “supervening public interest,” making it disproportionate and violative of Articles 14 and 21 of the Constitution.
4. Weakened deterrence: The decriminalisation of the offence of breaching the prior clearance regime through the Jan Vishwas (Amendment of Provisions) Act, 2023 compounded the problem, since violators earlier faced up to five years’ imprisonment or a fine, before the offence became a civil liability.

What can the government still do to grant retrospective clearance?

1. Narrow exception preserved: The Court held the Centre retains power under Section 3 of the Environment (Protection) Act, 1986 to issue an appropriate, narrowly tailored amnesty notification in supervening public interest, as an exception to the 2006 notification, but not through an administrative memorandum.
2. Selection requirement: Any future amnesty scheme must make a distinct, reasoned selection of projects, tested against proportionality and public interest, rather than covering all non-compliant projects uniformly.
3. Accountability demand: The Court ordered that future amnesty schemes must provide effective deterrent measures against individual public servants, including disciplinary action and personal liability, wherever the state or its own instrumentalities violate the prior clearance regime.

What happens to projects that already received clearance under the quashed OM?

1. Prospective effect only: The Court quashed the 2021 OM prospectively, to avoid disrupting ongoing projects including the AIIMS Medical College and Hospital building in Odisha, the Centre of Excellence for Cancer Diseases in Tamil Nadu, Vijayapura Airport in Karnataka, and various medical colleges, slum rehabilitation and irrigation projects.
2. Existing clearances remain valid: Retrospective clearances already granted under the 2017 notification and the 2021 OM remain valid unless individually challenged in accordance with law.
3. Litigation history: The ruling follows a back-and-forth: a May 2025 Division Bench judgment called such clearances a “gross illegality,” a November 2025 larger Bench recalled that ruling citing the “devastating effect” on public projects worth thousands of crores, and the present July 2026 judgment on review petitions restores the stricter position on the OM specifically.

Does closing the OM route resolve the tension between environmental compliance and project continuity?

1. Unresolved incentive: Because existing ex post facto clearances remain valid unless individually challenged, project proponents that already built without clearance retain the benefit of past regularisation, even as the route for future violators is closed.
2. Enforcement gap remains: With the 2023 Jan Vishwas Act having decriminalised breaches of the prior clearance regime, the deterrent effect of closing the administrative amnesty route depends on how strictly future violations are now penalised as civil liabilities.

Conclusion

The Supreme Court has closed the administrative route for open-ended retrospective environmental clearance while preserving a narrow, notification-based exception for genuine public interest cases. Whether this actually curbs future violations depends on how strictly the Centre applies the “narrowly tailored” and “intelligible differentia” tests the Court has now set, and whether civil penalties under the Jan Vishwas Act carry enough deterrent weight.

Back2Basics:

Environment (Protection) Act, 1986

1. Enactment: The Environment (Protection) Act, 1986 was enacted after the 1984 Bhopal gas tragedy, giving the Central government overarching powers to protect and improve the environment.
2. EIA notification: The Environmental Impact Assessment (EIA) Notification, 2006, issued under Section 3 of this Act, mandates prior environmental clearance for specified categories of projects before construction begins.
3. Jan Vishwas Act, 2023: This Act decriminalised minor offences across 42 laws, including converting the penalty for breaching the prior environmental clearance requirement from imprisonment to a civil liability.

PYQ Relevance

[UPSC 2020] How does the draft Environment Impact Assessment (EIA) Notification, 2020 differ from the existing EIA Notification, 2006?

Linkage: The PYQ examines India’s Environmental Impact Assessment (EIA) framework and the legal requirements governing environmental clearances. The article builds on the PYQ by analysing the Supreme Court’s decision to invalidate open-ended ex post facto environmental clearances, reinforcing prior approval as the cornerstone of the EIA regime.