"Supreme Court rules post-facto environmental clearances require statutory notification"
Environmental Clearance (EC)
mandatory prior approval for scheduled projects under EIA Notification, 2006 before construction begins.
Post-Facto EC
environmental clearance granted after a project has already commenced, reversing the precautionary prior-approval logic.
Environmental governance in India rests on two foundational pillars: the Environment (Protection) Act, 1986 and the Environmental Impact Assessment (EIA) Notification, 2006, issued under it. The 1986 Act empowers the Central Government to take measures to protect and improve the environment and to prevent environmental hazards. The EIA Notification, 2006 operationalised this mandate by making prior Environmental Clearance (EC) mandatory for a defined list of projects — including large infrastructure, mining, irrigation, and industrial ventures — before any construction or operation begins. The rationale is precautionary: assess environmental impacts before irreversible damage occurs, not after.
The EIA process involves screening, scoping, public consultation, and appraisal by an Expert Appraisal Committee before the Ministry of Environment, Forest and Climate Change (MoEF&CC) grants or refuses clearance. This prior-EC requirement is not merely procedural — it reflects India's constitutional commitment under Article 48A (directive to protect the environment) and Article 21 (right to life, interpreted to include the right to a clean environment by the Supreme Court in landmark cases). Over the years, however, a significant number of projects commenced operations without obtaining prior EC, creating a governance dilemma: halt economically significant projects mid-construction, or regularise violations through post-facto approvals.
Post-facto Environmental Clearance refers to granting EC to a project after it has already commenced construction or operations — the inverse of the legally mandated prior-EC regime. The Supreme Court had previously, in Common Cause v. Union of India and related matters, expressed deep scepticism about post-facto ECs, noting that they reward non-compliance and undermine the preventive logic of environmental law. The court had observed that permitting regularisation creates a perverse incentive: project proponents may deliberately bypass the EC process, knowing they can seek regularisation later.
In response to this judicial pressure, the MoEF&CC issued an Office Memorandum (OM) on July 7, 2021, laying down a Standard Operating Procedure (SOP) for identifying and dealing with violation cases under the EIA Notification, 2006. This OM effectively created a mechanism for granting EC to projects that had already commenced without prior approval — a post-facto regularisation regime — but did so through an administrative order rather than a statutory instrument. …
The power of the Supreme Court of India to decide disputes between the Centre and the States falls under its
With reference to Indian judiciary, consider the following statements:
1.Any retired judge of the Supreme Court of India can be called back to sit and act as a Supreme Court judge by the Chief Justice of India with prior permission of the President of India.
2.In India, any High Court has the power to review its own judgement as the Supreme Court does.
Which of the statements given above is/are correct?
With reference to the Environmental Impact Assessment (EIA) Notification, 2006, consider the following statements:
1.It was issued under Section 3 of the Environment (Protection) Act, 1986.
2.It makes prior Environmental Clearance mandatory for all projects irrespective of their scale or category.
3.Any modification to its mandatory prior-EC requirement must be made through a statutory notification of equivalent legal standing.
Which of the statements given above is/are correct?
The Supreme Court recently quashed a 2021 Office Memorandum of MoEF&CC on post-facto Environmental Clearances. Which of the following best describes the primary legal ground for this ruling?
Consider the following statements regarding the Supreme Court's ruling on post-facto Environmental Clearances:
1.The court held that the Central Government has no power whatsoever to grant post-facto Environmental Clearances.
2.The court gave the ruling prospective effect, protecting clearances already granted under the quashed regime.
3.The court held that post-facto ECs can be granted through a statutory notification under the Environment (Protection) Act, 1986.
Which of the statements given above is/are correct?
Which of the following correctly distinguishes an 'Office Memorandum' from a 'Statutory Notification' in the context of Indian administrative law?
With reference to the doctrine of 'ultra vires' in the context of delegated legislation in India, which of the following statements is/are correct?
1.A subordinate legislative instrument is ultra vires if it exceeds the scope of the parent Act under which it was made.
2.An administrative order issued by a Ministry can validly modify a statutory notification if it is published in the Official Gazette.
3.Courts in India can strike down delegated legislation that is inconsistent with the parent statute.
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