EnvironmentGS2+ GS3

Supreme Court rules post-facto environmental clearances require statutory notification

The Hindu·2026-07-30· Read original

"Supreme Court rules post-facto environmental clearances require statutory notification"

Prelims Facts

  • •EIA Notification, 2006 was issued under Section 3 of the Environment (Protection) Act, 1986.
  • •Prior Environmental Clearance is mandatory for all projects listed in the Schedule to the EIA Notification, 2006.
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Key Terms

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.

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Study Note

BackgroundCore Concept

Background

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.

The Topic Explained

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. …

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Related PYQs

2014GS1 Prelims

The power of the Supreme Court of India to decide disputes between the Centre and the States falls under its

Aadvisory jurisdiction
Bappellate jurisdiction
Coriginal jurisdiction
Dwrit jurisdiction
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2021GS1 Prelims

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?

A1 only
B2 only
C1 and 2 both
DNeither 1 nor 2
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Practice MCQs

Politymedium

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?

A1 and 2 only
B1 and 3 only
C2 and 3 only
D1, 2 and 3
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Politymedium

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?

AThe OM violated the fundamental right to equality under Article 14 by treating violating projects differently from compliant ones.
BThe OM was ultra vires the Environment (Protection) Act, 1986, as it sought to alter a statutory notification through an administrative order.
CThe OM was struck down because post-facto Environmental Clearances are constitutionally impermissible under any circumstances.
DThe OM exceeded the jurisdiction of MoEF&CC, which has no power to regulate irrigation projects under the Environment (Protection) Act, 1986.
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Polityhard

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?

A1 only
B2 only
C2 and 3 only
D1, 2 and 3
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Politymedium

Which of the following correctly distinguishes an 'Office Memorandum' from a 'Statutory Notification' in the context of Indian administrative law?

AAn office memorandum is issued by the President, while a statutory notification is issued by a Ministry.
BA statutory notification is issued under the authority of a parent Act and carries the force of law, while an office memorandum is an internal executive communication without independent statutory force.
CAn office memorandum requires parliamentary approval, while a statutory notification does not.
DBoth carry equal legal force, but a statutory notification requires publication in the Official Gazette while an office memorandum does not.
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Polityhard

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.

A1 only
B1 and 3 only
C2 and 3 only
D1, 2 and 3
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