The Supreme Court on 29 July 2026 declared the 2021 Office Memorandum (OM) invalid. The OM had created a permanent system for granting ex post facto environmental clearance. The judgment restores the mandatory “prior clearance” rule of the 2006 EIA Notification 2006, while allowing narrowly‑tailored amnesty schemes.
Key Developments
- Three‑judge bench (CJI Surya Kant, Justices Joymalya Bagchi and Vipul M. Pancholi) quashed the 2021 OM as an unlawful administrative order.
- The Court upheld the 2017 one‑time amnesty notification as valid, but barred any perpetual retrospective regime.
- Retrospective clearances may be granted only through a statutory notification under the Environment (Protection) Act 1986, and must satisfy proportionality, public interest and deterrence tests.
- The judgment emphasized the precautionary principle and rejected the “pollute and then pay” approach.
- Under Article 142, the Court retained the ability to grant ex post facto clearances in exceptional cases.
Important Facts
Projects that sought retrospective clearance under the OM spanned highways, airports, mining, ports, steel plants, common effluent‑treatment plants and large real‑estate schemes. The Union government argued that cancelling the regime would affect public works worth nearly ₹20,000 crore, including a 962‑bed AIIMS in Odisha, a greenfield airp