- Through its November 18 order, the Supreme Court has allowed the practice of post-facto environmental clearance for development projects.
- The 2:1 majority judgement rolled back the Court’s own May 2025 judgement, which called the practice illegal.
- Development project proponents have argued in favour of post-facto environmental clearances, stating that otherwise the money already invested would be wasted.
The Supreme Court has reinstated post-facto environmental clearance for projects that failed to obtain permission before starting construction, invalidating its previous judgement on the matter. In an order issued on November 18, the Court said if the ban on post-facto clearance wasn’t recalled, it would have “devastating effects…as various completed and near-completion projects will have to be demolished.”
The Court’s order is a roll back of its judgement on 16 May 2025, which declared post-facto environmental clearances to be illegal and harmful. According to a media report, the Ministry of Environment, Forest and Climate Change (MoEFCC) had granted post-facto clearance to over 100 projects and issued terms of reference for at least 150 more. These included coal and iron mines, factories, and other large projects.
In 2017, the Union Environment Ministry issued a notification which allowed developers to apply for environmental clearance after they had already started constructing their projects, as a one time measure for a period of six months. Subsequently, the Ministry issued an office memorandum in 2021 outlining a standard operating procedure to be followed by project proponents when seeking post-facto clearance.
A two-judge bench of the Supreme Court had struck down these efforts in May, after finding they violated the Environmental Impact Assessment notification. The Court barred the Union Environment Ministry from issuing any more post-facto clearances, and ordered the demolition of violative projects that had not already secured clearances under the “amnesty” scheme.
The case, however, is being reconsidered in light of a review petition filed by the the Confederation of Real Estate Developers’ Associations of India (CREDAI), who are seeking a reassessment of the May order. A three-judge bench led by Chief Justice B.R. Gavai accepted the request, arguing the previous judgement didn’t adequately consider cases where post-facto clearance had been permitted by the courts.
The order re-opens the door to post-facto clearance till the matter is heard again by a larger bench.
‘Crores in waste’
Apart from Chief Justice Gavai, the bench included Justice Vinod Chandran, who agreed with the CJI, and Justice Ujjal Bhuyan, who dissented. Bhuyan was on the previous bench that had struck down the post-facto clearance notification in May.
In a lengthy order, Justice Gavai said that “thousands of crores of rupees would go in waste” if post-facto clearance is not permitted. Citing three public projects that had neared completion, he asked “whether it would be in the public interest to demolish all such projects and permit the money spent from the pocket of [the] public exchequer to go in the dustbin.”
The violative projects included a 962-bedded AIIMS hospital in Odisha, a greenfield airport in Karnataka, and effluent-treatment plants. “Needless to state that the effect on the projects undertaken by the private individuals/entities may be manifold,” the judgement added.
According to Gavai, since these projects were eligible for environmental clearance, the question “is whether such a modus operandi of demolition and re-construction would be in the larger public interest, or would in fact be counter-productive to the public interest?” He also argued that since the 2021 office memorandum was issued on the instructions of the National Green Tribunal, those seeking clearance under it should not be denied its “benefits”.
The imposition of penalties in both notifications “have a deterrent effect and the same takes care of heavily penalising the errant builder/developer, while allowing operation of several projects which are otherwise permissible in law,” Justice Gavai said.
Prevailing norms under the Environmental Impact Assessment (EIA) notification require large-scale infrastructure development projects to apply for environmental clearance prior to construction, to understand and mitigate the full impacts of a project on the environment. Projects are vetted by state and centrally-appointed expert committees before being approved for clearance, and clearance is not always guaranteed.
‘A step in retrogression’
In a strongly-worded dissent, Justice Bhuyan said the majority judgement was “a step in retrogression” which “overlooks the very fundamentals of environmental jurisprudence.”
The review petition should have been dismissed because pleas for clearance by members of the CREDAI came long after the six month window of the 2017 notification had passed, he said. The 2021 standard operating procedure applied only to project proponents who had availed the amnesty, “therefore, members of the review petitioner are not entitled to any benefit under the 2021 OM (Office Memo), even if the same is assumed to be valid,” he wrote.
Bhuyan argued that the majority judgement and review petition “take a complete U-turn” from the precautionary principles that have defined India’s environmental jurisprudence. “Non-regression is an essential component of sustainable development, which as a principle and goal of environmental jurisprudence has been endorsed by this Court,” he wrote.
He also disagreed that fines and penalties were sufficient in remedying environmental damage from unapproved projects, saying “polluter pays is only a principle of reparation. Precautionary principle cannot be given a short shrift by relying on polluter pays principle.”
Justice Bhuyan also noted that the judgement striking down post-facto clearance had not been contested by the Union Environment Ministry – the statutory body in charge of issuing clearances. He questioned why the review judgement appeared to be “so keen, virtually prodding the Central Government or the MOEF&CC to grant ex post facto EC to all the law violators.”
“Before parting with the record, I would like to painfully observe that the deadly Delhi smog reminds us everyday about the hazards of environmental pollution. Supreme Court as the highest constitutional court of the country has the duty and obligation under the Constitution of India and the laws framed thereunder to safeguard the environment. It cannot be seen backtracking on the sound environmental jurisprudence that has evolved in this country, that too, on a review petition filed by persons who have shown scant regard for the rule of law,” he wrote.
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Banner image: An iron ore mining operation. India’s environment ministry granted post-facto clearance to over 100 projects and issued terms of reference for more, including coal and iron mines, factories, and other large projects. Representative image by CDE Global via Flickr (CC BY 2.0).
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