Environmental Clearance: Supreme Court Upholds One-Time Amnesty but Strikes Down Perpetual Post Facto Regime

Case Snapshot

Case Name: Vanashakti v. Union of India

Citation: 2026 INSC 761

Bench: Three-Judge Bench (Justice Pamidighantam Sri Narasimha, Justice Alok Aradhe, and Justice Sudhanshu Dhulia)

Date of Judgment: July 29, 2026

Area of Law: Environmental Law, Constitutional Law, Administrative Law, Delegated Legislation

Judgment in Brief

The Supreme Court delivered a landmark judgment on the validity of post facto environmental clearance (EC) regimes, addressing a series of conflicting decisions and the validity of two key instruments—the 2017 Notification and the 2021 Office Memorandum.

The Court held that the prior EC requirement under the 2006 Notification is mandatory and founded on the precautionary principle. However, the Central Government has the power under Section 3 of the Environment (Protection) Act, 1986, to issue a narrowly tailored, time-bound amnesty notification in supervening public interest, provided it satisfies the tests of reasonable classification and proportionality.

The Court upheld the 2017 Notification as a valid one-time, time-bound amnesty measure that brought existing violations within the regulatory fold. However, it struck down the 2021 Office Memorandum as ultra vires the 1986 Act and the 2006 Notification, holding that it created a perpetual post facto clearance regime that supplanted the prior EC mandate, failed the proportionality test, and was issued as an administrative instruction rather than delegated legislation.

The Court prospectively quashed the 2021 OM, protected ECs already granted, and directed that pending applications be processed to their logical conclusion. No fresh applications under the impugned instruments shall be entertained.

Relevant Facts

Background: The 2006 Notification mandated prior environmental clearance for specified projects. Despite this, widespread violations occurred—projects commenced, expanded, or operated without prior EC.

Earlier Instruments: A series of executive instructions (Office Memoranda dated 2010, 2012, 2013) attempted to regularize violations. The 2012 and 2013 OMs were quashed by the NGT in S.P. Muthuraman v. Union of India.

2017 Notification: On March 14, 2017, MoEFCC issued a notification offering a one-time amnesty to projects that had violated the prior EC requirement as on that date. It was a delegated legislation, published as a draft, followed by consideration of objections and parliamentary oversight. Eligibility was limited to projects in violation as on 14.03.2017, with a six-month application window.

2021 Office Memorandum: On July 7, 2021, MoEFCC issued an OM allegedly in compliance with NGT's direction in Tanaji B. Gambhire. The OM provided a Standard Operating Procedure for post facto EC, with no cut-off date, no finite class, and fixed compensation of 1% of project cost plus 0.25% turnover.

Vanashakti-I: A two-Judge Bench struck down both instruments on May 16, 2025, holding ex post facto EC "alien to environmental jurisprudence."

Review: CREDAI sought review. The Review Bench (Gavai C.J., Chandran J., Bhuyan J., by majority 2:1) recalled Vanashakti-I, holding it had failed to notice relevant paragraphs in earlier decisions and coordinate Bench judgments.

Present Proceedings: The matters were reheard by a three-Judge Bench for a fresh determination.

Issues Before the Court

1. Whether the prior EC requirement under the 2006 Notification is mandatory, and if so, what consequence follows upon its breach?

2. Whether the Central Government has the power under Section 3 of the 1986 Act to issue an amnesty notification for projects that violated the prior EC mandate?

3. Whether the 2017 Notification is a valid delegated legislation?

4. Whether the 2021 Office Memorandum is ultra vires the 1986 Act, the Rules, and the 2006 Notification?

5. Whether Common Cause and Alembic conflict with Electrosteel, Pahwa, and D. Swamy?

6. What is the fate of ECs already granted and applications pending under the impugned instruments?

Legal Framework

• Environment (Protection) Act, 1986:
  Section 2(a): Definition of "environment."
  Section 3: Power of Central Government to take measures for protecting and improving the environment, preventing, controlling, and abating pollution.
  Section 3(2)(v): Power to restrict the areas in which industries, operations, or processes shall not be carried out, or carried out subject to safeguards.
  Section 5: Power to issue binding directions.
  Section 15: Penalty for contravention (amended by Jan Vishwas Act, 2023, substituting civil penalties for prosecution).
  Section 15A: Penalty for contravention by a company.
  Section 15B: Penalty for contravention by a Government Department.

• EIA Notification, 2006: Issued under Sections 3(1) and 3(2)(v) of the 1986 Act. Mandated prior EC for specified projects. Used the word "prior" e

... Upgrade to a Premium Plan to view the full judgment.