No blanket amnesty or bar: How SC set ‘public interest’ test for ex-post facto environment clearances

The test will depend on how narrowly the government frames any future amnesty scheme and whether it meets the Supreme Court’s benchmark of “public interest”.

An OM is an administrative instruction issued by a ministry or department and does not have the force of law. A statutory notification, by contrast, is issued under authority granted by a statute — the Environment (Protection) Act, 1986, in this case — and notified in the Gazette.

A timeline of how SC rulings evolved

Applying this distinction, the court set aside the Environment Ministry’s July 2021 OM, which introduced a standard operating procedure (SOP) for granting ex-post facto ECs to “violation cases”. The court held that the OM had created a continuing or “perpetual” regime for condoning violations. It did not invalidate the March 2017 notification, which provided a limited, one-time six-month amnesty window.

The judgment also departed from the court’s May 2025 position that prohibited ex-post facto ECs “in any form or manner”. Instead, it held that a “narrowly tailored amnesty scheme” may be permissible where justified by “supervening public interest”.

Already benefited

After Mumbai-based environmental NGO Vanashakti approached the Supreme Court, the July 2021 OM was stayed, suspending the SOP route for violation cases, by a bench of Justices B R Gavai and Sandeep Mehta in January 2024.

By then, as reported by The Indian Express on February 20, 2024, the Environment Ministry had issued ex-post facto ECs to more than 100 projects and issued terms of reference for environmental impact assessment (EIA) to at least another 150 projects under the violation category since March 2017.

These projects included coal, iron, and bauxite mines, a greenfield airport, distilleries, steel and iron plants, industrial estates, cement plants, limestone quarries, chemical units, and buildings.

Among the project proponents were Singareni Collieries Company Limited, Mahanadi Coalfields Limited, Jaypee Cement, UltraTech Cement, Ramco Cements, Bhushan Steel Limited, Steel Authority of India, Godrej Agrovet Limited, Hindustan Copper, Lloyds Metals & Energy Limited, Hindustan Marble, Artemis Hospital, Pushpawati Singhania Hospital, Spaze Towers, Hotel Leela Venture Ltd, and the Special Protection Group.

Scope of amnesty

Under the Environmental Impact Assessment Notification, 2006, projects requiring EC must obtain approval before starting operations. However, several projects began work or expanded operations without prior clearance.

In March 2017, the Ministry issued a statutory notification offering a one-time six-month opportunity to such projects to disclose violations and seek appraisal for EC, subject to environmental assessment and other legal consequences.

After the window expired in September 2017, the Madras High Court disposed of challenges to the notification after recording the Union government’s undertaking that it was a “one-time measure”.

Subsequently, in Appaswamy Real Estates v. Puducherry Environment Protection Association, the Madras High Court granted a limited extension in March 2018. The Ministry issued an OM the same month allowing eligible projects that were already in violation as of March 2017 to submit applications within 30 days.

The policy shifted in July 2021 when the Ministry issued an OM introducing an SOP as an ongoing mechanism for violation cases.

Judicial evolution

In Common Cause v. Union of India (2017), a bench of Justices Madan B Lokur and Deepak Gupta held that mining operations requiring EC could not commence without prior approval. It emphasised that the EIA regime is preventive and intended to assess environmental consequences before irreversible harm occurs.

In Alembic Pharmaceuticals v. Rohit Prajapati (2020), a bench of Justices DY Chandrachud and Ajay Rastogi held that ex-post facto EC was inconsistent with fundamental principles of environmental jurisprudence. The court observed that retrospective approval undermines the precautionary principle by allowing project proponents to commence activities first and seek approval later.

However, in Pahwa Plastics v. Dastak (2022), a bench of Justices Indira Banerjee and JK Maheshwari adopted a more pragmatic approach that closure was not always the appropriate remedy, particularly where regulatory uncertainty existed and environmental compliance remained possible. The court held that regulation and remediation could, in some cases, better serve environmental protection than immediate closure.

Vanashakti litigation

In Vanashakti v. Union of India, a bench of Justices Abhay S Oka and Ujjal Bhuyan in May 2025 struck down both the March 2017 notification and the July 2021 OM, holding that ex-post facto ECs were impermissible “in any form or manner”. The court also held that the one-time amnesty introduced in 2017 had exhausted itself and could not justify future regularisation.

Following review petitions by the Union government and industry bodies, a bench comprising then Chief Justice of India B R Gavai and Justices Vinod Chandran and Ujjal Bhuyan recalled the May 2025 judgment by a 2:1 majority, holding that the earlier decision had failed to consider binding precedents and required fresh adjudication.

The subsequent judgment now draws a distinction between a limited statutory amnesty justified by public interest and a continuing administrative mechanism that permits routine regularisation of environmental violations.