Retrospective environmental clearance: Supreme Court strikes down Centre’s 2021 memorandum

The bench added, “The decriminalisation of regulatory contraventions under the 1986 Act, through the Jan Vishwas Act 2023, reinforces our conclusion that the Central government has ample power under Section 3 to issue appropriate notifications, formulating amnesty schemes with regard to such classes or categories of non-compliant projects whose sustainability is necessary to subserve larger public interest.”

On May 16, 2025, the Supreme Court in the case Vanasakthi vs Union of India struck down a 2017 notification enabling retrospective environmental clearance and the subsequent 2021 office memorandum which laid down the Standard Operating Procedure (SOP) for such clearances.

However, on November 18, 2025, the Supreme Court, by a 2:1 majority, recalled the May 16 ruling citing public interest and legal flaws.  The bench had then Chief Justice of India B R Gavai, Justice Vinod Chandran and Justice Ujjal Bhuyan, who dissented and said the judgement “overlooks the very fundamentals of environmental jurisprudence” and “is a step in retrogression”.

However, on November 18, 2025, the Supreme Court, citing public interest and legal flaws, recalled the May 16 ruling, saying the judgement “overlooks the very fundamentals of environmental jurisprudence” and “is a step in retrogression”.

Hearing review petitions against this, the Supreme Court Wednesday said the 2017 notification was a “valid, narrowly tailored and time-bound delegated legislation, traceable to Section 3 of the 1986 Act, and Sections 20 and 21 of the General Clauses Act”.

2021 memorandum ‘envisages a perpetual regime’

The court, however, struck down the 2021 office memorandum, saying it “is an administrative order and envisages a perpetual regime” for the grant of environmental clearances to projects undertaken without prior clearance”.

“It substantially alters the nature of the enquiry as well as the criteria for the grant of environmental clearance under the 2006 notification. The 2021 office memorandum thereby supplants an earlier delegated legislation through an administrative instruction, which is impermissible in law,” the court said.

“Even otherwise, being a perpetual amnesty scheme applicable to all permissible projects, it fails to lay down an intelligible differentia for the selection of projects for the grant of post-facto environmental clearance having a rational nexus to supervening public interest, and is thereby ultra vires the object of the 1986 Act, namely the preservation of the environment through a balanced approach between the precautionary principle and sustainable development,” the court noted.

“Given these circumstances, the 2021 office memorandum does not satisfy the test of proportionality and reasonableness and is violative of Articles 14 and 21 of the Constitution,” the court said.