Summary
| Category | Data |
|---|---|
| Court | Supreme Court of India |
| Case Number | R.P.(C) No.-003002-003002 – 2025 |
| Diary Number | 41929/2025 |
| Judge Name | HON’BLE THE CHIEF JUSTICE |
| Bench |
|
| Concurring or Dissenting Judges |
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| Precedent Value | Binding; lays down that ex-post-facto EC is anathema to environmental jurisprudence |
| Overrules / Affirms |
|
| Type of Law | Environmental law under the Environment (Protection) Act, 1986 |
| Questions of Law |
|
| Ratio Decidendi | The requirement of prior environmental clearance is mandatory for all projects listed under the EIA Notification. Concept of an ex-post-facto or retrospective EC is alien to environmental jurisprudence and contrary to both the precautionary principle and sustainable-development mandate. The 2017 Notification and 2021 OM purporting to regularise ongoing or completed projects without a prior EC are illegal and must be struck down, subject to protection for clearances already granted under those measures. |
| Judgments Relied Upon | Common Cause v. Union of India; Alembic Pharmaceuticals Ltd. v. Rohit Prajapati; Electrosteel Steels Ltd. v. Union of India |
| Logic / Jurisprudence / Authorities Relied Upon by the Court |
|
| Facts as Summarised by the Court | The MoEF&CC issued the EIA Notification, 2006 requiring EC for specified projects. A 2017 Notification permitted a six-month window (extended to April 2018) for ex-post-facto clearances. In 2021, an OM purported to extend SOP for handling violations beyond that window. Writ petitions challenged those measures. The Supreme Court held them illegal, protecting only ECs already granted under those limited-window measures. |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All regulatory authorities under the Environment (Protection) Act—including MoEF&CC, SEIAAs, SEACs |
| Persuasive For | Subordinate courts, High Courts, tribunals dealing with environmental clearance and quashing petitions |
| Overrules |
|
| Distinguishes | Electrosteel Steels Ltd. v. Union of India (to the extent it permitted case-by-case retroactive ECs) |
| Follows |
|
What’s New / What Lawyers Should Note
- Confirms that ex-post-facto environmental clearance is contrary to the precautionary principle and sustainable development framework.
- Clarifies that a statutory notification’s one-time window (2017 Notification) cannot be extended or overridden by subsequent office memoranda.
- Upholds that counsel’s in-court undertakings cannot override statutory procedure or prescribe further grace periods.
- Reinforces that environmental regulations may be modified only within the window and procedure prescribed—but never to permit fully retroactive compliance.
- Provides binding authority to oppose late-filed quashing petitions and applications for EC outside the statutory window.
Summary of Legal Reasoning
- Section 3 of the EP Act empowers prior environmental clearances to implement the precautionary principle.
- EIA Notifications 1994/2006 mandate EC before project commencement or expansion; absence of “prior” in 1994 Notification still implied mandatory early clearance.
- 2017 Notification briefly opened a six-month window (extended to April 2018) for ex-post-facto clearances; no further extensions possible.
- NGT-directed 2021 OM for SOP on violations attempted retroactive regularisation beyond that window.
- Common Cause and Alembic held ex-post-facto EC anathema to environmental jurisprudence; detrimental to environment.
- Subsequent measures in Electrosteel/Pahwa/D. Swamy improperly deviated from that binding precedent.
- The Supreme Court strikes down the 2017 Notification and 2021 OM as illegal, while safeguarding clearances already granted under those limited-window measures.
Arguments by the Parties
Petitioners (CREDAI and project proponents)
- Projects completed or in final stages under 2017/2021 measures now face demolition, causing massive waste and public-exchequer loss.
- 2017 Notification and 2021 OM are valid statutory measures under Section 3 and Section 21 General Clauses Act—allowing retroactive EC.
- Equity demands relief for those who complied with procedural requirements but were blocked by litigation delays.
State (MoEF&CC) / Respondents
- 2017 Notification and 2021 OM exceed the statutory scheme and undermine mandatory prior-EC regime.
- Permitting ex-post-facto EC beyond six months runs counter to environmental jurisprudence laid down in Common Cause and Alembic.
- Judicial undertakings cannot expand or extend a statutory grace period.
Factual Background
In 2006, the MoEF&CC issued an EIA Notification requiring prior clearance for specified projects. In March 2017 a limited six-month window was opened for ex-post-facto clearance, extended to April 2018 by the Madras High Court. A 2021 Office Memorandum purported to lay down SOPs for handling violations beyond that window. Multiple writ petitions challenged both measures as illegal for permitting retroactive compliance. The Supreme Court quashed them, protecting only clearances granted within the statutory window.
Statutory Analysis
- Section 3 EP Act: Empowers Central Government to regulate “industries, operations or processes” by prior EC under the precautionary principle.
- Rule 5 EP Rules: Mandates public consultation, scoping, appraisal before EC.
- EIA Notification 1994 & 2006: Require EC before new projects or expansions.
- 2017 Notification: Six-month retroactive window until April 2018—no further extension authorized.
- 2021 OM (SOP): Attempted new retroactive SOP; lacked statutory backing.
- Section 15 EP Act: Provides penalties for non-compliance—does not authorize regularization.
Dissenting / Concurring Opinion Summary
Dissenting (Ujjal Bhuyan, J.)
- Review not maintainable: 2017 Notification’s six-month window (extended to April 2018) clearly expired—no further applications.
- Subsequent decisions (Electrosteel/Pahwa/D. Swamy) validating retroactive SOP are per incuriam and not binding.
- Section 21 General Clauses Act allows amendment or repeal of notifications, but cannot legitimize ex-post-facto clearances outside prescribed window.
- Upholds strict stare decisis: Co-ordinate Benches cannot alter binding ratio without a larger Bench reference.
Concurring (K. Vinod Chandran, J.)
- Supports recall: Failure to reconcile later judgments with Common Cause/Alembic, mandates review.
- Emphasizes non-regression principle: environmental standards cannot be rolled back.
- Notes hardship to public infrastructure projects and environmental harm from forced demolition.
Alert Indicators
- 🚨 Breaking Precedent – Established law permitting only limited-window regularisation overturned by 2017/2021 measures.
- ✔ Precedent Followed – Common Cause; Alembic Pharmaceuticals.
- ⚖️ Split Verdict – 2–1 in review hearing.
- 🔄 Conflicting Decisions – Electrosteel Steels Ltd.; Pawha Plastics Private Ltd.; D. Swamy vs. the majority’s view.
- 📅 Time-Sensitive – Window for ex-post-facto EC clearly lapsed by April 2018; no new applications permitted.