On Wednesday, July 29, 2026, the Supreme Court struck down a 2021 Office Memorandum (OM) that had allowed ex-post facto environmental clearances for infrastructure projects, ruling that the Central government cannot significantly modify established environmental safeguards through simple administrative directives.
The court observed that the 2021 Office Memorandum is an administrative directive that effectively establishes a permanent framework for granting environmental clearance to projects initiated without prior approval.
It significantly modifies the scope of review and the standards for granting environmental clearance set out in the 2006 notification.
By doing so, it replaces an earlier piece of delegated legislation—the 2006 notification—through an administrative order, which the court held is not permissible in law.
A Bench led by Chief Justice of India Surya Kant held that the requirement under a 2006 government notification was issued as delegated legislation and not as a statutory provision.
The delegated legislation was issued for obtaining prior and compulsory environmental clearances for large-scale projects initiated without a valid permit and covering sectors such as highways, airports, real estate and township development, ports, mining and resource extraction, as well as energy and heavy industry, is mandatory in nature.
Justice Joymalya Bagchi, who wrote the judgment for the Bench, held that the mandate of the 2006 notification could only be altered by issuing a subsequent and proper “amnesty” notification, limited to select, deserving projects whose continuation served a “supervening public interest.”
Justice Bagchi held that the 2021 Office Memorandum (OM), which functioned as a perpetual amnesty scheme for projects seeking post facto environmental clearance, failed to provide a clear basis for selecting eligible projects.
He said the OM lacked a rational connection to the larger public interest and was therefore beyond the objectives of the Environment (Protection) Act, 1986.
The Act seeks to protect the environment by balancing development with the precautionary principle and sustainable development.
The judge further observed that the OM failed the tests of reasonableness and proportionality, making it violative of Articles 14 and 21 of the Constitution.
The apex court quashed the 2021 OM prospectively in an apparent bid to not upset ongoing projects.
It further stated that retrospective approvals granted under the 2017 notification—which offered a ‘one-time amnesty’ for projects initiated without prior clearance—and under the 2021 Office Memorandum (OM), would continue to be valid unless specifically challenged in accordance with the law.
It added that the 2021 OM was based on the 2017 notification and sought to formalise the practice of ex post facto clearances.
On Wednesday, July 29, 2026, the court barred the Centre from issuing administrative orders to grant ex post facto clearances in the future.
Justice Bagchi clarified that this ruling would not prevent the Supreme Court from granting ex post facto clearances by exercising its plenary powers under Article 142 of the Constitution.
The case has undergone a tumultuous journey, with a Division Bench of the apex court, in a May 2025 judgment, branding such retrospective approvals as blatantly illegal and fundamentally hostile to environmental protection.
In November 2025, a larger Bench softened the earlier ruling, explaining that abolishing the retrospective clearance system would have a “devastating effect” on ongoing public projects valued at “thousands of crores of rupees.”