THE SUPREME COURT this week questioned whether courts could adopt a rigid approach barring ex post-facto environmental clearances altogether, and if the legislature or a delegated law-maker could be treated as completely stripped of power to provide for such a regime. The bench of Chief Justice Surya Kant, and Justices Joymalya Bagchi and Vipul Pancholi was hearing the challenge to the legal framework permitting ex post-facto environmental clearances. The matter arises from the Court's earlier decision recalling its own order that had prohibited retrospective environmental approvals.
In the previous hearing in February, Senior Advocate Gopal Sankaranarayanan had argued that the review bench’s decision had effectively shut the door on the petitioners’ ability to argue their case, and had urged the Court to either refer the matter to a five-judge Constitution Bench or clarify that those findings were not binding on the merits.
In the hearings this week, while Sankaranarayanan argued that Section 3 of the Environment Protection Act, 1986 (‘EPA’) could not be used to create a blanket post-facto clearance regime, advocate Srishti Agnihotri argued that the very architecture of the EIA process makes prior clearance structurally non-negotiable.
Find our detailed coverage on the previous hearing in February 2026 here.
‘Can there be an absolute bar on ex-post facto sanction?’: Justice Bagchi
On March 23, Senior Advocate Gopal Sankaranarayanan, appearing for the Mumbai-based NGO, Vanashakti, submitted that legislation or delegated legislation could not permit ex-post facto environmental clearances under Section 3 of the EPA.
Justice Bagchi noted that while an Office Memorandum may not amend the Environmental Impact Assessment Notification, which requires prior clearance for projects and carries a legislative character, there may be certain cases where the environmental harm is limited enough to justify approval without threatening sustainable development..
“There may be appropriate cases, for example, that the degree of environmental harm is not so high to the extent of sustainable development which may be achieved. In such cases, a notification for [post facto] sanction may be given,” he said.
He further highlighted that construction of a road, a hospital or a public utility service could represent compelling scenarios where ex-post facto approval yields to a higher public interest.
Sankaranarayanan clarified that he was not arguing the legislature is entirely devoid of power to carve out exceptions. But it is important to question the avenue through which that power may be exercised. Section 3 of the EPA, which empowers the Central Government to take measures that promote environmental protection, cannot be the vehicle for a framework that regularises violations.
“The legislature will definitely have the power in given cases to make such exceptions. It is my submission that it will not exercise Section 3 for that purpose. It can exercise any other power under essential commodities, whatever else but not Section 3. Section 3 is not available for that,” he argued.
He drew a pointed contrast between a diligent mine owner who applies, waits, meets all requirements under Rule 5 of the Environment Protection Rules, 1986, which prescribes the procedure for seeking prior environmental clearance, and obtains a clearance through due process and one who simply proceeds, constructs, and starts digging, banking on subsequent regularisation. For the latter, the logical consequence of proceeding without clearance is not a backdoor amnesty, but an obligation to face what follows from that choice. If no law protects such a project proponent, their only option is to approach the Court under Article 142 and ask for a special exception in their specific case, which Sankaranarayanan said he had no objection to.
He further contended that such a framework places compliant project proponents at an unfair disadvantage compared to those who commence activities first and seek approval later.
‘Penalties in post facto EC far too modest to deter’: Gopal Sankaranarayan
The bench also discussed the nature of the environmental plan that attaches to prior clearance versus one that attaches to post-facto clearance. The Chief Justice observed that the terms under the two regimes are fundamentally different – while a prior environmental plan is built on the premise of anticipated impact, a post-facto plan must necessarily reckon with harm already done.
Sankaranarayanan agreed. “The prior EC is preventive. The post-facto is not preventive. It is punitive. It has to be, because they have already constructed the violation. The nature of the plan will be entirely different,” he submitted.
Justice Bagchi noted that when it comes to prior consent, the precautionary principle is the primary organising principle of the environmental plan. When it comes to a post-facto complaint, the polluter-pays principle and sustainable development become the primary plan, in addition to precaution against further damage. Penalties, environmental costs and damage assessments would necessarily form part of such a plan, and might, he observed, render the continuation of the project economically unviable for the project proponent which could itself operate as a check on illegal activity.
“An ex post facto plan can be a good check to illegal continuation of mining or other damaging activities affecting the environment by saddling them with punitive and maybe at times disproportionate costs,” Justice Bagchi said.
But Sankaranarayanan highlighted the practical difficulties in that proposition. First, where the State is the project proponent, it is public revenue that funds the reparation and penalties. Second, the penalties in many cases are far too modest to deter.
“Unless it is made 600%, 700%, there is no deterrent,” he argued, also referring to the Jan Vishwas Act, 2023, which decriminalised the EPA, the Air Act, and the Water Act to improve ease of business, “ After decriminalisation, the only option is that the polluter pays in money and not in any other terms.”
Sankaranarayanan also clarified the precise scope of the Vanashakti writ petition before the bench. The challenge, he submitted, is limited to the July 7, 2021 Standard Operating Procedure (SOP) not to the 2017 notification itself, whose window had by then already closed. The 2021 SOP, he argued, was only ever meant to operationalise cases that had already entered the 2017 window.
By treating it as an independent and continuing gateway, the government had stretched it far beyond its intended purpose and far beyond the date after which no further applications could lawfully be entertained. The hearing continued on March 25, 2026.
‘How does one turn the clock back on pollution?’: Shrishti Agnihotri
On Wednesday, advocate Srishti Agnihotri, representing the NGO One Life, One Earth, argued that the very architecture of the environmental impact assessment regime demonstrates why any blanket framework for post-facto clearance cannot be permitted. Two decades after the 2006 EIA Notification, she argued, the word ‘prior’ is not incidental. If the window for blanket post-facto regularisation is left open, human nature being what it is, project proponents will always find it easier to seek forgiveness than to ask for permission.
Agnihotri walked the bench through the four-stage EIA process for Category A projects – (i) submission of Form 1, (ii) preparation of an Environmental Impact Assessment report, (iii) public consultation and finally, (iv) appraisal and recommendation by the Expert Appraisal Committee.
She argued that once a project is already operational, there would be problems that could no longer be addressed. She listed these problems as follows:
(i) Cumulative impact assessment – When a new factory is proposed in an area where six similar facilities already exist, the prior EC process allows authorities to ask whether the area can absorb yet another unit in terms of air quality, water, infrastructure and carrying capacity. Once the factory is built and running, that question can no longer be answered meaningfully.
(ii) Carrying capacity of an area – Prior clearance allows regulators to determine whether the level of development proposed in a particular locality is environmentally sustainable at all, and to make that call before public funds and private investments are committed.
(iii) Consideration of alternatives, particularly in relation to project siting – A project may be entirely permissible in law but inadvisable on environmental grounds at its proposed location. For instance, ‘fly ash dykes’, an engineered embankment facility used by coal-fired thermal power plants to store wet slurry are critical infrastructure, but if they are sited in areas prone to subsidence and flooding, or near community water sources, it could be potentially catastrophic.
“Once the project is operational, how does one turn the clock back in terms of pollution of natural resources?” she asked.
Agnihotri also argued that the prior EC process is also a first line of defence for climate resilience and adaptation. Referring to Form 1, she highlighted requirements that could not be fulfilled after a project is complete, such as disclosure of pollutants and hazardous substances, risks of contamination of land and water, identification of vulnerable populations in the vicinity, and assessment of ecological and cultural sensitivity including areas of religious significance to tribal communities.
On the doctrine of proportionality, she noted that proportionality was already baked into environmental regulation. A project proponent who flouts the regulation cannot then invoke proportionality to resist its consequences.
Finally, she described the succession of post-facto windows that have emerged over two decades as resembling a many-headed hydra. “One head gets cut off, one window expires, and a new head emerges,” she said, urging the Court to say, “no further.”
‘This is not an ex-post facto regime’: ASG Bhati
And then the questions were turned over Additional Solicitor General Aishwarya Bhati, appearing for the Union of India, argued that the impugned Office Memorandum of July 7, 2021, did not provide for ex-post facto EC or regularisation of past violations at all. Its purpose is to bring projects operating outside the EIA regime within scrutiny by expert appraisal committees and to impose consequences on them.
In the OM, the first step is closure or reversion where projects without prior clearance are directed to close operations; projects that have expanded beyond their permitted level are directed to revert to previously cleared production levels; and projects for which prior clearance was not required for earlier activity but is now required for expanded activity are asked to halt the expanded activity. The second step is penal action under the EPA for violations already committed. The third step is appraisal under the EIA Notification, where permissibility of the project is assessed from the perspective of whether the activity was eligible for prior clearance at all. If the activity was not permissible at the time it commenced (for example, red-category industry operating in a CRZ-1 zone), it must be closed and demolished. If, however, the activity was and is permissible, it undergoes full appraisal including damage assessment, remediation plan, community augmentation plan, environmental impact assessment, and public hearing where required. Any clearance granted at the end of this process is effective only from the date of issuance.
“There is no ex-post facto clearance. There is nothing retrospective. It is effective from the date of issue,” Bhati submitted.
Is ‘prior’ non-negotiable?
Responding to ASG Bhati’s defence of the OM, Justice Bagchi observed that the existence of the OM regime, whatever its stated intentions, creates a legal space in which environmentally harmful projects may continue to operate until the State actively identifies them and enforces closure. Under a strict prior-clearance regime, no such window exists.
He also noted that State and Central governments cannot claim ignorance of environmental clearance requirements. They are, after all, the authors of environmental regulation. He also flagged the risk that if the OM’s provisions are construed broadly, they could provide cover for rampant illegal construction. Project proponents facing demolition notices might invoke the OM to argue they were entitled to continue operations at their previously permissible level.
The matter will be next heard on April 6, 2026 as per the Supreme Court’s official website.
