The 2021 office memorandum that the government issued on 7 July 2021, was a standard operating procedure (SOP) for handling “violation cases” under the EIA notification, as per directions from the National Green Tribunal. The memorandum set out a process for dealing with projects that commenced without prior clearance.

“The Vanashakti judgment is a watershed moment for Indian environmental jurisprudence,” says Varun Singh, a managing partner at Foresight Law Offices in New Delhi, who has worked on various environmental law cases.

An ex-post facto environmental clearance is granted by authorities at the state or federal level after taking into account several factors that could potentially damage the environment.

Citing that access to a clean environment falls under article 21 (right to life) of the Constitution, the court further instructed the central government to restrain itself from issuing circulars, orders, office memorandums (OMs) and/or notifications that granted ex post facto clearance “in any form or manner”, as it would be in contravention of the EIA notification. The court, however, has clarified that projects that have already received clearance under the two notifications would remain unaffected.

Ashutosh Senger, an advocate-on-record and environmental lawyer at Shardul Amarchand Mangaldas & Co (SAM) in New Delhi, says, “This judgment has established an ‘absolute doctrinal bar’ and a ‘zero-tolerance’ approach to ex-post facto environmental clearances by prospectively prohibiting any similar future mechanism, in any form or manner.”

Speaking of the court’s decision to strike the previous two government notifications, Senger says, “The Supreme Court has reinforced that compliance with environmental regulations is not optional and signalled that retrospective regularisation of violations is no longer tenable. This will drive environmental stewardship and compliance to be integrated from the project’s very inception.”

This article was originally published in India Business Law Journal on 21 July 2025 Written by: Ashutosh Senger, Advocate on Record. Click here for original article

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