Supreme Court strikes down post facto clearance OM, allows amnesty

The Supreme Court has struck down the central government’s 2021 Office Memorandum (OM) that created a mechanism for granting post facto environmental clearances to projects that violated prior clearance norms. A three-judge bench led by Chief Justice Surya Kant ruled the OM violated the Constitution’s Articles 14 and 21, but said the government could frame statutory amnesty schemes under the Environment (Protection) Act, 1986.

The judgment operates prospectively, sparing projects that had already obtained clearance under the OM. The case arose from petitions by the non-profit Vanashakti, which argued that post facto clearance is an oxymoron and incompatible with the precautionary principle. The court had earlier stayed the OM in January 2024, and a two-judge bench had struck down both the 2017 and 2021 amnesty schemes in May 2025.

Environmental experts expressed concern. Ritwick Dutta, founder of LIFE, said the ruling departs from earlier judgments that treated post facto clearance as alien to environmental law. Vanashakti’s director Stalin D. called it a dilution that encourages lawlessness. The National Alliance for Justice, Accountability & Rights has urged a reference to a Constitution Bench, arguing the judgment leaves a statutory route open for retrospective regularisation of violations.