India’s environmental law stipulates that development projects should obtain the relevant environmental clearances ahead of operations. The country’s Environmental Impact Assessment (EIA) framework, based on the Environment (Protection) Act, 1986, and the 2006 EIA Notification, mandates “prior environmental clearance” of projects before irreversible damage can occur. A May 2025 Supreme Court ruling prohibited ex post facto environmental clearances “in any form”.  On July 29, the Court upheld this principle, but diluted the law in spirit, intent, and practice. A bench led by Chief Justice Surya Kant set aside a 2021 Office Memorandum that allowed retrospective validation of environmental violations. But it held that a “narrowly tailored amnesty scheme” can be allowed where it is justified by “public interest”. The Court’s condition is that ex post facto clearances may be allowed if done by a statutory notification instead of an administrative order.

While the Court has affirmed the mandate for prior clearance, it has said that the law allows the government to retrospectively validate the violations with a statutory notification, provided such a measure satisfies the tests of proportionality, sustainable development, and public interest. It is the government and the industry that propose large-scale projects that require EIA and prior environmental clearance. Allowing the government to clear such projects by issuing a notification citing public interest removes any legal bar for the projects. The Court has introduced the idea of amnesty into environmental jurisprudence. It says if amnesty schemes are acceptable to deal with tax law violations, they can be replicated for environmental law violations, too.

While an amnesty scheme might help the government recover lost or stolen revenue, it will not undo environmental damage like vanished forests or wetlands. The Court contends that the government’s powers to protect the environment, under Section 3 of the Act, include the power to grant amnesty for violations. Under the ruling, clearances already granted under previous notifications will remain protected. Retrospective approvals will be valid if done through formal legislative notifications in the name of public interest. Only a fine may have to be paid. The Court’s ruling conforms with a recent pattern of ex post facto validation of decisions, as seen in the cases relating to Aadhaar and Article 370. It may have narrowed the scope for ex post facto validation of violations, but the opening it has provided may be adequate to greenlight projects with major breaches. The judgment is a setback for environmental governance at a time when climate change demands stronger legal safeguards. (Source: DH)