New Delhi | The Congress on Thursday said it will keep resisting every attempt to widen the scope of post-facto environmental clearances and remain steadfast in defending the core principles of environmental law.
The opposition party's assertion came a day after the Supreme Court observed that protective environmental checks cannot be altered by issuing administrative orders, as it quashed a 2021 office memorandum permitting the Centre and other authorities to grant retrospective clearances to projects that commenced without obtaining the green nod.
Congress leader and former environment minister Jairam Ramesh said that in May 2025, a two-judge bench of the Supreme Court delivered a milestone judgment for environmental law.
"It held that prior environmental clearance is mandatory and that post-facto approval mechanisms created by the 2017 Notification and 2021 Office Memorandum rewarded illegality, undermined the Environmental Impact Assessment (EIA) process, and violated the principles of sustainable development and the right to a clean environment," he said on X.
"The Union Government sought a review. It argued that the judgment would disrupt projects worth crores that had already commenced without prior clearance. In a concerning turn, a three-judge bench entertained the review in open court without explaining why the matter warranted departure from the usual review process," Ramesh said, adding that it "recalled" the May 2025 judgment.
Justice Ujjal Bhuyan dissented, warning that there is "no concept of ex-post facto environmental clearance in environmental law" and that such approvals are "an anathema" to environmental jurisprudence, Ramesh recalled.
"The Supreme Court's judgment pronounced yesterday, holding that executive instructions (2021 Office Memorandum) cannot override the statutory EIA Notification, is a step in the right direction," the Congress general secretary said.
"But it also permits the government to create a statutory mechanism for post-facto environmental clearances in 'exceptional circumstances', circumstances that the government is free to define," Ramesh said.
From Great Nicobar to the Ken-Betwa project, and from mining in Odisha to extractive projects in Chhattisgarh, communities are resisting a familiar pattern -- governments and corporations treating environmental law as an inconvenience to be navigated rather than as essential rules to be complied with, Ramesh said.
"Over the last 17 years, I have lent my voice and support to a large constituency of concerned citizens and several public campaigns opposing dilution of India's hard-won environmental protections," he said.
"We will continue to resist every attempt to widen the scope of post-facto environmental clearances and remain steadfast in defending the core principles of environmental law, which carry at their core a commitment to the marginalised," Ramesh said.
A bench comprising Chief Justice Surya Kant and Justices Joymalya Bagchi and Vipul M Pancholi, in a unanimous verdict on the matter on Wednesday, held that the judgment will apply prospectively, thus saving projects that got retrospective environment clearances (ECs) from demolition and other punitive measures.
The top court said the central government has ample power under Section 3 of the Environment (Protection) Act, 1986, to issue appropriate notifications formulating amnesty schemes with regard to such classes or categories of non-compliant projects sustaining which is necessary to subserve the larger public interest.
These projects include the AIIMS Medical College and Hospital building in Odisha, the Centre of Excellence for Cancer Diseases in Tamil Nadu, the Vijayapura Airport in Karnataka, slum rehabilitation projects and irrigation projects intended for drought-prone areas.
"We hold the 2021 Office Memorandum to be invalid and quash it with prospective effect. We do so using our powers under Article 142, taking into account two distinct reasons. First, considerable legal uncertainty prevailed regarding the validity of the impugned instruments and the processing and grant of ECs under them...
"Second, supervening public interest is involved in several projects which have already been undertaken or substantially progressed in reliance upon the prevailing regulatory position," the bench said.
The top court, however, held that the Centre has the power to grant post-facto ECs through valid statutory notifications issued under Section 3 of the Environment (Protection) Act, 1986, and it cannot be done by issuing a mere administrative office memorandum.
The court said in an "anthropocentric world" where man shapes nature to meet his wants, it is entrusted with the solemn duty to strike a balance between an existential right of all living beings both present and future to a pollution-free environment and an aspirational right to development of a sixth of the world's population.
The bench said to discharge such onerous responsibility, there was a need to examine the issue through the prism of eco-centric proportionality, which is best articulated in the Gandhian vision that says "the world has enough for everyone's need, but not enough for everyone's greed".
