I. Introduction
In Common Cause v. Union of India and Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, the Supreme Court held that the grant of post-facto clearance is essentially in conflict with the preventive approach. But, in Vanashakti v. Union of India, 2026 INSC 761, this position is qualified. The Court ruled that the open-ended regularisation process provided in the Office Memorandum, 2021 was invalid, whereas the Notification, 2017 was a limited use of delegated legislation. It also acknowledged that there may be scope for a statutory mechanism in future where public interest so requires under Section 3 of the Environment (Protection) Act, 1986.
The question that follows Vanashakti is not merely whether post-facto clearance is allowed. It is where the line is drawn between a real exception under the law and regularisation under the guise of another term.
II. The Prior-EC Rule and Executive Regularisation
Despite the framework, the Ministry of Environment, Forest and Climate Change put in place mechanisms to address projects that had started without prior clearance. The 2017 Notification provided a brief period to apply for EC for non-compliant projects. If they were found suitable for EC, they would then undergo environmental damage assessment, remediation and financial consequences before EC was granted. The 2021 Office Memorandum subsequently created a more extensive administrative mechanism for dealing with such projects.
The 2021 Office Memorandum was an executive instruction (OM). It was unable to modify, replace or dilute delegated legislation in the 2006 Notification. The Court thus ruled that an Office Memorandum could not establish an alternative legal pathway for projects to carry out activities without having to obtain EC approval prior to the activities.
The substance of the problem was equally important. An ongoing regularisation programme can have a negative effect on the incentive to meet the previous-EC requirement. A project could start operating first and then apply for clearance later. In the future, law-abiding project proponents may find themselves in a similar position to those who disregarded the statutory requirement.
Accordingly, the Court found the 2021 mechanism inconsistent with Articles 14 and 21 and quashed it prospectively to avoid disrupting already granted clearances.
III. Delegated Legislation and the 2017 Notification
This distinction is significant. An Executive Office Memorandum may have the same goals as a statutory notification, but it is not equally binding in law. In the case of delegated legislation, the instrument should be subject to the limits of the parent legislation and the Constitution. Its legal status is different from that of an administrative instruction, which cannot by itself alter an existing legal framework.
The distinction was significant to the Court’s reasoning in Vanashakti. Although both the 2017 Notification and the 2021 Office Memorandum dealt with projects that had already commenced without Environmental Clearance, the two differed in terms of legal authority. The Court therefore treated them differently. The question was not simply the objective of regularisation but whether the mechanism used was capable of functioning within the legal framework established by the EIA Notification, 2006. It was not only important to have a legal pathway, but also a legally valid one.
IV. The Statutory Exception and Superevning Public Interest
The most important issue arising from Vanashakti is the scope of Section 3. The Court recognised that the Central Government has a statutory mandate to issue a notification under Section 3 in exceptional situations involving supervening public interest.
This recognition does not, however, mean that every statutory notification providing for post-facto clearance would automatically be valid. Delegated legislation is still subject to the power of the Constitution. A notification under Section 3 would then need to meet the requirement of Articles 14 and 21, and have to be consistent with the intent of environmental legislation.
The term “supervening public interest” therefore becomes particularly significant. Taken broadly, it could become a way of rationalising almost any project that is already underway. In many respects, these economic arguments, such as investment, job creation, or administrative issues, may be appropriate in the context of environmental governance, but they do not automatically make special consequences of non-compliance into special public needs.
The phrase is best read in the context of the judgment, which emphasized that prior EC remains the governing principle. A statutory exception should cover situations in which an “extraordinary public necessity” has emerged which is not adequately dealt with by the application of the existing previous clearance regime.
This distinction is also important for the preventive function of environmental assessment. If commencement without clearance is treated as a basis for later clearance, it can become a rational strategy to not comply with the regulations. The regulatory system would then reward the creation of a fait accompli.
To restrict the scope of the exception: Firstly, there must be a time-limit. There should be a statutory cut-off point and a period before which applications are accepted. This will eliminate the possibility of a “standing expectation” that future breaches also will be regularised.
Second, there must be a genuine “supervening necessity.” The reason for closure cannot simply be that a project has been “significant” or that closure would lead to losses for the private sector. The public interest must be demonstrable and distinct from a mere commercial interest.
Third, there needs to be some meaningful environmental assessment retained in the exception. Post-facto appraisal should not be a formality of completing a project and just going through the motions. Environmental harm and the need for remediation should continue to be significant aspects of the regulatory process, as will the need for compensation or operational safeguards.
Fourth, the classification as set out in a statutory notification must meet the standards as provided in Article 14. The government should be able to explain why the identified class of projects is singled out for exceptional treatment and how the class has a rational connection to the stated public purpose.
Lastly, the mechanism needs to meet the requirements of Article 21. Environmental protection is an element of the constitutional protection of life and health. The consequence is that a project may become economically and politically important, but environmental impacts do not become less important. Thus, environmental impact cannot be treated as secondary merely because a project has become economically and politically significant.
These safeguards also help preserve the distinction between an exception and a rule. The statutory pathway could slowly turn into an alternative clearance system if notifications are issued repeatedly whenever enough projects have accumulated.
V. Conclusion
Vanashakti has restored an important distinction in India’s environmental governance system. The general principle remains that an executive Office Memorandum cannot provide an alternative route to prior Environmental Clearance for a project that began without obtaining such clearance. At the same time, the judgment notes that Section 3 of the Environment (Protection) Act could support a more limited statutory response to “extraordinary circumstances” involving “supervening public interest.”
Most importantly, “supervening public interest” cannot be reduced to commercial inconvenience, sunk investment or the consequences of voluntary non-compliance.
The distinction between exception and rule is a substantive one, not merely a formal one. While the Office Memorandum of 2021 is rendered obsolete, the preventive purpose of the EIA Notification, 2006 would be undermined if the projects are repeatedly regularised through statutory notifications after project commencement. Vanashakti therefore leaves constitutional courts with an important task: ensuring that the statutory exception remains exceptional in substance as well as in form.
