Environmental ethics has always been a part of the Indian philosophy and

consequently have found a place in the Indian Constitution. India witnessed

significant growth in the environmental jurisprudence in the last two decades,
largely as a result of the initiatives taken by the Indian Judiciary.[1] After the
tragic incident of Bhopal Gas Tragedy, the Indian judiciary has considered right
to pollution free environment as a fundamental right guaranteed under Article
21 of the Constitution. This action by the Supreme Court paved way for the
Indian Legislature to enact the 42 nd Constitutional Amendment which enlarged
the Constitutional Mandate to include Environment Protection in it. The Indian
Judiciary has shown tremendous amount of willingness to set off of the
fundamental principles of common law i.e. a remedy can be granted only when
there exists a right and explore new avenues to incorporate various fundamental
rights of the citizens.[2]

The Indian Supreme Court has held the internationally recognized principles
such as the precautionary principle, polluters pay principle, public trust doctrine
as well as the inter-generational equity or sustainable development to be an
integral part of the Indian Constitution.[3] This paper analyses Vellore Citizen’s
Welfare Forum v. Union of India[4] (hereinafter referred as Vellore case) and
puts forth an argument that even though Indian courts have adopted the
principle of Precaution and Polluter Pay, a major neglect by the executive in
many cases comes across as an impediment in the enforcement of this right. The
paper is divided into three sections, the first section analyses the tanneries case,
the second section provides for a pre and post status of principles discussed in
the judgement, and the third presents a critique to the irony that mocks Indian
Judicial system, which being that, despite having had instances where the
supreme court has acted as the sentinel of our rights, ignorance at policy level
have led these judgments in a way ineffective.

Vellore Case: The Issue in Brief

The petition was filled by the Vellore Citizens Welfare Forum, under article 32
of the Indian Constitution, against 900 tanneries (approx.) and other leather
manufacturing industries operating in five districts of Tamil Nadu.[5]  The
Petitioners claimed that the tanneries used almost 170 types of toxic chemicals
in the chrome tanning processes[6] along with nearly 35 liters of waters for
processing 1 kilogram of finished leather, this resulted in huge quantities of
toxic effluents being released in the river Palar which is the main source of
drinking water for the surrounding people.[7]

The petition stated that nearly 35,000 hectares of agricultural land near the
tanneries was rendered totally or partially unfit for cultivation. According to an
independent survey conducted by Peace Members (non-governmental
organisation) 350 wells out of 467 used for drinking and irrigation purposes
were polluted, resulting in extreme hardship for the surrounding people.[8] In a
technical report submitted by the Legal Aid and Advice Board of Tamil Nadu it
was stated that the tanneries were allowed to function as they constituted nearly
80% of the total export quality leather production in India and significantly
contributed in the foreign exchange earner.[9] The Tamil Nadu Pollution
Control Board had given the tanneries the option to either install common
effluent treatment plants or individual pollution control devices, Central
Government Guidelines were also issued for the same, but none of this was of
any significance.[10] The main issue before the court was to decide whether the
tanneries should be allowed to continue to operate at the cost of severe damage
to the environment and lives of people surrounding the river?

Judgment

The court through Kuldip Singh J., held that leather industry could not be
allowed to function under the traditional concept that development and ecology
cannot go hand in hand. The judgement can be divided into three parts. In the
first part the court recognizes the concept of Sustainable Development and
traces its development in the international legal sphere, it states that principle of
sustainable development has been accepted as a part of the customary
international law.[11] The court further held that inter-generational equity, use
and conservation of natural resources, environmental protection, polluters pay
principle, precautionary principle, obligation to assist and cooperate, eradication
of poverty and financial assistance to the developing countries are salient
principles of sustainable development. However, the court was of the view that
polluters pay principle and precautionary principle form a part of the municipal
law.  In the second part the court incorporated the Polluters Pay
principle[12] and the Precautionary Principle[13] into the domestic law.

The court incorporated these principles under the constitutional provision[14] of

article 47, 48A and 51 A (g) along with the Water (prevention and Control of
Pollution) Act 1974, Air (prevention and Control of Pollution) Act 1981, and
the Environment (Protection) Act 1986[15], and imposes a duty upon the central
government to take immediate action under the Environment Act to control the
pollution.[16] Furthermore the court realizing the urgency of the situation
imposed a total ban on any industrial establishment within 1 kilometer of the
water source. The court also said that the existing tanneries are under an
obligation to follow the standards setup by NEERI and imposed a fine of Rs.
10,000 on all the tanneries in the district of North Arcot Ambedkar, Erode
Periyar, Dindigul Anna, Trichi and Choigai M.G.R.

In the third section, the court imposes certain directory measures on the central
government. The court held that the central government should establish an
authority under section 3(3) of the Environment Act, to deal with any situation
created by tanneries or any other polluting industries.[17] The court held that
the committee should adhere to the precautionary and polluter pay principle, and
award compensation costs accordingly. Further the court held that the court is
not required to monitor the implementation of the guidelines, as Kolkata High
Court under article 226 is in a better condition to do so.[18]

Case Analysis

The judgement given in the Vellore case is path breaking as it incorporates two
international principles into domestic law. Polluters pay principle and
Precautionary principle have been considered imperative for preserving
ecology.[19] The court in this case adopted a holistic approach and incorporated
the principles of Sustainable Development in the Indian Jurisprudence. The
court discarded the traditional approach and aimed to strike a balance between
the traditionally conflicting interests of development and ecology. However, the
court did not answer the question of what will bring about such harmonization.
The court backed incorporation of these principles on the grounds that they form
essential elements of sustainable development which is considered customary
international law.

The court arrived at such a conclusion by drawing upon some of the soft law
instruments such as the Rio Declaration and the Brundtland Report. The court
also left open the question whether precautionary and polluter pay principle also
form customs.[20] The other justification given by the court for the
incorporation of these principles into the domestic law, is under the
constitutional provisions. The court refers to article 21, 47, 48A, 51-A (g),
however a plain reading of the these provisions shows that these provisions talk
about the state responsibility to provide a healthy and nutritious standard of
living, and to protect and maintain the wildlife and forests. Thus, it is not clear
as to how these principles can be incorporated into the domestic law, and from
where does the court derive such a power.

The second point of discussion is that the court defined the precautionary
principle but failed to apply to the facts of the case. The facts of the case did not
portray any kind of uncertainty as to the existence of pollution neither there was
any question regarding postponing the measure to prevent environmental
degradation. The court while defining the elements of precautionary
principle[21] failed to differentiate from its mere preventive action, the former
is based on fear and suspect while the latter is based on certain risk. Such a
trend is common in all Indian cases where precautionary principle is being
applied. For example in the case of A.P. Pollution Control Board v. M.V.
Nayadu[22], where the question was regarding construction of an hazardous
industry within 10km of a reservoir. The court while deciding this case held that
this is the best example where precautionary principles comes into play,
whereas the court failed to note that the their exists uncertainty regarding the
occurrence of any accident or not, but there does not exists any scientific
uncertainty regarding the effect of any such accident.

Moving ahead the court applied the polluter pay principle in a case involving
pollution by 900 tanneries spread across 5 districts of Tamil Nadu, but the court
did not venture into the question to define the grounds on which such liabilities
would be fixed. The tanneries were not only liable to pay compensation to the
victims, but they were also liable to pay for the damage caused to the
environment, and the court did not lay down any mechanism to derive
individual liability of all the tanneries. Later in 2009 in an implementation
analysis[23], it was found that the committee established by the court was
unable to execute the role assigned to it. The committee did not make any effort
to comply with the courts order to collect and distribute the compensation. Out
of 547 industries fined by the court, only 347 had paid the compensation
10years after the judgement.[24]

Nonetheless even after all the above arguments, the fact that the Supreme Court
took a pro-environment approach cannot be denied.
Polluter Pay Principle- Pre and Post Vellore Case

Polluter Pay principle first appeared in the OECD Guiding Principles

concerning International Economic Aspects of Environmental policies in 1972.
The principle is based on the common-sense approach meaning thereby that the
producer of the pollution must pay for the prevention and damage (if any)
caused to the environment, it finds its origin in the economic theory of
“internalization of externalities”.[25]  Later the principle was incorporated in
the Rio Declaration[26], and UN Conference on Environment and Development
1992[27] etc. Nonetheless, it is not yet accepted as a part of customary
international law.

The Indian judiciary has however accepted Polluters pay principle as an integral
part of the Indian Environmental Jurisprudence. For the first time in M.C.
Mehta v. Union of India[28] the Supreme Court carved out the liability to
compensate for the damage caused to the environment from the concept of
absolute liability. The court in this case did not recognise the term “polluter
pays principle”. The principle was formally recognised in the case of Indian
Council for Enviro- Legal Action v. Union of India[29] where the court held that
under section 3 and 5 of the Environment (Protection) Act, 1986, the court had
powers to implement such measure. The court recognised twofold liability of
the polluter, i.e. firstly to compensate the victims for the inconvenience caused
to them and then to pay for the damages caused to the environment. However, in
the Vellore case the court held that the polluter’s liability to pay for the damages
can also be drawn from the constitutional provisions.

In all of the above cases, the court took into account the principle but did not
venture into the essential elements necessary to invoke the principle, and this
has resulted into a case to case application of the principle. This lack of clear
indicators has resulted in evolution of the Polluter Pay Principle into “Pay and
Pollute”.[30] NCLT in the recent judgement[31] held that polluter pay principle
does not allows the polluters to arbitrarily pollute and then pay for it, but here
also the tribunal did not answer the question of essential elements. The Indian
courts in certain cases have identified the need to impose criminal liability along
with civil liability, to bring pollution cases under control.[32] The criminal
liability may be imposed under the provisions of Indian Penal Code.[33] If the
main of the principle is deterrence, then criminal liability should also be
imposed on the polluter, as only making them pay for the pollution is not giving
the desired results.

Precautionary Principle: Pre and Post Vellore Case

The origin of precautionary principle can be traced back to the Germany’s Clean
Air Act of 1970, many international instruments also recognise the
precautionary principle like the Rio Declaration 1992[34], and the UN
Framework Convention on Climate Change[35]. The principle has been
indirectly in application since 1972, under the Wildlife (Protection) Act
1972[36], and Water (Prevention and Control of Pollution) Act 1974[37].
However, the principle was formally recognised by the Supreme Court in the
Vellore Case.

The court in Vellore case, took an absolutist approach, i.e. the court held that
once an activity is considered dangerous to the environment, it should be
stopped immediately, the court did not took into account the opportunity cost to
close such an activity.[38] As discussed earlier, there have been a number of
cases where the court relied on the precautionary principle to arrive at the
conclusion. For example, in Research Foundation for Science, Technology and
Natural Resource Policy v. Union of India[39], the court said that the
precautionary principle is a part of the custom and the ships having toxic
substance cannot be dismantled without taking into consideration the
precautionary principle. Further in MC Mehta (Taj Trapezium Matter) v. Union
of India[40], the issue was protection of Taj Mahal from the pollution caused by
the industries in the vicinity. The court applying precautionary principle held
that the industries must replace coal with natural gas as the industrial fuel,
however the court did consider that there was no scientific uncertainty, whether
the main source of the depletion of the Taj Mahal was the pollution caused by
the industries.

The Indian courts have also shifted the burden of proof on the industries to
prove that the activities undertaken by them are not environmentally degrading.
The flawed application of the principle is bound to fail, as the entire issue is
misunderstood.

Whether judicial activism is enough? – The issue of Open Cast Mining in

Bundelkhand Region
Bundelkhand, is a hilly area divided among two states of Uttar Pradesh and
Madhya Pradesh. One of the many problems faced by the people in the region is
environmental degradation due to extensive open cast mining. Studies indicate
that mining has not only resulted in land degradation but has also impacted the
quality of air and water. The quantity of total suspended particulate matter has
exceeded the limits set forth by Central Pollution Control Board in the past
years.[41] The major cause of air pollution here includes, open cast mining. The
process used explosive methods which resulted in a large amount of Respirable
Suspended Particulate Matter which is readily inhaled by humans through
respiratory tracts.

Further, transporting of mine minerals also contributed towards air pollution.

[42] Mining activities further impacted the quality of land, since large amount
of land was excavated without underground tunnelling. Dumping of waste rock
material by mine owners only worsened the situation. Also, the overburden of
deposit and topographic erosion, during open cast mining resulted in the
deposition of many suspended particles in the water runoff. This in turn,
impacted the survival of living organisms in the water bodies due to reduced
sunlight penetration.[43]Such an unstructured approach despite policies in place
resultantly led to loss of biodiversity of the region as a whole.

Bundelkhand has been but an instance, suggestive of the fact that there are
numerous regions across the country which are impacted by the tremendous
blow due to development activities. The question which therefore clouds one’s
senses is, what is the use of having precedents in place when there’s greater
chaos at executive level, and that whether the apex court alone is supposed to be
the sole sentinel of our environment. Judicious use of natural resources is
pertinent to national and public interest. The role of the executive must therefore
essentially be harmonizing, with that of the Judiciary. This role must be
regarded at both the national and regional levels. The precedent laid down in the
Vellore case which emphasizes upon the polluters pays principle must therefore
not only be recognized but must also be given effect in its true spirit.

Conclusion

Tanneries Case has been instrumental to the development of polluter pay and
precautionary principle, for it was through this case that these principles were
further settled into the environment jurisprudence of the country. Supreme
Court recognized the exigency to be addressed in matters pertaining to
environmental damage and therefore not only provided for compensation to the
parties, but also created a fund towards reversing the damage that had already
been caused. There’s no doubt that the Apex court has been instrumental in
shaping the environmental jurisprudence of the country, and that it would not be
an over-statement to say that Indian Environmental Law in its true sense owes
its origin to the Judicial Activism of Indian Courts.

However, environment problems are multi-faceted and complex. There is no

dearth of legislations on environment protection in India. Therefore, what has
instead been urged by writers across all forums is the need for an effective and
efficient enforcement of these legislations. The study of Bundelkhand region
therefore has been but an instance suggestive of the fact that judiciary has a
much greater role to play now than ever before. It must be a crucial partner in
promoting environment governance and expanding the notions of Environment
Justice as understood in developed countries like USA. One of the possible
ways of doing so is by creation of “Environment Courts” and incentivizing the
executive towards environment protection