Evolution Of Int Env Jurisprudence

5 periods:

Stage I : Industrialization - 1945

Industrialization started because:

●​ Invention Of printing press
●​ Access of knowledge to common public
●​ Exploration

Industrialization disrupted the env. A publication came in England named “Condition Of

Working Class In England”.
It depicted how industrial towns and cities got polluted and swamp prevailed there.
In light of this publication, lot of laws were made to protect the env.

Two Episodes

Muse Valley Episode (1930):

Muse is a river in Belgium. A smog appeared and 60 people died. It happened because
of local industries.

Trials Smeltar Case (1923):

Fact:
2 countries involved.
Smelter was based in British Columbia.
Gases were passing through Int borders reaching Washington.
Matter came to court.

Held:
Principle of transboundary Int Harm was laid.

Stage II - 1945-1972

3 developments in 1945:

UN Charter in 1945: Article 1(2) covers environment issues.

Hiroshima Nagasaki Attack: It triggered discussions about env ethics. WMDs should
be phased out.
Truman Declaration On Continental Shelf: It talked about sovereignty of coastal state.
It expanded continental shelf to 200 miles.
 Pollution Episodes

Donora Smog,1948 :
A small mill town in Pennsylvania.
Smog prevailed a few days.
200 people died and 1000 fell ill.

Coza Rica Smog, 1950:

In Mexico. In one of the refineries, smoke vented out because of which there were smog
for a few days. 22 people died and 100s hospitalised.

London Smog, 1952:

Most documented episode. Also known as big smoke. In winters, visibility reduced to few
kms. Around 10,000 people dead. Clean Air Act,1956.

Muna Mata Bay Episode, 1956:

A village in [Link] from a local industry contained lead. Got mixed with water,
fishes died. People consumed it and they also died.

Literature On Environment

Silent Spring By Rachael Carson, 1962

It was on how use of pesticide was harming local species.
Taken seriously by gov.
US pesticide policy was amended.

Science Magazine - Tragedy of Commons by Garrael Hardon in 1968

Issue was majorly on population control.
He gave example of animal grazing on land.
He said at the rate at which the population is increasing, demand would be more than
supply.

He gave regulation of resources as a solution.

Corfu Channel Case (Trans-border Damage Case)

Facts:
Greece and Albania were at war.
Royal Navy ship was passing through the channel.
Mines were scattered there.
Royal Navy Ship blasted.

Held:
ICJ decided it on the basis of Trial Smelter case.
Even though you are at war, you were at international waters.

By late 1960s, international community recognised the importance of inter-relationship

between environment and development which culminated into EOSCO resolution in
1968.

It called for a conference on environment which was held in Stockholm in June, 1972.

Stage III 1972-1992

Stockholm Summit (UN Conference On Human Environment)

Only India and Sweden participated.
2 schools of thought: First, it is important as it was base of env jurisprudence. 2nd, not
important due to low participation.

Outcome Of The Summit:

An Action Plan
Stockholm Declaration comprising 26 principles.

Re-establishment Of UNEP

Before UNEP, all the offices of UN was in USA.

This time they selected a 3rd world country to give the impression that every country is
involved.

World Comm On Development and Environment

This institution made the concept of Sustainable Development in 1987.
Since then it became a grundnorm for Environmental conservation.

Stage IV 1992 - 2000

In 1992, Rio Conference (UN Conference On Environment & Development).

In comparison to the Stockholm Conference, this was more successful.
More than 100 Nation heads and 3,000 participants.

Rio Declaration on Environment and Development was adopted. It had 27 principles.

Principle 1 dealt with humans vs development. It kept humans at centre. It was

countered by Developed countries. Both bloc had diff opinions, It was beginning of
Developed vs Developing countries with reference to Env.
Principle 2 = Principle 21 of Stockholm Conference
It was about State Autonomy to exploit their natural resources. States have the
sovereign right to exploit their own resources pursuant to their own environmental and
developmental policies, and the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other States or of
areas beyond the limits of national jurisdiction.

Principle 16 = Polluter Pays Principle coined by OECD.

Principle 17 = EIA (Environment Impact Assessment)as a national instrument, shall be

undertaken for proposed activities that are likely to have a significant adverse impact on
the environment and are subject to a decision of a competent national authority.

Principle 20, 21 & 22 talked about participation of Women , Indigenous Community and
Youth.

Agenda 21

It was the outcome of the United Nations Conference on Environment and Development,
commonly known as the Rio Summit, held in Rio de Janeiro, Brazil (1992).
The Brundtland Commission resulted in the creation of Agenda 21, a non-binding action
plan.
The number ‘21′ represented the goal of attaining long-term progress in the twenty-first
century. It emphasised the importance of local governments in accomplishing long-term
goals.
‘No nation alone can, Together We Can’- These words from the Preamble of Agenda 21
underline the entire spirit of the Earth Summit.

World Summit Of Sustainable Development,2002 In Johannesburg

10 years after the first Earth Summit in Rio de Janeiro. (It was therefore also informally
nicknamed "Rio +10".

United Nations Conference on Sustainable Development

2012 so Rio +20.

Hosted in Rio De Janeiro,Brazil
"The Future We Want"
 Evolution Of Environmental Law In India

Environmental Planning In india started with the establishment of the Planning

Commission in 1950. It came with 5 years plans.

Ist (1951-56)
●​ Focus on promotion of agriculture.
●​ For irrigation facilities, multi-purpose river valley projects were established.
●​ JL Nehru called them temples of modern democracy.

IInd (1956-61)
Promotion of industries.
Steel plant were est in collaboration with other industries.
IITs

IIIrd (1961-1966)
Promotion of agri and industries.
It failed because of 1962 and 1965 war and drought.

1966-1969 - No 5 yr plan.

IVth (1969-1974)
Again the focus was on agr and inds.

No major initiatives for env in these 4 5 yr plans.

In this time period, Indira Gandhi participated in the Stockholm Conference.

Developments prior to 1972

Prior to 1972, minor env issues were dealt with by diff ministries like sanitation,
cleaning,etc.
When 24th UN General Council decided to convene a conference in 1972, it required a
report on env from each state.
For this, a committee on human env was est under Pitambara, a member of planning
commission.
By May 1971, 3 reports were prepared:

●​ Some aspects of env degradation and its impact in india.

●​ Problem of Human Settlement in India.
●​ Some aspects of rationale management of HR.

With these 3 reports, env problems were examined in India.

 Requirement Of An Organised Body For Env concerns for:
Better coordination
Better output
Structured planning
Integrated Actions.

On 12th April, 1972 National Committee On Env Planning & Coordination (NCEPC) was
est.

Vth (1974-79)
NCEPC should be involved in all major decisions.

During IG’s regime, imp decisions were taken

●​ Environmental Information System (ENVIS) was est.
●​ Project Tiger launched
●​ Support to Chipko Andolan - Sundarlal Bahuguna

VIth (1980-1985)

●​ Entire chapter on Env & Dev was introduced.

●​ Talked about EIA.
●​ Advocated for ENVIS.
●​ Increasing public awareness and participation for env
●​ Eco-development force of ex-serviceman to repair the damage happened to
env in hilly areas.
●​ Eco-development camps est for universities students.
●​ Est of Rural Env Cell to be set up with coordination of state and district
authorities for coordinating with various other minor cells active in their areas.
●​ Other issues like afforestation, rainwater harvesting, etc were discussed.
●​ Constitution of biosphere reserve. Idea was taken from UNESCO. Nilgiri was
1st reserve.

VII (1985-90)
Big push to programmes initiated during VIth 5 yr plan.
More coordinated implementation of strategies.
ENVIS was computerised.
Eco dev earlier confined to Himalayan regions, Ganga Basin, Western Ghats were
extended to Eastern Ghats and Kaver basin.
Pollution Monitoring Control Board was est.
Env Protection Act, 1986 initiated.
Ganga Action Plan initiated.
Ministry Of Env formed in 1985,
National Forest Policy in 1988.

Role Of Menaka Gandhi:

In 1984 Congress failed to form gov. Coalition gov came under VP Singh. Portfolio of
Env was given to Menaka Gandhi. She advocated for:

Est of env courts.

Comprehensive review of all env laws.
replacement of artificial pesticide with organic.
Eco friendly products.
Regular broadcasting of env news.

Whole corporate body tried to remove her. Neel Mani Rotri, a sr politician from Oidhsa
was appointed above her.

VIII (1992-97)
Minority gov of congress under PV Narsimha Rao.
In 1992, Rio Conference was held.
Kamalnath was given charge of env. He led the Indian delegation to Rio.
New River Conservation Plan in 1995.
Focus on Public Awareness: 5000 ecoo clubs est, awareness through banners on Public
transport.
New Dept for Wasteland development under ministry of rural development.
Shift towards LPG
Satellite Channel Revolution - Coming up of Zee TV
Mobile Revolution , 1995
Internet Revolution, 1995

IX (1997-2002)
National River Conservation Plan was made 100% state-sponsored from 50%.
Improvement in quality of high speed diesel.
Priority given to joint forest management.

Xth (2002-07)
Afforestation: Target to increase forest cover by 25% by 2007
Cleaning all major polluted river.
Rio +20
RTI Act,2005
Regulating vehicular pollution through promotion of CNG,LPG,etc.
Disaster Management Act, 2005 after:
●​ 1999 - Super Cyclone
●​ 2001 - Gujarat Earthquake
●​ 2004 - Tsunami
 ●​ 2005 - Mumbai Flood

XIth (2007-12)
National Biodiversity Action Plan,2008

XIIth (2012-2017)

Role Of Civil Societies In Environmental Conservation

They can be created through:

1.​ Indian Trusts Act
2.​ Societies Registration Act
3.​ Section 8 of Company Act

They play role in Env Conservation through:

1.​ Participation in Policy Making

Advocacy and Lobbying: Engage with policymakers to influence environmental laws
and regulations.

Consultative Roles: Participate in government committees or public consultations to

provide expertise.

Grassroots Campaigns: Mobilize communities to support policies that protect natural

resources.

Policy Research: Conduct studies to propose evidence-based environmental solutions.

Collaborations: Partner with NGOs and stakeholders to strengthen policy impact.

2. Public Awareness Through Advertisement

Media Campaigns: Use TV, radio, and social media to educate people on
environmental issues.

Educational Programs: Organize workshops, seminars, and school initiatives to

promote sustainability.

Public Service Announcements (PSAs): Create impactful ads highlighting issues like
pollution or deforestation.

Community Outreach: Distribute pamphlets, posters, and digital content to spread

awareness.
Influencer Partnerships: Collaborate with public figures to amplify conservation
messages.

3. PIL

Public Interest Litigation (PIL)

Public Interest Litigation (PIL) in India has been a game-changer in promoting social
justice and protecting the environment. Initially designed to tackle human rights
violations and inequalities, PIL has since evolved into a powerful tool for safeguarding
the environment. With rapid industrialization and urbanization, India faces numerous
environmental challenges like air and water pollution, deforestation, and climate change,
which affect the lives of millions of people. PIL gives ordinary citizens, activists, and
non-governmental organizations (NGOs) a platform to seek legal redressal and hold
public and private sectors accountable for their actions.

The Indian judiciary has played a crucial role in expanding the scope of PIL to include
environmental matters. Landmark cases have not only highlighted the extent of
environmental degradation but have also compelled regulatory bodies and governments
to take corrective measures.

Evolution of PIL in Environmental Matters

Public Interest Litigation (PIL) in India has seriously evolved over the years, shifting its
focus from just human rights to include environmental conservation. PIL, which first
started getting used in the late 70s and early 80s, let the judicial system hear cases
about broader public interests, even if the people involved weren’t directly affected. This
flexibility gave regular citizens, activists, and non-governmental organizations (NGOs)
the power to bring environmental issues to court, sometimes leading to big changes in
policy and governance.

Case Laws:

Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh (1985)

Facts:
Doon Valley is part of the Mussoorie Himalayan hill group. The Doon Valley was rich in
resources.
However, it became an area for limestone mining in the 1950s, and the valley started
sinking as a consequence of the use of explosives, tree chopping, and heavy mining.
In 1961, the UP State Department of Mines declared mining illegal.
However, quarrying restarted after the state government awarded various mining
licenses for twenty years in 1962.
In 1983, the Rural Litigation and Entitlement Kendra (RLEK), a local Dehradun NGO,
lodged a letter of protest to the Supreme Court of India on the nation’s ecological
destitution. The complaint in question was filed as a writ petition according to Article 32
of the Indian Constitution.

Issue:
Whether the mining in Dehradun Valley a violation of the Forest Conservation Act of
1980?

Judgement:
Quarrying in Dehradun Valley forest reserves breached the Forest Conservation Act.

MC Mehta v. Union of India (1987)

Facts:
In 1985, M.C. Mehta filed a Public Interest Litigation (PIL) against the Union of India and
others, raising concerns about the deteriorating condition of the Taj Mahal due to air
pollution.
The white marble of the Taj Mahal had started to turn yellow, primarily due to pollution
and acid rain caused by the presence of pollutants like sulfur dioxide in the atmosphere.
M.C. Mehta argued that various industries operating around the Taj Mahal, including
hazardous chemical industries, brick factories, rubber and lime processing units and iron
foundries, were the major sources of pollution causing harm to the monument.

Issue:
Whether the use of coke/coal as an industrial fuel by industries located in the Taj
Trapezium Zone was causing the deteriorating conditions of the Taj Mahal and the health
of residents in the area?

Judgement:
The industries in the Taj Trapezium Zone were active contributors to air pollution in the
area.
The court recognised the environmental threat posed to the Taj Mahal and the need for
immediate and effective measures to protect the monument.

Indian Council for Enviro-Legal Action v. Union of India (1996)

Facts:
The ICELA filed the PIL to address the environmental pollution and public health crises
caused by several hazardous industries in Bichhri Village.
These chemical factories operated without the necessary permits, producing substances
such as oleum and H-acid, which are known for their toxic properties.
The factories disposed of untreated hazardous waste in the village’s vicinity, leading to
widespread contamination of soil and groundwater.

Issue:
Should the “Polluter Pays Principle” be incorporated into Indian environmental law to
ensure polluters bear the cost of environmental damage?

Judgement:
The Court upheld the “Polluter Pays Principle” as a fundamental aspect of Indian
environmental law. This principle ensures that:

●​ Polluters bear the costs of managing and mitigating the damage caused by
their activities.
●​ Polluters compensate affected individuals and communities.

The Court ordered the closure of factories in Bichhri Village that violated environmental
laws. It emphasized that industries operating without necessary permits must cease
operations immediately.
The industries were directed to pay ₹10 lakhs for remedial measures to restore the
environment in Bichhri Village.

MC Mehta v. Union of India (Ganga Pollution Case, 1988)

Facts:
Ganga is a cross-border river that passes through India and Bangladesh.
At this juncture of its course, Ganga receives large quantities of toxic waste from the
domestic and industrial sectors of several cities, particularly Kanpur ‘s leather tanneries.
[Link], an advocate of the Supreme Court, filed a writ petition in 1985 under Article
32 of the Constitution to close down Kanpur tanneries which were discharging effluents
beyond the permissible limits into the river Ganga.

Issue:
Whether the tanneries in Kanpur are liable to be shut down?

Judgement:
The Court noted that the nuisance caused by the pollution of Ganga was a public
nuisance that was widespread.
While giving the orders, the Court cited the Directive Principle in Article 48 A of the
Constitution which provides that the State shall endeavour to protect and improve the
environment and to safeguard the wildlife of the country.
Article 51A imposes a fundamental duty on the citizens to protect and improve the
natural environment.
Referring to the Water (Protection and Prevention of Pollution) Act, 1974 and the
Environment (Protection) Act, 1986, and the Polluter Pays Principle, the Supreme Court
directed closure of the tanneries, relocation and payment of compensation to the
employees.

MC Mehta v. Union of India (2000) – The Vehicular Pollution Case

Facts:
The intervention of the Supreme Court in the air pollution issue in Delhi was prompted by
fears that the toxic air in the city was slowly poisoning its people.
A widely cited study conducted in Delhi reported that 10000 individuals die every year
due to air pollution complications, i.e. one individual every hour.
Alarmed by this unregulated pollution and its health effects on the population of Delhi,
Supreme Court lawyer M.C. Mehta filed a Public Interest Litigation (PIL) lawsuit against
the Union of India in the Supreme Court , alleging that existing environmental laws
required the government, in the interest of public health, to take action to mitigate air
pollution in Delhi.

Issue:
The measures to be taken to redress the effects of air pollution in Delhi.

Judgement:
The Supreme Court acknowledged, on the basis of the opinion of the Ministry of the
Environment and Forests, that the key contributors to the problem of air pollution were
heavy vehicles, including trucks, buses and defence vehicles.

The Court ruled in 1996 that all government vehicles in the city should be converted to
compressed natural gas (CNG).

Impact of PIL on Environment Conservation

Public Interest Litigation (PIL) has had a profound impact on environmental

conservation in India, emerging as a powerful tool to address issues ranging from
pollution to deforestation. The use of PIL has transformed the legal landscape,
empowering ordinary citizens, activists, and NGOs to initiate legal action against
public and private entities causing environmental harm. Here’s an overview of how
PIL has influenced environmental conservation in India.

Increased Awareness and Accountability

PIL has played a critical role in raising public awareness about environmental
issues. Through high-profile cases like MC Mehta v. Union of India (1987),
addressing air pollution around the Taj Mahal, and the Ganga Pollution Case
(1988), citizens became more conscious of the impact of industrial and urban
activities on the environment. These cases helped create a sense of accountability
among industries, governments, and regulatory bodies.

Judicial Intervention Leading to Policy Changes

PIL cases have often led to significant policy changes and stricter regulations. The
Indian Council for Enviro-Legal Action v. Union of India (1996) case established
the “Polluter Pays” principle, holding polluting industries responsible for
environmental damage and requiring them to cover the costs of remediation[19].
Similarly, the Vehicular Pollution Case (2000) resulted in the introduction of
Compressed Natural Gas (CNG) for public transport in Delhi, leading to a
significant reduction in air pollution.

Establishment of Environmental Principles

The judiciary’s proactive approach through PIL has helped establish key
environmental principles, such as the “Precautionary Principle” and the “Public
Trust Doctrine.” These principles have influenced environmental policies and
legislation, creating a stronger legal framework for environmental protection.

Empowerment of Citizens and Civil Society

PIL has empowered citizens and civil society to take a more active role in
environmental conservation. It has given voice to those affected by environmental
degradation, enabling them to seek justice and hold powerful entities accountable.
This empowerment has fostered greater public participation in environmental
issues, contributing to a more engaged and informed society.

Challenges and Criticism

Judicial Overreach and Encroachment on Executive Authority

One of the primary criticisms against PIL, particularly in environmental cases, is
judicial overreach. Critics argue that the judiciary, through PIL, sometimes
encroaches on the domain of the executive and legislative branches. This blurring
of boundaries can lead to confusion and a lack of accountability. Courts are
sometimes seen as overstepping their role by dictating policies and enforcing
regulations, which traditionally fall under the purview of government agencies.

Risk of Frivolous or Misused PIL

Another significant concern is the potential misuse of PIL. Given the broad scope
of PIL, there’s a risk of frivolous litigation, where individuals or groups file cases
for personal gain or to harass others. This misuse can dilute the importance of
genuine environmental cases and burden the judicial system. It also poses a risk
to businesses and industries, potentially leading to delays in projects and
additional costs.

Implementation and Compliance Issues

While PIL has led to landmark judgments and significant environmental
conservation outcomes, implementing court orders remains challenging.
Compliance with judicial mandates often requires cooperation from multiple
government agencies, which can be slow or reluctant to act. This lack of
enforcement can undermine the effectiveness of PIL and diminish public trust in
the legal process.

Balancing Environmental Conservation with Development

India’s rapid industrialization and urbanization present a unique challenge:
balancing environmental conservation with economic development. Critics of PIL
argue that some judgments, while environmentally sound, can hinder economic
growth and development. This tension between environmental protection and
development needs can create conflicts and complicate the role of PIL in shaping
environmental policy.
 Polluter Pays Principle

Meaning:
Under environmental law, the polluter pays principle is enacted to make the party
producing pollution responsible for paying the damage done to the natural environment.

Remediation of the damaged environment is an integral part of the concept of

‘sustainable development’ and therefore the polluter is responsible for paying the cost to
every affected individual as well as the cost of reversing the damaged ecology.

Under this principle it is not the place of the government to bear the expenses incurred in
either, prevention of such damage, or in undertaking corrective measures.

Historical background of Polluter Pays Principle:

The ppp was formulated in 1972 by the Organisation for Economic Cooperation and
Development (OECD) as a policy instrument which formed policies on environment
under which the polluter pays for the cost of polluting the environment.

Reasons Behind PPP:

●​ The main cause of environmental destruction is the increasing number of
industrialization and economic activities. So, there was a need to control
pollution by applying the principle of ppp.
●​ This principle encourages fairness and equality by ensuring the cost of
pollution control on those people who are responsible for causing pollution,
rather than on taxpayers or others.

Rio Declaration 1992

Principle 16 of the Rio Declaration of 1992 states “ppp”. It stipulates that national
authorities should strive to extend the globalisation of cost of the environment and the
application of economic instruments with regard to the approach — polluter pay —
bearing in mind that the polluter should, in most cases, pay for pollution with due regard
to public interest and without undue prejudice to international trade and investment.

Introduction of Polluter Pays Principle in India

PPP has come to the global limelight since the 1972 Stockholm Declaration whereby
polluters shall pay for the cost of degradation.

India after signing the Stockholm Declaration, started the process of integrating its
regional and national policies with the international environmental standards.
The adverse environmental impacts emerged from improving industrialization processes
which were more severe during the 1970s and 1980s specifically in the areas of water
pollution – rivers, air quality and waste management.

Evolution Of The PPP In India

Indian Council For Enviro-Legal vs. Union Of India & Ors (1996)

In India, the ppp was used for the first time in this case.

Facts:
In this case a PIL was filed for pollution of the environment by some private industries. It
is located in Bichhri village in Rajasthan for manufacturing some chemicals like Oleum
(concentrated form of Sulphuric acid & H-acid etc.
They have not even procured the requisite clearance or consent and they never fitted
any plant to treat the highly toxic effluent released by them.
The highly toxic effluents of these industries seeped to the core of the earth and
contaminated the water table for humans and for the farmland.

Issue:
Whether the defendant would be legally liable for the sum of money necessary to
perform such operations to correct the harm?

Judgement:
For the first time the court adopted the ‘ppp’ where cost was recovered from all the big
industrial businessmen for polluting the environment and also endangering the lives of
the villagers without proper treatment of hazardous slurries of their plants.

Vellore Citizens Welfare Forum vs. Union of India & Ors (1996) (.N. Tanneries case)

This case is popularly known as T.N. Tanneries case. In this landmark judgement of the
Hon’ble Supreme Court of India where the much heard phrase ‘sustainable
development’ has been adopted as a balancing concept of the court by this Bench

Facts:
This case was filed as the Public Interest Litigation (PIL) under Article 32 of the
Constitution of India and was directed against the pollution which was coming from the
huge amount of discharge of untreated effluents by the tanneries and other industries of
the State of Tamil Nadu.

Due to the lack of treatment of discharge of the effluents, the entire surface and subsoil
water of river Palar had become unacceptable hence no portable water was available to
the dwellers in that region.
Issue
To what extent principles like the polluter pays principle and precautionary principle
which form a part of sustainable development have any role to play in Indian law?

Judgement:
The Hon’ble Supreme Court of India after elucidating the cardinal features of sustainable
development stated that the precautionary principle and the ppp are the characteristics
of sustainable development and have been given effect to as part of the legal system.

The ppp is well explained in this case as ” the costs consequent of pollution must be
paid by the polluter”. The absolute liability for harm to the environment goes well beyond
indemnifying the victims of pollution together with the cost of recovering the affected
environment by enhancing natural balance.

Thus, it includes external costs and also direct costs to the extent of a particular person
or object in the environment.

M. C. Mehta vs. Union of India, 1996 (The Taj Trapezium Case)

Facts:
In this case, due to violation of law relating to environmental pollution a public interest
litigation was triggered and there is degradation of the Taj Mahal which is a world
heritage site.

According to the opinion of the expert committees, consumption of coke/coal by

industries located within the Taj Trapezium Zone (TTZ) were discharging pollution and
inflicting harm to the Taj as well as to the residents in the area.

Issue:
Whether the Taj Trapezium Zone, a specified area of the Taj Mahal, is being substantially
injured by pollution threatening the building and its surroundings?

Judgement:
The court applied the polluter pays principle, which creates absolute liability on the
polluter after environmental degradation has occurred.
The court held that the industries causing pollution in the Taj Trapezium Zone were
responsible for the damage to the Taj Mahal and should bear the costs of mitigating the
pollution and restoring the environment.

Implementation mechanisms in enforcing the Polluter Pays Principle

Central Pollution Control Board (CPCB)

The CPCB is functioning under the Ministry of Environment, Forest, and Climate Change
(MoEFCC). The one that exercises supervisory authority over environmental laws It is
also charged with the responsibility of implementing the environmental laws.

State Pollution Control Board (SPCB)

The SPCB produces rules and guidelines to be implemented. It also embarked on some
awareness making programs on controlling pollution and the protection of the
environment.

National Green Tribunal (NGT)

The National Green Tribunal (NGT) is a judicial tribunal that primarily hears
environmental matters. This Act came into force in the year 2010.

Environmental Protection Act, 1986

This Act gives some power to the Central Government for safeguarding the
environment-retroactively. In this Act, provisions related to polluter pays principle are
also discussed.

Hazardous and Other Wastes (Management and Transboundary Movement) Rules,

2016
This Act governs the storage and disposal of hazardous wastes. It also safeguards the
prospect of making the cost of safe disposal and clean sites to be paid by the polluter.

Importance of Polluter Pays Principle

●​ It is a principle of international environmental law in which the cost shifting

takes place whereby the polluting party compensates the environment for the
harm caused to it.

●​ It is regarded as a custom because it has received huge support in most

organisations of the Organisation for Economic Cooperation & Development
foreign countries, particularly, the member countries of OECD and European
Community (EC) countries.

●​ Correlation between its environmental policy and the socioeconomic policy

pertaining to its country.

●​ The ppp can be effective in eliminating the continued degradation of the

environment.

Challenges in enforcement of Polluter Pays Principle

hallenges in enforcement of Polluter Pays Principle

There are many positive impacts of ppp and there are also some shortcomings. So, let’s
discuss some of them which are as follows:

Identifying polluters
Firstly, there is still confusion on defining ‘who is a polluter’. In legal terminology, a
’polluter’ is the individual who harms the environment, finally or directly or indirectly gives
rise to circumstances with regard to such damage. In any case, this definition is wide
enough that it encompasses any action taken in the course of doing business
unfavourable in some circumstances and rather unfavourable in others.

Insufficient incentives
Secondly, poor households with low economic status, informal firms, and small
businesses and farmers can bear no extra costs for energy or for waste management or
disposal in their locality.

Resource constraints
Thirdly, small and medium-size firms from the formal sector which are predominantly
confined to the consumer home market since they are unable to pass through the cost to
the final consumer home market of their products.

Some of the small and medium companies cannot afford advancement technologies
and processes.

There are many polluters who don’t even understand their duties towards
environment protection.

Delaying compliance efforts among the polluters because of the long process of
enforcement.

Recommendations for strengthening

●​ Strengthening the rules and legal frameworks, and eliminating loopholes.

●​ Adopt modern technologies and enhance the monitoring system.

●​ Promotes public awareness.

●​ Solving transborder issues encourages international cooperations.

●​ Implementing flexible cost allocation schemes that could apply for small-scale
polluters.

Impact of Polluter Pays Principle on environmental protection

There are some positive impacts of this principle on environmental protection.

Encourages accountability
The ppp ensures that the polluters should bear the cost of pollution and responsibility
towards the environment.

Reduction in pollution
The penalties imposed under the ppp discourage the polluters from damaging the
environment by their activities. So, it reduces the pollution.

Promotes sustainable development

It promotes sustainable development by encouraging the industries in making changes
towards the eco-friendly alternatives. Sustainable development means an integration of
developmental and environmental imperatives. Sustainable development is essentially a
policy and strategy for continued economic and social development without detriment to
the environment and natural resources on the quality of which continued activity and
further development depend.

Supports environmental restoration

The ppp penalties collection from the polluters used in rehabilitating damaged
ecosystems by cleaning up the polluted rivers and reforesting degraded lands.
 Precautionary Principle

Concept of the Precautionary Principle

Principle 15 of the Rio Declaration (1992), which states: “In order to protect the
environment, the precautionary approach shall be widely applied by States according to
their capabilities. Where there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing cost-effective measures
to prevent environmental degradation.”

Elements Of Precautionary Principle

1.​ Objective of Environmental Protection

The primary goal of the Precautionary Principle is to safeguard the environment. The
definition begins with, “In order to protect the environment,” emphasizing that the
principle is a proactive tool to prevent environmental harm.

2.​ Wide Application by States

The principle calls for the precautionary approach to be “widely applied by States”,
indicating its universal relevance across nations and contexts.
It is not limited to specific sectors but applies broadly to activities that may impact the
environment, such as industry, agriculture, or infrastructure development.

3.​ Application According to Capabilities

The phrase “according to their capabilities” recognizes that the ability to implement
precautionary measures varies among States, particularly between developed and
developing nations.
Wealthier nations with greater resources and technological capacity are expected to
adopt more robust measures, while developing nations may implement precautions
within their economic and technical limits. This ensures flexibility while maintaining the
principle’s global applicability.

4.​ Threats of Serious or Irreversible Damage

This refers to potential harm that could have significant consequences (e.g., loss of
biodiversity, contamination of water sources) or be difficult or impossible to reverse (e.g.,
extinction of species, climate change impacts).

5.​ Lack of Full Scientific Certainty

The definition states that “lack of full scientific certainty shall not be used as a reason” for
inaction. This addresses situations where scientific evidence about environmental harm
is incomplete or inconclusive.
Decision-makers cannot delay action simply because definitive proof of harm is
unavailable. The principle shifts the burden of proof to those proposing potentially
harmful activities, requiring them to demonstrate safety rather than requiring regulators
to prove danger.

6.​ Cost-Effective Measures

The principle advocates for “cost-effective measures” to prevent environmental
degradation, acknowledging the need to balance environmental protection with
economic feasibility.
Measures should be practical and proportionate to the level of risk. The focus on
cost-effectiveness ensures that precautionary actions are realistic and do not impose
undue economic burdens, particularly on developing nations or small-scale industries.

7.​ Prevention of Environmental Degradation

The ultimate aim is to “prevent environmental degradation”, which includes any adverse
change to the environment, such as pollution, habitat destruction, or depletion of natural
resources..

In India, the principle aligns with sustainable development, shifting the burden of proof to
the proponent of a potentially harmful activity to demonstrate its environmental safety.

Illustrations: A proposed factory near a wetland may be halted until studies confirm it
will not disrupt the ecosystem.

Constitutional Provisions Supporting the Precautionary Principle

Article 21: Right to Life and Personal Liberty

●​ Guarantees the right to life, interpreted by courts to include a right to a clean and
healthy environment.
●​ Enables judicial enforcement of precautionary measures to prevent
environmental harm affecting health or livelihoods.

Case Law: Subhash Kumar v. State of Bihar (1991)

The Supreme Court held that access to pollution-free water is part of Article 21,
supporting anticipatory action against contamination.
Article 51A(g): Fundamental Duties
●​ Mandates citizens to protect the natural environment, including forests, lakes,
rivers, and wildlife.
●​ Complements State efforts by fostering a collective responsibility to support
precautionary measures.

Article 47: Directive Principles of State Policy

●​ Obligates the State to improve public health and living standards.
●​ Supports precautionary actions to mitigate environmental hazards impacting
community well-being.

Article 48A: Directive Principles of State Policy

●​ Directs the State to protect and improve the environment and safeguard forests
and wildlife.
●​ Encourages policies and laws incorporating the precautionary principle to avert
ecological damage.

Legal Evolution of the Precautionary Principle

Vellore Citizens Welfare Forum vs. Union of India & Ors (1996) (.N. Tanneries case)

This case is popularly known as T.N. Tanneries case. In this landmark judgement of the
Hon’ble Supreme Court of India where the much heard phrase ‘sustainable
development’ has been adopted as a balancing concept of the court by this Bench

Facts:
This case was filed as the Public Interest Litigation (PIL) under Article 32 of the
Constitution of India and was directed against the pollution which was coming from the
huge amount of discharge of untreated effluents by the tanneries and other industries of
the State of Tamil Nadu.

Due to the lack of treatment of discharge of the effluents, the entire surface and subsoil
water of river Palar had become unacceptable hence no portable water was available to
the dwellers in that region.

Issue
To what extent principles like the polluter pays principle and precautionary principle
which form a part of sustainable development have any role to play in Indian law?

Judgement:
The Hon’ble Supreme Court of India after elucidating the cardinal features of sustainable
development stated that the precautionary principle and the ppp are the characteristics
of sustainable development and have been given effect to as part of the legal system.

The ppp is well explained in this case as ” the costs consequent of pollution must be
paid by the polluter”. The absolute liability for harm to the environment goes well beyond
indemnifying the victims of pollution together with the cost of recovering the affected
environment by enhancing natural balance.

Thus, it includes external costs and also direct costs to the extent of a particular person
or object in the environment.

MC Mehta v. Union of India (1987) (Taj Trapezium Case)

Facts:
In 1985, M.C. Mehta filed a Public Interest Litigation (PIL) against the Union of India and
others, raising concerns about the deteriorating condition of the Taj Mahal due to air
pollution.
The white marble of the Taj Mahal had started to turn yellow, primarily due to pollution
and acid rain caused by the presence of pollutants like sulfur dioxide in the atmosphere.
M.C. Mehta argued that various industries operating around the Taj Mahal, including
hazardous chemical industries, brick factories, rubber and lime processing units and iron
foundries, were the major sources of pollution causing harm to the monument.

Issue:
Whether the use of coke/coal as an industrial fuel by industries located in the Taj
Trapezium Zone was causing the deteriorating conditions of the Taj Mahal and the health
of residents in the area?

Judgement:
PP was applied.
The industries in the Taj Trapezium Zone were active contributors to air pollution in the
area.
The court recognised the environmental threat posed to the Taj Mahal and the need for
immediate and effective measures to protect the monument.

AP Control Pollution Board vs. Prof M V Nayadu

Fact:
The case revolved around an industrial unit, M/s. Surana Oils and Steels Ltd., located
near Tirupati in Andhra Pradesh.
The unit was engaged in the manufacture of oils and other products, which generated
hazardous waste and pollutants.
The Andhra Pradesh Pollution Control Board (APPCB) refused to grant consent for the
unit’s operations due to concerns about its potential to pollute Surana Cheruvu, a water
body critical for irrigation and drinking water supply in the region.
The industry challenged the APPCB’s refusal in the Andhra Pradesh High Court, which
directed the APPCB to reconsider its decision.
Meanwhile, Prof. M.V. Nayudu, a retired professor and environmentalist, raised concerns
about the environmental impact of the industry, particularly on the water body, and filed a
public interest litigation (PIL).
The High Court’s decision was appealed to the Supreme Court, which took up the matter
to address the broader environmental implications.

Issue:
Whether the APPCB’s refusal to grant consent was justified?

Judgement:
The Court upheld the APPCB’s refusal to grant consent, stating that the Board’s decision
was justified given the potential threat to the environment.
The Court explicitly adopted the Precautionary Principle as a guiding norm in
environmental decision-making.
The Court held that when there is scientific uncertainty about the environmental impact
of an activity, the burden of proof lies on the entity proposing the activity (in this case, the
industry) to demonstrate that it will not cause harm.

Democratic Youth Federation v. Union of India (2011)

Fact:
The Democratic Youth Federation of India (DYFI), a youth organization, filed a Public
Interest Litigation (PIL) in the Supreme Court.
The PIL sought a ban on the pesticide endosulfan due to its alleged adverse effects on
human health and the environment, particularly in Kerala’s Kasaragod district, where it
was linked to congenital disorders, neurological issues, and ecological damage.
Endosulfan was widely used in agriculture, but reports of harm led to calls for its
regulation, with scientific uncertainty about the extent of its impact.

Issue:
Whether the Precautionary Principle should be applied to prohibit endosulfan’s
manufacture, sale, and use pending further scientific study?

Judgement:
The Precautionary Principle (per Principle 15, Rio Declaration, 1992) was applied
decisively in 2011, with the Court banning endosulfan to prevent potential harm amid
scientific uncertainty.