As promised in one of
our last posts, we herein discuss two significant principles, i.e, “Precautionary
Principle” and “Polluter Pays Principle”, which have immensely affected the
environmental jurisprudence in India. Referring to the importance of these two
principles, Justice Kuldip Singh, in Vellore
Citizen’s Welfare Forum v. Union of India,[1] held that:
“In view of the above-mentioned
constitutional and statutory provisions we have no hesitation in holding that
the Precautionary Principle and the Polluter Pays Principle are part of
the environmental law of the country.”
| (Source: The American Magazine) |
Vellore
Citizen’s Welfare Forum has been a landmark judgement for
broadening and explaining the importance of these principles. Section 20 of the
National Green Tribunal Act, 2010 (“NGT Act”),[2]
specifies that the Tribunal, while passing orders, shall apply the precautionary principle and polluter pays
principle. The enactment of NGT Act is preceded by an inclination of the
Supreme Court of India (“Supreme Court”) towards these two principles which, in
effect, have become part of the law of the land.[3]
The
precautionary principle suggests that where there is an
identifiable risk of serious or irreversible harm, including, for example,
extinction of species, widespread toxic pollution in major threats to essential
ecological processes, it may be appropriate to place the burden of proof on the
person or entity proposing the activity that is potentially harmful to the
environment.[4]Principle
15 of Rio Conference of 1992 relating to the applicability of precautionary
principle stipulates that where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as a reason for
proposing effective measures to prevent environmental degradation.[5]
In Karnataka Industrial Areas Development Board v. Sri. C. Kenchappa and
Ors., Supreme Court, while explaining that ‘precautionary principle’ and ‘polluter
pays principle’ are part of the law of land, referred to some foreign sources.[6]For
instance, it referred to the Article 7 of the Bergen Ministerial Declaration on
Sustainable Development in the ECE Region, Australian Conservation Foundation
etc. Precautionary principle requires anticipatory action to be taken to
prevent harm.[7]That
is, in view of the precautionary principle as defined by the Supreme Court, the
environmental measures must anticipate, prevent and attack the causes of
environmental degradation.[8]
In Narmada Bachao Andolan Vs. Union of India and Others,[9]
Supreme Court held that:
“the 'precautionary principle' and
the corresponding burden of proof on the person who wants to change the status
quo will ordinarily apply in a case of polluting or other project or industry
where the extent of damage likely to be inflicted is not known.”
In other words, if one,
who seeks to change status quo of the
environment, provides insufficient evidence to alleviate concern about the
level of uncertainity, then the presumption should operate in favour of
environmental protection.[10]Precautionary
principle, along with polluter pays principles, is also part of the concept of
"sustainable development" and has to be followed by the State
Governments in controlling pollution.[11]Supreme
Court has also held that these principles flow from the core value in Article
21 of the Constitution of India.[12]
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Polluter
Pays Principle, as interpreted by the Supreme Court,
means that the absolute liability for harm to the environment extends not only
to compensate the victims of pollution but also the cost of restoring the
environmental degradation.[13]In
other words, producer of goods or other items should be responsible for the
cost of preventing or dealing with any pollution that the process causes.[14]Pollution
is a civil wrong, that too against the society. Because of this, a person, who
harms the environment, has to pay damages for the restoration of environment
and ecology.[15] Polluter Pays Principles is now widely accepted as a means of paying for the cost of pollution and
control.[16]
From above judicial
precedents, it is clear that both the precautionary principles and polluter
pays principles have attained a significant position in Indian environmental
jurisprudence. In the next post, we shall discuss more about the role of Supreme
Court in environmental jurisprudence in India.
[3] S. Jagannath v. Union of India and others, (1997) 2 SCC 87;
Tirupur Dyeing Factory Owners Association Vs. Noyyal River Ayacutdars
Protection Association and Ors., (2009) 9 SCC 737
[4] Report of Dr. Sreenivasa Rao
Pemmaraju, Special Rapporteur, International Law Commission, dated 3.4,1998,
para 61 [As mentioned in A.P. Pollution
Control Board (I) v. Prof. M. V. Nayudu (1999) 2 SCC 718]
[5]Principle 15, Rio Declaration on
Environment and Development 1992; Research Foundation for Science Technology
and Natural Resources Policy v. Union of India (UOI) and Anr., (2005) 10 SCC 510
[7] M.C. Mehta Vs. Union of India (UOI) and Ors., (2004) 12 SCC 118
[9] Narmada Bachao Andolan Vs. Union
of India and Others, (2000) 10 SCC 664
[11] In Re Suo Motu Proceedings, Delhi Transport Department, (1998) 9 SCC
250; M.C. Mehta Vs. Union of India (UOI) and Ors, (2005) 10 SCC 217; Karnataka
Industrial Areas Development Board Vs. Sri. C. Kenchappa and Ors., (2006) 6 SCC
371
[12] Court on Its Own Motion Vs.
Union of India (UOI) and Ors., 2012 (6) SCALE 607; Govt. of A.P. and Ors.Vs. Obulapuram
Minig. Company P. Ltd. and Ors. etc., (2011) 12 SCC4 91; Glanrock Estate (P)
Ltd. V. The State of Tamil Nadu, (2010) 10 SCC 96
[13]Indian Council for Enviro-Legal
Action and Ors.Vs. Union of India (UOI) and Ors., (1996) 3 SCC 212; Bombay
Dyeing and Mfg. Co. Ltd. Vs. Bombay Environmental Action Group and Ors., (2006)
3 SCC 434; : Deepak Nitrite Ltd. Vs. State of Gujarat and Ors., (2004) 6 SCC 402
[14] Research Foundation for Science
Technology and Natural Resources Policy Vs. Union of India (UOI) and Ors., (2005)
10 SCC 510
[15] State of Uttaranchal Vs. Balwant
Singh Chaufal and Ors, (2010) 3 SCC 402
[16] M.C. Mehta v. Kamal Nath and
Ors., (2000) 6 SCC 213
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