Environmental Jurisprudence and the Supreme Court: Part I [“Precautionary Principle” and "Polluter Pays Principle"]

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]

(Source: Google Images)

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.

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[1] Vellore Citizens Welfare Forum v. Union of India and others, ( 1996 ) 5 SCC 647

[2] Act No. 19 of 2010

[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

[6] Karnataka Industrial Areas Development Board v. Sri. C. Kenchappa and Ors (2006) 6 SCC 371

[7] M.C. Mehta Vs.  Union of India (UOI) and Ors., (2004) 12 SCC 118

[8] M.C. Mehta Vs.  Union of India (UOI) and Ors, AIR 1997 SC 734

[9] Narmada Bachao Andolan Vs. Union of India and Others, (2000) 10 SCC 664

[10] A.P. Pollution Control Board (I) v. Prof. M. V. Nayudu (1999) 2 SCC 718

[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

Jurisdiction of National Green Tribunal: Matters it can adjudicate; Principles it shall apply

In order to ensure that cases pertaining to environmental protection, conservation of forests etc. are adjudicated speedily, Parliament of India (“Parliament”), in the year 2010, enacted The National Green Tribunal Act (“NGT Act”). The NGT Act was enacted for ensuring that a tribunal, dealing specifically with environmental related matters, is established. Emphasising the importance of the NGT Act, Supreme Court, in Bhopal Gas Peedith Mahila Udyog Sangathan v. Union of India[1], held that in order for an expeditious disposal of environmental related matters, as also to avoid any conflict between the orders of the National Green Tribunal (“Tribunal”) and High Courts, all the matters covered under Schedule I of the NGT Act should be instituted and litigated before the Tribunal.

Image Courtesy: Odisha Reporter

Section 14 of the NGT Act provides that the Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment is involved, and such question arises out of the enactments specified in Schedule I. Schedule I of the NGT Act contains a list of seven legislations viz. The Water (Prevention and Control of Pollution) Act, 1974, The Water (Prevention and Control of Pollution) Act, 1977, The Forest (Conservation) Act, 1980, The Air (Prevention and Control of Pollution) Act, 1981, The Environment (Protection Act) Act, 1986, The Public Liability Insurance Act, 1991 and The Biological Diversity Act, 2002. Hence, as long as a substantial civil cause of action arises out of any of these Acts, an applicant can approach the Tribunal. Locus Standi, in such cases, should be determined by also taking into account respective legislations. Under Section 14 of the NGT Act, unless an applicant was prevented by a sufficient cause, he has to file the application for adjudication before the Tribunal within six months from the date on which cause of action first arose. What is clear from the language of Section 14 is that it is not every civil cause of action, arising out of the above-mentioned legislations, that can be brought before the Tribunal. Instead, the same shall involve a “substantial question relating to environment”.

Moving further, Section 16 of the NGT confers on the Tribunal appellate powers against certain orders [See Section 16 for the list of such orders]. Hence, a person, who is aggrieved by any of those orders, can approach the Tribunal. Section 29 of the NGT Act puts a bar on the jurisdiction of a civil court in those matters which Tribunal is empowered to determine under its appellate jurisdiction. Further, as per section 33, provisions of NGT Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force.

The NGT also provides remedy in a situation where an injury is suffered by a person. Hence, where death of, or injury to, any person (other than a “workman”) is resulted from any accident or activity under Schedule I legislations, Section 17 of the NGT Act empowers the Tribunal to determine compensation in such cases. In case of an accident, Tribunal should apply the principle of no fault [See: Section 17(3)].

Section 18(2) of the NGT Act provides the list of persons who can make an application for settlement of dispute or grant of relief or compensation before the Tribunal:

a.        the person, who has sustained the injury; or

b.       the owner of the property to which the damage has been caused; or

c.       where death has resulted from the environmental damage, by all or any of the legal representatives of the deceased; or

d.      any agent duly authorised by such person or owner of such property or all or any of the legal representatives of the deceased, as the case may be; or

e.       any person aggrieved, including any representative body or organisation; or

f.        the Central Government or a State Government or a Union territory Administration or the Central Pollution Control Board or a State Pollution Control Board or a Pollution Control Committee or a local authority, or any environmental authority constituted or established under the Environment (Protection) Act, 1986 or any other law for the time being in force

Under clause (e) of Section 18(2), any aggrieved person can be approach the Tribunal. Indeed, such a lenient provision is necessary when issues, like environment, are concerned.

While making orders or awards, The Tribunal has to, in accordance with Section 20 of the NGT Act, apply the principles of sustainable development, the precautionary principle and the polluter pays principle. These are the basis provisions that provide for the matters which the Tribunal can entertain. We promise you that we will also come up with posts thereby discussing each of the principles, mentioned under Section 20 of the NGT Act, in detail.

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[1] Bhopal Gas Peedith Mahila Udyog Sangathan v. Union of India, (2012) 8 SCC 326, 347