This article was written by Shristi Sahu, a student of Symbiosis Law School, NOIDA. This article primarily focuses on the details of Polluter Pays Principle and effects in India due to the Principle.
Table of Contents
Introduction
There are two sides to every coin. So are the pros and cons of the industrial revolution. On one hand, the Industrial Revolution has improved the lives of people in many ways in the 21st century. On the other hand, unfortunately, the industrial revolution has caused industrial pollution. Technology has developed drastically and manufactured products have replaced the archaic products. The by-products are the inevitable part of the manufacturing process. Hence, principles such as ‘precautionary principle’ and ‘polluter pays principle’ are constitutional mandates to curb the degradation of the environment. Therefore, it’s a no brainer for a citizen to be aware of the principles of environmental law. In certain cases, the impacts of the industrial disaster are said to be experienced till date.
Take for instance the incident of the Bhopal Gas leak, the pollutants which seeped into the groundwater years ago still forms the reason for cancer, growth retardation and dizziness. Let alone the immediate impact of the leakage. The deadly methyl isocyanate which drifted into the sleeping city caused the death of thousands of inhabitants within a few days. Such incidents in the past further necessitate mandating principles for combatting the effects of pollution. High amounts of pollutants emitted by the vehicle, put forth the question of whether the owner or the manufacturer will be liable for the pollutants emitted. The scope and extent of the ‘polluter pays’ principle is explained in this article.
What is the polluter pays principle
The ‘polluter pay’ principle essentially holds the polluter liable for the pollution caused to the environment. The polluter is liable for every damage caused to the environment. So according to the ‘polluter pay principle’, the polluter has to not only compensate the victims of pollution but also compensate for the restoration of environmental degradation caused Under 1972 and 1974 OECD Recommendation(1)(2), the measures to be taken by the polluter for controlling the pollution is decided by public authorities so that the environment is in acceptable state post the industry operation. Therefore, the polluter bears the cost of health hazard caused to the public as well as the cost of restoration of the environment. In other words, the costs of the measures should reflect on the cost of the goods and services, the production and/or consumption of which led to pollution. The cost of the measures should not be accompanied by the subsidies as it would lead to distortion in international trade and investment.
The polluter pays principle is part of a set of broader principles to guide sustainable development worldwide The ‘polluter pay’ principle forms a part of the environmental law of India.
Historical background
The World Commission on Environment and Degradation on its report, Our Common Future stated that the cost of repairing the environment can be paid by internalisation of an enterprise. Herein, internalisation in economic context means that the polluter bears the costs himself and does not delegate the work to an agent. The report mentioned that the enterprise would be encouraged to invest in taking preventive, restorative and compensatory measures. The ‘polluter pay’ principle was first introduced by the Organisation of Economic Cooperation and Development(OECD) in 1972. The report stated that the polluter is responsible for the controlling and prevention of pollution associated with the process of the factory. Pollutants were soon recognised by the World Commission on Environment and Development as a form of waste. Hence, dissemination of the pollutants into nature was considered as an inefficiency of industrial production. So the implementation of ‘polluter pays principle’ was used as a strong economic, administrative and legal tool to restrain the pollution problem.
Polluter pays principle in the context of India
Implementation progress of the principle
In India, the ‘polluter pays principle’ was for the first time applied and defined in the 1996 case of Indian Council of Enviro-Legal Action vs Union of India. In this case, Justice Dalveer Bhandari determined that reversing the imbalance caused to the ecology is the part and parcel of the industrial process. Thus, the financial responsibility of taking prevention and controlling measures for the pollution caused should rest upon the industry which caused pollution. The financial burden cannot be shifted to the shoulders of the government neither in preventing nor in correcting the dent. Multiple interlocutory and interim applications were filed in this case after the dismissal of the writ petition, the review petition and the curative petition by the court. The judge, in this case, Justice Dalveer Bhandari considered that it is easier for men with power and authority to disobey or non-comply with the judicial pronouncements.
In the cases of Research Foundation For Science Technology National Resource Policy v. Union of India and Anr and Vellore Citizens’ Welfare Forum v. Union of India and Ors.the judges respectively ended up with the conclusion that principles such as the precautionary principle, the polluter pays principle form an intrinsic part of the laws of the environmental laws of India. The ‘polluter pays principle’ was already considered as a part of the customary practices of international laws for the protection of the environment. Hence, the principles ought to be included in environmental laws of India, according to the judges.
The judges further improved the scope of implementation of the principle in A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) and Ors. case. The judges enabled the courts, tribunals and other environmental organisations to apply these principles when cases are registered in the tribunals or organisation.
Article 21 of the Indian Constitution emphasises on the basic right of every Indian inhabitant. The basic right mentioned in Article 21 is right to life and personal liberty. As simple as it can be put, polluting the surroundings of a locality would take away the basic right from the inhabitant. Pollution being the inevitable part of industrialisation, community participation for protection of the environment is a duty of every citizen. Hence, the right to community participation for protection of the environment is considered to flow from Article 21 of the Constitution of India.
In India according to Section 20 of National Green Tribunal Act, the tribunal can apply for the principles of sustainable development, the polluter pays principles and precautionary principle while passing any order, award or decision for balanced development without harming the mother earth.
Flaws in the polluter pays principle
Vehicular emissions are the largest contributor to air pollution. Nearly two-thirds of death in 2015, which counts as much as 385,000 deaths, were due emission from the exhaust of diesel engines. The effluents discharged into the water bodies can be treated; the dumping of waste on soil can be minimised by good management. The treatment of polluted air is an unfeasible task. Moreover, when an entire city or an entire nation is affected by air pollution, it is even more challenging. At times, such as in cities in northern India, where even the annual rainfall is scarce and the cities are landlocked, steps taken by the government are never enough to combat air pollution.
Air pollution due to the vehicular emission clearly exceeds the air pollution due to industrial emission. Yet the main focus of this article is on industrial pollution. As compensation for industrial pollution is primarily emphasized in the ‘polluter pays principle’. Is it the owner of the vehicle or the manufacturer who is to be punished for the vehicular emission? Unfortunately, there is no clear mention in the ‘polluter pays principle’ as to who is to be made liable for the vehicular emission.
Landmark Judgements
Indian Council For Enviro-Legal vs Union Of India & Ors
The facts of the case, Indian Council For Enviro-Legal vs Union Of India & Ors are as follows. An environmentalist organization brought into notice the sufferings and woes of the inhabitants of a small village called Bichhri in Udaipur district in Rajasthan. An industrial complex primarily involved in manufacturing chemicals was located in the village, Bichhri. The emission of concentrated sulphuric acid and aluminium sulphate from one of industry, Hindustan Agro Chemical Limited caused discomfort in the lives of the villagers. The effluents from the factory were very difficult to deal with as it was refractory in nature. Many of the chemicals percolated into the soil polluting the groundwater and aquifers underneath. The polluted water even destroyed the standing crop. As a result, the villagers had to bear the brunt of barren agricultural lands. Hence, the judgement was held that however engaged in an activity which involves usage of inherently dangerous substance shall be liable to pay for the damages so caused to human and nature. The polluter pays principle was applied by making the polluter responsible for all the financial expenditure in bringing the surroundings back to its original condition.
Vellore Citizens Welfare Forum vs Union of India & Ors
In the case of Vellore Citizens Welfare Forum vs Union of India & Ors, the citizens complained that the untreated effluents of tanneries and other industries of Tamil Nadu are discharged into rivers. In the tanneries about 200 tons of leather were produced each day; every one kilo utilizes 40 litres of water in the process and every litre of water contained 176 different forms of toxic acids. Such toxic nature of the effluents resulted in contamination of potable water. Due to rain and floods in the nearby town the river water flowed into the adjoining lands. The lands adjoining were mostly used for cultivation and agricultural purposes. As a result, the agricultural land was contaminated due to the effluents. Hence, in this case, the industrialists ought to take the necessary steps for the restoration of the environment.
The Taj Trapezium Case
In M.C. Mehta vs Union of India and Ors, it was reiterated by the apex court the reiterated the ‘polluter pays principle’ and emphasized the need of application of the principle. The yellowing and decaying of the priceless national monument, the Taj Mahal, was a matter of concern in this case. According to the report of the National Environment Engineering Report Institute and Varadarajan Committee in 1990 and 1995 respectively, the foundries, chemical industry and Mathura refineries were the major polluters of the Taj Mahal. The court ordered the industries to switch to gas from fuel or shift their location of work. The industries which did not comply with orders, those industries were shut down unconditionally. Justice Kuldeep Singh added a new dimension to the ‘polluter pays principle’. He stated that the workers of the industries should suffer as a result of closure or shifting of location. The workers were ought to be given compensatory benefits in the form of residential accommodation, continuity of their job till the industry restart etc. Since then the courts have time and again have emphasized that the rights and duties of the workers cannot be compromised with. This incident was a watershed in the history of environmental law management.
Conclusion
Although there is no statutory mandate on the ‘polluter pays principle’. Nevertheless, it takes more effort in complying people to the principle rather than mandating it. The judicial pronouncements on this principle have been clear, crisp and undisputable. It was realised that industries are also social units having rights and duties towards their surroundings and community. The old concept of development hand in hand with ecological balance does not hold good in the 21st century. Yet ravaging nature in the name of development is no more acceptable.
In fact, the lockdown mandated throughout the world during the coronavirus infection is rest to nature. The animals of nature coming to streets during the lockdown is analogous to humans captured in cages and animals on a visit. Over the years our behaviour towards nature has been inhumane. Nature has been put to overwork in the last two decades. It’s high time for us to care for mother nature.
The principles such as ‘polluter pays’, ‘precautionary principle’, ‘sustainable development’ should be ideally inbuilt in us. It should be in our subconscious mind that each and every activity that we do should not be harming nature. Little steps taken towards nature such as carpooling, riding the cycle to work, avoiding single-use plastic can go a long way if taken by every citizen. Many institutions and universities have started planting trees on special occasions such as independence day, environment day etc. Such steps are necessary for sustainable development. Balanced development is a prerequisite for harmony between nature and us. These steps should be habits of the millennials.
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