Environmental Law Project
‘Polluter pays principle’ and ‘precautionary principle’ FACULTY OF LAW JAMIA MILLIA ISLAMIA Submitted by: HALA ZAFAR B. A. LL.B. (Hons.) Class: 3rd yr, Sec A
ACKNOWLEDGMENT I have taken efforts in this project however it would not have been possible without the kind support and help of many individuals, websites and books. I would like to extend my sincere thanks to all of them. I am highly indebted to ma’am for guidance and constant supervision as well as for providing necessary information regarding the project and also for her support in completing the project.
HALA ZAFAR B. A. LL.B. (Hons.) CLASS: 3rd Yr (A)
TABLE OF CASES
1. Indian Council for Enviro-Legal Action v. Union of India (Bichhri Case), AIR 1996 SC 1446 2. Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715 3. S. Jagannath v. Union of India (Shrimp Culture Case), AIR 1997 SC 811 4. M.C. Mehta v. Union of India (Calcutta Tanneries), 1997 (2) SCC 411 5. Vishaka v. State of Rajasthan, (1997) 6 SCC 241 6. A.D.M. Jabalpur v. Shivkant Shukla, 1976 AIR 1207 7. Jolly George Verghese v. The Bank of Cochin, 1980 AIR 470 8. Gramophone Company of India Ltd. v. Brindra Bahadur Pandey, 1984 AIR 667 9. M.C. Mehta v. Kamalnath, (1997) 1 SCC 388 10. Andhra Pradesh Pollution Control Board v. M.V. Nayudu, AIR 1999 SC 812
11. Vijayanagar Education Trust v Karnataka State Pollution Control Board, Karnataka, AIR 2002 Kant 123 12. M.C. Mehta v Union of India, AIR 2002 SC 1696 13. Narmada Bachao Andolan v Union of India, AIR 2000 SC 3751
CONTENT 1. Introduction 2. Polluter Pays Principle 3. History of the Polluter Pays Principle 4. Polluter Pays principle Explained 5. Flaws in the Polluter Pays Principle 6. Precautionary Principle 7. Precautionary Principle and Sustainable Development 8. Bibliography
Introduction Doctrines evolved by Courts are a significant contribution to the environment jurisprudence in India. Article 253 of the Constitution of India indicates the procedure on how decisions made at international conventions and conferences and incorporated into the legal system. This is done by enacting a Parliamentary legislation. The Air Act and EPA are the result of such an exercise. Doctrines formulated at international conferences are still to find a place in the environmental legislation in the country. By an ingenious juristic technique, the apex Court tries to fill up this deficiency.
Polluter Pays Principle Few people could disagree with the proposition that those who cause damage or harm to others should "pay" for those damages. It appeals directly to our sense of justice. Forcing polluters to bear the costs of their activities is also said to enhance economic efficiency. Appropriately applied, policies
based on a polluter pays principle (PPP) should enable us to protect the environment without sacrificing the efficiency of a free market economic system. A correct interpretation of the polluter pays principle would define pollution as any by-product of a production or consumption process that harms or otherwise violates the property rights of others. The polluter would be the person, company, or other organization whose activities are generating that by-product. And finally, payment should equal the damage and be made to the person or persons being harmed. Thus, environmentalists define a "polluter" far more broadly, not as someone who is harming others, but often as someone who is simply using his own property and resources in a way that offends the environmentalists. Because, in such cases, there are no victims to compensate, the amount to be paid is determined by the extent to which it will deter the politically disfavoured activity. The payment (whether there are real victims or not) typically goes to the government in the form of a tax. In such cases, the Polluter Pays Principle is used to promote an environmental agenda rather than to insure that real polluters pay compensation to real victims of their activities. Environmental problems occur because there is a conflict over the use of a resource. When we think of damage to property we are not simply speaking about the alteration of one or another of its physical aspects, we are in fact tying that property to an owner and the uses that he or she may have planned for it. Properly construed, this is not only a sound principle for dealing with those who pollute but is an extension of one of the most basic principles of fairness and justice: people
should be held responsible for their actions. Those who cause damage or harm to other people should "pay" for that damage. As a general rule, sound economic analysis of pollution and environmental problems must also be based on the principle of responsibility. Forcing polluters to bear the costs of their activities is good economics too; it not only advances fairness and justice, but also enhances economic efficiency.
Polluter-Pays Principle Explained The ‘polluter pays’ principle which is a part of the basic environmental law of the land requires that a polluter bear the remedial or clean up costs as well as the amounts payable to compensate the victims of pollution. As explained by the Supreme Court, this principle does not only requires the polluter to compensate the victims of the pollution but also requires her to foot the bill for remedial costs to restore the damaged ecology. In February 1992 the Union Government published its policy for the abatement of pollution. This statement declares the objective of the government to integrate environmental considerations into decision-making at all levels. To achieve this goal, the statement adopts fundamental guiding principles, namely, (i) prevention of pollution at source; (ii) the adoption of the best available technology; (iii) the
polluter pays principle; and (iv) public participation in decision making. Market based incentives follow the ‘polluter pays principle’. As the costs of creating pollution rise due to the play of market forces, the rational polluter has an economic incentive to reduce the pollution. The benefit of marketdriven reform is that the polluters will reduce their emission levels where the imposition of controls is least costly. Environmental markets create incentives to develop innovative and affordable pollution control technology. The polluter will develop the technology or modify the production process to emit less pollutant and correspondingly retain more money. By contrast, command and control laws encourage polluters to evade or thwart the regulations or else bribe their way out of complying with them because it is cheaper to do so. Moreover, industry is placed in a reactive rather than proactive role in regard to the development of pollution control technology.
In an era of governmental fiscal austerity towards the environment, permits, taxes and charges can be earmarked for their most efficient use. Since those approaches encourage the regulated community to move beyond the status quo in environmental protection technology, the funds raised can be doubtly effective. Economists recognize that certain taxes discourage social ‘goods’ such as taxes on labour that discourage work effort, or taxes on savings that reduce the amount available for investment. Environmental taxes do not result in such tax distortions, but rather discourage ‘bads’ such as pollution. Taken a step further, environmental taxes can yield a ‘double divident’ if the
revenue from them is used to reduce and mitigate the effect of the aforementioned tax distortions.
During the two decades from Stockholm to Rio "Sustainable Development" has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting eco-systems. "Sustainable Development" as defined by the Brundtland Report means "development that meets the needs of the present without compromising the ability of the future generations to meet their own needs".
Some of the salient principles of "Sustainable Development", as culled-out from Brundtland Report and other international documents, are Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays principle, Obligation to assist and cooperate, Eradication of Poverty and Financial Assistance to the developing countries.
The Polluter Pays principle has been held to be a sound principle by this Court in Indian Council for Enviro-Legal Action v. Union of India. The Court observed, "We are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country". In this case the number of private companies operated as chemical companies were creating hazardous wastes in the soil, henceforth, polluting the village area situated nearby, and they were also running without licenses, so an environmental NGO, filed writ petition under
article 32 of the Constitution of India, which sought from the court to compel State Pollution Control Board and Central Pollution Control Board to recover costs of the remedial measures from the companies.
The Court ruled that "Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on".
Consequently the polluting industries are "absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas".
The Polluter Pays principle as interpreted by the 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. Remediation of the damaged environment is part of the process of "Sustainable Development" and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.
The court further stated that, "according to this principle, the responsibility for repairing the damage is that of the offending industry. Sections 3 and 5 empower the Central Government to give directions and take measures for giving effect to this principle. In all the circumstances of the case, we think it appropriate that the task of determining the amount required for carrying out the remedial measures, its recovery/realisation and the task of undertaking the remedial measures is placed upon the Central Government in the light of the provisions of the Environment Protection Act, 1986. It is of course, open to the Central Government to take the help and assistance of State Government, R.P.C.B. or such other agency or authority, as they think fit."
In M.C. Mehta v. Union of India (Calcutta Tanneries) , the Court considered and rejected the tanneries contention that the designated new site would damage an ecologically fragile wetland. The Court summarised the steps taken under judicial supervision to facilitate relocation; set out the provisions of the Water Act that were being breached by the tanneries and after referring to the ‘precautionary principle’ and ‘polluter pays principle’ concluded. It is thus settled by this Court that one who pollutes the environment must pay to reverse the damage caused by his acts.
In a landmark decision, Vishaka v. State of Rajasthan, the Supreme Court held that in the absence of domestic law occupying the field, any international convention must be read into the provisions in Arts 14, 15, 19(1)(g) and 21 of the Constitution. This can be done if the convention is not inconsistent with the Fundamental Rights, and is in harmony with its spirit. This dictum, as the court explained, goes a
long way in enlarging the meaning and content thereof so as to promote the object of the Constitutional guarantee. According to the court, the power is implicit in Art. 51(c), which directs the state ‘to foster respect for international law and treaty obligations in the dealings of organised people with one another.’ These provisions enable parliament to enact laws for implementation of the international conventions and norms by virtue of Art. 253 read with Entry 14 of the Union List in the Seventh Schedule to the Constitution.
In the Vellore Case, the Supreme Court bench presided over by Justice Kuldip Singh referred to the absolute liability principle in the context of pollution caused by the discharge of untreated effluent by industries in Tamil Nadu. This case did not involve an industrial accident nor did it concern the escape or discharge or a toxic substance- which constitute the class of cases to which ‘absolute liability’ is applied. The Vellore Court, however, rolled together the ‘polluter pays principle’ (applicable to non-toxic pollution cases) with the absolute liability standard (applicable to toxic sorts). The “Polluter Pays Principle” as interpreted by this 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.
In Vellore Citizen's case, court held that: The precautionary principle and the polluter pays principle have been accepted as part of the law of the land. Article 21 of the Constitution of India guarantees protection of life and personal liberty. Article 47, 48A and 51A(g) of the Constitutional are as under:
Article 47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health. - The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and in particular, the State shall endeavour to bring about prohibition of the consumption except from medicinal purposes of intoxicating drinks and of drugs which are injurious to health. Article 48A. Protection and improvement of environment and safeguarding of forests and wild life. - The State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country. Article 51A(g). To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost accepted proposition of law that the rule of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the Courts of Law.
In M.C. Mehta v. Kamalnath, court by considering the POLLUTER PAYS PRINCIPLE as the law of the land, ordered that: "It is thus settled by this Court that one who pollutes the environment must pay to reverse the damage caused by his acts." Court disposed this matter by giving a show cause notice to the span motels, that, why Pollution-fine and damages be not imposed as directed by us.
This case subsequently came up in front of the court in the year 2000 and court directed to the span motels that: "The powers of this Court under Article 32 are not restricted and it can award damages in a PIL or a Writ Petition as has been held in a series of decisions". Henceforth, court directed a fresh notice to be issued to M/s. Span Motel to show cause why in addition to damages, exemplary damage be not awarded for having committed the acts set out and detailed in the main judgment. Finally in 2002, while granting exemplary damages court held that: "Liability to pay damages on the principle of 'polluter pays' in addition to damages, exemplary damages for having committed the acts set out and detailed in the main judgment. Considering the object underlying the award of exemplary damages to be to serve a deterrent for others not to cause pollution in any manner. So the quantum at Rs. 10 lakhs is fixed for the span motels."
Flaws in the Polluter Pays Principle It is true that polluter pays principle has a positive effect to reduce pollution. The principle seems quite relevant for pollution that occurs during industrial activity, although it remains inefficient in the case of historical pollution. Most developing countries, however, have not yet subscribed to the POLLUTER PAYS PRINCIPLE as a main environmental policy guideline. As Rege (1994) points out, this is due to adverse economic conditions. Legal theorists discovered few loopholes of this rule. The flaws are as follows: Firstly, ambiguity still exists in determining 'who is a polluter'. In legal terminology, a 'polluter' is someone who directly or indirectly damages the environment or who creates conditions relating to such damage. Clearly, this definition is so broad as to be unsupportive in many situations. Second, a large number of poor households, informal sector firms, and subsistence farmers cannot bear any additional charges for energy or for waste disposal.
Third, small and medium-size firms from the formal sector, which mainly serve the home market, find it difficult to pass on higher costs to the domestic end-users of their products. Fourth, exporters in developing countries usually cannot shift the burden of cost internalisation to foreign customers due to elastic demand. Lastly, many environmental problems in developing countries are caused by an overexploitation of common pool resources. Access to these common pool resources (in line with the Polluter Pays Principle) could be limited in some cases through assigning private property rights, however, this solution could lead to severe distributional conflicts. All of these problems make it difficult to implement the Polluter Pays Principle as a guideline for environmental policy in developing countries. Despite the fact that Polluter Pay Principle was publicized by early conservationists as a means to reduce ecological pollution, still many consider it as a 'vague idea'. Some put forward their argument that under this principle a polluter fulfils his obligations when he pays at least some of administrative expenses of the agencies who regulate pollution activities .'Exxon Valdez' case is the best example of this criterion of Polluter Pays Principle. Others argue that it can only be satisfied by polluters when they will pay the total depollution cost. And the rest support the view that tax (like 'Carbon Taxes') should be legitimised on the users of the natural resources that cause atmospheric hazards.
Precautionary Principle Precautionary Principle as a tool for environmental protection got international recognition in the Rio Conference on Environment and Development 1992 (Rio Declaration). Principle 15 of the Rio Declaration 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.’
Indian Council for Enviro-Legal Action case discussed above accepted this principle along with the ‘polluter pays
principle’ as part of the legal system. In Vellore Citizens Welfare Forum v. Union of India and Andhra Pradesh Pollution Control Board v. M.V. Nayudu, the Supreme Court applied the precautionary principle directly to the facts of the cases.
In Vellore Citizens Welfare case the Supreme Court was appraised of the pollution caused by the enormous discharge of untreated effluent by tanneries and other industries in the state of Tamil Nadu. The petitioner highlighted the evil on the strength of reports from Tamil Nadu Agricultural University Research Centre, an independent survey conducted by non-government organizations, and a study of two lawyers deputed by the Legal Aid and Advice Board of Tamil Nadu. The main allegation was that the untreated effluents contaminated the underground water resulting in non-availability of potable water, thereby causing immense harm to agriculture. Despite the persuasion of the Tamil Nadu Government and the Board, and despite the Central Government’s offer of subsidy to construct common treatment plant, most of the tanneries hardly take any steps to control the pollution. The court referred to its earlier orders. It also quoted extensively
from the report of NEERI to bring out to light the seriousness of the problem. The court observed that the precautionary principle has been accepted as a part of the law of the land. It quoted Arts. 21, 47, 48A and 51(g) of the Constitution of India, and referred to Water Act, Air Act and EPA. Even otherwise once these principles are accepted, as part of the customary international law which is not contrary to the municipal law
shall be deemed to have been incorporated in the domestic law, and shall be allowed by the courts of law. Our legal system having being found on the British Common Law, the right of a person to pollution free environment is a part of the basic jurisprudence of the land. The Court held: It is thus obvious that the Environment Act contains useful provisions for controlling pollution. The main purpose of the Act is to create an authority of authorities under Sec. 3(3) of the Act with adequate powers to control pollution and protect the environment. It is a pity that till date no authority has been constituted by the Central Government. The work which is required to be done by an authoprity in terms of Sec. 3(3) read with other provisions of the Act is being done by this court and the pther Courts in the country. It is high time that the Central Government realises its responsibility and statutory duty to protect the degrading environment in the country. If the conditions in the five districts of Tamil Nadu, where tanneries are operating, arepermitted to continue then in the near future all rivers-canals shall be polluted, underground waters contaminated, agricultural lands turned barren and the residents of the area exposed to serious diseases. It is, therefore, necessary for this Court to direct the Central Government to take immediate action under the provisions of the Environment Act.
It was directed that a ‘Green Bench’ would be constituted to deal with this case and opther environmental matters.
In Andhra Pradesh Pollution Control Board case the court relied on the Vellore case before pondering over the various dimensions of the precautionary principle.
The ‘uncertainty’ of scientific proof and its changing frontiers from time to time have led to great changes in environmental concepts during the period between the Stockholm Conferences of 1972, and the Rio Declaration. In Vellore case, a three-judge /bench of this court referred to these changes, the ‘precautionary principle’, and the new concept of ‘burden of proof’ in environmental matters. The court said that the precautionary principle replaces the assimilative capacity principles. The court pointed out that earlier, the concept was based on the ‘assimilative capacity’, which assumed that science could provide the information and means necessary to avoid encroaching upon the capacity of the environment to assimilate impacts, and that relevant technical expertise would be available when environmental harm was predicted. In Principle 11 of the UN General Assembly Resolution on World Charter for Nature 1982, the emphasis shifted to the ‘precautionary principle.’ This was reiterated in the Rio Declaration in its Principle 15 which reads as follows: Principle 15: 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 proposing cost-effective measures to prevent environmental degradation.
The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it, or to choose the least environmentally harmful activity. It is based on scientific uncertainty. Environmental protection should not only aim at protecting health, property, and economic interest, but also protect the environment for its own sake, precautionary duties must not only be triggered by the suspicion of concrete danger, but also by (justified) concern or risk potential. The new concept of burden of proof referred to in Vellore case was further elaborated. The court observed: In that case, Justice Kuldip Singh stated as follows: “The ‘onus of proof” developer/industrialist to environmentally benign.”
is on the show that
actor or the his action is
It is to be noticed that while the inadequacies of science have led to the ‘precautionary principle’, the said ‘precautionary principle’ in its turn, has led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions, proposed-is placed on those who want to change the status quo...This is often termed as a reversal of the burden of proof, because otherwise in environmental cases, those opposing the change would be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by maintained a less-polluted state should not carry the burden of proof and the party who wants to alter it, must bear its burden. 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 proof on the person or entity proposing the activity that is potentially harmful to the environment.
It is also explained that if the environmental risks being run by regulatory inaction are in some way “uncertain but nonnegligible”, then regulatory action is justified. This will lead to the question as to what is the ‘non-negligible risk’. In such a situation, the burden of proof is to be placed on those attempting to alter the status quo. They are to discharge this burden by showing the absence of a ‘reasonable ecological or medical concern’...The required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a ‘reasonable persons’ test. In an article, it is commented that the ‘precautionary approach’ is a principle meant to avert environmental disaster. The Supreme Court was of the view that it is better to err on the side of caution and prevent environmental harm than to run the risk of irreversible harm. The principle involves anticipation of environmental harm, adoption of preventive measures, and choice of the least environmentally harmful activity. It is based on on scientific uncertainity. Precautionary duties must not only be triggered by suspicion on concrete danger, but also by (justified) concern or risk potential. The commentators went on to say that the Stockholm Declaration in 1972 laid emphasis on the assimilative principle, which assumed that the environment has the capacity, to some extent, to assimilate substances so as to render harmless the much-quoted epigram ‘the
solution to pollution is dilution.’ In the year 1982, the pendulum swung towards precautionary approach when United Nations laid down that the activities should not be permitted to proceed when their adverse affects are not fully understood. The Rio Conference in 1992 has recognized the precautionary approach as a norm for various nations to pursue.
Effects of a project on environment have more dimensions than one. There may be no risk, the risk may be neither serious, nor irreversible. At other times, the risks may be uncertain, but non-negligible. In such cases, the one who attempts to change the status quo by implementing the project has to prove that the activity is environmentally benign. No wonder, the burden make the proposer more responsible and vigilant even at the stage of planning and designing a project. The underlying ideas behind the precautionary are evident. Uncertainty should not be a pretext not to regulate. Lack of scientific evidence should not be used to delay implementation of cost-effective measures preventive and remedial action should not await presentation of conclusive scientific evidence of detrimental effect on the environment. In case of doubt on the effects on environment, no delay can be allowed for regulatory action. The regulators should act swiftly, in anticipation of the environmental harm to ensure its elimination, justifying the old adage an ounce or prevention is worth a pound of cure. The precautionary approach is said to promote development of clean technology.
Looking at its acceptance in the international scenario in the past, the precautionary approach is said to be a principle born before it was conceived. Indian courts started tending the principle with great care and enthusiasm as soon as it was born. As early as in 1993, reclamation of wetlands for building a trade centre was prevented as the benefits of wetlands to the society could not be weighed on mathematical nicety. Extensive, semi-intensive, and intensive aquaculture was ordered to be dismantled to prevent possible disaster on coastal eco-system. Closure of tanneries in certain districts of Tamil Nadu was directed with a view to preventing, among other things, serious damage to groundwater. To save Taj Mahal from destruction, the Supreme Court was not ready to even one percent chance when the coke-coal based industries were asked to relocate outside the region, or change over to natural gas.
Precautionary principle may raise a few queries. When is it appropriate to apply the principle? What types of actions are warranted? Obviously, the principle would apply when there is a threat- a threat of serious or irreversible harm. How should the existence of the threat be determined? Even one percent chance of the harm is considered by the Supreme Court in Taj case as sufficient for applying the precautionary principle, and taking up preventive action. In other words, the threat is established where there is some evidence of the likelihood of the harm. The Taj case gives an answer to the second question also. The types of precautionary action include measures such as adoption of clean technology, safe and proper sitting, and even prohibition of the activity.
In Vijayanagar Education Trust v Karnataka State Pollution Control Board, Karnataka Karnataka High Court accepted that the precautionary doctrine is now part and parcel of the constitutional mandate for the protection and improvement of the environment. The court referred to Nayudu cases which laid down that the burden to prove the benign nature of the project is on the developer if it is found that there are uncertain and non-negligible risks. Interestingly, in Vijayanagr Education Trust case, Karnataka High court seems to have put the burden on the State Pollution Control Board in the place of the potential polluter. According to the court, the Board did not give the petitioners, who wanted to establish a medical college and hospital, an opportunity to prove the benign nature of their project, and ease the concern about the uncertainty. As laid down under the Water Act, the application of the petitioners was complete. Still the Board sat on application without taking any steps. There is a period within which a notice has to be issued. The stipulated period was over. There was no notice of abjection by the Board. It was held that the developer was entitled to go ahead with a deemed consent.
However, Andhra Pradesh High Court made an attempt to distinguish Nayudu case from Vijayanagar case. In Nayudu case, the apex court had every reason to believe that the potential dangers to the environment were non-negligible. In the present case, the Board had not examined whether the risk involved could be said to be non-negligible. In applying the precautionary principle, it is absolutely necessary to identify the nature of the pollutant, and to find out whether it would cause non-negligible environmental risk. When it refused consent, the Board did not adopt such an analysis, nor did it make a reference to any pollutants that might be
emitted by the hospital, which would have caused nonnegligible risk. The court held it is impossible to draw inference of non-negligible danger to the environment. One may not agree. The precautionary principle itself becomes significant where there is a threat of damage to the environment, and where scientific certainty is lacking. However, the court attempted to apply the doctrine of sustainable development. Hospitals are essential to improve the quality of human life and health. For guidance the court looked at Vellore Citizens case, in which certain tanneries were found to be causing pollution of underground water. The Supreme Court had directed the tanneries to set up common effluent treatment plants or other industrial pollution control devices before they tried to obtain consent. In Vellore Citizens case, the court directed to close down only those tanneries to which consent was refused. It was unjustified to consider the establishment of the hospital and the college as a potential hazard, unless it is shown that the uncertain danger to the environment was non-negligible. In the court’s view, the Board is sufficiently empowered by the statute to ensure that the hospital maintained the environmental quality. A simple direction to let the pollutants go into the stream after treating them chemically or otherwise could ensure that no pollution takes place. The potential danger can be overcome if the petitioner takes all
precaution so that no sewage effluent enters the river. The court also found that there was no need to refer the matter to any expert body for a study. Such a reference is needed when the court finds that the question is to be decided with expert scrutiny inputs that the court may not possess.
Interestingly, the court concluded that only when the hospital comes up and the nature of pollutants is identified, the question of reference arises. The court observed: Any rejection of a request for establishment of an industry when the risk is certain but what is not certain is whether the risk is negligible or non negligible could be made only after proper identification of the amount and the nature of pollutants and the danger to which the environment is exposed by such pollution.
Precautionary Principle and Sustainable Development
In M.C. Mehta v Union of India, which is a case relating to vehicular pollution in Delhi, the Supreme Court had occasion to mention that the precautionary principle is enshrined in the concept of sustainable development. This principle will impose upon the government and health authorities to take appropriate action, and prevent air pollution. The opinion of the court was that the delay in changeover to compressed natural gas(CNG) buses affected the health of the children, while it helped private operators. The court said, children do not agitate or hold rallies and, therefore, their sound is not heard and the only concern of the government now appears to be to protect the financial health of the polluters, including the oil companies who by present international desirable standards produce low quality petrol and diesel at the cost of public health. In court’s view, far greater tragedies than those of Bhopal gas leak lie dormant in the governmental neglect over CNG. The continuing air pollution does have a more devastating effect on the people. In the Bhopal gas leak disaster case, the nation, including union of India, was rightly agitated. That is why it sought compensation from multi-national company, who was held responsible for the same. The Court Observed: Here, in the case of CNG, the shoe is on the other foot because the government is not facilitating measures for the clean air and water including the supply of CNG or any other clean unadulterated fuel. It is due to the lack of proper concern on the part of the governmental authority that people are suffering from respiratory and other diseases. The court continued that Bhopal gas leak tragedy was a onetime event which, hopefully, will not be repeated. However, in the present case, with not enough concern or action being
undertaken by the Union of India, far greater tragedies in the form of degradation of public health are taking
place every day. Undoubtedly, the precautionary principle attains importance in such instances.
In Narmada Bachao Andolan v Union of India, the precautionary principle came to be considered by the majority judges in this case. The court took the view that the doctrine is to be employed only in cases of pollution when its impact is uncertain, and non-negligible. The majority is of the view that the doctrine has to be put on back burner when the impact of a development project is certain and can be quantified. The court held: It appears to us 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. When there is a state of uncertainty due to lack of data or material about the extent of damage or pollution likely to be caused then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution. On the other hand where the effect of ecology of environment of setting up of an industry is known, what has to be seen is that if the environment is likely to suffer, then what mitigative steps can be taken to offset the same. Merely because there will be a change is no reason to presume that there will be ecological disaster. It is when the
effect of the project is known when the principle of sustainable development would come into play, which will ensure that mitigative steps are and can be taken to preserve the ecological balance.
Sustainable development means what type or extent of development can take place, which can be sustained by nature / ecology with or without mitigation. The court noted that the question in the Narmada Bachao Andolan case is not connected with the polluting industry, and the effects of the project are already known. In the words of the court: ... What is being constructed is a large dam. The dam is neither a nuclear establishment nor a polluting industry. The construction of a dam undoubtedly would result in the change of environment but it will not be correct to presume that the construction of a large dam like the Sardar Sarovar will result in ecological disaster. India has an experience of over 40 years in the construction of dams. The experience does not show that the construction of a large dam is not cost effective or leads to ecological or environmental degradation. On the contrary there has been ecological up gradation with the construction of large dams. What is the impact on environment with the construction of a dam is well known in India and, therefore, the decision in AP Pollution Control Board’s case will have no application in the present case.
Bibliography
1. Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India: Cases, Materials and Statutes, 2nd Edition, 2011, Oxford University Press 2. P. Leelakrishnan, Environmental Law in India, 3rd Edition, 2010, LexisNexis Butterworths Wadhwa 3. P. Leelakrishnan, Student Guide on Environmental Law: Cases and Materials, 2010, LexisNexis Butterworths Wadhwa
