Polluter Pays Principle &

Precautionary Principle

Environmental Law Project

 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.
 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 market-
driven 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” is on the actor or the

developer/industrialist to show that his action is
environmentally benign.”

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 non-
negligible”, 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 non-
negligible 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 one-
time 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