by Shriya Mishra

The ‘Polluter Pays Principle’, first conceptualized through the OECD Guiding Principles, is a well-established principle of law which puts an onus on the polluter responsible for causing pollution to bear the costs of his damages and to provide compensation for the restoration of the environment. It was later codified as a general principle of international law through the Stockholm and Rio Declarations. Despite its evolution in the 1960s and its customary nature, the principle was first introduced in India only in 1996. The interpretation of this principle has been mainly undertaken by the Indian Judiciary and through an array of cases, the application of PPP has been upheld. Besides being judicially recognized, the principle is also mandated under the Constitution of India. Through this paper, the author aims to analyze the evolution of the Polluter Pays Principle in Indian Jurisprudence, its statutory recognition and also the drawbacks associated with its applicability owing to the lack of express statutory recognition.

INTRODUCTION

The ‘Polluter Pays Principle’ is a widely established environmental policy which mandates that the person who is responsible for creating pollution should bear the expenses and liabilities associated with it as well as the externalities that are in proximate cause of it. The adoption of the principle in environmental law has two main justifications: first, a penalty or fee would operate as a deterrent; and second, to provide compensation to the communities that have been harmed by pollution. The principle was first referred to in the OECD Guiding Principles Concerning International Economic Aspects of Environmental Policies and was later reaffirmed as a fundamental principle of environmental law in the 1974 OECD Recommendations. With the advent of modern industrialized societies, there was pressure on governments and other institutions to develop mechanisms to protect and preserve the environment which led to the Polluter Pays principle being recognized as a part of customary international law and as an essential aspect of sustainable development. It was first incorporated under Principles 21 and 22 of the Stockholm Declaration, 1972 and then further reinforced in Principle 15 of the Rio Declaration 1992. It is also mentioned in Agenda 21 and the World Summit on Sustainable Development Johannesburg Plan of Implementation. Despite the fact that this concept has been around since the 1960s, Indian law only adopted it in 1996. Through this article, the author aims to analyze the application and evolution of the Polluter Pays Principle in the Indian scenario.

LANDMARK CASES & STATUTORY RECOGNITION

In the case of the Indian Council for Enviro-Legal Action v. Union of India, the Supreme Court applied the ‘PPP’ for the first time. This case dealt with the adverse effects on environmental health caused by water and soil pollution in Bichhri and its neighboring villages in the State of Rajasthan as a result of chemical factories’ discharge of untreated wastewater and sludge. Relying on the case of M.C. Mehta v. Union of India, the SC implemented PPP as a branch of absolute liability and held 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.” It has been interpreted as an absolute liability borne by the polluter for harming the environment, by not only compensating the victims but also bearing the cost of restoring the environment.

         Then, in the case of Vellore Citizens Welfare Forum v. Union of India, it was held that the PPP is mandated under Articles 21 and 47 of the Constitution of India and is an integral part of the domestic environmental law in India. This rule was then applied in the case of M.C. Mehta v. Union of India wherein the polluters (Calcutta Tanneries) were asked to compensate for the environmental degradation caused by the pollution. In MC Mehta v Kamal Nath, the Apex Court relied on PPP as a well-settled principle of law and stated that “It is thus settled by this Court that one who pollutes the environment must pay to reverse the damage caused by his acts.” Based on this, it directed the polluters (Span Motels) to pay damages which would be utilized for restitution of the affected areas and also forbade the polluters from dumping waste into the River Beas.

After gaining significant judicial recognition, the principle gained statutory recognition after the enactment of the National Green Tribunal Act, 2010. Section 20 of the Act recognizes PPP as a guiding principle while passing any order, decision, or award by the NGT. NGT has used this principle in the cases of Hindustan Coca Cola Beverages Pvt. Ltd v. West Bengal Pollution Control Board and Yamuna Water Pollution Case. The PPP is constitutionally mandated under the fundamental rights, Articles 48A and 51A. It is also referred to under the Water Act, the Air Act and the Environmental Protection Act.

CONCLUSION

From the above analysis, it can be clearly inferred that the Polluter Pays Principle has been incorporated as an intrinsic part of domestic environmental law. Through various judgements, the application of the principle in the Indian scenario has been strengthened. However, as there is no express recognition of the principle, its applicability is not uniform and is ambiguous. PPP has emerged as a principle that is more fixated towards compensating the victims rather than compensating for environmental degradation. Sometimes, the actual polluter is not clearly identified, and the damage received is also not at par with the actual loss suffered. All these drawbacks create loopholes within the application of the principle. Therefore, in order to strengthen the application of PPP in the Indian context, it is imperative that there is a concrete and express legal recognition of the principle, and the said principle should be applied in a manner that would lead to the restitution of the environment.

Shriya Mishra is a fourth-year law student at Jindal Global Law School, Sonipat.

Image source: The Quint