By:- Kamakshi Agrawal
In supreme court of India
|Name of the case||Indian enviro legal council v. union of India and others|
|Citation||1996 AIR 1446, 1996 SCC(3)212|
|Date of case||13 February, 1996|
|Petitioner||Indian council for enviro legal action|
|Respondent||Union of India and others|
|Bench/judges||Justice B.P. Jeevan Reddy Justice B.N. Kripal|
|Statues/constitution||Implementation of polluter pay principle for the first time|
|Section’s involved||Section 3 and 5 of Environment Protection Act,1986 Section 24(1), 25 of The Water (Prevention and Control of Pollution) Act,1974Article 12,21,32,252 of Indian ConstitutionPrinciple 16 of the Rio Summit of 1992|
In India, Polluter Pay Principle was first implemented and defined in 1996 under this case law. According to this principle, the polluter has to not only compensate the victims of pollution caused by his activity but also has to pay for the restoration of environmental degradation as mentioned by the Organisation of Economic Corporation and Development(OECD). The measures are accordingly taken as decided by public authorities for the polluters so that the environment is in acceptable conditions. This principle forms a major part of Indian Environmental law.
In this case, writ petition was filed by an environmental association named as Indian Council for Environmental Legal Action. This organisation raised an issue highlighting the conditions regarding the people living in a small village named Bichhri village, located in Udaipur district of Rajasthan. Northern part of this village was occupied by the chemical industrial plants like Hindustan Zinc Limited and many others. The main emphasis was laid that how bug businessmen see these opportunities as ways to increase their profit margins by encouraging industrialization and from exports.
In 1987, the fourth respondent that is Hindustan Agro Chemicals began manufacturing concentrated form of sulphuric acid commonly known as oleum along with single super phosphate which was considered as a serious threat to the inhabitants living in surrounded villages. After this the fifth respondent TataSilver Chemicals also became active and started with the production of “H” acid give me the same complex. Acid h was produced for the export transactions majorly. Then the eighth respondent Jyoti chemicals came who was situated in another compound which was producing ‘H’ acids mostly, along with several other toxic chemicals.
Many other chemical industries were also established for the production of fertilizers as well as other such chemicals which were contributing in some or other way towards environmental pollution. All the respondents, in this case, were generating hazardous waste discharge in this specific region of Bichhri village, which was not even being adequately treated by these industrial plants. Whether it be water, air, soil, or anything else as soon as it was coming in contact with these industrial effluents it was getting poisoned and unfit for any human or animal use.
According to the report submitted, there were about 2500 tonnes of highly toxic sludge was produced and on the other hand 375 tonnes of “H” acid was also being manufactured which was devotedly for the exporting purposes. All such toxic materials polluted soil, groundwater, and also contributed in contaminating water streams. Over many years, these toxic substances made water extremely polluted and unfit for human consumption. These water streams were used as sources for drinking, irrigation purposes, along with soil fertilisation, which was the primary source of survival for many residents. This pollution further led to a variety of disorders, diseases and deaths in the surrounding villages.
The parliament also showed concerned about the sudden degradation and the ministry also ensured that some reasonable action would be taken but nothing transpired. As a result, There was a virtual protest started by the villagers of that region which led to the district magistrate enforcing section 144 off CRPC for the closure of these industries.
- Whether the respondent is liable to pay the amount necessary to carry out the appropriate remedial action?
- Whether the industries involved in the manufacturing of these toxic chemicals had taken any environmental precautions?
ARGUMENTS OF PLAINTIFF:
Petitioners started their argument with presenting the fact that Defendant industries started the manufacturing of ‘H’ acid along with other chemicals in a plant situated in the same complex in the Bichhri village. The manufacturing process of which leads to the formation of large quantities of extremely poisonous industrial effluent, which are particularly iron-based and gypsum which mainly facilitates the generation of sludge which was never adequately treated according to the safety norms. Therefore, it was requested that the plants had to be closed down instantly. In addition, manufacturing should be suspended until the waste is adequately treated so as not to cause any damage to the environment and its resources.
Also the petitioner claimed that almost every respondent industry had applied for ‘No- Objection Certificate’ for the production of this harmful chemicals and was denied and rejected by the authority is evidently depicts that the production of these harmful Chemicals will lead to the destruction of environment in enormous ways.
ARGUMENTS OF DEFENDANT:
Defendant counter-argued and filed a counter-affidavit to sustain their statements. The assertion presented by them included; Hindustan Agro Chemicals Limited: As per their affidavits this plant had already been granted by the Pollution Control Board a “No-Objection Certificate” for the production of sulphuric acid and alumina sulphate with some conditions to be strictly followed under Water [Pollution Prevention and Control] Act, 1974 and Air (Pollution Prevention and Control Act) Act, 1981, After which they began with the production of Oleum and Single Super Phosphate [S.S.P.] rather than producing sulphuric acid. They further submitted that the treatment is quite difficult since most of the toxic substances found are resistant in nature.
The court applied “Polluter Pay Principle” for the first time which specified that the polluter must pay for all the expenses caused as the pollution charges.
This principle was a result of continued evolution of the ‘absolute liability’ in the case of M C Mehta v. Union of India, court-mandated that the polluters must pay a penalty for causing pollution, which will be used for improving the environmental and residential conditions for the inhabitants of the regions affected.
Also, in the case of Vellore Citizens Welfare Forum v. Union of India and others, this principle was regulated by Articles 48-A and 51-A(g) of the Indian Constitution and that the principle may be inferred with the prevailing legislation. in the case of Oleum Gas Leak, in which even though Shriram Factories complied with applicable laws like the Air Act of 1981, the Supreme Court found them responsible for the leakage of oleum gas and for the deterioration of the environment.
It is still argued whether only a civil action against the polluter should be applied or whether there is also a necessity to make the polluters criminally liable as well. the right to community participation for protection of the environment is considered to flow from Article 21 of the Constitution of India which is right to life and personal liberty.
After considering all the facts and circumstances judges declared that industry must deposit the amount as directed by this Court vide order dated April 11, 1997 with compound interest. Thousands of villagers have been adversely affected because no effective remedial steps have been taken so far. The applicant industry has succeeded in their design in not complying with the court’s order by keeping the litigation alive for more than 15 years by filing the interlocutory applications which were being totally devoid of any merit are accordingly dismissed with costs.
On April 11,1997, the respondent industries were ordered to pay rupees 37,385,000 INR together with a compound interest of 12% per annum until the sum would have been fully paid or compensated. Also, the respondent industries were mandated to pay the litigation fees for deliberately wasting the court’s time and resources, as the case was carried on for around 15 years, long after the Court’s final decision and for all these years the applicants were forced to carry on the case. Taking into account the sum total of the facts and findings of the case, regarding both the interlocutory applications, the court ordered the respondent industries to pay a sum of Rs.10,00,000 INR as costs. This sum of money would also be used, under the direction of the respective authorities, for taking mandatory actions around the Bichhri village and neighbouring regions within the Udaipur district, Rajasthan.
In this way for the first time the court implemented the “polluter pay principle” as the cost was compensated from all the big industrial businessmen for causing environmental damage and also risking the lives of villagers without treating the hazardous slurries of their plants properly.
Sustainable development is considered as the basic necessity for the human survival. As the environment cannot really be actually recompensed, this allows for a justification to levy taxes upon guilty companies along with the assurance that the money will be utilized to help the victims suffered. But in reality, these polluters mainly submit all the compensated amount to government officials, advisors, most of whom profit from the method. As presently interpreted, the polluter pays concept actually winds up as just a mechanism for transferring money from polluters to non-victims (governmental officials).
In context of this, it can be concluded that it should have been dealt with more harshly as the case crossed 15 years and the damage caused to the villagers was too great in magnitude and was in need of urgent intervention not to have been compensated for 15 entire years. As per my views the judgement was justified and completely reasonable.
- MC MEHTA V. UNION OF INDIA: https://indiankanoon.org/doc/1486949/
- VELLORE CITIZEN WELFARE FORUM V. UNION OF INDIA: https://indiankanoon.org/doc/1934103/