PUBLIC INTEREST

LITIGATION
WHAT IS A PIL?

• Where is it defined?
• PIL has not been defined in any Indian statute.
• However, Courts have interpreted and defined PIL. In Janata Dal v. H.S. Chaudhary, [(AIR
1993 SC 892), the SC held that lexically, the expression ‘PIL’ means a legal action started in a
court of law for the enforcement of public/general interest where the public or a particular
class of the public some interest that affects their legal rights or liabilities.
• PILs are considered to be the most effective as well as the most commonly used judicial tool
to safeguard the environment due to their many advantages including but not limited to
speedy results, nominal court fees, relaxed procedural rules and the wide variety of
investigative techniques available to courts like special committees.
• Rajamani, L. “Public Interest Environmental Litigation in India: Exploring Issues of Access,
Participation, Equity, Effectiveness and Sustainability.” Journal of Environmental Law 19, no. 3
(August 9, 2007): 293–321.
• In this paper the author argues that over time with the development of environmental jurisprudence in
India, Public Interest Litigations are being frequently used which cautions the judicial over-activism as
the judiciary creeps into policy making. The argument is premised on two leading case laws on
environment - M.C. Mehta v Union of India (Delhi Vehicular Pollution Case) and Almitra Patel v Union
of India (Municipal Solid Waste Management Case). In the Municipal Solid Waste Management Case the
court took up the plea of faulty waste management across the urban cities in the country and constituted
the Asim Barman Committee. In Delhi Vehicular Pollution Case petitioner Shri MC Mehta brought
attention to the degrading environment of Delhi and the chaotic traffic condition which was resulting in
air pollution. The Sakia Committee was set up for a detailed study on vehicular pollution in Delhi and
alternative fuel for vehicle operations. The paper examines these two case laws on the grounds of
participation, equity, effectiveness and sustainability.
WHAT IS AN EXPERT COMMITTEE?

• In a number of controversial cases, the Supreme Court in recent times has taken the help
of expert committees, or judicial commissions of inquiry, headed by retired judges, to sift
through evidence, especially if the petitioners raise objections or concerns regarding the
subject matter or the administration.
DO PILS HELP EVERYONE?
• While examining criteria of Access and Participation the author draws attention to the fact that judiciary is
associated with middle class intellectuals who prefer a cleaner environment, less garbage, less slums at
any cost. This is also apparent in the court's view in the Almitra Patel case that slums, amongst other
factors, were responsible for solid waste in urban cities. However, in reality the per capita waste produced
in Delhi by slum dwellers was only 80g compared to 150g and 240g produced by lower middle-income
group and middle-income group respectively. Further the Asim Barman Committee established by the
court in this case had restricted participation. Many NGOs describe the process as non-participative,
undemocratic and technologically alienating. Thus, they could not voice their concerns based on social
implications, the livelihood of rag pickers who would now be replaced by private entities hired by
municipal corporations for garbage collection and management. Similar was the case in Sakia Committee
wherein stakeholders such as private bus operators were not consulted before passing orders.
• While in theory Public Interest Litigation aimed at expanding access by opening the doors
of the court to everyone, in practice the indifference in the middle class intellectuals
discourages the poor to approach the court as it would leave them poorer. As a
consequence a clique of litigators and petitioners has been formed in matters pertaining to
the environment comprising MC Mehta, HD Shourie, Common Cause, and BL Wadehra,
to name a few. While a concerned group of intellectual citizens is both necessary and
commendable, it also at the same time highlights the deep social divide in the access and
participation in Public Interest Litigation.
EVERYONE EQUALLY AFFECTED?

• Sakia’s committee recommendation to switch to CNG

• Did not extend the deadline, and the court threatened bus operators with contempt
proceedings.
• Did this benefit everyone? Who were affected by this?
• Bus operators had to buy new buses suitable for CNG which are 1.6 times more expensive
than regular buses, and wait for long hours at CNG stations.
• Laws which do not conform to the cardinal rules of Equity and Fairness cause inconvenience to the
public at large. The same can be observed in the repercussions of MSW Rules emerging from the
Asim Barman Committee. The rules being techno-legal rather than socio-legal ignores the waste
picker community which is the most socially vulnerable group who are estimated to collect 10-15%
of the waste produced in the city. Neither does the MSW Rules provide them an opportunity to
participate in the process of waste management nor does it provide any rehabilitation opportunities.
• The brunt of these policies was again borne by the common man, in particular the lower income group, as
only few buses were available; it did not affect those who could afford private transport but those
dependent on public vehicles. The list goes on. Additionally, the contribution of more than 852,000
private vehicles was overlooked whilst targeting 70,000 commercial vehicles. The incineration technology
as directed under MSW Rules for waste treatment not only affected waste picker’s livelihood as it used
solid waste but also is detrimental as it produces dioxin having health hazards such as cancer, immune
system damage among others. Moreover, the Rules were too prescriptive coupled with unrealistic
deadlines. The decision of shifting from petrol and diesel was also ineffective as the economic and
environmental aspects were not scrutinised thoroughly. CNG was a high-cost option coupled with the fact
that the output of carbon monoxide is 5 times more than diesel. The infrastructure required for CNG
operation, increasing number of private transports, safety of CNG vehicles, all these factors were not
scrutinised, only adding to the poor effectiveness of the Rules.
JUDICIAL ACTIVISM

• The author also analyses the sustainability of judicial-over activism in the long run.

• What is judicial activism?

• Judicial activism is the exercise of the power of judicial review to set aside government acts. Generally,
the phrase is used to identify undesirable exercises of that power, but there is little agreement on
which instances are undesirable.

• What is judicial review?

• Power of the courts of a country to examine the actions of the legislative, executive, and administrative
arms of the government and to determine whether such actions are consistent with the constitution.
Actions judged inconsistent are declared unconstitutional and, therefore, null and void.
• It is argued that not only in the long run the series of PIL will overburden the judiciary but also will
hamper the efficiency of the administration as it will become reactive instead of a proactive
administration.
• It also wastes the time and resources of the Government departments which have to appear at every
hearing thus leaving less time to develop policy.
• Lastly it is asserted that the trend of judiciary taking over policy making is judicial over activism and
creating imbalance between the distribution of powers among various organs. Since the policies framed
by court, as observed in the aforesaid cases, is not democratic and ineffective, it comes with its own costs.
• Hence based on the empirical study of these two leading case laws against grounds such as access and
participation, effectiveness, sustainability, the author sums up the paper while arguing that environmental
reform should be brought through socio-legal policies rather than judicial policies.
• Rajamani, Lavanya. “The Right to Environmental Protection in India: Many a Slip between the Cup
and the Lip?” Review of European Community & International Environmental Law 16, no. 3
(December 1, 2007): 274–86
• This paper delves into the development of environmental jurisprudence in India; inception of
environmental rights through judicial activism and Public Interest Litigation; it examines the
various facets and definition of environmental right, limitations of undefined or unambiguous
rights, principles involved in environmental jurisprudence and interpretation of those principles and
the hidden risks of over-reaching interpretations. In doing so it also revisits leading case laws.
• It argues that in the past few years there has been a spur of Public Interest Litigations and
Judicial Activism in India. It visits the definition of judicial activism and characteristics of
a judge inclined towards judicial activism. Such a judge is more likely to take up tough
questions, challenge the paradigm and develop new rules. Moreover through various case
laws such as Sunil Batra (II) v. Delhi Administration, the court has departed from the strict
rule of locus standi – expanding its jurisdiction to representative standing and citizen
standing. While in the former, one can represent the cause of the oppressed or
marginalised, in the latter public duties can be enforced. It highlights how the court passes
a series of interim orders as ‘continuing mandamus’ and the expansive judicial role
creeping into policy making.
• Environmental rights in India are considered as an implicit right under Article 21 – Right to Life. It has defined
environmental rights as a right to enjoyment of pollution free water and air in various cases such as Subash Kumar v.
State of Bihar. Additionally it is an obligation upon citizens to protect and improve the environment under Article 51 A
Directive Principles of State Policy and an obligation upon the State to respect public health and protect the environment
under Article 47 and 48 A. However there is no concrete guideline on rights and obligations have to be balanced, is the
obligation upon the State merely moral or not.
• Similarly confusing and cumbersome is the process of defining Environmental Right. Many facets of environmental
rights have emerged through case laws. It ranges from ‘environmental protection and conservation of natural resources’
to ‘right to live in a healthy environment with minimal disturbance of the ecological balance’ without defining the
parameters of protection or ecological balance. Further other definitions include right to congenial environment, humane
environment and even pollution free environment. Such connotations leave scope for interpretation deduced by judges
as per their prolictivities as witnessed in 1990’s through a series of PILs. Ultimately unidentifiable rights and obligation
imposed obfuscates environmental jurisprudence in India.
• It also enlists and analyzes various principles in play in environmental jurisprudence majorly
adopted from International Law. It includes
- Precautionary Principle
- Polluters Pay Principle
- Doctrine of Public Trust
- Inter-generational equity – sustainable development
- Precautionary Principle
- an attempt to give the notion of precaution—understood as a form of addressing risk—
legal status. Its core elements are the need for environmental protection; the presence
of threat or risk of serious damage; and the fact that a lack of scientific certainty should
not be used to avoid taking action to prevent that damage.
- https://www.iisd.org/articles/deep-dive/precautionary-principle
- Polluters Pay Principle
- those who produce pollution should bear the costs of managing it to prevent damage to
human health or the environment. For instance, a factory that produces a potentially
poisonous substance as a by-product of its activities is usually held responsible for its safe
disposal.
- Doctrine of Public Trust
- a legal principle establishing that certain natural and cultural resources are preserved
for public use. Natural resources held in trust can include navigable waters, wildlife, or land.
The public is considered the owner of the resources, and the government protects and
maintains these resources for the public's use.
• But the interpretation of these principles come with their own challenges. For instance
Precautionary Principle and Polluters Pay Principle. Precautionary Principle requires the State to
anticipate, prevent and attack the causes of environmental degradation and puts the burden of proof
upon the industry that the project is not dangerous to the environment. In the Vellore Citizens Case
the court upheld both these principles as part of domestic law as they were part of international law.
Notably the status of these principles as custom is contested in international law itself. The court
imposed the strong version of precautionary principle which puts burden of proof without
considering its drawbacks such as risks of stifling innovation and creativity, hampering scientific
and technological advancements, and arguably resulting in regulatory paralysis.
• Another element of Precautionary Principle borrowed from Rio Declaration that ‘where
there are threats of serious and irreversible damage , lack of scientific certainty should not
be used to postpone adopting preventive measures. In Vellore’s case the effluent
discharged from tanneries was at certainty detrimental to the environment nor was there
any question of postponing preventive measures. Thus the author argues that the court
cherry picked some elements of precautionary principle from international law and cast
the onus of proof upon the industrial sector. In reality the court is applying Preventive
Principle which is based on the concept of certain risk while Precaution is premised on
suspected, conjectured or feared risk.
• These set of principles and undefined rights and obligations coupled with proclivities of judges
brings into prominence judicial discretion. With an expansive definition of right to life including all
those things which makes life meaningful and worth living the court has entered into ‘policy
evolution fora’ many a times ignoring interest of marginalised groups such as the slum dwellers in
Almitra Patel v UOI. The author concludes by asserting that as a consequence these factors
obfuscate the environmental jurisprudence in India.
RURAL LITIGATION AND ENTITLEMENT
KENDRA V STATE OF UP, AIR 1982 SC 652
• This case was initiated as a writ petition under Article 32 and is an example of epistolary
jurisdiction wherein the court registered the letter sent by Rural Litigation and Entitlement Kendra
against the unauthorised mining carried on in Dehradun. It was alleged that the illegal mining was
detrimental to the environment. Bhargava committee was appointed for the inspection of mines,
whether they complied with the rules of Mines Act 1952 and met the required safety standards.
Bandopadhyay Committee was constituted to ascertain its implication in the environment.
SUMMARY

• In Mussoorie hill range of Himalayas, the activity of quarrying was being carried out. Limestone
was extracted by blasting the hills with dynamite. This also resulted in cave-ins and slumping
because the mines dug deep into the hillsides, which is an illegal practice.
• Due to lack of vegetation, many landslides occurred which killed villagers and destroyed their
homes, cattle and agricultural lands. In 1961, mining was prohibited in the state by the state minister
of mines. However, quarry operations reopened the mining operations by successfully lobbying
with the chief Minister of the state under which they got mining leases for 20 years. This led to
corrupt and illegal practices and still there was no enforcement of safety rules.
• In 1982, eighteen leases came up for renewal, which were rejected by the State on account of the
ecological destruction. However, an injunction was granted by the Allahabad High Court which
allowed the applicants to continue mining, giving the reason that economic benefits outweighed
ecological factors.
• Thus in the wake of continued mining in the area RLEK wrote a letter to the Supreme Court which
was treated as a writ petition.
CONTENTIONS

• The petitioners resisted that-

● Environmental destruction in Doon Valley would lead to impediments in the living of local
citizens, which disrupts their fundamental right to a nutritious environment. The right to
Wholesome Environment is under article 21 of the Indian constitution a part of the Right to Life.
● Rejection of lease restitution by the public withdrew the state’s consent for mining. Forests come
under a coexisting list, so sanction of the central government should also be compulsory for
mining activities.
• The Respondents resisted that-
● The issue should not be obvious by the Supreme Court, but the administrative establishments of
the state under the Environment Protection Act. It should be a matter of the state’s authority
● Respondents contended that all procedures of mining and quarrying were being passed out by the
provisions of the Mines Act of 1952.
● Mining operations should not be ended because they are essential in the interest of the country and
to defend the foreign exchange location of the nation.
● The ceasing of mines will lead to redundancy of mine workers and labourers.
RULE OF LAW

• The case was tried in the Supreme Court in 1983 and case proceedings were happening from then. In
1980, when the case was still running in the court, the parliament approved the Environment Protection
Act. The respondent council specified that as the new Act agrees with the condition at hand, the court
should discharge the case. The court should leave the matter to the controlling authority under the EPA
Act. The court disallowed the argument on the foundation that litigation had already begun before the
courtlaw and important testaments, evidence, and other orders had been delivered already.
• The court emphasised that industrial development was necessary for economic growth of the country. If,
however, industrial growth was sought to be achieved by haphazard and reckless working of the mines
resulting in loss of life, loss of property, loss of basic amenities like supply of water and creation of
ecological imbalance, there may ultimately be no real economic growth and no real prosperity. It was
necessary to strike a proper balance.
HELD

• The Supreme Court concluded that mining in reserved forests in the Dehradun valley violated the Forest
Conservation Act. However, the Forest Conservation Act only prohibits non-forest activities on forest
lands that do not have the approval of the Central Government. In addition to ecological integrity and
national interests, the Supreme Court was also concerned with the welfare of mine operators and labourers
left unemployed by closure of the Dehradun Valley operations. The Court issued the following directions:
• Orders that mine lessees whose operations were terminated by the court would be given priority for leases
in new areas open to limestone mining.

• Orders that the Eco-Task Force of the central department of Environment reclaim and reforest the area
damaged by mining and that workers displaced by mine closure be given priority for jobs with the Eco-
Task Force operations in the region.
REASONING

• The principle of sustainable development was applied by the Supreme Court in this case. The
Constitution of India guarantees the Right to wholesome environment as a fundamental right under
Article 21. Industrialization leads to development which further leads to the degradation of the
environment. To resolve this issue, the doctrine of sustainable development has come up. i.e., there
must be a balance between development and ecology. Environmental degradation is not justified on
the stake of national interest. According to the socio-economic needs of the country, administrative
and legislative strategies for harmonising environmental and developmental values should be
formulated.
POLLUTER PAYS PRINCIPLE
• An environmental policy has been created which requires the polluter to bear the costs and
responsibilities of the pollution and the externalities that are proximate in cause of it. This is the
Polluter Pays Principle (PPP). In a purely free market one only faces their private costs; however, due to
the externalities created there is an additional cost which is the environmental cost. Thus, the PPP is the
idea of paying the total social cost of the act rather than only paying the private cost. It is a method of
internalizing the externality. The two broad rationales behind the implementation of the PPP in the
environmental jurisprudence include firstly, a penalty or fine to act as a discouragement and deterrent
and secondly, to form compensation for the communities who have suffered damage due to pollution.
• Following the Stockholm Declaration of 1972, India has developed a wide range of laws for the protection of the
environment such as the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of
Pollution) Act, 1981, the Environment (Protection) Act, 1986 and the Forest (Conservation) Act, 1980. In this light, it is
pertinent to note that the PPP plays an important role in both national as well as international environmental policies
• The Principle evolved from the rule of ‘absolute liability’ which was laid down in the case of M.C. Mehta v. Union of India,
where the Court had directed the polluters to pay a pollution fine which would be used to restore the living conditions and
local environment of the affected place. This further evolved in the case of Indian Council for Environment-Legal Action v.
Union of India (UOI) and Ors, where the court included the liability, compensation to the victims, arising out of the
environmental degradation within the absolute liability for harm caused to the environment. The PPP was impliedly
incorporated in this case as the Court held that under Section 3 and Section 5 of the Environment (Protection) Act, 1986
the Court had the power to take measures for giving effect to such a principle. This was incorporated under the 1992 Rio
Summit under Principle 16 which stated that “the polluter should, in principle, bear the cost of pollution.”
• Even though the Polluter Pays Principle has been judicially recognized in India, one does not seem to
find its mention in the existing or upcoming legislations. Despite delivering landmark judgments within
a short span of coming into existence, the Principle has not been properly implemented in India due to
reasons such as absence of appropriate formula for determining the compensation, the sufficiency of
the fines which have been imposed on the polluters, and the difficulty of identification of a ‘polluter’ in
numerous cases. The Court in the case of Vellore Citizens Welfare Forum v. Union of India and
Ors,6held that the principle is governed under Article 48-A and 51- A(g) of the Constitution of India
and that this concept can be implied into the existing statutes.
HISTORY OF THE PPP

• The first major reference to the PPP appeared 1972 in the OECD Guiding Principles Concerning
International Economic Aspects of Environmental Policies. The PPP as a guiding principle across
countries became necessary because some countries faced complaints by national firms about rising
costs and a loss of international competitiveness following a national implementation of the PPP
within their borders. The OECD Guiding Principles define the PPP as an instrument for "... allocating
costs of pollution prevention and control measures".
• The polluter should bear these costs in order to achieve and maintain an "... acceptable state of environment"
which is determined by the public authorities. The OECD Guiding Principles also state that the PPP should
"... not be accompanied by subsidies that would create significant distortions in international trade and
investment." This weak or standard definition of the PPP neither requires polluters to bear the costs of
accidental damages, nor do they have to pay for residual pollution.
• This Principle was reaffirmed as a fundamental principle for the Member States during the 1974 OECD
Council Recommendation on the Implementation of the Polluter-Pays Principle. The OECD initiative was
the result of demands on governments and other institutions to introduce policies and mechanisms for the
protection of the environment and the public from the threats posed by pollution in a modern industrialized
society. The principle was subsequently endorsed in 1973 when the European Community (EC) adopted a
program of action on the environment.
• Subsequently, an EC Council Recommendation (1975) provided that Member states should apply the
PPP. It further provided that natural or legal persons must pay the price of such measures that are
necessary to reduce or remove the pollution to meet the standards or equivalent measures lay down by
public authorities.

• Although the EC Recommendation is not legally binding, unlike the OECD Recommendation, it
encompasses many more issues with regards to the costs of environmental damage. The EC took
another step in 1986 when it adopted the Single European Act regarding the environment, in which it
stated that preventive action should be taken as a priority to rectify environmental damage at the source
and the polluter shall be liable to bear the cost. This Act is legally enforceable.
• Through the lens of international law, the PPP is enshrined in Principle 16 of the Rio Declaration,
which states that ‘the polluter should, in principle, bear the cost of pollution.’ The United Nations
Conference on Environment and Development, 1992 in Principle 15 incorporates this Principle.
• The range of costs to be borne by the polluter has expanded over time. In 1989, the OECD suggested
extending the PPP in order to cover the costs of accident prevention and to internalize the
environmental costs caused by accidents. In 2001, the OECD Joint Working Party on Agriculture and
Environment stated that according to the PPP, "... the polluter should be held responsible for
environmental damage caused and bear the expenses of carrying out pollution prevention measures or
paying for damaging the state of the environment where the consumptive or productive activities
causing the environmental damage are not covered by property rights."
M C MEHTA V KAMAL NATH, (1997) 1 SCC 388

• The Court took notice of an article which appeared in the Indian Express stating that a private
company "Span Motels Pvt. Ltd.", to which the family of Kamal Nath, a former Minister of
Environment and Forests, had a direct link, had built a motel on the bank of the River Beas on land
leased by the Indian Government in 1981.
• Span Motels had also encroached upon an additional area of land adjoining this leasehold area, and
this area was later leased out to Span Motels when Kamal Nath was Minister in 1994. The motel
used earthmovers and bulldozers to turn the course of the River Beas, create a new channel and
divert the river’s flow. The course of the river was diverted to save the motel from future floods.
• The Supreme Court of India decided that prior approval for the additional leasehold land,
given in 1994, was quashed and the Government was ordered to take over the area and restore
it to its original condition.
• Span Motels was ordered to pay compensation to restore the environment, and the various
constructions on the bank of the River Beas were to be removed and reversed. Span Motels
was also required to show why a pollution fine in addition should not be imposed, pursuant to
the polluter pays principle.
• Regarding the land covered by the 1981 lease, Span Motels was required to construct a
boundary wall around the area covered by this lease, and Span Motels was ordered not to
encroach upon any part of the river basin. In addition, the motel was prohibited from
discharging untreated effluents into the river.
FACTS

• A renowned newspaper called the “Indian Express” had published an article reporting that a private
company called Span Motels Pvt. Ltd. (hereinafter referred to as “Span Motels''), which was also
the owner of Span Resorts, had floated an ambitious project called Span Club. The then Minister of
Environment and Forest, Kamal Nath, had a direct connection with Span Motels. Span Motels had
built a hotel on the bank of the River Beas. This was leased by the Government of India in 1981.
Apart from the main land that was being used for construction of the Motel, Span Motels had also
encroached upon an additional area of land adjoining the leasehold area which was also leased out
to them. The use of earthmovers and bulldozers had devastating effects on a nearby waterbody
called ‘River Beas’. The course of River Beas was disrupted and turned in order to divert its flow
and create a new channel. The course of the river was disrupted as a safeguard to help prevent the
Motel from any future water calamities like the floods.
ISSUES

● Whether it would be right to include Mr. Kamal as a respondent in the petition?

● Whether the Construction Activity carried out by the private company is justified?
CONTENTIONS

• Petitioner – The petitioner incessantly argued that disturbing the ecological balance and disrupting the
natural conditions of certain resources would be viewed as a direct contravention of the fundamental right
guaranteed under Article 21 of the Indian Constitution. This would further lead to the violation of Article
51 a (g) of the Constitution of India.
• Respondent – The Minister of Environment and Forests denied the allegations and contended that he had
wrongly been made a party to the petition. Furthermore, Mr. Kamal Nath also contended that the press
reports were mala fide and were published with an intention of maligning his reputation. One of the
Respondents contended that the course of the river was not changed with mala fide intention and that
measures had been taken to prevent erosion. It was argued that the Divisional Forest Officer gave
permission to Span Motels to conduct the necessary work subject to certain conditions. It was also argued
that the construction was carried out on the land under Span Motel’s possession and surrounding area for
the protection of the said land from floods in the future.
RULE OF LAW

• This ruling was based on the public trust doctrine, under which the Government is the trustee of all
natural resources which are by nature meant for public use and enjoyment. The Court reviewed
public trust cases from the United States and noted that under English common law this doctrine
extended only to traditional uses such as navigation, commerce and fishing, but that the doctrine is
now being extended to all ecologically important lands, including freshwater, wetlands and riparian
forests.
• The Court relied on these cases to rule that the Government committed patent breach of public trust
by leasing this ecologically fragile land to Span Motels when it was purely for commercial uses.
HELD

• The Hon’ble Court rightly quashed the deed of 27.2 bighas (2.22 ha) of forest land leased to Span
Motels by the State Forest Department. Furthermore, a boundary measuring four meters was to be
constructed as a boundary wall beyond which they could not use the property attached to the river
basin. The Hon’ble court gave directions to National Environment Engineering Research Institute
(hereinafter referred to as “NEERI”) to inspect the area to determine the cost that would incur to
reverse the damage caused by the project. Subsequently, by the application of the Polluter Pays
Principle, Span Motels had to pay an amount as compensation. The amount was to be utilised for
restitution of the environmentally deteriorated area. The Supreme Court even barred the Motel from
discharging untreated waste into River Beas.
REASONING

• While delivering the judgement, the court mindfully applied the Doctrine of Public Trust. While applying the Public
Trust Doctrine, the learned Judge of Supreme Court, elucidated upon this ancient Roman legal theory which mandated
for certain general properties or natural resources such as rivers, seashore, forests, and air were to be held by the
government in trusteeship for the free and unimpeded use of the general public.
• As per Roman law, these resources were either res nullis or held by everybody in common. The Hon’ble court did not
hesitate in recognizing that the Doctrine of Public trust, would indeed apply to this case. Elucidating upon the powers of
the court, it was rightly observed that in cases where a law has been made by the Parliament or the State legislature, the
courts could act as an effective instrument in determining the legislative intent. This is possible due to the power of
judicial review as provided under the Constitution of India. The Hon’ble Court observed that the Himachal Pradesh
Government was in breach of the Public Trust Doctrine as such ecologically sensitive land could not be leased to any
private company for encroaching upon and making profits off it. Therefore, the Supreme Court rightly took cognizance
of the fact that the Himachal Pradesh State Government was in breach of public trust by leasing an ecologically fragile
land to the Span Motels.
INDIAN COUNCIL FOR ENVIRO-LEGAL
ACTION V UOI
FACTS

• An environmental association called the Indian Council for Environmental

Legal Action lodged a writ petition regarding this case. This Environmental
group raised a particular issue to shed more light on the miseries of
individuals residing in a village called Bichhri Village, which was occupied
by chemical industries plants. This is a tiny village situated in the Udaipur
district, Rajasthan. The village’s northern section is held by plants such as
Hindustan Zinc Limited and several other Chemical Industrial Plants. The
emphasis in this case was made that such businessmen see these
opportunities which have the potential of causing pollution in the area as
ways to increase their profit margins by encouraging industrialization and
from exports.
• The fourth defendant Hindustan Agro Chemicals Limited in 1987, began manufacturing a
concentrated type of sulphuric acid called oleum together with a single super-phosphate,
that posed a serious threat to the inhabitants of that specific region. The true crisis
began when the fifth respondent TataSilver Chemicals began the manufacturing of ‘H’
acid within the very same compound as well, which was being produced for export
purposes majorly. The eighth respondent Jyoti chemicals was situated in another
compound which was producing ‘H’ acids mostly, along with several other toxic
chemicals. Various other chemical industries were also created for production fertilizers
as well as other such chemicals which were contributing in some or other way towards
pollution. All the defendants, in this case, were generating hazardous waste-discharge in
this specific region, 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.
• As per the submitted report which showed that there were about 2,500 tons of extremely
poisonous sludge being generated along with that approximately 375 tons of ‘H’ acid was
also being manufactured, which was intended solely for export purposes. Without any
proper treatment, all the waste products were being dumped into the village region.
• All such harmful materials polluted the soil, groundwater, and contaminated the
underground water stream. Over the years, these poisonous substances have rendered
all the wells as well as other sources of water extremely toxic and unfit for human
consumption. The water sources utilized for drinking, irrigating, feeding cattle, and other
such purposes, along with the soil fertility, which was the primary source of survival for
many residents, was getting impaired because of contamination. Pollution caused by
hazardous chemicals further leads to a variety of disorders, diseases, and deaths in the
village and neighboring regions.
• Even the Parliament has expressed concern over the severe damages
done to the earth, with the ministers being worried about the
environmental degradation of the area. They had ensured that
appropriate action would be taken but nothing transpired. Therefore, as
a consequence of this, there was a virtual protest by the inhabitants of
that region, which led to the district magistrate enforcing Section 144
of CrPC in the area and closing of these plants.
SECTION 144 IN THE CODE OF CRIMINAL
PROCEDURE, 1973
• Power to issue order in urgent cases of nuisance of apprehended danger.
• https://indiankanoon.org/doc/930621/
ISSUES

• Whether the industries involved in the manufacture of toxic chemicals

had taken any environmental protection measures?
• Whether the defendant would be legally responsible for paying the sum
of money required to carry out the necessary corrective actions?
ARGUMENTS (PETITIONERS)

• 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. The waste products which mostly are sludge was never adequately
treated and contributed to the development of air, soil, water pollution, and contamination of numerous other
environmental resources.

• This posed a significant danger to the nature of that region. It was further contended that because of the
respondents’ industrial plants, greater levels of pollution were being created in the surroundings of that
region and therefore the plants had to be closed down instantly. In addition, it was further asserted that,
firstly, manufacturing should be suspended until the waste is adequately treated so as not to cause any
damage to the environment and its resources.
• Moreover, the petitioner claimed that industries of nearly all of the respondents had requested for a ‘No
Objection Certificate’ regarding the manufacture of these hazardous chemicals and was refused and
dismissed by the authorities which itself is a piece of evidence as it shows as to how the manufacture of such
chemicals would only lead to environmental degradation of the neighboring area in numerous ways.
ARGUMENTS (RESPONDENTS)

• For the purpose of counter-arguments, the defendants filed a counter-affidavit to

sustain their statements. The assertions presented by them were:
• 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. The permission was given by the
board, but with some terms and conditions. In response, the Board further issued a
‘No- Objection Certificate’ under the Water [Pollution Prevention and Control] Act,
1974 and Air (Pollution Prevention and Control Act) Act, 1981, which was again
conditional in nature. 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.
ANALYSIS OF PPP

• In this case, the Principle of “Polluter Pays” was expressly implemented, as the Court ruled that,
under Section 3 and Section 5 of the Environment (Protection) Act, 1986, the Court has the authority
to undertake steps to put such a rule into effect. It was introduced under Principle 16 of the Rio
Summit of 1992 which specified that the polluter must principally pay for the pollution charges.
• This principle in the Indian context was a result of the continued evolution of the ‘absolute liability’
principle which was set down in the M.C. Mehta v. Union of India case, in which the 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. The concept
developed further with the case of Indian Council for Environment-Legal Action v. Union of India
(UOI) and Ors, in which the Court also included accountability, remuneration to the people affected
from the environmental deterioration with the absolute liability rule for the damage caused to the
environment of the region.
• There is also a debate about whether only a civil action against the
polluter is satisfactory or whether there is a necessity to make the
polluters criminally liable as well. The provisions of Sections
268 and 290 of the Indian Penal Code were already being utilized to
declare the accused criminally responsible for public nuisance in
relation to environmental disturbance. Following the Stockholm
Declaration, the Water Pollution Prevention and Control Act of 1974,
and the Air Pollution Prevention and Control Act of 1981 contain the
provisions for the initiation of criminal proceedings against such
polluters.
JUDGEMENT

• Upon considering the facts and findings of this case, Judges ruled that the
industries will have to deposit the penalty, as ordered by the Court vide its
judgment dated 11 April 1997, along with compound interest. Since 11
April 1997, the respondent industries have intentionally failed to comply
with the court’s directions. A significant amount of residents have already
been seriously impacted as there have so far been no effective corrective
measures taken. The respondent industries have accomplished in their
strategy with respect to refusing to comply with the decision of the court
by maintaining the case going on for more than fifteen years by submitting
interlocutory requests that were absolute without any substance and
therefore, were subsequently rejected with costs.
• As a result, following 11 April 1997, the respondent industries were ordered to pay
Rs. 37,385,000 INR together with a compound interest of 12 percent per annum
until the sum would have been fully paid or compensated. In addition to this, 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 nearly fifteen
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
performing corrective actions around the Bichhri village and neighbouring regions
within the Udaipur district, Rajasthan, India.
• The court implemented the concept of polluters pay, which implies, as
per the court, that if an activity carried out, is of a harmful nature,
then the individuals conducting these very activities will be required to
compensate to make up for the damage caused to any other person
irrespective of whether appropriate precautionary measures were taken
or not while carrying out such an activity
INDIA AND ITS IMPLEMENTATION OF THE PPP

• Statutory Provisions

• Article 48A and 51A of the Constitution of India comprise of the constitutional mandate to protect
and improve the environment.

• Article 48(A): Protection and improvement of environment and safeguarding of forests and wild life. -
The State shall endeavour 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.
• There are several enactments that protect the deal with the subject matter i.e. The Water (Prevention
and Control of Pollution) Act, 1974, The Air (Prevention and Control of Pollution) Act, 1981 and the
Environment Protection Act 1986. These Acts prohibit the disposal of polluting matters in their
respective bodies.

• The Water Act provides for the constitution of the Central Pollution Control Board and the State
Pollution Control Boards by various State Governments and the restriction on discharging effluents
without obtaining the consent from the Board. Prosecution and penalties have been provided which
include sentence of imprisonment.
• The Air Act also provides for the Central Pollution Control Board and the State Pollution Control
Boards to perform the powers and functions under this Act as well. The Boards aim to improve the
quality of the air and to prevent, control and abate air pollution in the country.
• The Public Liability Insurance Act of 1991 entails a mandatory duty of all the industries to get an
insurance which is collected under the ‘Environment Relief Fund’ which shall be made payable to the
victims, by way of relief, of industrial accidents or disasters. This relief will not be a bar to file a case
for compensation separation. Similarly, The National Environmental Tribunal Act, 1995 provides for
compensation to victims on the ground of any damage to the environment with such an amount being
remitted to the authority specified under section 7-A (3) of the Public Liability Insurance Act, 1991 for
being credited to the Environmental Relief Fund.
• Looking at the above mentioned constitutional and statutory provisions the polluter pays principle has
become a part of the environmental law of the country.

• Even if it is not so the PPP has become a part of Customary International Law. As such there should
be no difficulty in accepting it as a part of the domestic law of the country. It is an accepted
proposition that if Customary International Law is not contrary to the municipal law then it is deemed
to be incorporated in to the domestic law and shall be followed by the Courts of Law. To support this
reference can be taken from Justice H.R. Khanna's opinion in Addl. Distt. Magistrate Jabalpur v.
Shivakant Shukla, the Jolly George Varghese's case, or the Gramophone Company's case.
THE SUPREME COURT

• The PPP has been incorporated as part of Indian Environmental Law regime through the various
judgments by the Indian judiciary.

• The PPP originally an international environmental law principle has been an integral part of the
decisions made by the National Green Tribunal of India in the past decade. However, in the previous
decades this principle was still present in the cases heard before the High Courts and Supreme Courts.
Through a special kind of writ petition called ‘Public Interest Litigation (PIL)’ cases were filed before
the High Courts and Supreme Court dealing with matters of environmental pollution, maintenance of
heritage and culture, forest, wildlife and other matters of public importance.
• The development of PIL in India brought forth the interpretation of the right to life to also include the
right to a healthy environment. With this international environmental law principles were included
within judicial decisions.

• In the year 1986 the Supreme Court of India inexplicitly applied the PPP in the case of M.C. Mehta v.
Union of India. The significance of the judgment lies in the Court’s formulation of a principle which
measures the liability of the industry engaging in ‘hazardous or inherently dangerous activities’. Such
measure must be correlated to the magnitude and capacity of the enterprise. The Court came up with
an innovative remedy for the Oleum Gas Leak which was the indirect recognition and application of
the PPP.
• The PPP was first explicitly applied in the case of Indian Council for Enviro-Legal Action v. Union of
India, where the Court declared that the polluter is liable to pay the cost of the individual sufferers as
well as the cost for the damaged environment and the cost for reversing it back. In this case, there was a
discharge of toxic sludge into the open compound which flowed through a canal across an entire area
causing the river water and underground water to get contaminated affecting the nearby village of
Bicchari. This also led to the infertility of the nearby fields due to which a mass migration subsequently
took place. The Court while delivering its judgment kept in mid the simpleness and practicality of the
principle while also looking at the widespread havoc that had been created by hazardous and inherently
dangerous activities. The Principle aims to hold such persons or institutions liable for activities.
• The aim of the Court was to compensate the victims for the losses caused by the pollution and also
restore the environment to its earlier state. Such a judgment is seen to have been part of a process of
‘sustainable development’.

• The Supreme Court in the case of Vellore Citizens Welfare Forum v. Union of India reiterated and
declared in unequivocal terms that both the precautionary principle and the polluter pays principle are
part of the Indian Environmental Jurisprudence. These principles are accepted as part of our law of
the land under Articles 21, 48-A and 51-A(g) of the Constitution of India as part of our duty to
protect and improve the environment and also protection of life and personal liberty.
THE NATIONAL GREEN TRIBUNAL

• A pursuant development was that of the establishment of the National Green Tribunal (NGT) under
the NGT Act, 2010. Under Section 16 of the NGT Act the NGT has jurisdiction over all civil cases
with a substantial question relating to the environment. Therefore, the NGT has jurisdiction over cases
that pertain to the Air Act, 1981, the Water Act, 1974, the Forest Act, 1927, the Environment
Protection Act, the Biological Diversity Act, 2002 and the Public Liability Insurance Act, 1991.

• Section 20 of the NGT Act states, “the Tribunal shall, while passing any order or decision or award,
apply the principles of sustainable development, the precautionary principle and the polluter pays
principle.”
• In the case of Hindustan Coca Cola Beverages Pvt. Ltd v. West Bengal Pollution Control Board, a stringent
application of the PPP was seen against one of the biggest bottling and beverage company in India where the
NGT held that a “polluting industry” must bear the costs for abatement of the pollution and they were
“bound to compensate”. The NGT held that the costs of damage and reparation are to be given to the West
Bengal Pollution Control Board and that the WBPCB would carry out the restoration of the environment.
The NGT has in several judgments dealt with this Principle and its implementation in India.
• The NGT in a case regarding water pollution in the river Yamuna ordered every household to pay a minimum
environment compensation amount of INR 100, with the charge to be directly proportional to the water bill
or the property tax paid by the household. This distorts the PPP as it has the citizens bear the burden of
restoring the environment with no clear link between the “payer” and the pollution. This case diluted the
difference between a tax and the PPP making it problematic. Even without the judicial decisions it can be
seen that there have been statutory regulations binding the PPP in India.
DRAWBACKS OF THE PPP IN INDIA

• The PPP can be inconsistent with the principle of inter-generational equity. This principle implies that as a species, humans
must share the environment with past, present and future members of the species, while also being beneficiaries, entitled to
its use in the present. The Supreme Court in the case of Enviro-Legal Action v. Union of India, held that the Parliament
had enacted laws against pollution such as the Environment Protection Act, 1986 in order to “protect and preserve the
environment and save it for the future generations.” The NGT is bound by the Supreme Court’s inclusion of this principle
of inter-generational equity. However, an inconsistency between this principle and the PPP is possible. Reducing
environmental damage, harm to human health and loss of biodiversity, almost all of which are irreparable and cannot be
restored to their original state, leads to a compromise on the principle of intergenerational equity. By awarding monetary
compensation at the present, we do not account for the costs of degradation which are imposed on future generations, and
whether monetary damages can sufficiently restore the damage at all. In the absence of strong enforcement mechanisms
complementing environmental legislation, the PPP is capable merely of reducing the award to an operational cost within the
revenue model of most polluting industries.
• A problematic feature of the PPP in India is the frequency with which it is applied against government
bodies. When municipal authorities or boards or Ministries are complicit in acts of pollution, either by
omission or commission of pollution, the damages that they pay under the ambit of the PPP are
essentially costs that are born by the Exchequer, and therefore funded by taxes paid by citizens. When
citizens receive these awards, if they are being paid by the State, then they are in essence, compensating
themselves, subverting the entire purpose of the principle. Therefore, it is necessary for the NGT to
increasingly impose personal liability on errant officers of the government who have contributed to acts
of pollution, instead of deriving this amount from the State coffers.
• Another drawback, particularly in developing countries, is that the PPP has emerged in a form which is
focused more on compensating victims of environmental tragedy than restoration of the ecology. Since
these incidents involve an urgent need for monetary compensation, the principle is used to ensure
compensation to victims. Typically, in the wake of an environmental mishap, the urgency of the
circumstances drive government authorities to provide compensation to the affected parties for actions
of private parties; the State then acts in subrogation against the polluters recovering costs through
different means like withdrawing permits required for operation of the polluter.
• Although the PPP has helped to mitigate the damage being caused to the environment to some extent,
the provision remains an inadequate remedy as ambiguity persists regarding clear identification of the
actual 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. The polluter may a part of the "production chain" and it is difficult
to impose the liability on such polluter when the courts consider the parameters of extent and
contribution of causing pollution.
• Moreover, under this principle, the amount of compensation to be charged for the restoration of the
damage caused to the environment remains to be inadequate in comparison to the loss actually caused.
More effective and unambiguous provisions with regards to the implementation of the PPP would
prove to be beneficial. All of these problems make it difficult to implement the PPP as a guideline for
environmental policy in developing countries.
CONCLUSION

• Though the PPP is a legally well recognized principle both internationally and domestically its
recognition is still very weak. The International Courts are not able to apply it easily as the content of
the principle is still not uniform and static, with different interpretations making the application of it
difficult in Courts. Within the Indian context, though the role of the Supreme Court has been
phenomenal in applying this principle, a lack of statutory laws makes the situation ambiguous and
thereby creating a massive loophole. There is a need to address these concerns by making legal
recognition of the principle more concrete, both internationally and domestically.