POLLUTER PAYS PRINCIPLE – A STRINGENT JURISPRUDENCE TOWARDS SUSTAINABLE ENVIRONMENT

  

“The Earth is what we all have in common.”

Mr. Wendell Berry, Environmental Activist

INTRODUCTION:

The bond between environment and human beings portrays an unequivocal answer to the interdependence for survival. The Polluter Pays Principle (hereinafter “the Principle”) as heard often these days is embraced as an effective measure towards articulating the maturity on conservation and development of environment. The theory was first inducted in the Magna Carta of environment or also referred to as the Stockholm Declaration which was passed in the United Nations Convention on Human Environment in 1972. However, the Principle came to be legally and internationally recognised as a substantive law only under the Rio Declaration, 1992.

POLLUTER PAYS – THE MANDATE:

The conduct of human beings perhaps credit the greatest threat to the environment. The sanctity of environment cannot be compromised due to the evolution of society. The ‘polluter pays’ principle is envisaged as an integral part of environmental development aimed at bestowing onus on the person who happens to be the cause in polluting environment. The Principle enforces dual liability on the person who has caused environmental pollution in any manner whatsoever. In the past, there indeed had been a lacuna between the intention of the legislator and establishing the liability of a person who pollutes environment. Between the policies and jurisdiction of the Indian Courts, a contravener often used the lacuna to evade the law and escape liability. The Principle envisages that the polluter is not only liable to pay compensation to the aggrieved victims of environment pollution but also to reinstate the environment to its original condition. The Principle being stringent in nature sends out the mandate to every individual elucidating social responsibility to conserve environment or face the law. The Principle is embedded as a precautionary measure so as to negate the environmental damage at its source. The rationale of the Principle can be traced back during the 1970’s, wherein the term ‘Versoge prinzip’ was used in Germany’s industrial sector which signifies ‘foresight principle’, mandating pre-requisite measures to be taken to avert disaster. The essence of the Principle can be seen in its curative approach inter alia to take remedial action aimed at conserving and enhancing environment rather than to only fix the fault on the person who pollutes the environment.

THE PRINCIPLE IN INDIAN LANDSCAPE AND CONTEMPORARY APPLICATION:

Section 20 of the National Green Tribunal Act, 2010 empowers the National Green Tribunal to pass necessary orders and make necessary decisions subject to the application of the principles of sustainable development, the precautionary principle and the polluter pays principle. Article 48A of the Indian Constitution elucidates that the States are mandated and obliged to protect and enhance the condition of environment. Further Article 51A(g) stipulates that it shall be the fundamental responsibility of every citizen to value, protect and improve the condition of the environment. The Apex Court in the case of A.P. Pollution Control Board v. Prof. M. V. Nayudu (Retd.) & Ors. opined that since the Principle is inherent in the law of the land, the judiciary holds no restraint to indicate that the Polluter Pays Principle indeed is fundamental and forms part of the environment laws in India. It is pertinent to understand that the Principle is also well accepted and articulated in international law and unless the Principle mechanically demonstrates the contrary to values enshrined in the law of land, the Principle is deemed to be a part of domestic law as well. The Principle found prominence in the case of Vellore Citizens Welfare Forum vs Union of India wherein the Apex Court contemplated that the Polluter Pays Principle stipulates that the absolute liability for deterioration to the environment extends not to only to compensate the victims of pollution but also includes the imposition of cost for restoring the environment. It is a well settled fact that the compensation paid for polluting the environment does not negate the gravity of offence contravened and includes the direct cost to the environment and the people ,the same was upheld by the National Green Tribunal in Saloni Ailawadi v. Volkswagen India (P) Ltd.

·  It is imperative to recognise that the National Green Tribunal (“NGT”) between January 2019 and April 2019, imposed penalties around Rs. 873 crores by invoking the Polluter Pays Principle whereas during the entire year 2018, the quantum of penalty stood at Rs. 477 crores. Slapping huge penalties by invoking the Principle has sent out a strong message to restrain the individuals / industries to deviate from undertaking activities that would degrade the standard of environment.

·   In 2019, the NGT slapped a penalty of Rs. 500 crores on the automobile manufacturer Volkswagen for violating the principles of sustainable development by invoking the Principle.

·    The deadly Vizag Gas leak case that transpired recently also witnessed the NGT invoking the Polluter Pays Principle to direct LG Polymers i.e. contravener to deposit Rs. 50 crores for restoration of environment after a deadly gas leak in one of its plant.

·       The NGT in an air pollution case, imposed a whooping combined penalty of Rs. 286 crores on four distinctive entities by invoking the Principle.

·      The Madras High Court by invoking the Polluter Pays Principle barred Vedanta Limited to open its Sterlite plant which polluted the environment.

·    The NGT in a recent order by the virtue of extended responsibility casted by the Principle sternly opined to the Central Pollution Control Board to undertake environmental audit against the e-commerce giants viz. Amazon and Flipkart for using excessive plastic packaging material.

ENDING REMARKS:

Though the monetary sanctions levelled against the contraveners by involving the Polluter Pays Principle have proven effective towards curbing acts that result in environmental degradation, yet the challenge remains to identify the individuals / industrialist who contribute to such degradation in the vast supply chain. The judiciary is rigorously making application of the Principle to instil the intention of legislation to conserve environment in the minds of the polluters. Going forward, the application of the Principle will be crucial considering the re-opening of industries post the lockdown caused by pandemic and the Principle is expected to banish the conduct of environmental degradation and promote environmental responsibility!

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