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Vellore Citizens Welfare Forum v. Union of India and Others

 

 

 

 

 

 

Submitted By: Divij Joshi,

1st Year B.A. LL.B (Hons.) 1st Trimester


Table Of Contents

 

Introduction……………………………………………..…………………………………….3

Research Methodology……………………………………………………………………….4

Chapter 1: Background of the case, summary of the order and issues before the court….…..6

Chapter 2: Analysis of the judgement and the issues involved……………………………….7

Chapter 3: Precedent set by the Vellore Tanneries case and the evolution of Environmental Jurisprudence in India……………………………………………..…15

Conclusion……………………………………………………………………………………17

Bibliography………………………………………………………………………….………18

 

 

 

 

 

 

 


 

Introduction

Vellore Citizens Welfare Forum v. Union of India & others is considered a landmark case in environmental jurisprudence in India.[1] The reasons for this are many and varied, and the researcher hopes to analyse the same in the course of this research paper. In the case, the petitioner filed a PIL against indiscriminate polluting by industries in and around the state of Tamil Nadu, causing harm to individuals as well as to the environment.

In the Vellore Citizens’ case, the Indian judiciary for the first time brought the concept of sustainable development into the ambit of Indian Law. It propounded that some of the features of sustainable development, like ‘polluter pays’ and ‘precautionary principle’ were implicit within Customary International Law and also within the Indian constitution. This paper shall delve into these theories in depth, and also look into the reasons for this proposition, and analyse the precision of the same.

The paper shall also analyse the laws and theories applied in the judgement, and whether they were applied correctly. It shall discuss whether precedents set earlier by the courts were followed in this judgement.

The paper shall also look into the precedent set by the Vellore Citizens’ case, and the evolution of environmental jurisprudence in India, before and after the case.

 

 

 

 

 

Research Methodology

 

Aims & Objectives

in this paper the researcher has made an in-depth analysis of the Vellore Tanneries Case, as well as of the principles applied in the judgement. The researcher has also given a background of environmental jurisprudence before and after the case, and how the concept of environmental jurisprudence has evolved in international and domestic law.
Scope & Limitation

The scope of this project is within the evolution of environmental jurisprudence in international and domestic law. It details the evolution of the principles of sustainable development in law. However, the concept of sustainable development being a fairly recent one, the researcher has been limited by lack of historical authorities on the subject.

Research questions

In this paper, the researcher has attempted to answer the following questions:

  • What was the background of the theory of sustainable development and the principles involved in it, which were applied in the judgement?
  • Was it prudent to apply these principles given the facts of the scenario and considering Indian law?
  • What was the precedent set by the court in Vellore Tanneries Case and has it been followed?

Mode of citation

The uniform mode of citation in the standard form of NLS citation

 

 

 

 

Chapter one: Background of the case, Summary of the order and issues before the court

 

Background of the case

An NGO by the name of Vellore Citizens Welfare Forum filed a petition – a Public Interest Litigation (PIL) – under Article 32 of the Constitution of India which guarantees the Right to move the Supreme Court by appropriate proceedings for the enforcements of rights conferred by the constitution.[2] The petition was directed against the pollution which was caused due to discharge of enormous amounts of untreated effluents by tanneries and other industries in the state of Tamil Nadu, which led to the main source of potable water for consumption and irrigation, the Palar river, being polluted, and which consequently led to non-availability of clean water.

A report submitted to the Supreme Court noted that 176 chemicals were found in the tannery effluents and that nearly 35,000 hectares of land around the tannery belt and especially in some 59 villages in the districts of Vellore, Thiruvanthapur and Ranipat had been made unfit for cultivation. It was found that 350 out of 467 wells in the area were unfit for consumption or irrigation. It also noted the non-compliance by the tanneries regarding the Government order to put up Common Effluent Treatment Plants (C.E.T.P’s) for the proper disposal of effluents. [3]

 

Summary of the order

The bench comprised of three judges, namely Justice Kuldip Singh, Justice Faizan Uddin and Justice K. Venkataswami. The salient points of the order by the Supreme Court are:

  • It ordered the Central Government to set up an authority under the Environmental Protection Act, which was to deal with the situation created by the tanneries and other polluting industries in the state of Tamil Nadu.
  • This authority was to implement the ‘precautionary principle’ and the ‘polluter pays principle’, and was to identify the loss to the environment and to the individuals/families who suffered because of the pollution, and to assess the amount of compensation to be recovered from the polluters both for reversing the ecology and for payment to individuals.
  • It directed the closure of all tanneries which failed to comply with the Government order to set up individual or common Effluent Treatment Plants, within a given time frame.
  • Highly polluting industries were henceforth not allowed to set up in the prohibited areas.[4]

 

Issues before the court

In the above case, the main issues before the court were:

  • To what extent should environmental safety be compromised for economic development?
  • Has there been a violation of the Right to Wholesome Environment, guaranteed under Article 21 of the constitution?
  • What is the liability of the industrialists or polluter towards the environment and the people affected by pollution?
  • Are the principles such as ‘polluter pays’ and ‘precautionary principle’, which are features implicit in Sustainable Development, within the ambit of Indian Law?

 

 

Chapter two: analysis of the judgement and the principles involved

 

Critical analysis of the judgement and the principles involved in it

The researcher believes that Vellore Citizens Welfare Forum v. Union of India and others was a landmark judgement in that it was the first time that the Supreme Court took the concept of sustainable development into the purview of the law and also held that the ‘polluter pays principle’ and the ‘precautionary principle’ were within the ambit of the law of the land. [5]

Sustainable Development

The concept of sustainable development is not a new one. The first major cohesive argument on environment vs. development was at the United Nations Conference on the Human Environment, 1972, also known as the Stockholm Convention.[6] The conference included both developed and developing countries and was a major step towards recognising the protection of the environment as an issue of international concern. The Stockholm Declaration was regarded as an advisory statement of purpose, called soft law which, though not binding, could be influential in establishing good practice standards.[7] The Stockholm Convention also resulted in several amendments to the Indian constitution, which introduced articles 48A and 51(g)A.[8]

A proper definition of sustainable development was given by the Brundtland Report, also known as ‘Our Common Future’, which defined sustainable development as ‘development that meets the needs of the present without compromising the ability of the future generations to meet their own needs’[9] The Earth Summit of 1992 in Rio was another important development towards reaching an international consensus on the issues pertaining to sustainable development and the environment. The Rio summit signalled the emergence of a proper system of international environmental law.[10] The fact that nations around the world cohesively agreed to certain standards regarding sustainable development shows the importance of these conferences in establishing international environmental law.

However, there are various problems faced by developing and less-developed nations such as India when challenged with sustainable development. The challenge is whether the economic development of such countries should be compromised for environmental protection, and whether their development should be restricted for the ‘common good’.[11]

The court in Vellore Citizens held that the traditional concept that development and ecology are contradictory to each other was no longer accepted, it went on to say that sustainable development as had been defined in various international conferences had been accepted as Customary International Law, and held that the rules of international law not contrary to municipal law shall be deemed to be incorporated into domestic law.[12] To support this point the court referred to the cases Gramophone Company of India Lt v Birendra Bahadur Pandey and Others[13] and Jolly George Varghese and Another v Bank of Cochin.[14] In both these cases, it was held that’… the rules and requirements of international law may be accommodated into municipal law even without express legislative consent’[15]

The court also held that the ‘polluter pays principle’ and ‘precautionary principle’ are essential features of the concept of sustainable development, as under the Brundtland Report.

Polluter Pays Principle

The ‘Polluter Pays’ principle was first expounded by the Organization for Economic Co-Operation and Development (OECD), in its recommendation for guiding principles concerning international economic aspects of environmental policies,[16] where it stated that the cost of environmental degradation should be taken into account by industries, and that the polluter should bear the cost of carrying out measures as stated by public authorities in order to ensure that the environment is in a suitable state.[17] This principle was further expounded in the Brundtland Report.

In simple terms, the principle imposes the cost of pollution abetment on the polluters and holds them absolutely liable for the pollution, rather than the government. This ensures that economic development does not come at the cost of environmental degradation.[18]
In the Vellore Citizens’ Case the court noted that the ‘polluter pays principle’ had been held to be a sound principle by the Supreme Court in the case Indian Council for Enviro-Legal Action and Others v. Union of India and Others,[19](Bicchri case) where it was held that the polluter is absolutely liable towards any harm caused to another due to an activity which is hazardous or inherently dangerous, and must make good the loss caused to any person affected by this activity, irrespective of whether that the polluter took reasonable care and precautions while engaging in the activity.[20] In fact, in the Vellore Tanneries Case, the court did not just uphold the precedent set by the Bicchri case but also interpreted this principle to include not only compensation of victims affected by pollution, but also the cost of restoring the environmental degradation caused by the polluter and noted that remediation of the environment is part of the process of sustainable development.[21] Previously, the liability of restoring the damage caused by industrialisation was with the government, but in the light of this principle, the Government’s liability to bear the costs has been shifted to the polluter himself, along with the liability to compensate the injured party.[22]

Precautionary principle

Another important principle in the concept of sustainable development is the ‘precautionary principle’. The precautionary principle in environmental law originated first in Germany in the 1970’s, where the legislation noted that if there is a high possibility of risk of harmful events occurring, then preventive measures must be ordered.  The precautionary principle then emerged in international legal instruments in the mid-1980’s, in various conferences, etc.[23] The core of this legal principle is reflected in Principle 15 of the Rio Declaration, which provides inter alia that ‘…where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing measures to prevent environmental degradation’[24] [25]

The ‘Precautionary Principle’ has also been recognised as a general principle of law in many nations.[26] For example, in an Australian case, Leatch v. National Parks,[27] concerning licence to kill endangered fauna, the precautionary principle was applied to interpret a domestic statute and this licence was cancelled.[28]

In the Vellore Tanneries Case, the Supreme Court for the first time introduced the principle of the ‘precautionary principle’ in Indian jurisprudence, and laid down the salient features of the precautionary principle in Indian law. The Court held that:

  1. The State Government and the statutory bodies must anticipate, prevent and attack the causes of environmental degradation,
  2. Scientific uncertainty should not be used as a reason for postponing measures to prevent environmental degradation, and
  3. The “Onus of proof” is on the actor, to show that his actions are environmentally benign.[29]

 

 

Application of these principles as part of the law and interpretation of their use in the judgement

The court held that these principles as part of the principle of sustainable development were implicit in the law of the land and noted that they were within the ambit of the Constitution of India, under the following:

  1. Article 21, which guarantees the right to life and liberty,[30]
  2. Article 47, which says that the state has a duty to raise the standard of living and to improve public health,[31]
  3. Article 48(A) which guarantees the protection and improvement of the environment,[32] and
  4. Article 51A(g) which imposes a duty upon every citizen to protect and improve the environment[33]

It also noted that these principles were implicit under various statutory provisions such as the Water (Prevention and Control of Pollution) Act, 1974 (the Water Act),[34] The Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) [35]and the Environment Protection Act 1986 (the Environment Act).[36]

Further, the court said that as these principles were accepted under Customary International Law, there would be no difficulty accepting them under the domestic law as well.

In the interpretation of the judgement, the researcher would like to put forth some questions and arguments which are as stated below:

  • Are the principles of sustainable development implicit in Article 21 of the Constitution of India?

Article 21 of the Constitution of India has been a fountain source of environmental jurisprudence in India. The Judiciary in India has used the expanse of article 21 rights as a protective umbrella against the efforts that tend to threaten the environment and its existence. There are a score of cases that show the emergence and evolution the new environmental law jurisprudence, and one of the noticeable points has been the use and adoption of new doctrinal and innovative tools by the judiciary to further the cause of environmental protection.[37] Article 21 was interpreted to include the ‘right to a healthy environment free from hazardous pollutants’ in Charan Lal Sahu v. Union of India.[38] And in the Subhash Kumar case [39]it went on to include the right to pollution-free water and air. In M.C. Mehta v. Union of India, the court compelled statutory authorities to take measures to improve the environment.[40] The researcher hence concludes that in the Vellore Tanneries case, the Supreme Court followed precedents in interpreting Article 21, and also Article 47, Article 48A and Article 51(g)A of the Constitution to include the principles of sustainable development.

  • Are ‘polluter pays’ and ‘precautionary’ principles a part of Customary International Law?

Customary International Law is that part of international law which derives from custom

The Supreme Court in Vellore Tanneries Case held that as the ‘polluter pays’ and ‘precautionary’ principles were part of customary international law, they could be easily incorporated into municipal law.[41] The court supported this argument by citing three cases, namely Addl. Distt. Magistrate Jabalpur v Shivkant Shukla[42], Jolly George Varghese’s case[43]  and Gramophone Company’s case.[44]

However, the researcher believes that it is erroneous to conclude that these principles are customary norms of international law. The question arises whether the mere presence of the principles in some instruments of international law is enough to give it the status of customary international law.[45] In the absence of a common consensus among nations, the principles mentioned cannot be termed as part of customary international law.[46] Many legal scholars such as Lawrence Susskind have expressly declared that the precautionary principle and polluter pays principle are not a part of Customary International Law.[47] [48]

These principles hence stand on weak foundations, mainly because their salient features have not as yet been finalised by international law jurists.[49]

  • Arguments against the application of ‘polluter pays’

In the Vellore Tanneries Case, we have seen the application of the principle of polluter pays, to impose absolute liability on the tanneries (polluters) to not only compensate the victims of pollution but also to bear the cost of environmental restoration.

In this, the court supported its argument by citing the Bicchri Case, where hazardous industries were held to be absolutely liable to the damage caused by them to others.[50]

The fallacy the researcher sees in this is that in the Bicchri Case, the court imposed absolute liability on those industries which were deemed hazardous, whereas in the Vellore Tanneries Case, the ‘polluter pays principle’ applies whenever an industry pollutes land, water or air, irrespective of whether it is hazardous or not. According to this principle, in India a polluting industrialist would have no defences available to him.[51]

  • Arguments against the application of ‘precautionary principle’

In the Vellore Tanneries case, the court has accepted the precautionary principle as part of Indian law, and held that ‘Scientific uncertainty should not be used as a reason for postponing measures to prevent environmental degradation.’[52] However, the researcher would like to point out that in this case, the damage to water resources was scientifically established, and hence the application of this principle was inappropriate.[53]

Also, in the judgement, the court has only imposed a duty to ‘prevent, anticipate and attack the causes of environmental degradation’ upon the State Governments and statutory bodies. However, no such duty has been imposed on the Central Government, which plays an integral part in environmental protection in India.[54]

 

Chapter 3: Precedent set by the Vellore Tanneries Case and the evolution of Environmental Jurisprudence in India

The court in the Vellore Tanneries case was one of the first to interpret the principles of sustainable development and bring it into the ambit of Indian law. Hence, it set a crucially important precedent for environmental jurisprudence in India.

The concept of sustainable development has evolved considerably in Indian jurisprudence, and environmental protection has been integrated in the Indian legislature and Indian environmental jurisprudence, since the Vellore Tanneries case.

The principles of ‘polluter pays’ and ‘precautionary principle’ as expounded in Vellore Tanneries have widely been accepted as part of Indian law, and have been interpreted by the court in different ways to further the cause of environmental protection. The following are some of the cases in which the precedent set by the court in Vellore Citizens has been relied upon:

  • M.C. Mehta v. Kamal Nath and ors.[55]

In the above judgement, the petition was filed, wherein the legality of construction work by a Motel Chain (Span Motels) was questioned. In this case, the bench applied the ‘precautionary principle’ and the ‘polluter pays principle’ as expounded by the court in the Vellore Tanneries case, and ordered the guilty party to pay damages and fines for the restoration of environmental damage. The court also noted that ‘The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use’[56]

  • A.P. Pollution Control Board v. Prof. M.V. Nayadu (Retd.) and ors.[57]

The court in this case relied upon the ‘precautionary principle’, and clarified the rather ambiguous definition from the Vellore Tanneries Case, and referred to scientific uncertainty as the basis for the precautionary principle.

  • Bombay Cotton Mills Case[58]

In this case, the court relied on the principle of sustainable development as mentioned in Vellore Tanneries case and held that a balance should be struck between the ecology and development, in view of public interest.

  • Narmada Bachao Andolan v. Union of India and Ors.[59]

In the above judgement, it was held that the construction of a dam on the Narmada River would not have dire environmental consequences, and hence the ‘precautionary principle’ in this case would not apply.

 

Hence, we can see that the concept of sustainable development has considerably evolved, since it was first expounded in the Vellore Tanneries case.

 

 

Conclusion

Sustainable development is the theory that ecological conservation and development must coexist, and that the environment must not be compromised for development.

This theory was has been historically accepted in the general law of many states, and it came on to the international arena with the Stockholm Declaration of 1972. In India, Vellore Citizens Welfare Forum v. Union of India was one of the first cases to bring this theory into the ambit of domestic law.

In this research paper, the researcher has analysed the various aspects of this case, and how it has affected environmental jurisprudence in India. In the first chapter, the researcher has looked at the background of the case and the order given by the court, and has also set forth the issues present before the court in this case.

In the subsequent chapter, the researcher has critically analysed the judgement and the principles based on sustainable development which it expounded. The researcher has also looked at the history of the development of these theories.

In the final chapter the researcher has shown how the precedent set by the court in the Vellore Tanneries case has been followed, and how the courts have interpreted it.

The researcher would like to conclude by saying that in Vellore Tanneries case, the Indian judiciary for the first time looked at sustainable development as an integral part of the law of the land, and set an important precedent by holding that the environment could not be compromised at the cost of development.

 

 

Bibliography

Books

  • Revez, Sands and Stewart, Environmental law, the Economy and Sustainable Development
  • A.Rosencranz, Environmental Law and policy in India
  • Lawrence Susskind, Environmental Diplomacy: Negotiating more effective Global Agreements

Journals

  • The Student Advocate
  • Apex Court Expressions
  • Denver Journal of International Law and Policy
  • Colorado Journal of International Law and Policy
  • Journal of Planning and Environmental Law

Cases[60]

Indian:

  • A.P. Pollution Control Board v. Prof. M.V. Nayadu (Retd.) and ors., AIR 1999 SC 812
  • Addl. Distt. Magistrate Jabalpur v. Shivkant Shukla
  • Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental Action Group and Ors. AIR 2006 SC 1489
  • Charan Lal Sahu v. Union of India, AIR 1990 SC 1480
  • Gramophone Company of India Lt v Birendra Bahadur Pandey and Others, 1984, AIR (SC) 667 (Supreme Court)
  • Indian Council For Enviro-Legal Action and Others v. Union of India and Others, AIR 1996 SC 1446, (Supreme Court)
  • Jolly George Varghese and Another v Bank of Cochin, 1980 AIR (SC) 470 (Supreme Court)
  • M.C Mehta v. Kamal Nath and ors., (1997) 1SCC 388
  • M.C. Mehta v. Union of India,  AIR 1991 SC 813
  • Narmada Bachao Andolan v. Union of India and ors., AIR 2000 SC 3751
  • Subhash Kumar v. Union of India, AIR 1991 SC 420
  • Vellore Citizens’ Welfare Forum v. Union of India and others, AIR 1996 SC 2715

 

Australian

  • Leatch v. National Parks and Wildlife Service and Shoalhaven City Council, (1993) 81, LGERA 270

 


[1] Vellore Citizens’ Welfare Forum v. Union of India and others, AIR 1996 SC 2715, (Supreme Court of India)

[2]Article 32, The Constitution of India, 1950

[3] Vellore Tanneries Case, AIR 1996 SC 2715

[4] Vellore Tanneries Case, AIR 1996 SC 2715

[5] Vellore Tanneries Case, AIR 1996 SC 2715

[6]United Nations Environmental Programme, Integrating environment and development, Global Environmental Outlook 3 available at www.unep.org/geo/geo3/pdfs/Chapter1.pdf

[7]Ujjwala Parikh, International Law and Sustainable development, available at jurisonline.in/2010/10/international-law-and-sustainable-development

[8]163rd Report of the Law Commission of India, proposal to constitute environmental courts, 2003

[9]UNEP, ‘Our Common Future’, A/42/442 Annex

[10]Mellisa Clack, International Law and sustainable development, 32(03), Denver journal of international law and policy,145

[11] Ursula Kuttlewell, The answer to global pollution,  3, Colorado journal of international law and policy, 452,

[12] Vellore Tanneries Case, AIR 1996 SC 2715

[13] Gramophone Company of India Lt v Birendra Bahadur Pandey and Others, 1984, AIR (SC) 667 (Supreme Court)

[14] Jolly George Varghese and Another v Bank of Cochin, 1980 AIR (SC) 470 (Supreme Court)

[15] Gramophone Company Case, 1984, AIR (SC) 667 (Supreme Court)

[16] OECD, ‘Guiding Principles Concerning International Economic Aspects of Environmental Policies’, Council Recommendation C(72)128, Paris, 26 May 1972.

[17] id

[18] Supra note 10, at 430

[19] Indian Council For Enviro-Legal Action and Others v. Union of India and Others, AIR 1996 SC 1446, (Supreme Court)

[20] Bicchri Case, AIR 1996 SC 1446

[21] Vellore Tanneries Case, AIR 1996 SC 2715

[22] Carolyn Hebourne, “Historic pollution – does the polluter pay?”, Journal Of planning and Environmental Law (1974)

[23] Wybe Th. Douma, The Precautionary Principle, available at www.estig.ipbeja.pt/~ac_direito/PrecautionaryPrinciple.pdf (10th August 2011)

[24] Revez, Sands and Stewart, Environmental law, the Economy and Sustainable Development,376

[25] UNEP, Rio Summit Declaration

[26] Aravind B. , The Precautionary Principle+: An Analysis, 4,  Apex Court Expressions, 2003, J(35) , 2003

[27] Leatch v. National Parks and Wildlife Service and Shoalhaven City Council, (1993) 81, LGERA 270

[28] Supra note 24

[29] Vellore Tanneries Case, AIR 1996 SC 2715

[30] Article 21, Constitution of India, 1950

[31] Article 47, Constitution of India, 1950

[32] Article 48(A), Constitution of India, 1950

[33] Article 51G(A), Constitution of India, 1950

[34] Water (Prevention and Control of Pollution) Act, 1974

[35] The Air (Prevention and Control of Pollution) Act, 1981

[36] Environment Protection Act, 1986

[37] R.K. Pathak, Emergence of Environmental Jurisprudence in India, available at www.airwebworld.com/articles/index.php?article=1382

[38] Charan Lal Sahu v. Union of India, AIR 1990 SC 1480

[39] Subhash Kumar v. Union of India, AIR 1991 SC 420

[40] M.C. Mehta v. Union of India,  AIR 1991 SC 813

[41] Vellore Tanneries Case, AIR 1996 SC 2715

[42] Addl. Distt. Magistrate Jabalpur v. Shivkant Shukla

[43] Jolly George Varghese case, 1980 AIR (SC) 470

[44] Gramophone Company Case,  1984, AIR (SC) 667

[45] Shyel Trehan and Shuva Mandal, The polluter pays principle, 10, The Student Advocate, 1998, 69

[46] id

[47] Lawrence Susskind, Environmental Diplomacy: Negotiating More Effective  Global

Agreements, 1994

[48] R.E. Deloso, The precautionary principle, Lund University Journal, available at www.lumes.lu.se/database/alumni/04.05/theses/rabbi_deloso.pdf

[49] Supra note 45

[50] Bicchri Case, AIR 1996 SC 1446

[51] A.Rosencranz, Environmental Law and policy in India, 589

[52] Vellore Tanneries Case, AIR 1996 SC 2715

[53] Supra note 26

[54] Supra note 26

[55] M.C. Mehta v. Kamal Nath and ors., (1997) 1SCC 388

[56] M.C Mehta v. Kamal Nath and ors., (1997) 1SCC 388

[57] A.P. Pollution Control Board v. Prof. M.V. Nayadu (Retd.) and ors., AIR 1999 SC 812

[58]Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental Action Group and Ors. AIR 2006 SC 1489

[59] Narmada Bachao Andolan v. Union of India and ors., AIR 2000 SC 3751

 

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