Vellore Citizens' Welfare Forum v Union of India (1996)

This is the case of Module 2. In a single judgment the Supreme Court:

1. declared that sustainable development is part of customary international law;
2. held that the precautionary principle and the polluter pays principle are essential features of sustainable development and are part of the environmental law of India;
3. gave the precautionary principle a three-limb municipal-law definition, including a reversal of the burden of proof;
4. explained the route by which customary international law enters Indian law;
5. held that polluter pays covers both compensation to victims and the cost of restoring the environment; and
6. issued a set of directions — an authority under s. 3(3) of the Environment Act, a pollution fine, an Environment Protection Fund, and the constitution of a Green Bench in the High Court — which became the standard template of Indian environmental remedies.

Chapters 4, 5 and 6 all lead here. If you learn one case for Module 2, learn this one.

A public interest petition under Art. 32 by the Vellore Citizens' Welfare Forum against the pollution caused by the enormous discharge of untreated effluent by the tanneries and other industries in Tamil Nadu. The effluent went into agricultural fields, roadsides, waterways and open lands, and finally into the River Palar, the main source of water supply for the residents.

The scale of the harm, on the material before the Court:

• On a preliminary survey by the Tamil Nadu Agricultural University Research Centre, Vellore, "nearly 35,000 hectares of agricultural land in the tanneries belt has become either partially or totally unfit for cultivation".
• The tanneries use about "170 types of chemicals in the chrome tanning processes", including sodium chloride, lime, sodium sulphate, chromium sulphate, fat, liquor, ammonia and sulphuric acid, besides dyes. (The report prints chlorium with a sic marker.)
• "Nearly 35 litres of water is used for processing one kilogram of finished leather", so that enormous quantities of toxic effluent are let out in the open.
• An independent survey by Peace Members, an NGO, across 13 villages, found that "350 wells out of total of 467 used for drinking and irrigation purposes have been polluted". "Women and children have to walk miles to get drinking water."
• There were more than 900 tanneries operating in five districts of Tamil Nadu.

The Court accepted the economic importance of the industry without letting it decide the case: Tamil Nadu is "the leading exporter of finished leather accounting for approximately 80 per cent of the country's export", and the industry earns foreign exchange and provides employment — but "it has no right to destroy the ecology, degrade the environment and pose as a health-hazard", and "It cannot be permitted to expand or even to continue with the present production unless it tackles by itself the problem of pollution created by the said industry."

Then the sentence that opens the doctrine: "The traditional concept that development and ecology are opposed to each other is no longer acceptable."

The Court traced the concept in a passage that supplies almost the whole of chapter 4's chronology:

| Milestone | What the Court said it did | |---|---| | Stockholm Declaration 1972 | The concept "came to be known for the first time" | | Our Common Future, 1987 | The World Commission on Environment and Development gave it "a definite shape"; chaired by Ms G.H. Brundtland, then Prime Minister of Norway, hence the Brundtland Report | | Caring for the Earth, 1991 | The World Conservation Union, UNEP and the Worldwide Fund for Nature jointly produced "a strategy for sustainable living" | | Rio, June 1992 | The Earth Summit — two conventions signed, one on biological diversity and another on climate change, by 153 nations; and three non-binding documents approved by consensus, a Statement on Forestry Principles, a declaration of principles on environmental policy and development initiatives, and Agenda 21 |

Over the two decades from Stockholm to Rio the concept "has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting ecosystems".

The Brundtland definition, as quoted by the Court: "Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs".

The holding on status: the Court had "no hesitation in holding" that sustainable development, "as a balancing concept between ecology and development has been accepted as a part of the customary international law though its salient features have yet to be finalised by the international law jurists".

The salient principles culled from the Brundtland Report and other international documents were listed as: Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and Cooperate, Eradication of Poverty and Financial Assistance to the developing countries. Of these the Court singled out the precautionary principle and the polluter pays principle as "essential features".

This is the passage to reproduce verbatim in an answer. In the context of municipal law the principle means:

(i) "Environmental measures - by the State Government and the statutory authorities - must anticipate, prevent and attack the causes of environmental degradation." (ii) "Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation." (iii) The onus of proof "is on the actor or the developer/industrialist to show that his action is environmentally benign".

Limb (iii) is the Indian innovation and the examinable point: the principle is not merely a counsel of caution, it reverses the burden of proof. Compare Principle 15 of the Rio Declaration, which contains limb (ii) but not limb (iii).

Consequently the polluting industries were "absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants" lying in the affected areas.

The definition to learn: the polluter pays principle "means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation". Remediation is part of the process of sustainable development, "and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology".

Two heads of liability, then. Compensation to victims, and the cost of reversing the damage. That two-headed structure reappears in the Court's directions, and it is the answer to the common examination question, what exactly does the polluter pay for?

The Court gave two independent justifications, and a full answer gives both.

Route 1 — the domestic constitutional and statutory route. Art. 21 guarantees protection of life and personal liberty; Arts. 47, 48-A and 51-A(g) were set out; and there are the Water Act 1974, the Air Act 1981 and the Environment (Protection) Act 1986. In view of those provisions the Court had "no hesitation in holding that the Precautionary Principle and the Polluter Pays Principle are part of the environmental law of the country".

Route 2 — customary international law. "Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law." The rule of incorporation is stated as: "It is almost an accepted proposition of law that the rules of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law."

Route 3, in effect — the common law. The Court added that although the constitutional and statutory provisions protect the right to fresh air, clean water and a pollution-free environment, "the source of the right is the inalienable common law right of clean environment", and it quoted Blackstone's Commentaries, chapter XIII, Of Nuisance, on offensive trades — a tanner's among them — and the maxim "sic utere tuo, ut alienum non leadas" (so use your own as not to injure another; the report prints leadas for laedas).

The Court's remarks on the failure to use s. 3(3) of the Environment Act are quoted in chapter 9 and are worth having: the main purpose of the Act is to create an authority under s. 3(3) with adequate powers, and "It is a pity that till date no authority has been constituted by the Central Government." In its absence "The work which is required to be done by an authority in terms of Section 3(3) read with other provisions of the Act is being done by this Court and the other courts in the country."

Learn these as a numbered list; they are the model remedy.

1. An authority under s. 3(3) of the Environment (Protection) Act 1986, headed by a retired Judge of the High Court, with members having expertise in pollution control, to be constituted before 30 September 1996, and to be given power to issue directions under s. 5 and to take measures under s. 3(2)(v)–(x) and (xii).
2. That authority "shall implement the" precautionary principle and the polluter pays principle; assess, on expert opinion and after hearing the polluters, the loss to the ecology and identify the individuals and families who suffered, and assess compensation; and determine the amount recoverable "as cost of reversing the damaged environment".
3. Compensation to be computed "under two heads namely, for reversing the ecology and for payment to individuals", with a statement of amounts and names sent to the Collectors or District Magistrates, who shall recover the amount "if necessary, as arrears of land revenue" and disburse it.
4. Closure of the industry of any polluter who "evades or refuses to pay the compensation awarded against him", in addition to recovery as arrears of land revenue.
5. Past pollution is payable for: an industry that has now installed control devices "shall be liable to pay for the past pollution generated by the said industry".
6. A pollution fine of Rs 10,000 on every tannery in the five districts, payable before 31 October 1996, deposited with the compensation under a separate head called the Environment Protection Fund and used to compensate the affected and restore the environment; recoverable as arrears of land revenue; tanneries failing to deposit "shall be closed forthwith and shall also be liable under the Contempt of Courts Act, 1971".
7. Schemes for reversing the damage, framed by the authority in consultation with NEERI and the Boards, executed by the State Government under the Central Government's supervision, financed from the Fund.
8. Closure orders suspended, but every tannery in the five districts to set up CETPs or individual pollution control devices by 30 November 1996, those on a common plant also installing primary devices, and all to obtain the consent of the Board to operate with effect from 15 December 1996; those refused or failing to obtain consent "shall be closed forthwith".
9. The Superintendent of Police and the Collector to close such tanneries with immediate effect; they may not reopen without the authority's permission, and the authority may close them permanently "or to direct their relocation".
10. Government Order No. 213 dated 30 March 1989 — the total ban on setting up highly polluting industries (distilleries, tanneries, fertilizer, steel plants and foundries) within one kilometre of listed water sources — "shall be enforced forthwith", and existing industries in the prohibited area to be reviewed for relocation.
11. The Board's standards for total dissolved solids, approved by NEERI, to be operative and complied with by all tanneries and other industries in the State; "The quality of ambient waters has to be maintained through the standards stipulated by the Board."

And the institutional direction: the Court requested the Chief Justice of the Madras High Court to constitute a Special Bench, a Green Bench, to deal with this and other environmental matters, noting that such benches were already functioning in Calcutta, Madhya Pradesh and some other High Courts, and directed that the High Court "shall treat this matter as a petition under Article 226 of the Constitution of India".

1. Sustainable development is a balancing concept between ecology and development and is part of customary international law.
2. The precautionary principle — with its three limbs, including the reversal of the onus of proof onto the developer — and the polluter pays principle are part of the environmental law of India, on both the constitutional-statutory route and the customary-international-law route.
3. Polluter pays covers compensation to victims and the cost of restoring the damaged ecology, and extends to past pollution.
4. Rules of customary international law not contrary to municipal law are deemed incorporated into Indian law.

The Court declared sustainable development to be customary international law while conceding in the same sentence that "its salient features have yet to be finalised by the international law jurists". A principle whose content is unsettled is an odd candidate for custom, which requires settled State practice and opinio juris. Say this if the question invites evaluation, and then say why it did not matter: the Court had two other routes to the same result, and the domestic route — Art. 21 with the three Acts — was sufficient on its own.