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A CRITICAL ANALYSIS OF THE SCOPE OF “POLLUTION” UNDER THE ENVIRONMENTAL LAWS WITH RESPECT TO THE POLLUTER PAYS PRINCIPLE IN INDIA.
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A CRITICAL ANALYSIS OF THE SCOPE OF “POLLUTION”
UNDER THE ENVIRONMENTAL LAWS WITH RESPECT TO THE POLLUTER PAYS PRINCIPLE IN
INDIA.
AUTHORED BY - TANISHA B CHETAN
(III Year)
Abstract
‘With development comes destruction’.
Development and destruction go hand in hand because the former is the cause
which leads to the latter, which is the effect. In the pursuit of leading a
life filled with needs, one leaves the environment far, far behind. There have
been numerous debates about the same. Conventions and treaties are signed
between countries to keep a check on the deterioration of the environment.
Pollution is a huge contributor to the environmental degradation and it is the
need of the hour to control the pollution. Banning single use plastic, shifting
to CNG or electric vehicles, getting emission tests are a few ways to control
pollution. This paper is divided into various components which try to delve
into the roots of the implementation of one such solution – The Polluter Pays
Principle. It will start with explaining the history of pollution laws. Knowing
the history will help the readers to know what were the best practices followed
and what mistakes to avoid in the future. This will be followed by the
definition of “pollution” as given in the laws. It is essential to understand
the provisions in the constitution with respect to the environment to lead a
healthy life. Having knowledge about the ‘Polluter pays principle’ and the
interpretation of the judiciary, will enhance the readers understanding of the
ambiguity that the researcher is trying to highlight. The aim of this paper is
to not only highlight the ambiguity in this aspect, but also to provide
plausible solutions to combat the problem of pollution.
Keywords: Pollution, Polluter Pays Principle, India, Environment
INTRODUCTION
The world is advancing at an unprecedented rate. There are new
inventions in every domain, be it agriculture, automobile, gadgets or even law.
But, the renewable and non-renewable sources of energy are deteriorating
rapidly. Countries across the globe are coming up with solutions to control
climate change. But the question is, to what extent are these steps helping to
control climate change? What is the ground reality? And what are the problems
that arise while implementing these policies or laws? Pollution is one of the
most important contributor to climate change. It has been in the limelight for
a couple of decades now and it is said that it will only get worse.
ORIGIN OF ENVIRONMENTAL LAW IN INDIA
During the ancient times, there was
emphasis on the care for the natural resources. Our ancient people learnt to
live with five elements of nature, the 'earth', the 'water', the 'air', the
'light' and the 'cosmos' and they worshipped them in reality and symbolically.[1]
Hindu religious literature, to wit, the sacred Vedas , Puranas and Upanishadas
, proffer considerable information about relationships between man and nature
and indebtedness of mankind towards nature. Vedic literature is replete with
verses for upkeep and protection of environment and also prevention of
pollution. Myths, folklore, art, culture and religion adored energy (solar),
trees and wild life with reverence.[2]
The Vedas, Upanishadas , Puranas and other scriptures emphasise the importance
of maintaining an ecological balance.[3]
British Raj
During the early British era, they
plundered the natural resources and were indifferent to forest conservation.
Wood was in high demand for the British Navy, which added to the depletion of forests. In 1806, the
British government started exercising control over the forests by appointing a
commission to enquire into availability of teak in Malabar and Travancore.[4]
They systematically plundered the resources available in India.
In the late British period, they
began the organized forest management by taking administrative steps. These
included formulation of forest policy and legislations to implement policy
decisions.
THE CONSTITUTION OF INDIA AND THE ENVIRONMENT
The topic about the conservation and
preservation of environment appeared only in the 6th five year plan.
Initiatives taken across the globe nudged India to expand its horizon to
environmental protection and conservation. Therefore, following the U.N.
Conference on the Human Environment held at Stockholm, Sweden, in 1972, the
Constitution of India was amended by the 42nd constitutional amendment and the
subject of "ecology and environment" was incorporated for the first
time through articles 48 A and 51A(g).[5]
Article 48A incorporated under part
IV of the Constitution, contains the directive principles of state policy. This
was a one of a kind initiative because the obligation to protect the
environment was not only on the State, but also on the citizens of the country.
Although the directive principles of state policy are not enforceable in the
court of law, the State must keep in mind all the principles under part IV.
Protection and improvement and safeguarding of forests and wildlife is stated
under Article 48-A.[6] Article
51 A (g) incorporated under part IV-A of the Constitution, contains the fundamental
duties of the citizen towards the country.[7]
While the executive and legislative
wings of the state are implementing the directive principles by policy
decisions and appropriate legislations, the judicial wing is also implementing
them through judicial activism.[8] Article
51 A (g) made it a fundamental duty for all the citizens of India not only to
protect and improve the natural environment but also to have compassion for all
living creatures.
The constitutional duty entrusted
upon the state to protect and improve the natural environment is based on the
"Doctrine of Public Trust".[9]
This doctrine originally developed in ancient Roman empire. According to this
doctrine, there are certain natural resources, such as, rivers, seashores,
forests, wild lives, air etc., which are held by the state in trustship for the
free and unimpeded use of general public. According to Roman law, these natural
resources are either owned by none ( res nullius) or by everyone in common (
res communius).[10] Under
the English common law, however, the sovereign could own these natural
resources but the ownership was limited in the sense that the crown could not
grant these resources to private owners, if the effect was to interfere with
the public interest.
Article 37 expressly mentions that
the provisions contained in the directive principles of state policy of the
Constitution should not be enforceable by any court, but nevertheless the
principles laid down in those provisions are fundamental in the governance of
the country and it shall be the duty of the state to apply these principles in
making laws.[11]
POLLUTION DEFINED IN THE
ENVIRONMENTAL LAWS
The term 'pollution' as defined in
three major pollution related laws in India (The Environment Protection Act,
1986[12],
The Water (Prevention and Control of Pollution) Act, 1974[13]
and The Air (Prevention and Control of Pollution) Act, 1981[14]
which prescribe certain constitutive elements-presence of any solid, liquid or
gaseous substance present in such concentration as may be, or tend to be,
injurious to environment; such concentration may be or tend to be injurious to
human being or other living creatures or plants or property or environment';
and such presence that 'may, or is likely to, create a nuisance or render such
water harmful or injurious to public health or safety, or to domestic,
commercial, industrial, agricultural or other legitimate uses, or to life and
health of animals or plants or aquatic organisms.'
POLLUTER PAYS PRINCIPLE
The Polluter Pays Principle (PPP) is
an environmental policy principle that has been incorporated into many
international and national legal frameworks, and it is based on the concept
that those who cause pollution should be responsible for paying for the damages
caused by their actions.[15]
The PPP is intended to shift the economic burden of pollution from society to
the polluter, and to create incentives for polluters to reduce their pollution
levels.[16]
This principle has been implemented in a variety of ways, including taxes on
pollution, fees for permits to pollute, and liability laws that hold polluters
responsible for the damages they cause.[17]
The PPP was first introduced in the
1972 Declaration of the United Nations Conference on the Human Environment,
which was held in Stockholm, Sweden.[18]
The declaration stated that "polluters should bear the cost of the
pollution they cause," and it was later incorporated into the Rio
Declaration on Environment and Development in 1992.[19]
This principle has been further reinforced by many international environmental
treaties, such as the Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and their Disposal, the Montreal Protocol on
Substances that Deplete the Ozone Layer, and the Convention on Biological
Diversity, among others.[20]
In addition to its inclusion in
international environmental agreements, the PPP has also been integrated into
many national legal frameworks, including those of the European Union and
individual countries such as Canada, India, and China.[21]
The European Union, for example, has implemented the PPP through a variety of
mechanisms, including the Emissions Trading System, which allows companies to
buy and sell permits to pollute, and the Industrial Emissions Directive, which
sets emission limits for various industrial sectors.[22]
Similarly, in India, the PPP has been applied through the National Green
Tribunal, which has imposed penalties on companies and individuals for causing
environmental damage.
Despite its widespread adoption, the
PPP has been criticized by some who argue that it may create an incentive for
polluters to continue polluting as long as they can afford to pay for the
damages caused. Others argue that the PPP may not be appropriate in cases where
the polluter cannot be identified or where the damages caused by the pollution
are difficult to quantify.[23]
The PPP is an important environmental
policy principle that has been incorporated into many international and
national legal frameworks. The principle is intended to shift the economic
burden of pollution from society to the polluter, and to create incentives for
polluters to reduce their pollution levels. While the PPP has been criticized
by some, it remains an important tool in the effort to address environmental
pollution and protect human health and well-being.
INTERPRETATION OF THE JUDICIARY
The Polluter Pays Principle has been
applied by the National Green Tribunal in a number of cases. There is an
uncertainity with respect to determining when to apply the polluter pays
principle and as to what constitutes polluting.
The Municipal Corporation of Shimla
and Solan, in the case of Dr. Karan Singh v. State of Himachal Pradesh[24]
was directed by the NGT to collect monetary contribution for the effective
disposal of Municipal Solid Waste (MSW) from the houses depending on the kind
and size of the houses. The monetary contribution for each house within their
limit is based on the Polluter Pays Principle.
In the case of Kamal Anand v. State
of Punjab[25], the
corporation was instructed to charge a specific amount in addition to the
property tax from households, shops, hotels, and industrial buildings on a
monthly basis, as allowed by the relevant authorities based on PPP. Similarly,
in the case of Manoj Misra v. Union of India[26],
which dealt with pollution in the Yamuna river, the NGT allowed the Corporation
and the Delhi Jal Board to collect funds from the general public based on PPP.
The NGT suggested that the safest way to determine the amount of environmental
compensation payable by Delhi residents would be to calculate a certain
percentage of their property or house tax.
The NGT established a designated fund
called the "Green Tax Fund" in the case of Court on its own motion v.
State of Himachal Pradesh[27],
in order to promote environmentally conscious development in all areas. As part
of this initiative, the NGT mandated that individuals travelling to the Rohtang
Pass glacier in public or private vehicles must pay a reasonable amount of Rs.
100 for heavy vehicles and Rs. 50 for light vehicles, based on PPP, as a
contribution to the fund. Additionally, a fee of Rs. 20 per tourist travelling
through CNG or electric buses to Rohtang pass was imposed by the NGT.
These legal cases illustrate the
NGT's adoption of the "deemed to be polluting" approach, where
entities or individuals are held accountable for causing environmental harm
regardless of whether they have surpassed a specific pollution threshold. The use
of PPP in these cases demonstrates that it is not dependent on a particular
pollution level being exceeded by the concerned entities or individuals. For
instance, even though vehicles on the road generally possess pollution
clearance certificates, the NGT directed them to pay for the pollution they
generate. Similarly, in the Rohtang Pass case[28],
the court mandated that all vehicle users (including those with electric
vehicles) in the area must deposit a sum into the Green Tax Fund. While it is
good that the 'deemed to be polluting' theory has been adopted, it is important
to ensure that costs are completely internalized. To achieve this, measures
should not be limited to ecologically sensitive regions, as observed in the
Court on its own motion v. State of Himachal Pradesh case.[29]
Instead, they should be applied to all vehicles on the road, given that their
usage will inevitably lead to pollution in the environment. This is supported
by the fact that natural resources, such as air and water, cannot be confined
to a specific area, and the consequences of their misuse will eventually affect
everyone. Kamal Anand v. State of Punjab[30]
provides an instance of such cost internalization where a specific amount is
required to be deposited by every household, shop, hotel, or industrial building
that generates waste, akin to paying house or property tax.
In general, this strategy does not
rely on a legal characterization of pollution but instead presumes that
particular activities are inherently polluting, and as a result, PPP is
applied. This implies that it could be challenging to establish legal pollution
in many, if not all, of these cases. Furthermore, these cases are characterized
by continuous, ongoing pollution, as opposed to one-time occurrences like
industrial accidents. Furthermore, there are no specific individuals or
entities that can be identified as responsible for the pollution in these
cases. Pollution is a gradual and ongoing process that is dispersed and not
centralized. It seems that the NGT has developed a procedure for using PPP to
deal with cases of decentralized, ongoing pollution without addressing the
issue of rule violation.
The NGT has also considered cases
where pollution was present and then applied PPP. For example, in Samir Mehta
v. Union of India, an oil spill occurred in the Arabian Sea from ship M.V. Rak
Carrier, and the NGT based its decision on the damage caused to the mangroves
and marine ecology on the Bombay coast due to the oil spill. Similarly, in
Kasala Malla Reddy v. State of Andhra Pradesh[31],
the NGT emphasized the pollution of groundwater and air resulting from
industrial units.
The NGT has applied PPP in cases
where there is a violation or non-compliance with laws. Gurpreet Singh Bagga v.
Ministry of Environment and Forests and Ors[32].
is one such example where the respondent companies were directed to pay for
running mining activities in an unauthorized manner without Environmental
Clearance or consent by the concerned State Pollution Control Board. Likewise,
in The Proprietor, M/s. Varuna Bio Products v. The Chairman Tamil Nadu
Pollution Control Board[33],
an accusation was made against a chemical industry for operating without
obtaining necessary consent. Despite no effluent discharge by the industry, the
NGT found it in violation of the law for operating without the required
consent. Consequently, the NGT ordered the industry to pay Rs. 25000 under PPP.
This suggests that in some cases, PPP is applied solely based on the violation
of the law, without considering any harm caused to individuals, their property,
or the environment.
OBSERVATION
From the cases discussed above, three
main patterns are apparent. Firstly, the NGT has applied PPP to activities that
are continuous in nature and where there are no clearly identifiable polluters
or a small group of polluters. In such cases, the NGT has treated the
activities as inherently polluting, without determining whether they fit within
the legal definition of pollution. It is possible that many of these activities
do not violate environmental laws but may still be causing pollution.
To summarize, there are three
patterns that emerge from the discussed cases. Firstly, for ongoing activities
without identifiable polluters or small groups of polluters, NGT has applied
PPP without verifying whether such activities meet the legal definition of
pollution. These activities may not necessarily violate environmental laws, but
they may be polluting in nature. Secondly, there are clear cases of pollution
such as oil spills where environmental damage is acknowledged. Thirdly, in some
cases, NGT has applied PPP despite there being no discharge by the respondent
company, as a violation of environmental laws was established.
Although making polluters pay for
pollution may seem like a progressive idea, it is important to avoid creating a
situation where those who can afford to pay are granted a "right to
pollute." In other words, the ultimate objective is not to accumulate a
large fund through the application of PPP but to adopt an environmentally
friendly lifestyle, which requires a significant shift in current modes of
production and consumption.
PLAUSIBLE SOLUTION
The Polluter Pays Principle as
mentioned earlier is a common law provision. It does not have a specific test
to prove who is a polluter. This causes disruption while deciding cases related
to the Principle. One plausible solution to try and overcome this ambiguity is
to list out what comes under the Polluter Pays Principle or what does not come
under the Polluter Pays Principle. This method of having a test has proven
effective in other matters with respect to the Constitution, copyrights and
many other legal questions.
RD Shetty V International Airport Authority of India[34]
case – test of instrumentality
The issue in the present case was
whether the International Airport Authority can be considered as a State for
the purpose of Article 12. Justice Bhagawati introduced a test known as the
‘Instrumentality Test’. If the factors laid down in the abovementioned test are
satisfied, then a particular authority can be considered as other authority
under Article 12. The five conditions were as follows –
·
Whether
the State is the Chief funding source of the institution?
·
Whether
there is an existence of deep and pervasive State control?
·
Whether
the functional character is governmental in nature?
·
Whether
a department of the Government is transferred to a corporation?
·
Whether
the corporation enjoys a monopoly status which is State conferred or State
protected?
The most important condition of these
is that the State should have control and presence of Governmental essence.
When the same test was applied to International Airport Authority, it was held
that it fulfils the required conditions and therefore, it comes under the scope
of “other authorites” of Article 12.
Grounds for copyright infringement
Section 51 of the Copyrights Act,
1957 states that making infringing copies for sale or hire or selling or
letting them for hire, permitting any place for the performance of works in
public where such performance constitutes infringement of copyright,
distributing infringing copies for the purpose of trade or to such an extent so
as to affect prejudicially the interest of the owner of copyright, public
exhibition of infringing copies by way of trade and importation of infringing
copies into India.
A test for the Polluter Pays
Principle will reduce the ambiguity to a great extent and if not the final
solution, will atleast act as a stepping stone towards resolving this issue.
CONCLUSION
Development is important and so is
conserving the environment. The Polluter Pays Principle is one step that will
act as a catalyst to further this balance between development and conservation.
Deeper thought and deliberation with respect to the Polluter Pays Principle
will pave the way for a better mechanism to determine the damages to be paid in
situations. This is a small initiative to shed light on a matter that is the
need of the hour.
[1] Furqan Ahmad, ORIGIN AND GROWTH OF ENVIRONMENTAL LAW IN INDIA, Journal of the
Indian Law Institute , July-September 2001, Vol. 43, No. 3 (July-September
2001), pp. 358-387
[2] Furqan Ahmad, ORIGIN AND GROWTH OF ENVIRONMENTAL LAW IN INDIA, Journal of the
Indian Law Institute , July-September 2001, Vol. 43, No. 3 (July-September
2001), pp. 358-387
[3] Furqan Ahmad, ORIGIN AND GROWTH OF ENVIRONMENTAL LAW IN INDIA, Journal of the
Indian Law Institute , July-September 2001, Vol. 43, No. 3 (July-September
2001), pp. 358-387
[4] Furqan Ahmad, ORIGIN AND GROWTH OF ENVIRONMENTAL LAW IN INDIA, Journal of the
Indian Law Institute , July-September 2001, Vol. 43, No. 3 (July-September
2001), pp. 358-387
[5] Bhaskar Kumar Chakravarty, ENVIRONMENTALISM: INDIAN CONSTITUTION AND
JUDICIARY, Journal of the Indian Law Institute , January-March 2006, Vol.
48, No. 1 (January-March 2006), pp. 99-105
[8] Bhaskar Kumar Chakravarty, ENVIRONMENTALISM: INDIAN CONSTITUTION AND
JUDICIARY, Journal of the Indian
Law Institute , January-March 2006, Vol. 48, No. 1 (January-March 2006), pp.
99-105
[9] Bhaskar Kumar Chakravarty, ENVIRONMENTALISM: INDIAN CONSTITUTION AND
JUDICIARY, Journal of the Indian
Law Institute , January-March 2006, Vol. 48, No. 1 (January-March 2006), pp.
99-105
[10] Bhaskar Kumar Chakravarty, ENVIRONMENTALISM: INDIAN CONSTITUTION AND
JUDICIARY, Journal of the Indian
Law Institute , January-March 2006, Vol. 48, No. 1 (January-March 2006), pp.
99-105
[13] THE AIR (PREVENTION AND CONTROL OF
POLLUTION) ACT, 1981 ACT NO. 14 OF 1981
[15] United Nations Environment Programme, The Polluter Pays Principle: Making
Polluters Pay for Environmental Damage,2014
[16]Ibid.
[17] Ibid.
[18] United Nations General Assembly, Declaration of the United Nations Conference
on the Human Environment, 1972.
[19] United Nations Conference on
Environment and Development, "Rio Declaration on Environment and
Development," 1992.
[20] United Nations Environment
Programme, The Polluter Pays Principle:
Making Polluters Pay for Environmental Damage, 2014.
[21] Ibid.
[22] European Commission, The EU's Polluter Pays Principle, 2021.
[23] United Nations Environment
Programme, The Polluter Pays Principle:
Making Polluters Pay for Environmental Damage, 2014.
[24] Dr. Karan Singh v. State of Himachal Pradesh,
2013 SCC OnLine 884
[25] Kamal Anand v. State of Punjab,
2014 SCC Online NGT 6893
[26] Manoj Misra v. Union of India,
2015 SCC OnLine NGT 840
[27] Court on its own motion v. State
of Himachal Pradesh, 2014 SCC Online NGT 1
[28] Court on its own motion v. State of
Himachal Pradesh, 2014 SCC Online NGT 1
[29] Ibid.
[31] Kasala Malla Reddy v. State of
Andhra Pradesh
[32] Gurpreet Singh Bagga v. Ministry
of Environment and Forests and Ors
[33] The Proprietor, M/s. Varuna Bio
Products v. The Chairman Tamil Nadu Pollution Control Board
[34] RD Shetty V International Airport
Authority of India AIR 1979 SC 1628
Article Information
A CRITICAL ANALYSIS OF THE SCOPE OF “POLLUTION” UNDER THE ENVIRONMENTAL LAWS WITH RESPECT TO THE POLLUTER PAYS PRINCIPLE IN INDIA.
Authors: TANISHA B CHETAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/26
- Volume 2
- Issue 7
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