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INCONSISTENT APPLICATION OF POLLUTER PAY PRINCIPLE IN INDIAN ENVIRONMENTAL JURISPRUDENCE
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INCONSISTENT APPLICATION OF POLLUTER
PAY PRINCIPLE IN INDIAN ENVIRONMENTAL JURISPRUDENCE
SUBMITTED BY- ANSHUMAN BISARYA
1. INTRODUCTION
Environment has been an important
facet of Indian Judiciary. A country which worships nature and its elements,
environment has occupied a great space in Indian context. Although, arguments
are made that Indian Judiciary overstepped its boundaries of separation of
powers, the Indian Judiciary’s take and environmental Jurisprudence that
emanated from the M.C Mehta PIL’s and subsequent rulings has shaped the
contours of Environmental Jurisprudence in India. Indian Judiciary has well
embraced international principles such as Polluter Pay Principle and Preventive
Approach which has been reflected in their judgements striking a very delicate
balance between environment and its protection vis-à-vis right to development.
The focus on development has risen sharp in the recent decades but so has the
Indian Judiciary’s vigilance to keep it in check and not destroy the
environment and promote a sustainable pattern of growth where environment and
development go hand in hand. However, despite having rich environmental jurisprudence
emanating from High Courts and Supreme Court, a need was felt that courts with
specific focus on environment deemed as ‘environmental courts’ should be
established.
This need was observed by Supreme
Court in M.C Mehta v Union of India[1],
Indian Council for Enviro-Legal Action v Union of India[2]
and A.P Pollution Control Board v Professor M.V
Nayudu[3]that
cases pertaining to environment needed assessment of scientific data, for a
speedy and faster judicial adjudication and process, ‘environmental courts’
established regionally with a Judge and 2 subject-matter experts would
expedite.[4]
Supreme Court in all these cases by 1996 realized that the limitations of the
Judiciary in adjudication of matters pertaining to environment and abuse of
process of Law and pushed for establishment of “dedicated green benches”[5]
The Law Commission of India in its
186th report published in 2003 in its recommendation put forth that
environmental courts should be established in India.[6]
Additionally, an impetus can also be traced from Rio Declaration of 1992
specifically its principle 10 that talk about greater access of information and
‘effective’ access to Judicial process that leads to a swift redressal and
remedial for the citizens.[7]
Furthermore, India’s fast growth brought with it a slew of challenges posed to
the environment with the growth putting forth number of Indian ‘mega-cities’ to
grow 2-fold in timeline of 2008-2021[8].
With the industrial growth came the release of toxic gases, more industrial
units and plants being setup, deforestation to make way for industries and
residential spaces, all this had an impact especially on India’s rural regions
where air pollution and deforestation combined with soil erosion and declining
fertile soil levels and fresh and ground water availability, India’s rural
regions’ health and welfare was in jeopardy.[9]
All this culminated into the creation
of National Green Tribunal Act, 2010 (hereinafter to be referred to as the 2010
Act) passed by the Parliament inspired under Article 21 of Constitution of
India which talks about right to a clean and healthy environment and this paved
way for creation of National Green Tribunal (hereinafter to be referred to as
NGT) in 2010. The focus matter for NGT would be to adjudicate and dispose of
‘civil’ cases (although in criminal offences, NGT can only issue
‘recommendations’ in respect of punishment) pertaining to matters of
environmental protection and forest conservation and natural resources. NGT
also within its ambit had inclusion of legal rights enforcement in relation to
environment.[10]
Prior to establishment of NGT, there
National Environment Appellate Authority of Ministry of Environment and Forest.
As per the 2010 Act, the Tribunal shall have jurisdiction on civil cases and
would deal with substantial question on environment including enforcement of
legal rights pertaining to environment. NGT is bestowed with original
jurisdiction under section 14 of the 2010 Act to deal with cases questions
coming out of Water (Prevention and Control of Pollution) Act, 1974, The Water
(Prevention and Control of Pollution) cess Act, 1977, The Forest (conservation)
Act, 1980, The Air (Prevention and control of Pollution) Act, 1981, The
Environment (Protection) Act, 1986, The Public Liability Insurance Act, 1991
and Biological Diversity Act, 2002.[11]
Section 15 of 2010 Act empowers the Tribunal to deal with environmental damage
pertaining to accidents and also handling of hazardous waste and compensation
can be sought and given under the same section.[12]
Critically, NGT is a ‘quasi-judicial’
body and by virtue of that, has limited power. The objective of NGT’s creation
was to offload the case load from the Courts and to improve the ‘3rd
pillar’ of environmental democracy[13]
NGT can also take Suo moto appeals if need be.[14]
Appeals from NGT are to be directly taken to Supreme Court.
From a comparative analysis of Environmental
Courts[15],
NGT stands apart, it has cleaved from traditional setups in different
jurisdictions that apart from traditional judges, it has sought to include
expert members who chosen on the basis of knowledge, scientific training, and
practical expertise on matters of environment and science associated with it.[16]
As earlier stated, NGT has both judicial members and subject expert members
from disciplines such as life sciences, physical science, engineering or
technology.[17]
Chairperson of Tribunal is to be appointed by central govt in due consultation
with CJI. Members to be appointed as per recommendations of a selection
committee as per manner prescribed by central government.[18]
The paper shall be focusing on NGT’s
decisions and the jurisprudence they have laid down in cases referred to and
considered and, in that context.
RESEARCH QUESTIONS
i.
HAS NGT’S CREATION ADDED STRENGTH TO INDIAN ENVIRONMENTAL JURISPRUDENCE?
ii.
HAS NGT’S APPLICATION OF POLLUTER PAY PRINCIPLE HAS BEEN CONSISTENT?
2. DECISIONS OF NGT ON POLLUTER PAY
PRINCIPLE
Since its inception in 2010-11, NGT
has been crucial to environmental jurisprudence and vigilance and has tried to
struck a delicate balance between environment and its protection vis-à-vis
right to development keeping in line with international followed/observed
principles in relation to environment.
NGT through its order banned
‘rat-hole’ mining in Meghalaya. Rat-hole mining, a primitive style of coal
mining prevalent in Meghalaya that results in loss of the top-most fertile soil
cover in addition to pollution of air and water.[19]
However, this order was not respected and rat-hole mining continued to be done
which led to loss of 3 lives and arrests were later made. The flagrant
disregard and disobedience of NGT’s order led to loss of 3 lives and cost the
State Exchequer 600 crore rupees.[20]
This is just one of laudable decisions of NGT, however, the paper would focus
on NGT’s decision and its application of Polluter Pay Principal.
NGT has decided many matters under
the guiding principle of ‘polluter pays principle’
Polluter pays principle was adopted
in 1972 as “economic principle for allocating the costs of pollution control”.
Under this, the polluter shall pay the costs of pollution as well prevention ad
control measures and is legally bound to protect environment and in doing so
has to pay for costs for preventive and reduction of pollutant and treatment of
the said pollutant.[21]
In Samir Mehta v Union of India
and Ors[22]The
NGT directed compensation to be paid for ecological damage and loss of
livelihood and ecosystem imbalance brought about as per polluter pays
principle. Similarly, in Krishan Kant Singh v National Ganga River Basin
Authority[23],
NGT imposed payment of fine of 5 crore rupees to be paid to concerned State
pollution Boards based on the premise of Polluter Pays principle with a view
for river conservation although this decision has courted some controversy
w.r.t how the compensation amount was arrived at. Polluter Pay principle can be
further evidenced in NGT’s decision in R.K Patel v Union of India[24]
where aggrieved farmers were to get 10 lakh rupees in Vapi, Gujarat owing to
pollution caused by hazardous waste.
In Manoj Mishra v Union of India
and Ors[25],
the matter was related to the clean Yamuna River plan, directions were issued
to civic and municipal authorities of Delhi-NCR that saw inclusion of
environmental compensation fee in property/house tax.
2.1
INCONSISTENCY IN APPLICATION
Interestingly, it is to be noted that
as per research report by Centre for Science and Environment published in 2018[26],
NGT’s penalty imposed in cases where it has adjudicated under Polluter Pays,
NGT has imposed penalty as 5% of project cost, this was justified by NGT in Goa
Foundation v Union of India and Ors.[27]
Stating that SC’s penalty imposed of 10% is somewhere on the higher side and
stated that 5% of project cost is determined as compensation amount with
‘exactitude’ is tough.[28]
However, NGT’s application of
Polluter pays principle has been questioned as well, in Ajay Kumar Negi v
Union of India[29]
NGT imposed penalty of 5 crore owing to forest damage caused by the
Tidong-I Hyrdo Electric Project. However, as per committee constituted by the
NGT observed in its report that although violations were there on part of the
offending party, the estimate of damage accrued was less than what was imposed
and the offending company had paid compensation as per forest laws.
A similar inconsistency w.r.t
application of Polluter Pay Principal by NGT can be seen in Mohammed Kabir v
Union of India[30],
The Judges of the NGT Bench cited
difficulty to calculate and come up with compensation amount.
In Naim Sharif Hasware v M/S Das
Offshore Co[31]
NGT imposed a fine of 25 crores on Das Offshore stating that company with
knowledge and intent did not observe EIA (Environment Assessment Study) process
which led to destruction and disruption of mud-flats and mangroves in
Maharashtra’s Raigad district. The Bench observed that “company is liable to
face the legal consequences for environment degradation and should pay a heavy
penalty” and that the fine so imposed was considered just and fair.
Interestingly, this ‘just and fair amount’ was never afforded an explanation as
to how it was calculated and understood and arrived at. The company appealed to
SC who later reduced the fine imposed to 12 crores.
NGT’s adaptation of polluter pay
principle has been questioned because there does not seem to be a proper method
on how compensation is arrived at and in cases, the polluter pays small or
fraction of cost for clean-up. Especially in context of UP’s sugar and
distillery units, the Tribunal has imposed lower costs as fines and penalty
(sometimes as small as 0.6% as opposed to Central Board’s stipulated 3%) in
proportion to the turnover these offending companies generate.[32]
Under traditional environment court
in other jurisdictions, while specialized courts have their focus area on
speedy expedited resolution and unburdening the Courts and laying down
jurisprudence of environmental law of concerned nation, many researches have
put forth that while focused jurisprudence and Courts for same has its
benefits, these specialized courts may suffer from “loss of the generalist
perspective” [33] However, with regards to NGT, this
needs to be seen. As of now, the benefits have been reaped and NGT seemed to
have struck a good fine balance between environment and right to development
sometimes arching towards environment end more (imposition of unjustified fines
and lack of proper method to come up with compensation) but NGT seems to not
outrightly discard development but tries to ensure that both environment and
development go hand in hand.
CONCLUSION
NGT’s creation was much needed as was
recognized by Supreme Court. With India’s rapidly advancing growth and burdening
of Supreme Court and High Courts with other disciplines of matters, NGT’s
creation was a welcome step. It was also unique in comparison to other
specialized environment courts setup. While NGT has lessened the burden of
Supreme Courts and High Courts and has gone to lay down jurisprudence under the
guidance of Internationally followed principles such as Polluter Pays
Principle. Although, NGT should be applauded as it has via its decisions
focused on environment saving and its protection, it has not outrightly
discarded or shelved development that could have created a dissuasive and
possibly not investor friendly environment that would have gone against the
current economic policies of India. NGT via its decisions have struck a fine
balance, it has via its orders not shunted development, it has left the door
open for development whilst maintaining a firm stance on environment and its
protection creating a deterrence effect. However, in pursuing this fine
balance, there have been instances where NGT has overstepped the mark. The lack
of compensation payment mechanism is a point of concern as arbitrary fines and
penalties imposed would fall afoul of
Indian constitution’s commitment to being fair and not arbitrary. Especially
so, it is the author’s suggestion that a penalty/ compensatory amount devising
mechanism be formulated so as to bring more transparency.
Transparency is needed as that would
not only send a clear message to companies who aim for developmental projects
and not pay heed to ecology, they would consider the penalties that would be
coming their way should they overstep. As of now, NGT’s arbitrary penalty
schemes have led to appeals which frustrates the idea of creation of a
specialized Judicial approach in the first place, not excluding the right of
appeal before the Apex Court but if a more transparent approach is embraced by
the NGT, it would lead to a more stable and non-arbitrary jurisprudence.
[1] M.C Mehta v Union of India
AIR 1987 SC 965
[2] Indian Council for Enviro-Legal
Action v Union of India 1996 3 SCC 212
[3] A.P Pollution Control Board v
Professor M.V Nayudu 1992 2 SCC 718
[4] Sridhar Rengaran et al. National
Green Tribunal of India- an observation from environmental judgements,
Environmental Science and Pollution Research 2018 Springer
[5] J. Michael Angstadt, Securing
Access to Justice through environmental Courts and Tribunals: A Case in
Diversity, Vermont Journal of Environmental Law, 17, pg. 345-371 (2016).
[6] Law Commission of India 183th
Report, Law Commission of India, http://lawcommissionofindia.nic.in/reports/186th%
20report.pdf (last visited on 12th February)
[7] Aprajita Singh, A Decade of
National Green Tribunal of India: Judgement Analysis and Observations, Research
Square, https://doi.org/10.21203/rs.3.rs-792456/v1 (last visited on 12th February)
[8] Hannes Taubenböck et al.,
Urbanization in India–Spatiotemporal Analysis Using Remote Sensing Data, 33
ENV’T & URB. SYS. 179, 180 (2009)
[9] Kirk R. Smith et al., Air
Pollution and Rural Biomass Fuels in Developing Countries: A Pilot Village
Study in India and Implications for Research and Policy. 17 ATMOSPHERIC ENV’T:
2343, 2350 (1983); Bina Agarwal, Gender, Environment, and Poverty Interlinks:
Regional Variations and Temporal Shifts in Rural India, 1971–91, 25 WORLD Dev.
23, 24 (1997)
[10] Supra Note 4 at pg.11313
[11] Ibid
[12] Supra Note 6
[13] Pring G. & Pring C, Environmental
Courts & Tribunals: A guide for policy makers, UNEP, https://wedocs.unep.org/bitstream/handle/20.500.11822/10001/environmental-courts-tribunals.pdf?sequence=1&isAllowed=y
[14] Supra Note 4
[15] Supra Note 2 at pg.355
[16] Supra Note 2 at pg. 354
[17] Gitanjali Nain Gill, A Green
Tribunal for India, Journal of Environmental Law, 22 pg. 461-474 (2010)
[19] Baniateilang Majaw, Ending
Meghalaya’s Deadly Occupation: India’s National Green Tribunal’s Ban on
Rat-hole mining, JSTOR, https://www.jstor.org/stable/26160091
(last visited on 12th February)
[20] Ibid
[21]OECD, The polluter Pays
Principal OECD Analysis and Recommendations, https://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=OCDE/GD(92)81&docLanguage=En#:~:text=The%20Polluter%2DPays%20Principle%20(PPP,the%20costs%20of%20pollution%20control.
(last visited on 12th February)
[22] Samir Mehta v Union of India
and Ors MANU/GT/0150/2016
[23] Krishan Kant Singh v National
Ganga River Basin Authority 2014 SCC OnLine NGT 2364
[24] R.K Patel v Union of India Original
Application No. 199 of 2014
[25] Manoj Mishra v Union of India
and Ors SLP(C) no. 91216 of 2010
[26] Archana Shankar, Review of NGT
decisions evoking the Polluter Pays Principle, JSTOR https://www.jstor.org/stable/resrep38095.4
(last visited on 12th February)
[27] Goa Foundation v Union of India
and Ors. Writ Petition (C) No. 435 of 2012
[29] Ajay Kumar Negi v Union of
India MANU/GT/0112/2015
[30] Mohammed Kabir v Union of India
MANU/GT/0088/2016
[31] Naim Sharif Hasware v M/S Das
Offshore Co MANU/SCOR/49282/2019
[32] Supra Note 23
[33] Richard L. Revesz, Specialized
Courts and the Administrative Lawmaking System, 138 U. PA. L. REV. 1111, 1117
(1990).
Article Information
INCONSISTENT APPLICATION OF POLLUTER PAY PRINCIPLE IN INDIAN ENVIRONMENTAL JURISPRUDENCE
Authors: ANSHUMAN BISARYA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/14
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International Journal for Legal Research and Analysis
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