India: The Supreme Court’s dilemma on the ‘Polluter Pays Principle’
Updated: Jun 22, 2020
Koninika Bhattacharjee, Content Writer, Nyayshastram
The ‘Polluter Pays Principle’ has been perceived as an effective remedy that facilitates ecological restoration. However, the PPP also allows the polluter to dodge punitive charges by compensating the cost for environmental degradation, with the assumption that funds collected as such would then be used for remediation of the damaged environment. However, the Indian Courts have failed to comprehend that environmental damage is irreversible.
In 1972, the PPP was first familiarized by the supervisory philosophies of Organization for Economic Cooperation and Development (OECD). Furthermore, the Rio Declaration had specific guidelines for catering to the needs of the present, without compromising the resource availability for the future generation. Principle 16 of the Declaration adopted ‘Sustainable Development’ through PPP, compelling the polluter to bear the cost of environmental degradation.
Views of the Supreme Court
Indian judiciary has included the principle as a part of the Ecological Law regime. This is evident from the following judgements passed:
Indian Council for Enviro-Legal Action v. Union of India – It was held that even after taking reasonable care while carrying on an activity if the activity performed is inherently hazardous or dangerous. The person carrying on such activity has to make good of the loss caused to another through that activity. Thus, the rule of polluters paying revolves around the premise of the activity carried on by the polluter
Vellore Citizens’ Welfare Forum v. Union of India – While interpreting the meaning of this principle, the Court considered it to be the absolute liability of the polluter to not only compensate the harm caused due to his actions, but also the payable cost of restoring the environmental degradation. This was backed by the ratio that remediation of the damaged environment has to be done for a ‘Sustainable Development’. In this manner, the polluter is responsible for recompensing the individual casualty as well as the cost of restoring the damaged ecosystem
M.C. Mehta v. Union of India (Oleum Gas Leak Tragedy) – Here, the concept of absolute liability was reiterated by the Court. It was laid down that an enterprise which is engaged in any hazardous or dangerous activity that poses an imminent threat to the safety and health of the persons working within the area of such activity and to those persons who are living in the surrounding areas, owes a non-delegable and absolute duty in case the effects of such hazardous activity affects these stakeholders. The higher a dangerous or hazardous activity is carried on, the higher is the compensation payable by the enterprise, irrespective of all the reasonable care and precautionary measures are taken on his account.
M.C. Mehta v. Kamal Nath & Ors. – The Court held that pollution is a tort committed against the community as a whole. Therefore, it is not the duty of the Government to carry out the process of restoring ecology since that would shift the burden of financing the same to taxpayers. Instead, any person guilty of causing pollution has to pay the damages or compensation for the ecological restoration
Time To Abandon Polluter Pays Principle
Imagine that a polluter has paid the cost, as per the orders of the Court, to ‘restore ecology’. Nevertheless, how do we determine that such a cost is capable of restoring the environment in a way that it would be reversed to the way it used to be? In other words, has there been a cooperative failure by the Indian Courts to comprehend that environmental damage is irreversible?
The most striking example of such a failure can be seen in the case of T.N. Godavarman Thirumulpad v. Union of India. Here, the establishment of the Central Empowered Committee led to the centralization of forest regulations. This event, along with the adoption of PPP, led to the monetization of natural forests through the admission of remaining present-value and reimbursement for compensatory afforestation. The scale of funds was so high that the Compensatory Afforestation Fund, 2016 was enacted by the Government for constitution a national and state-level authority to manage funds deposited aimed at diverting forests for non-forest transactions. In this way, the Supreme Court took the help of PPP to facilitate a centralized scheme intended for destroying natural forests. This move was also in conflict with the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. Therefore, there was an inevitable fait accompli used by the State as a convenient argument. It needs to be understood that the biosphere can support only a limited amount of consumption. In this regard, the PPP ought to be abandoned as it fails to look into the importance of a sustainable development characterized by precautionary measures, and not aftermath regrets.
 Indian Council for Enviro-Legal Action v. Union of India 1996 (3) SCC 212.  Vellore Citizens’ Welfare Forum v. Union of India 1996 (5) SCC 674.  M.C. Mehta v. Union of India AIR 1987 SC 1086.  M.C. Mehta v. Kamal Nath & Ors. (1997) 1 SCC 388.  T.N. Godavarman Thirumulpad v. Union of India (2006) 1 SCC 1.