Law And Policy

This post presents concise summaries of –
1. Stellina Jolly and Siddharth Singh, ‘Critiquing Sustainable Development and Analyzing Avenues for Just Sustainability in India’ (2021) 51 Texas Environmental Law Journal 187-214
2. Himanshu Ahlawat and Sujith Koonan, Polluter Pays Principle in India: Assessing Conceptual Boundaries and Implementation Issues”, 7(2) RGNUL Student Research Review 33-50 (2021)
3. Case: Vellore Citizen’s Welfare Forum vs Union of India, 1996 5 SCC 647

READING – 1 Stellina Jolly and Siddharth Singh, ‘Critiquing Sustainable Development and Analyzing Avenues for Just Sustainability in India’ (2021) 51 Texas Environmental Law Journal 187-214 

This academic article examines the evolution and application of sustainable development principles in Indian jurisprudence, proposing “just sustainability” as an improved framework that integrates environmental justice with sustainable development. The authors analyze how Indian courts have interpreted sustainable development and identify significant gaps in addressing social equity concerns.

Evolution of Sustainable Development in Indian Law

Historical Development – Environmental protection wasn’t explicitly part of India’s original Constitution but gained prominence after the 1972 Stockholm Conference, leading to constitutional amendments in 1976 requiring the state to protect the environment. The Supreme Court began incorporating sustainable development principles in the 1990s, establishing it as part of customary international law.

Three Phases of Judicial Interpretation

1. Carrying Capacity Rule
Introduced in Vellore Citizens Welfare Forum (1996), this approach asked whether development could be sustained by nature with or without mitigation measures. Applied in Narmada Bachao Andolan (2000), where the Court approved large dam projects while inadequately addressing displacement concerns.

2. Proportionality Test
Developed in the Godavarman case, this test weighs developmental benefits against environmental costs. Courts applied utilitarian analysis, often favoring projects benefiting larger populations despite harm to minorities, as seen in the Blue Lady ship-breaking case.

3. Social Dimension Recognition
The 2013 Vedanta case marked a shift by recognizing sustainable development’s social pillar, empowering tribal communities to reject mining projects affecting their cultural and customary rights through Gram Sabha decisions.

Problems with Current Implementation

Indeterminacy Issues – Indian courts have provided no consistent framework for applying sustainable development, leading to contradictory decisions. The same principle has been used to justify both pro-development and pro-environmental stances without clear rationale.

Environmental Justice Neglect – Despite sustainable development’s three pillars (economic, environmental, social), Indian jurisprudence has largely ignored environmental justice concerns. The focus remained on balancing environment and development while neglecting distributional equity and social impacts on marginalized communities.

The “Just Sustainability” Solution

Conceptual Framework The 2019 State of Meghalaya v. All Dimsa Students Union case introduced “just sustainability” concepts by emphasizing that:

• Natural resources belong to all generations and the entire nation, not just local populations
• Resource extraction and distribution must consider spatial justice
• “Intelligent use” of resources is required for sustainable development

Key Components of Just Sustainability

1. Quality of life and well-being: Ensuring basic rights and environmental quality for all in an equitable manner
2. Distributive justice within ecosystem limits: Balancing resource use within ecological boundaries while ensuring fair distribution and meaningful community participation

Practical Implications

Just sustainability provides a more robust framework than traditional sustainable development by explicitly incorporating equity considerations. It requires courts to analyze not just environmental and economic impacts, but also distributional consequences and community participation in decision-making processes.

The concept recognizes that environmental problems cannot be solved without addressing social inequality. It moves beyond asking whether development is environmentally sustainable to asking whether it is fair and just for all affected communities, particularly marginalized groups who often bear disproportionate environmental burdens.

Implementation Requirements:

• Focusing on access to information, procedural justice, and equitable distribution of environmental benefits and burdens
• Strengthening local institutions like Gram Sabhas for participatory decision-making
• Ensuring meaningful public participation in Environmental Impact Assessments
• Integrating environmental justice principles into all sustainability legislation and policies

READING – 2 Himanshu Ahlawat and Sujith Koonan, Polluter Pays Principle in India: Assessing Conceptual Boundaries and Implementation Issues”, 7(2) RGNUL Student Research Review 33-50 (2021)

This research paper examines the application and implementation of the Polluter Pays Principle (PPP) in India, specifically analyzing its evolution through judgments of the National Green Tribunal (NGT) from September 2011 to December 2019. The study reveals significant inconsistencies and ambiguities in how PPP is understood and applied in Indian environmental adjudication.

Key Findings

Evolution of PPP in India – The principle was first incorporated into Indian environmental law by the Supreme Court in the mid-1990s through landmark cases like Indian Council for Enviro-Legal Action v. Union of India (1996) and Vellore Citizens Welfare Forum v. Union of India (1996). PPP subsequently received statutory recognition through Section 20 of the National Green Tribunal Act, 2010.

Three Main Issues Identified

1. Definitional Inconsistencies – The NGT has adopted varying approaches to determining “pollution” and “polluter”:

• “Deemed to be polluting” approach: Applied to continuing activities without establishing threshold violations (e.g., vehicle emissions, household waste generation)
• Actual pollution cases: Applied where environmental damage is clearly established (e.g., oil spills)
• Violation-based approach: Applied even without discharge, based purely on non-compliance with environmental norms

2. Compensation Calculation Methods – The study identifies three problematic methods used by the NGT:

• Guesswork/approximation: Used when adequate data is unavailable, justified as “accepted principle” but undermining legal certainty
• Size-based assessment: Compensation linked to company size rather than actual damage
• Project cost percentage: Typically 5-10% of total project cost, regardless of actual environmental harm

3. Expanded Scope Beyond Restoration – The NGT has extended PPP beyond its traditional restorative purpose to include punitive objectives, imposing “exemplary and deterrent compensation” in addition to environmental restoration costs.

Critical Analysis

The research highlights serious concerns about legal consistency and rule of law in environmental adjudication. The NGT’s reliance on guesswork for compensation calculation and application of PPP to activities that may not constitute “pollution in law” raises questions about judicial methodology and adherence to statutory definitions.

The principle that “polluters should pay” for environmental damage sounds straightforward, but its implementation in India faces significant challenges. Courts often struggle to determine who qualifies as a polluter and how much they should pay, leading to inconsistent decisions that may not effectively restore damaged environments or compensate victims.

Implementation Gaps

A significant finding is that despite imposing substantial compensation (over Rs. 800 crores collected), there are serious questions about whether funds actually reach pollution victims or are used for environmental restoration. The Environment Relief Fund management appears inadequate, undermining PPP’s core objectives.

CASE – Vellore Citizen’s Welfare Forum vs Union of India, 1996 5 SCC 647

Background – A PIL under Article 32 challenged severe pollution from hundreds of Tamil Nadu tanneries that discharged untreated effluents into land and the Palar river, contaminating groundwater, degrading over 35,000 hectares of farmland, and causing acute drinking-water shortages.

Legal Issues

1. Whether the right to life under Article 21 encompasses a right to a clean and healthy environment.
2. Whether international environmental principles i.e Sustainable Development, Precautionary Principle, and Polluter Pays form part of Indian law.
3. Scope of State/Board obligations and judicial powers to close industries, impose compensation, and mandate remediation under environmental statutes.

Court’s Reasoning

• Article 21 & Directive Principles: A pollution-free environment is integral to life and health; Articles 47, 48A, and 51A(g) reinforce State and citizen duties.
• Incorporation of Principles: Sustainable Development, the Precautionary Principle (anticipate/prevent harm; burden on developer), and Polluter Pays (absolute liability to compensate victims and restore ecology) are part of Indian environmental law and customary international law.
• Statutory Basis: Powers under the Environment (Protection) Act, 1986, Water Act, and Air Act authorize stringent standards and enforcement; chronic non-compliance justified robust judicial intervention.

Final Directions

• Establish a Section 3(3) EPA Authority (headed by a retired High Court Judge) to assess ecological damage, identify victims, compute compensation, and recover costs from polluters; non-payment entails closure.
• Impose a ₹10,000 pollution fine per tannery; create an Environment Protection Fund for victim compensation and ecological restoration.
• Set hard deadlines: install CETPs/ETPs by 30 Nov 1996 and obtain consent by 15 Dec 1996, failing which immediate closure.
• Enforce G.O. Ms. 213/1989: ban new highly polluting industries within 1 km of specified water bodies; review/relocate existing units in prohibited zones.
• Uphold TNPCB standards (including TDS limits).
• Transfer ongoing monitoring to a Madras High Court Green Bench.

Significance

A cornerstone of Indian environmental jurisprudence: constitutionalizes the right to a healthy environment, mainstreams Precautionary and Polluter Pays principles, and institutionalizes remedial and deterrent mechanisms for industrial pollution.