KULDIP SINGH, J. – Petition – public interest – under Article 32 of the Constitution
of India has been filed by Vellore Citizens’ Welfare Forum and is directed against the
pollution which is being caused by enormous discharge of untreated effluent by the tanneries
and other industries in the State of Tamil Nadu. It is stated that the tanneries are discharging
untreated effluent into agricultural fields, roadsides, waterways and open lands. The untreated
effluent is finally discharged in River Palar which is the main source of water supply to the
residents of the area. According to the petitioner the entire surface and subsoil water of River
Palar has been polluted resulting in non-availability of potable water to the residents of the
area. It is stated that the tanneries in the State of Tamil Nadu have caused environmental
degradation in the area. According to the preliminary survey made 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. It has been
further stated in the petition that the tanneries use about 170 types of chemicals in the chrome
tanning processes. The said chemicals include sodium chloride, lime, sodium sulphate,
chlorium (sic) sulphate, fat, liquor, ammonia and sulphuric acid besides dyes which are used
in large quantities. Nearly 35 litres of water is used for processing one kilogram of finished
leather, resulting in dangerously enormous quantities of toxic effluents being let out in the
open by the tanning industry. These effluents have spoiled the physico-chemical properties of
the soil and have contaminated groundwater by percolation.
2. Along with the affidavit dated 21-7-1992 filed by Deputy Secretary to Government,
Environment and Forests Department of Tamil Nadu, a list of villages affected by the
tanneries has been attached. The list mentions 59 villages in the three divisions of
Thirupathur, Vellore and Ranipet. There is acute shortage of drinking water in these 59
villages and as such alternative arrangements were being made by the Government for the
supply of drinking water.
9. It is no doubt correct that the leather industry in India has become a major foreign
exchange earner and at present Tamil Nadu is the leading exporter of finished leather
accounting for approximately 80 per cent of the country’s export. Though the leather industry
is of vital importance to the country as it generates foreign exchange and provides
employment avenues it has no right to destroy the ecology, degrade the environment and pose
as a health-hazard. 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.
10. The traditional concept that development and ecology are opposed to each other is no
longer acceptable. “Sustainable Development” is the answer. In the international sphere,
“Sustainable Development” as a concept came to be known for the first time in the Stockholm
Declaration of 1972. Thereafter, in 1987 the concept was given a definite shape by the World
Commission on Environment and Development in its report called “Our Common Future”.
The Commission was chaired by the then Prime Minister of Norway, Ms G.H. Brundtland
and as such the report is popularly known as “Brundtland Report”. In 1991 the World
60
Conservation Union, United Nations Environment Programme and Worldwide Fund for
Nature, jointly came out with a document called “Caring for the Earth” which is a strategy for
sustainable living. Finally, came the Earth Summit held in June 1992 at Rio which saw the
largest gathering of world leaders ever in the history — deliberating and chalking out a
blueprint for the survival of the planet. Among the tangible achievements of the Rio
Conference was the signing of two conventions, one on biological diversity and another on
climate change. These conventions were signed by 153 nations. The delegates also approved
by consensus three non-binding documents namely, a Statement on Forestry Principles, a
declaration of principles on environmental policy and development initiatives and Agenda 21,
a programme of action into the next century in areas like poverty, population and pollution.
During the two decades from Stockholm to Rio “Sustainable Development” 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. “Sustainable Development”
as defined by the Brundtland Report means “Development that meets the needs of the present
without compromising the ability of the future generations to meet their own needs”. We have
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.
11. Some of the salient principles of “Sustainable Development”, as culled out from
Brundtland Report and other international documents, are 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. We are, however, of the view that “The
Precautionary Principle” and “The Polluter Pays Principle” are essential features of
“Sustainable Development”. The “Precautionary Principle” – in the context of the municipal
law – 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.
12. “The Polluter Pays Principle” has been held to be a sound principle by this Court in
Indian Council for Enviro-Legal Action v. Union of India [(1996) 3 SCC 212]. The Court
observed:
“(W)e are of the opinion that any principle evolved in this behalf should be
simple, practical and suited to the conditions obtaining in this country”.
The Court ruled that:
61
“… once the activity carried on is hazardous or inherently dangerous, the person
carrying on such activity is liable to make good the loss caused to any other person
by his activity irrespective of the fact whether he took reasonable care while carrying
on his activity. The rule is premised upon the very nature of the activity carried on”.
Consequently the polluting industries are “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 “Polluter Pays Principle” as interpreted by this Court 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
of the damaged environment 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.
13. The Precautionary Principle and the Polluter Pays Principle have been accepted as
part of the law of the land. Article 21 of the Constitution of India guarantees protection of life
and personal liberty. Articles 47, 48A and 51A(g) of the Constitution are as under:
“47. Duty of the State to raise the level of nutrition and the standard of living
and to improve public health.-The State shall regard the raising of the level of
nutrition and the standard of living of its people and the improvement of public
health as among its primary duties and, in particular, the State shall endeavour to
bring about prohibition of the consumption except for medicinal purposes of
intoxicating drinks and of drugs which are injurious to health.
48A. Protection and improvement of environment and safeguarding of forests
and wildlife.-The State shall endeavour to protect and improve the environment and
to safeguard the forests and wildlife of the country.
51A. (g) to protect and improve the natural environment including forests, lakes,
rivers and wildlife, and to have compassion for living creatures.”
Apart from the constitutional mandate to protect and improve the environment there are
plenty of post-independence legislations on the subject but more relevant enactments for our
purpose are: the Water (Prevention and Control of Pollution) Act, 1974 (the Water Act), the
Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) and the Environment
(Protection) Act, 1986 (the Environment Act).
14. In view of the above-mentioned constitutional and statutory provisions we have no
hesitation in holding that the Precautionary Principle and the Polluter Pays Principle are part
of the environmental law of the country.
15. 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.
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. To support we may refer to Justice
62
H.R. Khanna’s opinion in A.D.M. v. Shivakant Shukla [AIR 1976 SC 1207]; Jolly George
Varghese case [AIR 1980 SC 470] and Gramophone Co. case [AIR 1984 SC 667].
16. The constitutional and statutory provisions protect a person’s right to fresh air, clean
water and pollution-free environment, but the source of the right is the inalienable common
law right of clean environment.
17. Our legal system having been founded on the British common law the right of a
person to a pollution-free environment is a part of the basic jurisprudence of the land.
[The Supreme Court held that sustainable development, precautionary principle and
polluter pays principle, being customary norms of international law, are part of Indian
environmental law and therefore, have full legal force.]
