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Full Case Details
This 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. According to the petitioner an
independent survey conducted by Peace Members, a non-governmental organisation, covering
13 villages of Dindigul and Peddiar Chatram Anchayat Unions, reveals that 350 wells out of
total of 467 used for drinking and irrigation purposes have been polluted. Women and
children have to walk miles to get drinking water.
- 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. - 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
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
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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. - 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. - “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 AIR SCW 1069)]. 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:
(O)nce 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
53
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. - 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, 48-A and 51-A(g) of the Constitution were quoted]
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). The Water Act provides for the constitution of
the Central Pollution Control Board by the Central Government and the constitution of the
State Pollution Control Boards by various State Governments in the country. The Boards
function under the control of the Governments concerned. The Water Act prohibits the use of
streams and wells for disposal of polluting matters. It also provides for restrictions on outlets
and discharge of effluents without obtaining consent from the Board. Prosecution and
penalties have been provided which include sentence of imprisonment. The Air Act provides
that the Central Pollution Control Board and the State Pollution Control Boards constituted
under the Water Act shall also perform the powers and functions under the Air Act. The main
function of the Boards, under the Air Act, is to improve the quality of the air and to prevent,
control and abate air pollution in the country. We shall deal with the Environment Act in the
latter part of this judgment. - 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. - 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. - 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. It would be useful to quote a paragraph from Blackstone’s
commentaries on the Laws of England [Commentaries on the Laws of England of Sir
William Blackstone, Vol. III, fourth edition published in 1876]. Chapter XIII, “Of Nuisance”
depicts the law on the subject in the following words:
Also, if a person keeps his hogs, or other noisome animals, or allows filth to accumulate
on his premises, so near the house of another, that the stench incommodes him and makes the
air unwholesome, this is an injurious nuisance, as it tends to deprive him of the use and
54
benefit of his house. A like injury is, if one’s neighbour sets up and exercises any offensive
trade; as a tanner’s, a tallow-chandler’s, or the like; for though these are lawful and necessary
trades, yet they should be exercised in remote places; for the rule is, ‘sic utere tuo, ut alienum
non leadas’; this therefore is an actionable nuisance. And on a similar principle a constant
ringing of bells in one’s immediate neighbourhood may be a nuisance.
With regard to other corporeal hereditaments; it is a nuisance to stop or divert water that
used to run to another’s meadow or mill; to corrupt or poison a watercourse, by erecting a
dye-house or a lime-pit, for the use of trade, in the upper part of the stream; to pollute a pond,
from which another is entitled to water his cattle; to obstruct a drain; or in short to do any act
in common property, that in its consequences must necessarily tend to the prejudice of one’s
neighbour. So closely does the law of England enforce that excellent rule of gospel-morality,
of ‘doing to others, as we would they should do unto ourselves’. - The Statement of Objects and Reasons to the Environment Act, inter alia, states as
under:
The decline in environmental quality has been evidenced by increasing pollution,
loss of vegetal cover and biological diversity, excessive concentrations of harmful
chemicals in the ambient atmosphere and in food-chains, growing risks of
environmental accidents and threats to life-support systems. The world community’s
resolve to protect and enhance the environmental quality found expression in the
decisions taken at the United Nations Conference on the Human Environment held in
Stockholm in June 1972. The Government of India participated in the Conference
and strongly voiced the environmental concerns. While several measures have been
taken for environmental protection both before and after the Conference, the need for
a general legislation further to implement the decisions of the Conference has
become increasingly evident.
Existing laws generally focus on specific types of pollution or on specific
categories of hazardous substances. Some major areas of environmental hazards are
not covered. There also exist uncovered gaps in areas of major environmental
hazards. There are inadequate linkages in handling matters of industrial and
environmental safety. Control mechanisms to guard against slow, insidious build-up
of hazardous substances especially new chemicals in the environment, are weak.
Because of a multiplicity of regulatory agencies, there is need for an authority which
can assume the lead role for studying, planning and implementing long-term
requirements of environmental safety and to give direction to, and coordinate a
system of speedy and adequate response to emergency situations threatening the
environment.
In view of what has been stated above, there is urgent need for the enactment of a general
legislation on environmental protection which inter alia, should enable coordination of
activities of the various regulatory agencies, creation of an authority or authorities with
adequate powers for environmental protection, regulation of discharge of environmental
pollutants and handling of hazardous substances, speedy response in the event of accidents
threatening the environment and deterrent punishment to those who endanger human
environment, safety and health.
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[Sections 3, 4, 5, 7 and 8 of the Environment Act and Rules 3(1), 3(2) and 5(1) of the
Environment (Protection) Rules, 1986 were quoted by the court.] - It is thus obvious that the Environment Act contains useful provisions for controlling
pollution. The main purpose of the Act is to create an authority or authorities under Section
3(3) of the Act with adequate powers to control pollution and protect the environment. It is a
pity that till date no authority has been constituted by the Central Government. The work
which is required to be done by an authority in terms of Section 3(3) read with other
provisions of the Act is being done by this Court and the other courts in the country. It is high
time that the Central Government realises its responsibility and statutory duty to protect the
degrading environment in the country. If the conditions in the five districts of Tamil Nadu,
where tanneries are operating, are permitted to continue then in the near future all
rivers/canals shall be polluted, underground waters contaminated, agricultural lands turned
barren and the residents of the area exposed to serious diseases. It is, therefore, necessary for
this Court to direct the Central Government to take immediate action under the provisions of
the Environment Act. - There are more than 900 tanneries operating in the five districts of Tamil Nadu. Some
of them may, by now, have installed the necessary pollution control measures; they have been
polluting the environment for over a decade and in some cases even for a longer period. This
Court has in various orders indicated that these tanneries are liable to pay pollution fine. The
polluters must compensate the affected persons and also pay the cost of restoring the damaged
ecology. - Mr. M.C. Mehta, the learned counsel for the petitioner has invited our attention to the
notification GOMs No. 213 dated 30-3-1989 which reads as under: - In the government order first read above, the Government have ordered,
among other things, that no industry causing serious water pollution should be
permitted within one kilometre from the embankments of rivers, streams, dams, etc.
and that the Tamil Nadu Pollution Control Board should furnish a list of such
industries to all local bodies. It has been suggested that it is necessary to have a
sharper definition for water sources so that ephemeral water collections like rainwater
ponds, drains, sewerages (bio-degradable) etc. may be excluded from the purview of
the above order. The Chairman, Tamil Nadu Pollution Control Board has stated that
the scope of the government order may be restricted to reservoirs, rivers and public
drinking-water sources. He has also stated that there should be a complete ban on
location of highly polluting industries within 1 kilometre of certain water sources. - The Government has carefully examined the above suggestions. The
Government impose a total ban on the setting up of the highly polluting industries
mentioned in Annexure I to this order within one kilometre from the embankments of
the water sources mentioned in Annexure II to this order. - The Government also direct that under any circumstances if any highly
polluting industry is proposed to be set up within one kilometre from the
embankments of the water sources other than those mentioned in Annexure II to this
order, the Tamil Nadu Pollution Control Board should examine the case and obtain
the approval of the Government for it.
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Annexure I to the notification includes distilleries, tanneries, fertilizer, steel plants and
foundries as the highly polluting industries. We have our doubts whether the above-quoted
government order is being enforced by the Tamil Nadu Government. The order has been
issued to control pollution and protect the environment. We are of the view that the order
should be strictly enforced and no industry listed in Annexure I to the order should be
permitted to be set up in the prohibited area. - The Board has the power under the Environment Act and the Rules to lay down
standards for emissions or discharge of environmental pollutants. Rule 3(2) of the Rules even
permits the Board to specify more stringent standards from those provided under the Rules.
The NEERI having justified the standards stipulated by the Board, we direct that these
standards are to be maintained by the tanneries and other industries in the State of Tamil
Nadu. - Keeping in view the scenario discussed by us in this judgment, we order and direct as
under: - The Central Government shall constitute an authority under Section 3(3) of the
Environment (Protection) Act, 1986 and shall confer on the said authority all the powers
necessary to deal with the situation created by the tanneries and other polluting industries
in the State of Tamil Nadu. The authority shall be headed by a retired Judge of the High
Court and it may have other members – preferably with expertise in the field of pollution
control and environment protection – to be appointed by the Central Government. The
Central Government shall confer on the said authority the powers to issue directions
under Section 5 of the Environment Act and for taking measures with respect to the
matters referred to in clauses (v), (vi), (vii), (viii), (ix), (x) and (xii) of sub-section (2) of
Section 3. The Central Government shall constitute the authority before September 30,
1996. - The authority so constituted by the Central Government shall implement the
“Precautionary Principle” and the “Polluter Pays Principle”. The authority shall, with the
help of expert opinion and after giving opportunity to the polluters concerned assess the
loss to the ecology/environment in the affected areas and shall also identify the
individuals/families who have suffered because of the pollution and shall assess the
compensation to be paid to the said individuals/families. The authority shall further
determine the compensation to be recovered from the polluters as cost of reversing the
damaged environment. The authority shall lay down just and fair procedure for
completing the exercise. - The authority shall compute the compensation under two heads namely, for
reversing the ecology and for payment to individuals. A statement showing the total
amount to be recovered, the names of the polluters from whom the amount is to be
recovered, the amount to be recovered from each polluter, the persons to whom the
compensation is to be paid and the amount payable to each of them shall be forwarded to
the Collectors/District Magistrates of the area concerned. The Collector/District
Magistrate shall recover the amount from the polluters, if necessary, as arrears of land
57
revenue. He shall disburse the compensation awarded by the authority to the affected
persons/families. - The authority shall direct the closure of the industry owned/managed by a polluter
in case he evades or refuses to pay the compensation awarded against him. This shall be
in addition to the recovery from him as arrears of land revenue. - An industry may have set up the necessary pollution control device at present but it
shall be liable to pay for the past pollution generated by the said industry which has
resulted in the environmental degradation and suffering to the residents of the area. - We impose pollution fine of Rs 10,000 each on all the tanneries in the districts of
North Arcot Ambedkar, Erode Periyar, Dindigul Anna, Trichi and Chengai M.G.R. The
fine shall be paid before October 31, 1996 in the office of the Collector/District
Magistrate concerned. We direct the Collectors/District Magistrates of these districts to
recover the fines from the tanneries. The money shall be deposited, along with the
compensation amount recovered from the polluters, under a separate head called
“Environment Protection Fund” and shall be utilised for compensating the affected
persons as identified by the authorities and also for restoring the damaged environment.
The pollution fine is liable to be recovered as arrears of land revenue. The tanneries
which fail to deposit the amount by October 31, 1996 shall be closed forthwith and shall
also be liable under the Contempt of Courts Act, 1971. - The authority, in consultation with expert bodies like NEERI, Central Board, Board
shall frame scheme/schemes for reversing the damage caused to the ecology and
environment by pollution in the State of Tamil Nadu. The scheme/schemes so framed
shall be executed by the State Government under the supervision of the Central
Government. The expenditure shall be met from the “Environment Protection Fund” and
from other sources provided by the State Government and the Central Government. - We suspend the closure orders in respect of all the tanneries in the five districts of
North Arcot Ambedkar, Erode Periyar, Dindigul Anna, Trichi and Chengai M.G.R. We
direct all the tanneries in the above five districts to set up CETPs or Individual Pollution
Control Devices on or before November 30, 1996. Those connected with CETPs shall
have to install in addition the primary devices in the tanneries. All the tanneries in the
above five districts shall obtain the consent of the Board to function and operate with
effect from December 15, 1996. The tanneries who are refused consent or who fail to
obtain the consent of the Board by December 15, 1996 shall be closed forthwith. - We direct the Superintendent of Police and the Collector/District
Magistrate/Deputy Commissioner of the district concerned to close all those tanneries
with immediate effect who fail to obtain the consent from the Board by the said date.
Such tanneries shall not be reopened unless the authority permits them to do so. It would
be open to the authority to close such tanneries permanently or to direct their relocation. - Government Order No. 213 dated March 30, 1989 shall be enforced forthwith. No
new industry listed in Annexure I to the notification shall be permitted to be set up within
the prohibited area. The authority shall review the cases of all the industries which are
58
already operating in the prohibited area and it would be open to the authority to direct the
relocation of any of such industries. - The standards stipulated by the Board regarding total dissolved solids (TDS) and
approved by the NEERI shall be operative. All the tanneries and other industries in the
State of Tamil Nadu shall comply with the said standards. The quality of ambient waters
has to be maintained through the standards stipulated by the Board. - We have issued comprehensive directions for achieving the end result in this case. It
is not necessary for this Court to monitor these matters any further. We are of the view that
the Madras High Court would be in a better position to monitor these matters hereinafter. We,
therefore, request the Chief Justice of the Madras High Court to constitute a Special Bench
“Green Bench” to deal with this case and other environmental matters. We make it clear that
it would be open to the Bench to pass any appropriate order/orders keeping in view the
directions issued by us. We may mention that “Green Benches” are already functioning in
Calcutta, Madhya Pradesh and some other High Courts. We direct the Registry of this Court
to send the records to the Registry of the Madras High Court within one week. The High
Court shall treat this matter as a petition under Article 226 of the Constitution of India and
deal with it in accordance with law and also in terms of the directions issued by us.
