Emerging Principles: International and National Principles

Polluter Pays, Precautionary Principles, Public Trust Doctrine,

Sustainable Development, Role of Indian Judiciary in evolving these
Principles

 Elaborate the concept of Sustainable Development and also discuss the

role of judiciary in evolving this principle in India
 Critically discuss the role of judiciary in the protection of environment
 Discuss the principle of Public Trust Doctrine in the light of judicial
pronouncements
 Elaborate Polluter Pays Principle' and 'Precautionary Principle' and also
explain how they are fundamental for sustainable development
 Elaborate 'Polluter Pays Principle' and 'Precautionary Principle' and also
explain how they are fundamental for sustainable development?
 Sustainable Development is the development that meets the needs of
present without compromising the ability of the future generations to
meet their needs. Elaborate the above given statement.
 Referring the Indian Council of Enviro Legal Action versus Union of
India (1996) explain the concept of sustainable development and the
Polluter Pays Principle.
Table of Contents
The Polluter Pays Principle.............................................................................................................3

Precautionary Principle..................................................................................................................6

Public Trust Doctrine....................................................................................................................10

Sustainable Development............................................................................................................12

Sustainable Development and Role of Judiciary..........................................................................13

The Polluter Pays Principle
The Polluter Pays Principle (PPP), as interpreted by the Supreme Court, holds the polluter
liable for both compensating the victims of pollution and restoring the environmental damage
caused. This includes both the direct costs to people and property as well as the
environmental costs involved. Therefore, the polluter must pay for the restoration of the
damaged ecology, as it is an essential aspect of sustainable development.

It is not the responsibility of the government to bear the expenses of preventing such damage
or carrying out remedial action, as this would shift the financial burden of the pollution
incident onto the taxpayers.

Polluters pay principle( International Perspective)

 In 1972, the Organisation for Economic Co-operation and Development (OECD)

member countries adopted the polluter pays principle (PPP) as the basis for their
environmental policies. The PPP guidelines aimed to discourage subsidies that could
distort trade, and were introduced during a time of high public interest in
environmental issues. The public demanded policies and mechanisms to protect them
and the environment from pollution in industrialized societies.
 Despite extensive discussions on the PPP, there has been no satisfactory agreement on
its precise scope and implications for those involved in past or potential polluting
activities. Its scope has been disputed, particularly regarding the limits on
compensation for damage caused. The PPP is a guide for the desired course of action,
but it has rarely been fully implemented in the environmental legislation of the
European Community or Britain. Nevertheless, there is a strong connection between
the PPP and the concept that prevention is better than cure.
 The polluter pays principle mandates that the cost incurred should cover the complete
environmental expenses, not just the ones that are readily apparent. It is a
misconception to assume that producers can pollute as long as they are willing to pay
for it, as this fails to understand the true meaning and scope of the principle. Even
though defining the principle can be challenging, the European Community has
recognized it as a crucial aspect of its environmental strategy. The Action Programme
 on the Environment has established fundamental principles of the European
Community's environmental policy.

The most important are set out in Article 130R(2). They are that

(a) preventive action is to be preferred to remedial measures,

(b) environmental damage should be rectified at source;

(c) the polluter should pay for the costs of the measures taken to protect the environment;

(d) environmental policies should form a component of the European Community's other
policies.

Thus, according to the "polluter pays principle", the responsibility to repair the environmental
damage is that of the polluter.

Principle 16 of the Rio Declaration of 1992 also enunciates "polluter pays principle". It
provides that national authorities should endeavour to promote the internationalisation of
environmental costs and the use of economic instruments, taking into account the approach
that the polluter should in principle, bear the cost of pollution with due regard to the public
interest and without distorting international trade and investment.

 In Research Foundation for Science (18) v. Union of India, the Supreme Court has
explained that the "Polluter Pays Principle" basically means that the producer of
goods or other items should be responsible for the cost of preventing or dealing with
any pollution that the process causes. This includes environmental cost as well as
direct cost to the people or property, it also covers cost incurred in avoiding pollution
and not just those related to remedying any damage. It will include full environmental
cost and not just those which are immediately tangible. However, this principle does
not mean that the polluter can pollute and pay for it. The nature and extent of cost and
the circumstances in which the principle will apply may differ from case to case.
 Indian Council for Enviro-Legal Action v. Union of India( Important)

The case of Indian Council for Enviro-Legal vs Union of India & Ors relates to an
environmentalist organization that brought to attention the problems faced by the
residents of the village of Bichhri in Rajasthan due to the activities of a chemical
 manufacturing industry in the village. The emission of concentrated sulphuric acid and
aluminium sulphate from the industry caused discomfort to the villagers, and the effluents
from the factory were refractory in nature and difficult to deal with. The chemicals
percolated into the soil and polluted the groundwater, leading to destroyed crops and
barren agricultural lands. The judgement held that anyone engaged in such activity
involving the use of inherently dangerous substances shall be liable to pay for the
damages caused to human and nature. The polluter pays principle was applied, making
the polluter responsible for all the financial expenditure in restoring the environment to its
original condition.

This case is a classic example how by abuse of the process of law even the final judgment of
the Apex Court can be circumvented for more than a decade-and-a-half even after dismissal
of review and curative petitions there against., the litigation was deliberately kept alive by
filing one interlocutory application or the other in order to avoid compliance with the

judgment and the polluter unjustly enriched himself by abusing process of Court and by
adopting delaying tactics to avoid paying remedial environmental costs. The Supreme Court
applied the polluter pays principle and dismissed both the interim applications with costs of
Rs. 10 lakh and further imposed compound interest 12% p.a on the remedial amount due of
Rs 37.385 crore on the polluter for 15 years' delay in making payment of remediation costs
imposed earlier

 In M.C. Mehta (Kant Enclave Matters) v. Union of India, the damage was caused
to the forests in Aravali Hills, by developers by doing construction. Thus, irreversible
damage to environment and ecology of the Aravali Hills was caused. The Court
applied, "polluter pays principle and directed the builders to deposit 10% of the
project cost of the project.
 In Sterlite Industries (India) Ltd. v. Union of India, the Supreme Court again,
applied the polluter pays principle and considering the magnitude, capacity and
prosperity of the appellant company, directed it to pay compensation of Rs. 100 crore
for failing to maintain emission and effluent standards and operating the plant without
renewal permission and thereby causing air and water pollution which could have
been averted.
 In the Samir Mehta v. Union of India (Delta Co. case), the National Green Tribunal
stated that no country has the right to sail an unseaworthy ship to India's exclusive
 economic zone and dump it there, causing environmental damage. As a penalty, a
Panama-based shipping company and two Qatar-based sister concerns were jointly
and severally fined Rs. 100 crore for causing an oil spill off the Mumbai coast in
2011. Adani Enterprises Ltd., a Gujarat-based company, was also ordered to pay Rs.
5 crore for dumping coal in the seabed and polluting the marine environment.
 In the case of Threat to Life Arising Out of Coal Mining in South Garo Hills
District v. State of Meghalaya, The NGT directed the State of Meghalaya to deposit
an amount of Rs. 100 crore with the Central Pollution Control Board, to be spent for
restoration of environment. The said amount of Rs. 100 crore was required to be spent
only for restoration of the environment in the State of Meghalaya Aggrieved by the
above direction filed Appeal in the Supreme Court. The Supreme Court expressed the
view that the amount, is neither a penalty nor a fine imposed on the State. The amount
has been directed to be deposited for carrying out steps regarding restoration of
environment. However, the Supreme Court took note of the fact that the state has
limited source of revenue and putting an extra burden may cause great hardship to the
State of Meghalaya. They modified the direction, allowing Meghalaya to transfer the
amount from the MEPRF to the Central Pollution Control Board for restoration
purposes only.
 In Goel Ganga Developers (India) (P) Ltd. v. Union of India, the developers did
the construction in the violation of environmental clearance. The Supreme Court
instead of directing demolition, imposed damage of Rs. 100 crore or 10% of project
cost, whichever was higher, for violation of environmental clearance in addition to Rs.
5 crore damages imposed by NGT

Precautionary Principle
The Precautionary Principle has been adopted in many environmental instruments all over the
world. The principle states that if there is a risk of severe damage to the environment absence
of any scientific or conclusive proof is not to be given as a reason for the inaction. It is
imperative that the state takes every precautionary measure there is to protect the
environment . The Precautionary Principle shifts the burden of proof on the shoulders of the
person who is arguing that the activity he is carrying out is not harmful or the polluter. The
principle follows the approach of being safe than being sorry. The Precautionary Principle
encourages “action taking” to antedate and prevent damage to the environment.

Definition of Precautionary Principle

There are two definitions of Precautionary Principle which are widely accepted-

1. The first definition is given in the Rio Declaration of 1992. It states that in order to
protect the environment every state should apply the principle to the best of their
abilities.
When there are chances of irreversible and serious damage, lack of full scientific
evidence should not be the reason for the postponement of preventive measure.
2. The second definition is based on the Wingspread Statement on Precautionary
Principle, which was given 1998. This definition states that when there is a threat
to the environment and human health, precautionary measures should be taken
even when full scientific data is not available. The principle should examine the
alternative options available (even the option of taking no action).

There is a significant difference between the two definitions. The first definition talks about
“irreversible and serious damage, but the second definition talks about “harm” to the
environment and human health in general. Thus, the scope of the

Origin
 The Precautionary Principle has its roots in Tibet, where from the seventeenth century,
proactive measures were taken to protect the environment and human health.
 In contemporary public policy, the principle was initially referred to as "safe
minimum standards of conservation" during the 1950s.
 The DDT (dichloro-diphenyl-trichloroethane) case in the 1960s helped develop the
principle based on the idea of assimilative capacity, which sets limits on
environmental disturbances that the environment and humans can tolerate.
 In the 1970s, Germany likely became the first country to implement a precautionary
approach in its environmental policies and legislation.

second definition is wider.

Precautionary Principle-International Instruments

 The Precautionary Principle is a concept that emerged in the 1980s as a response to

environmental issues such as the depletion of the ozone layer and climate change.

 The Precautionary Principle was first recognized formally in the Preamble to the
Vienna Convention for the Protection of the Ozone Layer in 1985. The signatories
of the convention acknowledged the precautionary measures that had already been
 taken at the international and national levels to protect the ozone layer. Building on
this recognition, the Montreal Protocol was introduced in 1987, where signatories
agreed to undertake precautionary measures to control the emission of substances that
depleted the ozone layer.

 The Second North Sea Conference Ministerial Declaration (the London

Declaration) in 1987 also recognized the need to adopt precautionary measures to
prevent damage, even in the absence of scientific evidence.

 The Third Sea Conference in 1990 further reinforced this approach, and parties
decided to continue applying preventive measures to prevent damage.

 In 1992, the Precautionary Principle was included in the Convention on the

Protection of the Marine Environment of the North-East Atlantic, which
emphasized the need to adopt and implement precautionary and preventive measures
to prevent harm to the environment.

 The same year, the Precautionary Principle was acknowledged on an international

level with the adoption of the United Nations Framework Convention on Climate
Change. The convention recognized the need for precautionary measures to be taken
to prevent dangerous anthropogenic interference with the climate system, even in the
absence of scientific certainty.

 The year 1992 was significant in terms of the Precautionary Principle, as it also saw
the introduction of the Helsinki Convention on the Protection and Use of
Transboundary Watercourses and International Lakes. The signatories of this
convention committed to being guided by the Precautionary Principle.

 In 1991, the Bamako Convention on the Ban of Import into Africa and the Control of
Transboundary Movement and Management of Hazardous Wastes within Africa was
introduced. The convention emphasized the need for signatories to adopt and
implement precautionary and preventive measures to prevent harm to the
environment, even in the presence of scientific proof that such substances were
causing harm.

 The Bergen Ministerial Declaration on Sustainable Development in the Economic

Commission for Europe Region in 1990 also recognized the importance of the
Precautionary Principle in the context of sustainable development.

Precautionary Principle and Indian Law

The precautionary principle is accepted in India as a fundamental tool to promote sustainable

development and is employed within Indian environmental governance to promote better
health

Role of the Supreme Court of India in recognizing the precautionary principle as an essential
feature of sustainable development and a part of customary international law promoted its
derivative application from constitutional mandates namely Articles 21, 48A and 51A(g).
In Vellore Citizen Welfare Forum v Union of India SC declared that the principle involves
three conditions:

 State government and statutory authorities must anticipate, prevent and attack the
causes of environmental degradation.
 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;

 The onus of proof is on the actor or developer or industrialist to show the actions
are environmentally benign.

In the case of Narmada Bachao Andolan v UOI, the Apex Court very clearly laid down the
proposition of law, and specifically of Precautionary Principle. The Court stated that when an
issue pertains to environmental damage, the onus of proof is on the person who is contending
that the activities carried on by him are not harmful to the environment. The party who is
giving such contention also has to satisfy the Court of the same, that there will be no
environmental degradation due to his activities.

The NGT interprets and applies the precautionary principle as mandated by s. 20 of the
National Green Tribunal Act 2010

 The National Green Tribunal (NGT) in India has declared the precautionary
principle to be an integral part of national environmental law. It is regarded as a
determinative norm to examine the probability of environmental degradation and
resulting harm that may occur from a proposed activity.

The principle involves well-crafted scientific knowledge supporting precaution and

prohibition of harm and a commitment to dealing with risks. To activate precaution, actions
are based on scientific information and analysis of possible risks to human health and
environment, albeit tentative, inconclusive or in dispute.

Public Trust Doctrine

The Public Trust Doctrine (PTD) is an ancient legal principle that regulates the management
of natural resources and the environment. It limits the government's actions over public
property, treating the public as beneficiaries and the government as their trustee. The
government's trustees should hold and manage public property, including natural resources
and the environment, for the benefit of both present and future generations.

To ensure that natural resources are available for future generations, the government must
manage them carefully, including smart allocation of resources and sustainable development.
This doctrine recognizes that natural resources belong to the public and that the government's
role is to act as a steward to protect them.

Public Trust Doctrine serves two purposes:

 It mandates affirmative state action for effective management of natural resources

 Empowers the citizen to question ineffective management of natural resources

History and Origin

 Public Trust Doctrine originated in the Roman Empire (Byzantine) 1500 years ago.
 Roman Emperor Justinian stated that air, water, and sea are common to the public and
entitled to be used by anyone due to the law of nature.
 After the fall of the Roman empire in 1215, the Magna Carta codified Justinian's
words.
 In England, the King had ownership of the land but had to take care of the public
trust, which included two rights: Just Privatum and Just Publicum.
 Just Privatum means ownership for private parties, and Just Publicum means
ownership held by the king as a trustee for the public benefit.
 In 1821, the Modern revival of Public Trust Doctrine took place in the USA in the
case of Arnold vs Mundy and the landmark case of Illinois Central Railroad v.
Illinois.The court established a principle that the state cannot hand its trust of
resources to private ownership when the interest of the public is involved.

Public Trust Doctrine in India

The Public Trust Doctrine is a new concept in India, accepted through landmark cases and
rooted in Article 21 of the Indian Constitution, which guarantees the fundamental right to
life. This includes the right to live with dignity, access to a healthy environment, clean air and
water, and the right to livelihood. Protecting and improving the natural environment is crucial
for leading a healthy life.

Article 48A and 51A of the Indian Constitution focus on protecting the environment.
Article 48A obliges the state to protect and preserve the environment, including forests and
wildlife.

Article 51A outlines the fundamental duties of Indian citizens, including the duty to protect
and improve the natural environment.

The Public Trust Doctrine in India mandates the state to protect and improve public property,
i.e., natural resources, and regulate the activities of private parties who own such public
property. The doctrine ensures that every natural resource is utilized sustainably and prohibits
any act against nature or in favor of environmental degradation.

Landmark Cases

M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu[2]

In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu case, the Supreme Court took a
precautionary action against M.I.Builders. In this case, the Lucknow City Municipal
Corporation gave permission and made an agreement with the M.I.Builders to construct an
underground shopping mall in a park situated in Lucknow.

The High Court set aside the agreement made between the parties and gave an order directing
Mahapalika to bring back the park to its original form within three months.

The court observed the following: The clauses in the agreement state that the construction is
done to reduce the congestion in the area, however construction of a shopping mall in that
area will make the place more congested rather than reducing it. The action of the corporation
and M.I. builders are in contrary to the agreement and public policy. The park is of huge
importance, and historical value to that place and any action taken to destroy it will be
considered as an act against the public interest. Constructing a shopping mall is against the
right granted under the Constitution and deprives a quality of life for the residents of that
area.

Sustainable Development
Introduction
We know that the environment and economy are interconnected. The development which
ignores its repercussions on the environment will eventually destroy the environment which
sustains all the life forms.
Hence it was decided in the United Nations Conference for Environment and
Development (UNCED) that economic development and environment conservation should
go hand in hand

For the first time, the concept which inspired sustainable development was The Stockholm
Conference, 1972. The direct result of which was UN Environment Program was set up in
1972

Definition

Sustainable development has been defined in many ways, but the most frequently quoted
definition is from Our Common Future, also known as the Brundtland Report.

"Sustainable development is development that meets the needs of the present without
compromising the ability of future generations to meet their own needs. It contains within it
two key concepts

 The concept of needs, in particular the essential needs of the world's poor, to which
overriding priority should be given, and
 The idea of limitations imposed by the state of technology and social organization on
the environment's ability to meet present and future needs

Sustainable development is the development which aims to satisfy the basic needs and
not the greed of the present generation in order to provide a decent standard of living
to the future generations without compromising the current state of environment.

Three core elements of sustainable development are

1. Sustainable Economic growth

2. Social development of human being
3. Environmental protection

Features
  Sustained Rise in Real per Capita Income: There should be a sustained rise in real
per capita income and economic welfare on long-term basis.
 Rational Use of Natural Resources: Sustainable development simply means that
natural resources should be rationally used in a manner such that they are not
overexploited.
 Preserving the natural resources for future generations: Sustainable development
aims at making use of natural resources and environment for raising the existing
standard of living in such a way as not to reduce ability of the future generations to
meet their own needs.

Principle of sustainable development

Some of the basic principles of 'Sustainable Development' as described in 'Brundtland report'

are as follows: -

 Inter Generational Equity

 Use and Conservation of natural resources
 Environmental Protection
 The Precautionary Principle
 The Polluter Pays Principle
 Obligation to assist and Co-operate
 Eradication of poverty and
 Financial assistance to the developing Countries

Sustainable Development and Role of Judiciary

India is a developing country there has been environmental degradation due to many factors
ie Industrialisation, urbanisation, population explosion, poverty, over exploitation of resource,
depletion of traditional resource of energy and raw material etc.

Since man is a creator and moulder of his environment, his conduct can be regulated by
instrument of law. Thus it can be seen in India, there has been a regular development of the
law regarding protection of the environment. India has enacted various laws from time to
time regarding the protection of environment at the same time judiciary has played an
important role not only to help in protecting environment but also promoting sustainable
development

Quarrying, Mining, Stone crushing, Tree felling and Sustainable Development

Case Laws

RL&E Kendra Dehradun V State of UP (Popularly known as Doon Valley Case )The
Supreme court directed to totally stop the operation of mining in certain area on the ground of
environment protection.

Kinkri Devi V State The High court of Himachal Pradesh Relied on Doon Valley Case and
pointed out that if a just balance is not struck between development and environment by
proper tapping of natural resources, there will be violation of article 14,21.48-A and 51-A(g)
of the constitution. It is further observed by court that tapping has to be done with care so that
ecology and environment may not be affected in any serious way

Ishwar Singh V State of Haryana The High Court issued the directions for closing down
the stone crushing business of those which were not situated within the identified zone

TN Godavarman Thirumulkpad V. Union of India (popularly known as forest

Conservation case). The Supreme court issued interim directions that all the ongoing
activities within any forest in any state throughout the country, without the permission of the
central government must be stopped forthwith.

Urbanisations and Sustainable Development

Ajay Singh Rawat V. Union of India: The Supreme Court issued certain direction regarding
the preventive and remedial measures to be taken on war footing so that Nainital may regain
its unsoiled beauty and attract tourists.

Dr.B.L.Wadehra V. Union of India: Court held that the authorities' concerned (municipal
corporation of Delhi and New Delhi Municipal Council in this case) have a mandatory duty
to collect and dispose of the garbage /water generated from various sources in the city.

Industrial Development and Sustainable Development

M.C Mehta V. Union of India: It was held that pending consideration of the issue of
relocation or shifting of the plant to some other place the plant should be allowed to be
restarted subject to certain stringent conditions and the provisions of the Water Act 1974 and
Air Act 1981 should be strictly observe.

Ramji Patel V. Nagrik Upbhokta Marg Darshak Manch: Dumping of wastes of dairy
products and cow/buffalo dung near the main drinking water pipe line resulting into water
pollution was directed to be removed and the said directions were upheld by the court.

Lakshmipathi V. State: The Karnataka High Court in public interest litigation directed the
Municipal Corporation to stop the industries set up in the residential area

Right of Tribals/Adivasis and Ecological stability

Banwasi Sewa Ashram V. State of UP: The Supreme court in this case gave detail directions
for safeguarding and protection the interest of the adivasis The court permitted the acquisition
of land only after NTPC agreed to provide certain facilities to the ousted forest dwellers. The
court also ordered rehabilitation measure for the evictees and revisional compensation for
crops and land was directed to be paid to them.

Apart from that there are so many other cases relating to this point where judiciary in India
has played a very pivotal role in environment protection and applied the principle of
sustainable development Most of the cases come to the court through "Public Interest
Litigation"

In Rural Litigation and Entitlement Kendra V. State of UP The Supreme Court has attempted
to balance the needs of enviro protection with the needs of development which can alone
usher an era of socio-eco justice all round happiness, progress and welfare