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Polluter Pays Principle

Polluter pays principle is a fundamental principle of environmental governance. It imposes a burden on the polluter to make good the damage that he has caused to the environment. The concept behind this principle is of accountability as well as deterrent. It is widely accepted as cost for pollution.

Recently, Delhi has been struggling with severe air pollution with Air Quality Index (AQI) levels consistently breaching the "severe" category reaching up to 494 in some areas. Delhi faced toxic smog resulting in reduced visibility and its residents suffering from severe respiratory issues. The Apex Court had to intervene by ordering suspension of physical classes for all school students in Delhi-NCR. It also banned construction activities and imposed restrictions on vehicular traffic under Stage IV of the Graded Response Action Plan (GRAP).

The Apex Court in M.C. Mehta (Stubble Burning & Air Quality) v. Union of India[1] fixed liability on persons causing pollution. It directed an immediate halt to construction, demolition, and garbage-burning activities in Delhi and the NCR. It was ordered that any individual found engaging in construction or demolition activities will face a penalty of Rs. 1 Lakh while those who are involved in burning garbage will be fined Rs. 5,000. The courts had ordered that the imposition of penalty be publicised through television, radio, newspapers, and other media, including local announcements in villages to ensure compliance and raise awareness. It stated that the responsibility for enforcement of these restrictions and raising awareness lies with local authorities including Gram Panchayats, police stations, and district administrations.

In the case of Tata Housing Development Co. Ltd. v. Aalok Jagga[2], the Apex Court dealt with a housing project located within 123 meters of the boundary of Sukhna Wildlife Sanctuary and within the catchment area of Sukhna Lake. It held that permitting such projects so close to a wildlife sanctuary would be untenable. It criticized the government’s failure to safeguard the eco-sensitive zone, the bench noted that, in such situations, it is the judiciary's responsibility to intervene and ensure the protection of the environment and wildlife sanctuaries. It reiterated the observations by Hon’ble Supreme Court in M.C. Mehta v. Kamal Nath which states polluter pays principle means paying the cost for pollution. Damages can be awarded not only for restoration of ecological balance but also to the victims of the disturbance caused by the polluter.

In the landmark judgment of Vellore Citizens' Welfare Forum v. Union Of India And Others[3], it was held that 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 are bound to take all necessary measures to remove sludge and other pollutants in the affected areas.

Following the Polluter Pays Principle it also imposed fine of Rs 10,000 each on tanneries in the districts of Tamil Nadu. It also directed the District Magistrates of these districts to recover the fines from these tanneries. Further, the fine shall be deposited, along with the compensation amount recovered from the polluters, under a separate head called “Environment Protection Fund” and same is to be utilised for compensating the affected persons as identified by the authorities as well as for restoring the damaged environment. It also directed that the tanneries which fail to deposit the amount by the given dates shall be closed forthwith and shall also be liable under the Contempt of Courts Act, 1971.

The Hon’ble Supreme Court issued these stringent directions to achieve a dual objective of serving as a deterrent to those who contribute to environmental degradation and for restoration of environment. By imposing heavy penalties for violations such as construction or demolition, and garbage burning, the  Apex Court aimed to dissuade individuals and organizations from engaging in activities that cause pollution and harm the environment. Additionally, these measures reflect the judiciary's recognition of the urgent need to counteract environmental damage and restore the delicate ecological equilibrium that sustains life.

[1] (2020) 7 SCC 573

[2] (2020) 15 SCC 784

[3] (1996) 5 SCC 647

Author: Yashvi Aswani, Senior Associate with Pratap & Co.

Pallavi Pratap