GROUP NO.

- XI (11)

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PATIALA

PROJECT SUBMISSION FOR THE SUBJECT OF

ENVIRONMENT LAW

TOPIC:

CASE ANALYSIS OF

VELLORE CITIZENS’ WELFARE FORUM v. UNION OF INDIA &ORS.

(1996) 5 SCC 647

SUBMITTEDTO: SUBMITTEDBY:

DR. SANGEETA TAAK DEEPENDRA

(ASSISTANT PROFESSOR OF LAW) ROLL NO.-15236

 ACKNOWLEDGMENT

I also thankProf. (Dr.) Paramjit S. Jaswal, (Vice- Chancellor) at Rajiv Gandhi National
University of Law for providing me an opportunity to embark on this project. I also take this
opportunity to express a deep sense of gratitude to my classmates in the college for their cordial
support, valuable information and guidance, which helped me in completing this task through
various stages.

Also, I would like to express my thanks to Prof. (Dr.) Naresh Kumar Vats (Registrar) at Rajiv
Gandhi National University of Law for providing me an opportunity to do a project report on
this topic in order to enhance my knowledge oflaw.

I wish to express my sincere gratitude to Dr. Sangeeta Taak (Assistant Professor of Law) at
Rajiv Gandhi National University of Law for their guidance and encouragement in carrying out
this project work. I would also like to thank my batch mates and seniors for guiding me on how
to work on the project report.

I am obliged to the staff members of the Library, for the timely and valuable information
provided by them in their respective fields. I am grateful for their cooperation during the period
of my assignment.

Lastly, I thank my family for their constant encouragement without which this assignment would
not have been possible.

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 TABLE OF CONTENTS

I. INTRODUCTION .......................................................................................................................... 4

II. RELEVANT PROVISIONS OF THE VARIOUS ENACTMENTS ............................................. 7

III. ISSUES RAISED ............................................................................................................................ 9

IV. ARGUMENTS ADVANCED ....................................................................................................... 10

PETITIONER'S ARGUMENTS: ......................................................................................... 10

RESPONDENT’S ARGUMENTS: ...................................................................................... 10

V. JUDGMENT ................................................................................................................................. 11

VI. JUDGEMENT - USED AS PRECEDENT ................................................................................... 12

VII. ANALYSIS.................................................................................................................................... 15

VIII. CONCLUSION.............................................................................................................................. 20

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 I. INTRODUCTION

JUDGES: Kuldip Singh, Faizan Uddin & K. Ventkataswami, JJ.

PARTIES:

VEELORE CITIZENS’ WELFARE FORUM --- PETITIONER

UNION OF INDIA AND OTHERS --- RESPONDENTS

ADVOCATES WHO APPEARED IN THE CASE:

G. Ramaswamy, Kapil Sibal and G.L. Sanghi

– FOR THE PETITIONERS.

R Mohan, VA Bodbe and MR Sharma

–FOR THE RESPONDENTS.

Decided on: August 28, 1996.

BACKGROUND OF THE CASE

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
4
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. Legal Aid and Advice Board of Tamil
Nadu requested two lawyers namely, M.R. Ramanan and P.S. Subramanium to visit the area and
submit a report indicating the extent of pollution caused by the tanneries. Relevant part of the report is
as under:As per the Technical Report dated 28-5-1983 of the hydrological investigations carried out in
Solur village near Ambur it was noticed that 176 chemicals including acids were contained in the
tannery effluents. If 40 litres of water with chemicals are required for one kilo of leather, with the
production of 200 tons of leather per day at present and likely to be increased multi -fold in the next
four to five years with the springing up of more tanneries like mushroom in and around Ambur town,
the magnitude of the effluent water used with chemicals and acids let out daily can be shockingly
imagined. The effluents are let out from the tanneries in the nearby lands, then to Goodar and Palar
rivers. The lands, the rivulet and the river receive the effluents containing toxic chemicals and acids.
The subsoil water is polluted ultimately affecting not only arable lands, wells used for agriculture but
also drinking-water wells. The entire Ambur town and the villages situated nearby do not have good
drinking water. Some of the influential and rich people are able to get drinking water from a far-off
place connected by a few pipes. During rainy days and floods, the chemicals deposited into the rivers
and lands spread out quickly to other lands. The effluents thus let out affect cultivation; either crops
do not come up at all or if produced the yield is reduced abnormally too low. The tanners have come
5
to stay. The industry is a foreign exchange earner. But one moot point is whether at the cost of the
lives of lakhs of people with increasing human population the activities of the tanneries should be
encouraged on monetary considerations. We find that the tanners have absolutely no regard for the
healthy environment in and around their tanneries. The effluents discharged have been stored like a
pond openly in most of the places adjacent to cultivable lands with easy access for the animals and the
people. The Ambur Municipality, which can exercise its powers as per the provisions of the Madras
District Municipalities Act, 1920 (5 of 1920) more particularly under Sections 226 to 231, 249 to 253
and 338 to 342 seems to be a silent spectator. Probably it does not want to antagonise the highly
influential and stupendously rich tanners. The powers given under Section 63 of the Water
(Prevention and Control of Pollution) Act, 1974 (6 of 1974) have not been exercised in the case of
tanneries in Ambur and the surrounding areas.

FACTS IN ISSUE OF THE CASE:

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.

The Central Government agreed to give substantial subsidy for the construction of Common Effluent
Treatment Plants (CETPs). It is a pity that till date most of the tanneries operating in the State of
Tamil Nadu have not taken any step to control the pollution caused by the discharge of effluent.
Mr R. Mohan, the learned Senior Counsel for the Tamil Nadu Pollution Control Board, has placed
before us a consolidated statement dividing the 553 industries into three parts. We direct the Tamil
Nadu Pollution Control Board to issue individual notices to all these industries within two weeks from
today. The Board is also directed to issue a general notice on three consecutive days in a local
newspaper which has circulation in the district concerned.

So far as the 57 tanneries listed in Statement III (including 12 industries who have filed writ petition,
6
numbers of which have been given above) are concerned, these units have not installed and
commissioned the Effluent Treatment Plants despite various orders issued by this Court from time to
time. Mr R. Mohan, the learned Senior Counsel appearing for Tamil Nadu Pollution Control Board,
states that the Board has issued separate notices to these units directing them to set up the Effluent
Treatment Plants. Keeping in view the fact that this Court has been monitoring the matter for the last
about four years and various orders have been issued by this Court from time to time, there is no
justification to grant any further time to these industries. We, therefore, direct the 57 industries listed
hereunder to be closed with immediate effect. We give opportunity to these 57 industries to approach
this Court as and when any steps towards the setting up of Effluent Treatment Plants and their
commissioning have been taken by these industries.

II. RELEVANT PROVISIONS OF THE VARIOUS ENACTMENTS

CONSTITUTION OF INDIA1:

Article 21: No person shall be deprived of his life or personal liberty except according to procedure
established by law.

Article 32:

Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part.

1
Const. of India, art. 14, 21 & 23
7
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its jurisdiction
all or any of the powers exercisable by the Supreme Court under clause ( 2 ).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution.

Article 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

Article 48-A : Protection and improvement of environment and safeguarding of forests and wildlife.
State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife
of the country.

Article 51-A (g): It shall be the duty of every citizen of India to protect and improve the natural
environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.

ENVIRONMENT (PROTECTION) ACT, 1986

Section 3(3) : The Central Government may, if it considers it necessary or expedient so to do for the
purposes of this Act, by order, published in the Official Gazette, constitute an authority or authorities
by such name or names as may be specified in the order for the purpose of exercising and performing
such of the powers and functions (including the power to issue directions under section 5) of the
Central Government under this Act and for taking measures with respect to such of the matters
8
referred to in sub-section (2) as may be mentioned in the order and subject to the supervision and
control of the Central Government and the provisions of such order, such authority or authorities may
exercise the powers or perform the functions or take the measures so mentioned in the order as if such
authority or authorities had been empowered by this Act to exercise those powers or perform those
functions or take such measures.

III. ISSUES RAISED

Whether the tanneries should be allowed to continue to operate at the cost of lives of lakhs of
people?

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 IV. ARGUMENTS ADVANCED

PETITIONER'S ARGUMENTS:

It was submitted by petitioner the entire surface and sub-soil water of river Palar has been polluted
resulting in non-availability of potable water to the residents of the area. It is stated thatthe tanneries
in the State of Tamil Nadu have caused environmental degradation in the area.

An independent survey conducted by Peace Members, a non-governmental organization, covering 13

villages of Dindigal and Peddiar Chatram Anchayat Unions, reveals that 350 well 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.

RESPONDENT’S ARGUMENTS:

Learned counsel for the tanneries raised an objection that the standard regarding total dissolved solids
(TDS) fixed by the Board was not justified. This Court by the order dated April 9, 1996 directed the
NEERI to examine this aspect and give its opinion. In its report dated June 11, 1996 NEERI has
justified the standards stipulated by the Board. The Ministry of Environment and forests (MEF) has
not categorically laid down standards for inland surface water discharge for total dissolved solids
(TDS), sulphates and chlorides. The decision on these standards rests with the respective State
Pollution Control Boards as per the requirements based on local site conditions. The standards
stipulated by the TNPCB are justified on the afore referred considerations. The prescribed standards
of the TNPCB for inland surface water discharge can be met for tannery waste waters cost-effectively
through proper implant control measures in tanning operation, and rationally designed and effectively
operated wastewater treatment plants (ETPs & CETPs.

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 V. JUDGMENT

Pursuant to this Court’s Order dated April 9, 1996 we have heard learned counsel appearingfor the
tanneries which have been closed in terms of the above order. It has been brought toour notice that
there are some tanneries which had set up individual pollution control
devices, but despite that they were closed. It has further been brought to our notice that some of the
tanneries are connected with CETP’s and have also set up their individual pollution controldevices.
Various other anomalies have been brought to our notice. Be that as it may, we havenow to adopt a
uniform procedure to bring these tanneries on rails. We make it clear thatnotannery shall be permitted
to re-open unless this Court is satisfies that the necessarypollution control deviceseither individually
or cumulatively have been set up by thesetanneries and for that purpose we have to depend on the
advice tendered by TechnicalAuthorities like the Pollution Control Boards or NEERI. The Court
directed the CentralPollution Control Board and the Tamil Nadu Pollution Control Board to jointly
inspect thearea on war-footing. The tanneries either directly or through learned counsel may
approachthe Pollution Control Boards or indicate that their respective units have set up/constructed
thenecessary pollution Control devices. We direct the Pollution Control Boards concerned
toimmediatelyinspect the Units and file a report in this respectbefore May 6, 1996.The Court further
directed that all those Units which are not in a position toconstruct theeffluent treatment devices
within this period may approach the Board as and when theycomplete the devices. The North Arcot
District and Chengai MGR District Association andother Associations of the Tanners shall bear the
expenses of the inspection teams organized by the Boards.
 The Supreme Court examining the report delivered its judgment making all efforts tomaintain a
harmony between environment and development.
 The Court admitted that these Tanneries in India are the major foreign exchangeearner and also
provides employment to several thousands of people. But at the sametime, it destroys the
environment and poses a health hazard to everyone.
 The court delivering its judgment in favor of petitioners directed all the Tanneries todeposit a sum
of Rs. 10,000 as fine in the office of Collector as fine
 The Court further directed the State of Tamil Nadu to award Mr. M. C. Mehta with asum of Rs.
50,000 as appreciation towards his efforts for protection of Environment.

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 VI. JUDGEMENT - USED AS PRECEDENT

Bittu Sehgal v. Union of India2

This Court considered in detail the “sustainable development” to the extent which has been
recognised under the international law and also its practicability under the environmental laws in
India. This Court in the said judgment held that the “precautionary principle” and “the polluter pays”
principle have been accepted as part of the law of the land. ‘The Polluter Pays Principle’ has been
held to be a sound principle by this Court. 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 damage to ecology.

Research Foundation for Science Technology National Resource Policy v. Union of India3

The legal position regarding applicability of the precautionary principle and polluter-pays principle
which are part of the concept of sustainable development in our country is now well settled. In
Vellore Citizens' Welfare Forum v. Union of India [(1996) 5 SCC 647] a three-Judge Bench of this
Court, after referring to the principles evolved in various international conferences and to the concept
of “sustainable development”, inter alia, held that the precautionary principle and polluter -pays
principle have now emerged and govern the law in our country, as is clear from Articles 47, 48-A and
51-A(g) of our Constitution and that, in fact, in the various environmental statutes including the
Environment (Protection) Act, 1986, these concepts are already implied. These principles have been
held to have become part of our law. Further, it was observed in Vellore Citizens' Welfare Forum case

2
Bittu Sehgal v. Union of India, (2001) 9 SCC 181.
3
Research Foundation for Science Technology National Resource Policy v. Union of India, (2005) 10 SCC 510.
12
that these principles are accepted as part of the customary international law and hence there should be
no difficulty in accepting them as part of our domestic law. Reference may also be made to the
decision in the case of A.P. Pollution Control Board v. Prof. M.V. Nayudu 4 where, after referring to
the principles noticed in Vellore Citizens' Welfare Forum case the same have been explained in more
detail with a view to enable the courts and the tribunals or environmental authorities to properly apply
the said principles in the matters which come before them. In this decision, it has also been observed
that the principle of good governance is an accepted principle of international and domestic laws. It
comprises of the rule of law, effective State institutions, transparency and accountability and public
affairs, respect for human rights and the meaningful participation of citizens in the political process of
their countries and in the decisions affecting their lives. Reference has also been made to Article 7 of
the draft approved by the Working Group of the International Law Commission in 1996 on
“Prevention of Transboundary Damage from Hazardous Activities” to include the need for the State
to take necessary “legislative, administrative and other actions” to implement the duty of prevention
of environmental harm. Environmental concerns have been placed on the same pedestal as human
rights concerns, both being traced to Article 21 of the Constitution. It is the duty of this Court to
render justice by taking all aspects into consideration. It has also been observed that with a view to
ensure that there is neither danger to the environment nor to the ecology and, at the same time,
ensuring sustainable development, the court can refer scientific and technical aspects for a n
investigation and opinion to expert bodies. The provisions of a covenant which elucidate and go to
effectuate the fundamental rights guaranteed by our Constitution, can be relied upon by courts as
facets of those fundamental rights and hence enforceable as such. The Basel Convention, it cannot be
doubted, effectuates the fundamental rights guaranteed under Article 21. The right to information and
community participation for protection of environment and human health is also a right which flows
from Article 21. The Government and authorities have, thus to motivate the public participation.
These well-enshrined principles have been kept in view by us while examining and determining
various aspects and facets of the problems in issue and the permissible remedies.

4
A.P. Pollution Control Board v. Prof. M.V. Nayudu, (1999) 2 SCC 718.
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M.C. Mehta v. Union of India5

The “precautionary principle” was elucidated thus by this Court in Vellore Citizens' Welfare Forum
v. Union of India inter alia, as follows:
(1) The State Government and the statutory authorities must anticipate, prevent and attack the causes
of environmental degradation.
(2) 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.
(3) The ‘onus of proof’ is on the actor or the developer to show that his action is environmentally
benign.
(4) It cannot be gainsaid that permission to use automobiles has environmental implications, and thus
any ‘auto policy’ framed by the Government must, therefore, of necessity conform to the
constitutional principles as well as overriding statutory duties cast upon the Government under the
EPA.
(5) The ‘auto policy’ must, therefore,
(a) Focus upon measures to ‘… anticipate, prevent and attack …’ the cause of environmental
degradation in this field.
(b) In the absence of adequate information, lean in favour of environmental protection by refusing
rather than permitting activities likely to be detrimental.
(c) Adopt the ‘precautionary principle’ and thereby ensure that unless an activity is proved to be
environmentally benign in real and practical terms, it is to be presumed to be environmentally
harmful.
(d) Make informed recommendations which balance the needs of transportation with the need to
protect the environment and reverse the large-scale degradation that has resulted over the years,
priority being given to the environment over economic issues.”

5
M.C. Mehta v. Union of India, (2002) 4 SCC 356.
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 VII. ANALYSIS

The Judgment given in the Vellore case by the Supreme Court in India is significant since it attempts
to realize the right to pollution free environment by embracing international principles of Precaution
and Polluter Pays. These principles have been called by the court in several cases as “essential
features of sustainable development”, “imperative for preserving ecology” and “part of environment
law of India” The Court in the Vellore case therefore ordered for the implementation of principle of
Sustainable development along with its two essential features i.e. Precautionary and Polluter Pays
principle with immediate effect to protect the ecology in the state of Tamil Nadu.

However, there are certain pitfalls in the way these principles are adopted and enforced in the Vellore
case. The subsequent paragraphs of this part attempts to highlight the same.The Supreme Court in the
Vellore case opined that traditional concept – that development and ecology are opposed to each other
is not acceptable. Hence, it attempts to strike a balance and urges a harmonious construction between
the imperatives of development and ecology. It does so by embracing the principle of ‘Sustainable
Development’ as a viable approach. However, the Court while invoking this principle does not
provide with a list of clear indicators to determine as to how it seeks to achieve this balance or how
these two goals might be harmonized; instead it takes it upon itself to strike the balance between the
two. Thus, without a list of clear indicators it clearly leaves the future application of this principle
case-by-case basis.The Court also holds that the principles of Precaution and Polluter Pays form part
of environment law of the Country. It is pertinent to note that the justification provided by court while
adopting both the principles in domestic environment law is not only erroneous but also based on
contested grounds.

This is because firstly, The Court justifies the adoption of principles via Article 21, 47, 48A and 51-A
(g) of the Constitution and a series of statutory Environmental laws. After a basic reading of these
constitution provisions one can conclude that these provisions only seek to make it mandatory for the
state to raise the level of nutrition and standard of living; improve public health and natural
environment; protect and safeguard forest and wildlife. None of these provisions explicitly mentions
the principle of precaution or a power to import such international principles in domestic law. This is
15
also the case with the statutory environmental laws referred by the Court. Thus, it is unclear as to how
the Court is concluding that adoption both the principle derive is validated by the constitutional and
statutory provisions
.
Secondly, the Court justifies the adoption of both the principle in the domestic law onthe premise that
“even otherwise once these principles are accepted as part of theCustomary International Law there
would be no difficulty in accepting them as part of domestic law”. It is undisputed that both the
principles were first incorporated in Stockholm Declaration, 1973 and Rio Declaration, which
recognized urgent need to safeguard natural resources. They are also mentioned in various other
binding and non- binding international instruments. But, is this enough to state that both the principles
form a part of Customary International Law? According to International Court of Justice state practice
and opinio juris can enable a treaty or a provision of it to acquire the status of Customary International
Law. Both of these factors are contested when it comes to Precautionary and Polluter Pays principles.
With respect to the Precautionary Principle, there remain deeply divergent views among the
international Courts in accepting it being a part of Customary International Law.

Further, the fact that 153 states were signatories of Rio Declaration wherein both the principles were
mentioned does not make the principles part of International Law. What is required is a demonstrable
willingness to adhere to the norm and practice of nations must alter according to prescriptions of new
norm for it to attain the status of International Customary Law. In the absence of any clear intent
among nations, incorporating the above two requirements of Customary International Law one
wonders as to how both these principles have been incorporated into municipal law. Thus, to
characterize the principles as custom without any evaluation of it in the Vellore case is not only
erroneous but is an example of judiciary’s sloppiness.

Limitations in Precautionary Principle:

Moving further, while adopting the principle of Precaution the Court did not seem to foresee the
divergent views and ambiguity, which exists in international sphere with respect to it. There is
vagueness in terms of its precise definition, content, obligations and whether in its strongest version it
lends actualization or not.

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The principle is too vague to serve as a regulatory standard because it does not specify as to how
much precaution should be taken. The subsequent three paragraphs analyze such inherent problems in
the principle of Precaution, which the Court seems to overlook while adopting it.

Firstly, as per the Court’s definition the, Precautionary Principle comes into picture when there is a
threat of serious and irreversible harm – but again, how should the existence of threat be determined
and what is the required threshold for invoking the principle? The Court does not answer this. Also,
while adopting a principle with inherent vagueness the court does not find it needful to set a list of
criteria for the implementation and actualization of the principle. This will not only proliferate
ambiguity around the principle in the future cases but would also open the floodgates for its arbitrary
application and violation of individual rights.

Secondly, some of the other criticisms which are raised against strong formulations of Precautionary
Principle is that it adopts an absolutist approach which is cost oblivious; implying that once risk
thresholds are crossed concerned activities needs to be stopped no matter the costs. The danger in
applying the principle to such absolutist terms may result in the opportunity cost being much higher
than the cost of inaction. 44 This would also in a way limit the scope of cost-benefit analysis.

Thirdly, as the definition suggests the principle shifts the burden of proof on the polluter to prove that
emissions are harmless before the activity is allowed. This might be problematic since in many cases
of uncertainty, it might not be possible to meet the burden of proof despite many potential benefits to
be expected. Such interpretation will also stifle the innovation and creativity; hamper all the scientific
and technological advancements and arguably result in regulatory paralysis.

Fourthly, the most challenging task while adopting an abstract international principle lies in its
implementation to the case at hand. It is evident that application of Precautionary Principle involves
weighing and balancing different ecological, cultural, political and economical interest before any
decision has to be taken. While doing so cost-benefit analysis might not prove to be best available
approach since certain changes in the ecosystem are beyond scientific understanding and it is
impossible to give them economic values necessary for an accurate cost-benefit assessment. The
Supreme Court in the present case fails to acknowledge such inherent glitches, which would arise
17
while implementing such an abstract principle. It does not foresee that this will also indirectly impact
the redressal mechanism by making it slow and inadequate in responding to urgent concerns of
environment degradation.

The most surprising part of the judgment is that even after embracing and defining the principle of
Precaution the Court does not apply it, in the facts of the Vellore case. The facts of the case depict that
900 tanneries operating in the state of Tamil Nadu have created a serious problem of pollution and
environment degradation. Thus on the face of it, there existed a threat of serious and irreversible
damage. However there was no scientific uncertainty at play nor was there any requirement for
postponing measures for environment degradation because the issue was already conceived. Thus, one
can argue that the measures adopted by the Court seem to line more with the approach of prevention
rather than precaution. Due to lack of engagement of the principle with the facts it can be argued that
the reference to the precautionary principle is mere obiter, if not for the fact that the Court, inter alia
directed the relevant authority to implement the ‘Precautionary Principle’and the ‘Polluter Pays
principle’.

Polluter Pays Principle:

Another aspect for consideration in the judgment is embracement of Polluter Pays principle by the
Court. The principle was first invoked in the Enviro-Legal Action case in 1996. In this case the Court
affirmed the principle of absolute liability as stated in Oleum Gas leak case and extended it to include
the liability of polluter to the costs of repairing the damage to the environment. The Court in Vellore
case reaffirms this principle and clarifies that the polluters (900 tanneries causing pollution in the state
of Tamil Nadu) were not only liable to pay the cost to the individual sufferers but also the cost of
‘reversing the damaged ecology’.

However, while reaffirming this principle the Court not only fails to recognize that the principle is
contested as being part of Customary International Law, but also does not deal with the fact that in
certain situations it becomes difficult to estimate the level of charges and costs owed by each polluter.
This problem is peculiar to the present case wherein there are almost 900 tanneries, liable for
discharging untreated effluents in the affected areas. Estimating the cost owed by each of these
tanneries might prove to be a difficult task for the administrative authorities in the absence of
18
guidance. Further, the efficacy of this principle is contingent upon how successfully it is implemented
by the administrative authorities

In light of the arguments made above on the imprecise adoption of principles of precaution and
polluter pays by the Supreme Court in Vellore case one can conclude that the Public Interest
Litigation and over activist approach of judiciary has raised concerns that: judges and their
preferences play far too significant role in shaping the policies and litigation. Embracing international
principles as part of Indian Environment Law without any deliberations can have far-reaching
repercussions (which judges cannot foresee) and can affect even those who are not party before the
court. Therefore, policy - environmental and social, must emerge from a socio political process and
must be considered in a legislative forum not a judicial one .

Secondly, the Court in the Vellore case not only transgresses into the power of legislature but also
tries to substitute judicial governance for executive governance . The Court does so by assuming the
role of protector of environment and in that role it directs the Central Government with the course of
action to be taken instead of making them invoke their statutory powers for curbing the environment
problem. This clearly depicts ‘judicial excessivism’. According to S.P. Sathe ‘Judicial activism…is
excessivism when the Court undertakes responsibilities normally discharged by other coordinate
organs of the government’. The Vellore case is a good example to depict this point. Lastly, Vellore
case also presents us with an example of how over-arching power of judiciary can lead to adoption of
imprecise principles without evaluation of their definition, practically enforceability and their
capability to achieve the objective intended. This not only opens room for ambiguity for future cases
to resolve but also obfuscates some hard questions. This paper also illustrates that the Vellore case
should serve as a caution that the public interest litigation must be utilized and invoked with a great
deal of circumspection and caution in future.

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 VIII. CONCLUSION

To conclude, this paper critically analyses the Vellore case and illustrates that the Supreme Court’s
activist approach in adopting the principle of ‘precaution’ and ‘polluter pays’ does little to solve the
prevalent problems of environment degradation and instead proliferates the existing environment
problems. The paper also highlights that these principles are not only contested as being part of
customary international law but are also ambiguous in terms of their content, obligations and ways of
implementation. Further, the paper explains how judicial discretion and over activist approach leads
to judicial excessivism. It also leads to adoption of imprecise principles without evaluation of their
definition, practically enforceability and their capability to achieve the objective intended. This can be
dangerous considering the nascent stage of Indian Environment Jurisprudence. However, none of the
criticism can undermine the fact that Supreme Court has made remarkable contributions to the
domestic Environmental Law and have showed willingness to adopt such creative and innovative
tools in its role as protector of environment.

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