This article is written by Sam Siryon a 3rd Semester student of BA. LL. B honors at the Apeejay Stya University- School of legal Studies during his internship at LeDriot India.
Abstract
In this rapidly changing world where human activities are increasing as men are in search of food, pasture and self-sustainability, people engage into so many activities that in one way or the other impact the environment wherein they live. Human activities that are unregulated may have the propensity to undermine environmental sustainability causing serious threat to the environment through practices like deforestation, agriculture etc. There have been several efforts by both national and international partners to curb the adverse environmental impact on the society although these impacts are direct consequences of our own actions, our inability to protect our surroundings and the lack of sustainable practices.
International NGOs like the United Nations have developed a 15-year strategic plan titled Sustainable Development Goals 2030 in which environmental protection under goals like SDG 6 (Clean Water and Sanitation),12 (Responsible Consumption and Production), 13 (Climate Action), 14 (Life below Water) and 15 (Life on land). The environment is being regulated by legal and policy frameworks ranging from national to international legal governance and coupled with these existing legal frameworks, judicial interpretations have attempted to link fundamental human rights to the environment, some of which includes the right to life as provided under Article 21 of the Indian constitution.
Keywords
Environmental Protection, Human Rights, National Green Tribunal, Sustainable Development Goals.
Introduction
Prior to the establishment of the National Green Tribunal in 2010, India’s environmental protection framework was a combination of constitutional provisions, several specific legislative acts, and judicial pronouncements that interpreted the right to life. The concept of environmental protection has been intrinsically connected to the right to life and was integrated into the constitution by the 42nd Amendment in 1976 and included the State’s mandate to protect and improve the environment through Article 48A, and citizens’ duty to protect the natural environment under the provisions of Article 51a (g). The Judiciary also interpreted Article 21 (right to life) to encompass the right to a healthy environment.
India’s enactment of the national Green Tribunal was influenced by the 1972 Stockholm Conference which was the first world conference to make the environment a major issue. During the conference, participants adopted a series of principles for sound management of the environment including the Stockholm Declaration and Action Plan for the Human Environment and several resolutions. The Declaration contained 26 principles wherein environmental issues were placed at the forefront of international concerns and marked the start of a dialogue between industrialized and developing countries on the link between economic growth, the pollution of air, water, and oceans and the well-being of people around the world.
The Stockholm Conference provided the guiding principles and international mandate for the establishment of a national environmental las and specialized judicial bodies as the NGT Act of 2010 explicitly referenced India’s participation in the Stockholm Conference and resulted international obligations as primary reasons for its formation. India was a signatory to the Stockholm Declaration, which called upon states to take appropriate steps for the protection and improvement of the human environment and to develop national laws and compensation for pollution victims. The Preamble of the National Green Tribunal, Act 2010 explicitly mentions these decisions as a key motivation for the Act. The conference emphasized the need for effective access to judicial and administrative proceedings and remedies for environmental damage.
The NGT was established as a specialized, fast-track judicial body to ensure speedy and effective resolution of environmental disputes, fulfilling this requirement and reducing the burden on the higher courts. The NGT Act mandates that the tribunal be guided by the key principles that emerged from the international environmental law, the seeds of which were sown at the Stockholm and later articulated in the Rio Conference of 1992, these principles included, the Sustainable Development, Precautionary, and the Polluter Pays Principles.
The conference also inspired the enactment of several other major laws like the Wildlife (Protection) Act, 1972 which serves as the foundational law that safeguards biodiversity, and a legal framework to protect wild animals, plants, and their habitats by banning hunting, regulating trade, establishing National Parks and enabling India to join CITES, paying a crucial role in ecological security and conserving endangered species, and the Water (Prevention and Control of Pollution) Act of 1974 which foundationally regulates, prevent, control water pollution and maintain water quality by establishing Central and State Pollution Boards (CPCB/SPCBs) and sets standards for effluents, requiring consent for discharge, and penalizes violators, thereby serving as a legal framework for safeguarding rivers, wells, and overall water wholesomeness.
The Rio Conference, likely to the Stockholm, was also a major influencer of India’s National Green Tribunal by providing the international commitment to incorporate principles of environmental justice, access to information, and compensation into national laws. The conference was commonly known as the Earth Summit of 1992 and its Declarations particularly Principle 10 which called upon signatory states to provide effective access to judicial and administrative proceedings, including redress and remedies for victims of pollution and environmental damage. As a participant, India committed to these decisions and created a legal framework as well as a moral obligation to establish a specialized judicial body. The NGT Act requires the Tribunal to apply key international environmental principles that were reinforced and widely adopted after the Rio Summit, these principles include the “Polluter Pays” principle, the “Precautionary” principle and the principle of “Sustainable Development”.
Research Questions
Who are the major influencers of the establishment of the National Green Tribunal Act of 2010?
What are the functions of the Tribunal in ensuring environmental protection and remedies to victims of environmental damage?
What are the ways in which the “Polluter Pays” principles can become effective?
What is the relationship between the right to life and the right to a safe and healthy environment?
Research Methodologies
This paper is explanatory in nature and attempts to explain the subject matter from an evaluative point of view, by imploring the effective use of both primary and secondary sources, this paper assesses the effectiveness of the “Polluter Pays” principle in the National Green Tribunal. Primary sources like constitutional provisions, landmark judgements, international conventions and protocols are implored for detailed explanation of the subject matter whereas, secondary sources like articles, blogs and research papers are used for simplified explanation.
Literature Review
The Indian Supreme court in the case of Subhash Kumar v. State of Bihar interpreted Article 21 right to life to include the right to a clean environment which created a legal basis for dedicated environmental adjudication. This judgement saw the recognition that the right to life in Article 21 of the Indian constitution includes the right to the enjoyment of pure and pollution-free water and air. It elevated environmental protection to a fundamental constitutional right, thereby empowering citizens to seek legal remedies for environmental degradation under Article 32 right to constitutional remedies.
Another significant case is the 1987 Ganga Pollution case of M.C Mehta v. Union Of India which set precedent for holding industries accountable for polluting rivers, the case used Public Interest litigation to expand the right to life under Article 21 and mandated cleaner practices as it established doctrines like absolute liability, the polluter pays principle, and foster judicial activism for environmental protection and sustainable development in India.
Overview of the National Green Tribunal Act 2010
For environmental justice, protection of natural resources, environmental law enforcement and compensation for environmental damages, the National Green Tribunal operates with principles like the sustainable development, polluter pays, and the precautionary principles that provides quick case disposal typically within 6 months. Key features are;
- The Act has about five (5) Chapters, thirty-eight (38) sections, and three (3) Schedules
- The establishment, composition, appointment and resignation of members of the Tribunal is provided under chapter 2 of the Act
- Penalties for environmental laws violations are provided under chapter 4 of the Act
- Specialized benches and jurisdiction to civil courts for environmental protection, conservation, and enforcement of rights under section 14
- A mandate typically under section 19 of the Act to dispose of cases within 6 months.
Concept and Application of the Polluter Pays Principle
The Polluter Pays principle is a core environmental concept stating that those that those caused pollution should bear the cost of managing it, it prevents harm to health or the environment rather than society or future generations. The principle promotes accountability and sustainable development by making industries pay for pollution control and cleanups, this is often done through taxes or fines and ensures that the polluter internalizes the cost of their activity. The principle holds those actors who cause environmental pollution financially responsible for managing it, covering prevention, control and cleanup costs.
It takes the burden from the state and the society and assign it to the actors of environmental pollution as it internalizes environmental costs into economic activities, incentivizing cleaner behavior through mechanisms like taxes, fines, permits or cleanup mandates. This ensures that polluters pay for damage and fund remediation thus promoting sustainable development.
Applications of the Polluter Pays Principle (PPP) in Environmental Law
The Polluter Pays Principle (PPP) in environmental law simply depicts that the person or entity causing pollution must bear the cost of cleaning it up and preventing further damage, rather than the society or victims paying for it. It makes polluters financially responsible for environmental and health damages, incentivizing cleaner practices by making polluting activities more expensive and funding remediation efforts.
In the case of Union Carbide Corporation v Union of India, commonly known as the Bhopal gas tragedy, the Hon’ble Supreme Court applied the “polluter pays principle” by utilizing the doctrine of absolute liability for hazardous activities by directing a settlement of $470 million highlighting the struggles for corporate accountability, environment justice, and proper toxic waste remediation against powerful multinational corporations like the Union Carbide and others. Interestingly, the Hon’ble Supreme court of India also in the Ganga Pollution case, directly applied the PPP and held industries accountable for treating effluents and bearing costs for pollution control, it mandated the relocation of tanneries form the Ganga banks. The court directed the polluters to fund environmental restoration and pay for new pollution control measures (STPs) directly implementing the principle that the polluter pays for the damage caused. Furthermore, in the M.C Mehta v Union of India (Taj Trapezium case), the Honorable Supreme Court reiterated the Polluter Pays Principle and re-emphasized the need to use it. The case concerned the decaying of the Taj Mahal, wherein the court ordered 292 industries in the Taj Trapezium Zone to either switch to cleaner fuel or relocate, the court directed the assistance for affected workers. The court also emphasized that the right to a clean environment was part of the fundamental right to life under Article 21 and reiterated the duties of the State and citizens towards environmental protection.
Challenges Undermining the Implementation of the “Polluter Pays Principles” in Environmental Dispute Resolution
There are several challenges and factors that undermines the implementation of the “Polluter Pays Principle” in environmental issues, some of these are; the difficulty in pinpointing single polluters for widespread pollution, the cost effectiveness and complexity in tracing past polluters for historical contamination, the difficulty to attribute blame when there are multiple contributors, and the scientific and economic complexity in measuring the extent of environmental harm as well as the exorbitance and uncertainty in determining the true cost of cleanups.
In terms of economic and social impacts, fines, taxes and cleanups costs are often shifted to consumers by the polluters through higher prices thereby defeating the purpose of the PPP, while small businesses struggle with compliance costs and risks job losses or closures. The lack of a clear legal framework and robust monitoring system, which results in powerful industries resisting and polluters hiding their responsibilities and the overwhelming backlogs of cases pending adjudication has reduced the Principle’s deterrent effect.
Recommendations and Conclusion
Addressing these challenges requires the implementation of stronger legal frameworks with criminal penalties as well as the use of economic tools like carbon pricing and emissions trading. The monitoring system must be improved to ensure that funds are directed for justice, Policies must fit the pollution context and should not distort trade making polluters internalize full costs for true environmental restoration. Corporate veils should be lifted to hold directors accountable and public participation should be encouraged; this help to boost transparency within the system.
The Authorities must ensure that collected funds are used for frontline communities and environmental restoration, not just general revenue. Principles to prevent disproportionate impact on vulnerable groups must be integrated to ensure equitable outcomes, with policies like fines and discounts being designed to reflect true harm and avoid perverse outcomes thus ensuring that trading are not distorted. By combining legal deterrence, smart economic incentives, robust monitoring systems, and focusing on fairness, the Polluter Pays Principle can move from concept to effective, just, and scalable environmental policy.
