Vellore Citizens Welfare Forum vs Union of India – Case Analysis

Vellore Citizens Welfare Forum vs Union of India and Others (1996)

1. Introduction

The history of Indian jurisprudence has seen a number of cases related to environmental law, many of which have in many cases provided the most positive approaches to Indian environmental law. Of these, the Vellore citizens welfare forum vs Union of India case is the main one and this is not a case law limited to just one legal field.

In particular, it covers a wide range of areas of law, including the discussion of the polluter pays principle and precautionary principle under environmental law, Discuss locus standi and public interest litigation under administrative law and the connection of environmental rights with the right to life under constitutional law. But through this article, a study of the case will take place, giving priority to environmental law.

2. Incidental facts underlying the case

The pollution caused by the release of untreated effluent into agricultural fields, roadside, waterways and open lands by the tanner industries in the state of Tamil Nadu was questioned here. During this period there were about 299 industries owned by the Tamil Nadu Leather Development Corporation (TALCO), which was governed by the Tamil Nadu Pollution Control Board. This wastewater was eventually released into the Polar River, which was the community’s main source of water. The petitioners argued that the residents of the area could not get clean water as the surface water as well as the soil water of the Polar River was polluted.

These leather study institutes have also used more than 170 chemicals for this process. It was pointed out that close to five liters of water is used for the 1kg processing process and therefore a large amount of waste is released into the environment in a harmful manner. From all these facts it is clear that the wastewater released by these industries changes the physical chemistry of the soil. As a result, groundwater was severely damaged. According to a survey conducted by the Agricultural University Research Center in Tamil Nadu, nearly 35,000 hectares of agricultural land on the border where these institutes are located have become partially or completely uncultivable.

It was also confirmed that 35 out of 467 wells for drinking water were polluted and that women and children had to walk long distances to get water. In addition to this investigation, an inquiry by lawyers MR Ramanan and PS Subramanium at the request of the Legal Aid and Advice Board of Tamil Nadu confirmed the following.

“These industries earn India a large amount of foreign exchange. The question arises as to whether these activities should be encouraged when considering the detrimental effects of money on the lives of millions of people with increasing human populations. That is, it became clear that most of the tangible establishments that had been established by now did not have at least a healthy environment.”

Based on these facts, the petition was filed by the Vellore citizens welfare forum as a public welfare case under Article 32 of the Constitution of India.

3. Basic legal provisions and case law

3.1. Legal Provisions of statutes and Conventions

• Section 21,47,48A and 51A(g) of Indian Constitution
• The Environment protection Act (1986)
• Water (Prevention and Control of Pollution) Act (1974)
• Air ((Prevention and Control of Pollution) Act (1981)
• Stockholm Declaration (1972)
• Rio Declaration (1992)

3.2. Case Laws

• Indian Council for Environmental- Legal Action vs Union of India (1996)
• Distt. Magistrate Jabalpur vs Shivakant Shukla (1976)
• Jolly George Varghese’s Case (1980)
• Gramophone Company’s Case (1984)

4. Highlights of the discussion

The role of responsible institutions

The court held that the Amber Municipality had acted as a silent spectator under sections 226, 231,249,253,338 and 342 of the 1920 Madras District Municipalities Act. It is important to note that the Amber region is the most affected by this pollution in the state of Tamil Nadu. But the court said it was reluctant to oppose such actions on the authority of high-powered resource persons. Section 63 of the Water Prevention and Control Pollution Act No. 6 of 1974 also confirms that the Municipal Council has not acted properly.

The Tamil Nadu Pollution Control Board had more power over the leather tanning industry. This is confirmed by the information presented to the court by MC Metha, counsel appearing for the petitioners in this case. That is, the facts in Notification GOMs No. 213(1989 March 30) can be stated as follows. “No industry should be allowed to cause serious water pollution within a kilometer from rivers, canals etc. The Tamil Nadu Pollution Control Board should submit the list of such industries to all local bodies. Under the Environment Act, the Board has the power to set standards for minimizing environmental pollution.”

However, an inspection by the Environmental Engineering Research Institute, Nagpur in 1995 identified thirty common industrial effluent treatment plants (CETP) but only seven remained operational. That is, these cleaning devices are not yet operational to the optimum level under the Tamil Nadu Pollution Control Board. Satisfactory equipment for controlling pollution is also not found in other factories.

It is questionable on what basis industries were maintained under such circumstances. Therefore, as the court observed, the state of Tamil Nadu has unfortunately failed to control the pollution generated by leather producers in the last five years.

The central government action zone emphasized under the Environment Act should also be studied here. It is important to pay attention to Sections 3, 4, 5, 7 and 8 of the Environment Act.

• Section 03: The power of the central government to take action to protect and improve the environment is stated.
• Section 04: The powers and functions of the officers to protect and improve the environment are outlined.
• Section 05: Power to give directions.
• Section 07: It has been stated that persons engaged in industry, operations, etc., are not allowed to pollute, emit or dispose of the environment beyond standards.
• Section 08: It has been stated that persons handling hazardous substances must comply with procedural safety measures.

As stated in the judgment, “The main purpose of this Act is to establish an authority or authority under Section 3 (3) of the Act with adequate powers to control pollution and protect the environment.” The court recalled that although the central government has been given powers under the Act, no authority has been established so far.

“The time has come for the central government to realize its responsibility as well as its constitutional duty to protect the deteriorating environment of the country.” Therefore, the Court directed the Central Government to take immediate and appropriate action to carry out its functions properly.

Application of the Concepts of Environmental Law under International Law

Here is a broader discussion of the various theories that have existed so far between the two concepts of development and environmental protection. That is, the conflict between these two concepts was large here. This is because the leather industry in India is a major foreign earner. The state of Tamil Nadu, which was the originator of the case, was a leading exporter and accounted for about 80% of the country’s exports.

Economically, the co-industry made a significant contribution to India’s income, so it was questionable whether it could be given a chance to destroy the environment. The opinion presented by the court in response to this is the main one here. “No matter how much the leather industry affects the Indian economy, they have no right to operate in a way that destroys, degrades, harms or threatens the health.” The concept of sustainable development was applied to balance these issues. In 1972, the concept of sustainable development was first adopted through the Stockholm Declaration.

“Existing products cannot be allowed to expand unless they solve the problem of industrial pollution created by the industry itself.”

The decisions taken at the United Nations Conference on the Human Environment outline the determination of the world community to protect and enhance environmental quality. The court also recalled that India in particular had also raised its voice in support of environmental protection at the summit. That is, the Government of India is responsible for implementing the decisions of the Conference. Various steps have been taken to comply with the Stockholm Declaration’s environmental protection considerations.

But in the light of the factual evidence in this case, it is clear that there is still a need for legislation to implement the decisions taken at the summit.

The report of the 1987 World Commission on Environment and Development has been used to further analyze issues related to sustainable development. It is stated here that the term “Common Future” has been used to give a definite shape to this concept. The issues in this international legal document, known as the Brundtland Report, were also brought to attention.

Then, in 1991, the World Conservation Union, the United Nations Environment Program and the World Wide Fund for Nature presented another important legal document, which also came to the fore. It is called “Caring for the Earth”.

The Earth Summit in Rio in 1992 was one of the most important environmental protection measures. The “Blue Print for the Survival of the Planet” section was the main topic of discussion. Agenda 21 was discussed at this meeting and the need to formulate an action plan for the next century to provide treatment for pollution. In this case not only is the display of these International Environmental Protection Devices comparable to the time frames.

“During the two decades from the Stockholm Summit to the Rio Summit, sustainable development has been recognized as a viable concept for enhancing the quality of human life.” It was also discussed that the concept of balancing the environment and development under sustainable development is also part of Customary International Law.

Citing these international legal provisions as a whole, several important principles relevant to sustainable development were revealed in relation to environmental law.

• Precautionary Principle
• Polluter Pays Principle
• Inter-Generational Equity
• Obligation to Assist and Corporate
• Utilization and conservation of natural resources

5. Contribution to the field of environmental law

Considering the applicability of international environmental provisions to domestic law in the light of Indian legal status, the possibility of applying it in accordance with the Constitution and other statutory provisions should be examined. In view of Article 21 of the Constitution of India and Articles 47,48A and 51A (g) attached to it, it is established that it is constitutionally permissible.

• Section 47: It has been stated that it is the duty of the government to improve the nutritional status, living standards and public health.
• Section 48A: Protecting and improving the environment and protecting forests and wildlife.
• Section 51A (g): Protects and enhances the natural environment, including forests, rivers, and wildlife.

Citing other constitutional provisions other than this constitutional background, it states that the Precautionary Principle and the Polluter Pays Principle can be accepted without any doubt as part of the state’s environmental law.

In addition, if these principles of environmental law are accepted as part of Customary International Law, they are to be applied as part of domestic law. A judgment of three cases was used to justify it, as follows.

• Distt. Magistrate Jabalpur vs Shivakant Shukla (1976)
• Jolly George Varghese’s Case (1980)
• Gramophone Company’s Case (1984)

The provisions of the Constitution recognize the right to clean air, clean water and a pollution-free environment, but also state that the source of that right is the inalienable right of the common law to a clean environment. Accordingly, the judiciary has given space to the judiciary to use these concepts under a broader justification. It is pointed out here that the Precautionary Principle applies in the field of environmental law in a meaningful way when applied to the context of domestic law.

• Under Environmental Measures, state governments, as well as other statutory bodies, must anticipate future environmental degradation and take action to prevent it.
• When there is a serious threat of an irreversible kind, action cannot be postponed to prevent that damage on the basis that scientific data are not accurate.
• Under the concept of “Onus of proof” it is necessary to show whether it is environmentally friendly or not before starting the relevant action. That is, the party required to take development action must prove this.

These facts did not simply apply to the Indian legal situation. That is to say, this progressive case law has also been applied in the precautionary fundamental discussion of international environmental law. It can also be described as a victory for the Indian judiciary.

The court cited a judgment in the application of the Polluter Pays Principle. The Indian Council for Enviro- Legal Action vs Union of India case decided that this concept was one of the soundest principles under environmental law. An excerpt from that case is as follows.

“If the act is dangerous or inherently dangerous, the perpetrator is obligated to compensate the other person for the loss caused by his or her actions. This rule is based on the nature of the activities being performed. ”

On this basis, the court ruled that the villagers in the affected areas should be held accountable for the damage to their drinking water and groundwater. It was also emphasized that if the contaminant is present in the affected areas, all necessary steps should be taken to remove it. But in the future there is a possibility that someone may misinterpret this polluter pays principle and the court has discussed this absolute responsibility under two sections to prevent it.

• The polluter must act to compensate the victims of the environmental pollution.
• In addition, it is possible to recover the cost of rehabilitating the environment.

The significance of this is that as a result of taking steps to prevent pollution, the previous environment will not be able to recover, but to some extent it will be able to protect the environment and contribute to future generations. Since the purpose of the Environmental Act has also been used to substantiate this position on the basis of circumstantial evidence, it is clear that the judiciary has resorted to a more progressive interpretation than is based solely on the literacy approach. Here the court quotes a special passage from Sir William Blackstone’s Commentaries on the Laws of England, referring to British law.

“This is called injurious nuisance if a person maintains a dirty environment near their house or makes it environmentally unsuitable near someone else’s house. It deprives the person of the opportunity to reap the benefits. “

Therefore, through the use of these concepts, if there is any environmental damage that has not already been covered, the necessary foundation has been laid to cover it. This is a good guideline for resolving conflicts between industrialization and environmental protection, and provides guidance on the steps to be taken in the future to prevent further damage from the new chemical. The judgment also elaborated on the areas of law that need to be developed that has been identified by the Indian judiciary. That is, the need for a multifunctional body with regulatory authority. That is, there is an urgent need to legislate for environmental protection. Further developments in the law can be identified in connection with the judgment of the case as follows.

• Establishment of an authority with all powers to deal with conditions created by tanners as well as other polluting industries as set out in Section 3 (3) of the Environment Act.
• The application of the Polluter Pays Principle and the Precautionary Principle should be done by the Authority and set up with the assistance of experts.
• If a polluter fails to pay the compensation thus calculated under two headings, action should be taken to close down the industry he manages.
• An industry has now developed equipment to control pollution, but it will have to pay for the pollution it has caused in the past.
• Compensation for polluters must be deposited under a heading called the “Environment Protection Fund” and then used to rehabilitate and compensate for the pollution. Failure to pay this compensation on the due date will result in liability under the Contempt of Court Act in addition to the closure of the industry.
• The Madras High Court was directed to set up a special bench of the “Green Bench” to look into the environmental issues and other issues related to the case after considering the time period in which the case was heard.

6. Post-judgment Trends

This judgment is still considered a turning point in Indian environmental law Also; most of the decisions made so far in relation to Sri Lankan law have been used for environmental law and online litigation. Examples are the Wilpattu case (Centre for Environmental Justice Ltd vs Conservator General and Others) in 2020 and the chunnakkam power plant case (Ravindra Gunawardhana Kariyawasam vs Central Environment Authority and Others). That is to say, this judgment has contributed to the protection of the environment beyond the territorial boundaries. It can also be assumed that the views expressed by the panel of judges throughout the entire case will be a powerful guide for future courts.

Author: Tharuka Hettiarachchi,
Faculty of Law, University of Colombo, Sri Lanka