Vellore: The Precautionary Principle and Polluter Pays

In one line

The judgment that turned an international idea into Indian law, and then said what the idea requires a State to do.

In exam wording: in Vellore Citizens' Welfare Forum v. Union of India (1996) 5 SCC 647 the Supreme Court held that the precautionary principle and the polluter pays principle are essential features of sustainable development and are part of the environmental law of the country; that in the context of municipal law the precautionary principle means that environmental measures by the State Government and the statutory authorities must anticipate, prevent and attack the causes of environmental degradation, that where there are threats of serious and irreversible damage lack of scientific certainty should not be used as the reason for postponing measures to prevent environmental degradation, and that the onus of proof is on the actor or the developer to show that his action is environmentally benign; and that the polluter pays principle means that absolute liability for harm to the environment extends not only to compensating the victims of pollution but also to the cost of restoring the environmental degradation, remediation of the damaged environment being part of the process of sustainable development.

The facts

Tanneries in five districts of Tamil Nadu were discharging untreated effluent into agricultural fields, roadsides, waterways and open land, and into the river Palar, which is the main source of water supply for the region.

Why the facts matter to the reasoning. The pollution was not speculative and not scientifically uncertain. It had already happened, and the land was already spoiled. So the case is really about the second principle, and it is the first principle that has had the longer life.

What the Court held about sustainable development

It held that sustainable development, as a balancing concept between ecology and development, has been accepted as part of customary international law, though its salient features have yet to be finalised by international law jurists.

The salient principles the Court listed, culled from the Brundtland report and other international documents: intergenerational equity; use and conservation of natural resources; environmental protection; the precautionary principle; the polluter pays principle; the obligation to assist and cooperate; eradication of poverty; and financial assistance to developing countries.

Of those eight, the Court selected two as essential features, and it is those two that became law.

The precautionary principle, in three parts

(i) Anticipate, prevent and attack. Environmental measures by the State Government and the statutory authorities must anticipate, prevent and attack the causes of environmental degradation. Not the symptoms.

(ii) Scientific uncertainty is not a reason to wait. Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as the reason for postponing measures to prevent environmental degradation. This is Principle 15 of the Rio Declaration, with "cost-effective" left out.