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Vellore Case (1996)

In contrast to its previous caution during 1985-1995 periods, the Supreme Court adopted a more robust attitude to customary international law in theyear 1996. 1 In the year 1996 the Supreme Court, led by an activist green judge- Justice Kuldip Singh, inaugurated a new environmental jurisprudence in historic Vellorecase2 and invariably applied the ratio of this case in a series of other landmark environmental cases. In all such cases international environmental law was used substantively and the Supreme Court developed a unique domestic environmental jurisprudence by blending the Indian environmental law with the international environmental law. Hereinafter, an effort has been made to discuss important cases of this period and their outcome. In Vellorecase the court considered a public interest litigation highlighting discharge of toxic waste and polluted water from the large number of tanneries in the State of Tamil Nadu. A three judges bench led by Justice Kuldip Singh adopted a very strict stand against the polluting tanneries. In this case the court reviewed the history of the concept of sustainable development under international law. In this connection the court briefly referred important legal developments such as the Stockholm Conference 1972, Burndtland Commission Report, 1987, Caring of theEarth Report, 1991, Rio Conference, 1992, Convention on Climate Change, 1992, Convention on Biological Diversity, 1992 and Agenda -21 (A programme of Action for Twenty-first Century) etc. The important legal findings of the Vellore case, relevant for this article, are summarized below. (1) The court held that "Sustainable Development" as a balancing concept between ecology and development has been accepted as a part of customary international law though its salient features are yet to be finalized by the international law jurists. (2) The court was of the view that "The precautionary Principle" and "The Polluter Pays Principle" are essential features of "Sustainable Development."
1 2

Ibid. Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647 : AIR 1996 SC 2715 Unanimous Judgment delivered on August 28, 1996; by a three judges bench of the Supreme Court of India.

(3)

The Precautionary Principle and the Polluter Pays Principle have been accepted as part of the law of the land. (ibid., pp. 659-660, Paras 13 & 14).

According to the court, once these principles are accepted as part of the customary International law there would be no difficulty in accepting them as part of the domestic law. It is almost an accepted proposition of law that the rules of Customary International Law which are notcontrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law. 3 (ibid.,p. 660, Para 15).

In support of this conclusion the court referred to Justice H.R. Khann's opinion in the A.D.M. Jabalpur v. Shivakant Shukla (1976) 2 SCC 521: AIR 1976 SC 1207, Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360 : AIR 1980 SC 470 and Gramophone Co. of India Ltd. v. BirendraBahadur Pandey, (1984) 2 SCC 534 : AIR 1984 SC 667.

THE BICHHRI CASE Bichhri is a little-known village in the Udaipur district of Rajasthan.93 However, in 1988, a group of chemical industries established plants to produce hydrochloric acid and related chemicals for export. Although the production of this acid is prohibited in European countries, there remains a need for it. Thus, a remote village in India became a site for the production of this lethal chemical. Rogue industries commenced production of these chemicals without obtaining the appropriate no objection certificates from the pollution control authorities.94The factories' waste products amounted to between 2,400 and 2,500 metric tonnes that were highly toxic. Iron and gypsum sludge and other chemicals were disposed of negligently within the Bichhri area. As this waste was randomly dumped on the surface the toxic substances percolated into the aquifers and entered the water table. The damage occurred within a time scale of four months. The effect was serious damage to the land and to the water supply. It resulted in widespread disease, death and economic damage to the local community. At least 400 farmers and their families in eleven villages were directly affected by the groundwater pollution.95 The Supreme Court stated that thousands of villagers were adversely affected.96 In September 1988, frustrated and irate villagers protested about these industrial vandals to the district administrators and the pollution control board. They filed complaints and wrote to the Prime Minister and President of India and also to the Chief Minister of State. Their plight reached Parliament where a Minister promised action but nothing happened. However, locally, the District Magistrate invoked section 144 of the Criminal Proceedings Code,97 which seeks to preserve public peace and tranquillity. In November 1988, the district magistrate visited the affected villages and the factories; legal proceedings were subsequently initiated against the industries under section 133 of the Criminal Procedure *Env. L. Rev. 215 Code,98 to clean up the area, including the wells and canal, by removing the toxic sludge. The industrialists ignored the order. Villagers were incensed and mass protests occurred which forced the district administration to order the closure of two of the polluting units in January 1989 but there was no compliance. This action was considered inadequate by the villagers. They proceeded to send a memorandum to the Prime Minister and the state government was ordered to conduct an enquiry. However, in October 1989, a PIL was filed in the Supreme Court by a Delhi-based NGO, the Indian Council for Enviro-Legal Action, led by Mr M.C. Mehta.99 The NGO presented the appalling living conditions being experienced by the villagers and requested remedial action by the court. The Supreme Court accepted the writ petition and thus began the legal struggle

which continues to this day. Between 1989 and 1994, Orders were passed by the court. They included a request to establish an expert committee to examine the situation in and around the affected area and thereafter provide recommendations for both short- and long-term remedial action.100 It was also to review the supply of drinking water,101 the entombment or removal of the sludge or its removal and transportation to safe storage.102 The industry was to comply with any requirements identified by the pollution control board concerning the control of pollution and take remedial action such as the construction of an effluent treatment plant.103 Yet again, the matter went into abeyance until October 1995. At that time the Court moved the case on a priority basis.104 In February 1996, the Court declared the final order. It stated that absolute liability rested with the rogue industries to compensate for the harm caused by them to the villagers in the affected area, to the soil and underground water and that they were bound to take all necessary measures to remove the sludge and other pollutants and defray the costs of remedial measures required to restore the land and underground water.105 The Court invoked the polluter pays principle and empowered the central government to determine and recover the cost of remedial measures from the industries.106 The Supreme Court did not award exemplary damages for the loss suffered by the villagers, but directed them, or their supporting organisation to seek relief through the civil courts. The Court ordered the closure of all chemical plants located in the Bichhri area.107 The Court's decisions were also directed at the administrative authorities, namely, the Union of India, the Government of Rajasthan and the State Pollution Board for their lack of action which in turn affected the right to life of citizens. Their inaction amounted to a breach of Article 21 of the Constitution.108 The judgment in 1996 established liability, but did not fix a sum of money. This was left to further proceedings. However, it is noteworthy that the Court suggested, in passing, the establishment of dedicated environmental courts.109 In November 1997, the Court required the industry to pay Rupees 37.385 crores towards the cost of environmental remediation and Rupees 342.8 lakhs to the villagers.110 Thereafter, the polluters kept the litigation alive by filing a series of interlocutory applications that disclaimed responsibility for the pollution.111 Finally, in 2011, the Supreme Court imposed a compound interest of 12 per cent on the remedial amount of Rupees 37.385 crores on the polluter for the 15-year delay in making the payment. The polluters were given two months to make the payment; failure to do so would result in the recovery being made as arrears in land revenue.112 A CRITIQUE

The importance of the Bichhri case is that it allowed the villagers' grievances to be heard via PIL. It recognised the disregard, nay, contempt for law and lawful authorities on the part of some among the emerging breed of entrepreneurs, taking advantage, of the country's need for industrialisation and export earnings.113 The application of Article 21, absolute liability and the polluter pays principle makes the case a landmark judgment in India's emerging environmental jurisprudence. Yet the case simultaneously illustrates the limitations faced by those who seek redress through the courts. Essentially, delay and expense are the limiting, and sometimes prohibitive, features of the legal route for those seeking social justice. From a monetary perspective, the costs of successful litigation are steered by the resource capacity of the parties.114 The polluters were relatively resource rich while the villagers were indigents. Thus, the polluters were capable of filing a series of interlocutory applications aimed at exhausting the resources, energy and determination of the local community. Also, when the Court directed that the villagers institute civil proceedings for damages this was impracticable as the transactional costs were too high. Environmental litigation has characteristics which are potentially costly as environmental damage, particularly in the longer term, is not easily assessed. For example, detailed evidence from technical experts is expensive to obtain. Poor villagers were in no position to afford civil litigation and none has commenced. The relativity of time is no better illustrated than by comparing the daily lives of the impoverished villagers living with and dying through the consequences of environmental pollution and the Supreme Court in Delhi which has taken 23 years to fail to provide social and economic justice for the Bichhri community. Yet, in 1989, the Court had acquired sufficient expert evidence to have applied the precautionary principle and closed the polluting industry. It failed to do so. Subsequently, in 1996, the Court stated the persons who made the said reports are all experts in their field and under no obligation .It is in that view of their independence and competence that their reports were relied upon and made the basis of passing orders by this court from time to time.115 This was an opportune moment to apply the precautionary principle. The Court failed to do so. The villagers have received no compensation. They live and die surrounded by the toxic waste which to this day has not been cleared. The polluters closed their factories and relocated to Wapi, in the state of Gujarat. The Supreme Court's direction in 2011 that the polluters pay both the villagers and for the cost of dealing with the toxic waste is yet to be implemented. The District Administrator is left to enforce the judgment via a land charge on the property. But the land is worthless and the factories empty. The corporate veil was not lifted. Individuals were not held to be personally liable and no criminal charges were brought.

Exemplary damages were not imposed.116 The words of Justice Frankfurter capture both the expectation and frustration there is nothing judicially more unseemly nor more self-defeating than for the Court to make in terrorem pronouncements, to indulge in merely empty rhetoric, sounding a word of promise to the ear, sure to be disappointing to the hope.117 GREEN TRIBUNAL: A CONCLUSION Green jurisprudence in India reflects the application of an expansive interpretation of the Constitution by a liberal Supreme Court that created a procedure that allowed indigents and concerned citizens to access the courts via PIL. The temptation for lawyers is to interpret each and every issue as having a legal basis and a legal solution. This is not necessarily so as the two case studies illustrate. PIL is commonly presented as a magic bullet. This paper argues that this is not an accurate description. As with all processes it has its weaknesses and limitations. This was recognised by the Courts and resulted in the creation of a new environmental forum. In June 2010, the National Green Tribunal Act was passed.118 Its long title explains its purpose and powers which are to provide for the establishment of a National Green Tribunal for the effective and expeditious disposal of cases relating to environmental protection and conservation of forest and other natural resources including enforcement of any legal right relating to the environment and giving relief and compensation for damages to persons and property. It is mandatory for the Tribunal to apply the foundational principles of India's environmental jurisprudence: namely, the principles of sustainable development, the precautionary and polluter pays principles arising out of Article 21 of the Constitution.119 Again, there is a constitutional duty underpinning the Tribunal's activities. The Tribunal, based in Delhi as the principal bench, but with a proposal for circuit benches, was established in a manner to avoid the shortcomings that are associated with PIL petitions.120 For example, it is composed of both judicial and expert members, thereby introducing scientific expertise directly into the decision-making process. The Act allows all aggrieved parties access to the Tribunal and this includes NGO's so that *Env. L. Rev. 218 aggrieved parties has the same meaning as applied to PIL cases. Speed is also built into the process thereby avoiding the delays experienced in the Bichhri case. The case character and jurisdictional reach of the Tribunal is yet to be established.121 The case hearings commenced in May 2011. How many cases will it be able to handle and with what effect? What will be defined as environmental in an age of growing industrial activity and its associated pressure groups? Will there by a transfer of cases from the High Court to the Tribunal and will the aggrieved parties perceive the Tribunal as a more responsive forum for environmental PIL petitions than the Courts? What is known is that the Tribunal is a new

form of environmental dispute resolution which locks together constitutionalism and the environment. It is anticipated that it will further the lead already given by the Supreme Court and its use of PIL in advancing India's distinctly green jurisprudence.

In India, the post Bhopal Mass Disaster (1984) era was a creative period for environmental jurisprudence. During this period, in landmark Doon Valley case, the Supreme Court dealt with the impact of mining in the Doon Valley region and through its orders impliedly generated a new fundamental "right of the people to live in healthy environment with minimal disturbance of ecological balance." In this case there were series of orders and in one of its orders the court recognized the influence of the Stockholm Conference by accepting that this "conference and the follow-up action thereafter is spreading the awareness". Again, in Kanpur Tanneries Case the Supreme Court extensively quoted the Stockholm Declarations and strengthened the then nascent fundamental right to environment in India. In this case the court gave preference to 'environment' over 'employment' and 'revenue generation'. During this period the Rio Declarations, 1992 was also cited in the Law Society of India case. During this period of 1985-1995, according to Prof. Anderson, the said soft laws were invoked by the court simply to make the general point that environment should be protected. The use and role of soft laws was secondary rather than substantive. The courts were just using soft law standards to evolve and strengthening the fundamental right jurisprudence under Article 21. In fact, international environmental law played primary and substantive role in the next period starting from the year 1996.

87. Centre for Environmental Law (1999) WWF - India, Strengthening Environmental Legislation in India, 216. 88. Available at: http://hindu.com/2002/09/26/stories/2002092604460900.htm. Rupees 50.000 crores is equivalent to 5,844,029,158.07; Rupees 25.000 crores is equivalent to 2,921,920,142 and Rupees 15.000 crores is 1,753,260,784.73. 89. Above n. 74 at 22. 90. Ibid. at 33. 91. L. Rajamani, Public Interest Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability (2007) 19(3) Journal of Environmental Law 293. 92. See above n. 80. 93. 1996 3 SCC 212. 94. Nomenclature used by the Supreme Court to describe the errant industries. 95. A. Sharma Anju and R. Banerji, The Blind Court (1996) Down to Earth 4: 0430 24 April 1996. 96. 2011 8 SCC 161. 97. Section 144 of CrPc states: In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material fact of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray. 98. Section 133 of CrPc states: Whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers (a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel, which is or may be lawfully used by the public; or (b) that the conduct of any trade or occupation or the keeping of any goods or merchandise; is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such, goods or merchandise should be removed or the keeping thereof regulated; such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within time to be fixed in the order (i) to remove such obstruction or nuisance; or (ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed. 99. Original Writ Petition Civil 967 of 1989. 100. Order dated 11 December 1989. 101. Order dated 4 April 1990. 102. Order dated 6 April 1992. 103. Order dated 8 April 1994. 104. Order dated 13 October 1995. Having regard to the voluminous data gathered by the Supreme Court and several orders passed from time to time, the Court heard all the parties at length on 10, 11, 16 and 17 January 1996. 105. See n. 93 above at 246. 106. Ibid. at 247-248. 107. Ibid. at 251. 108. Ibid. at 238. 109. Ibid. at 252. 110. Order dated 4 November 1997. Rupees 37.385 crores is equivalent to 4,356,671.97 and Rupees 342.8 lakhs equivalent is 399,550.12. 111. IA Numbers 36 and 44 in Writ Petition Civil 967 of 1989. 112. See above n. 96.

113. Above n. 93. 114. Above n. 49 at 340. 115. Above n. 93 at 239. 116. M C Mehta v Kamal Nath AIR 2000 SC 1997. In this case, the Supreme Court was of the opinion that exemplary damages can be awarded against the polluter so that it may act as a deterrent for others not to cause pollution in any manner. As pollution is a civil wrong, by its very nature, it is a tort committed against the community as a whole. Hence the liability to pay exemplary damages, 117. Baker v Carr 369 US 186 1962 270. 118. G.N. Gill, A Green Tribunal for India (2010) 22(3) Journal of Environmental Law 462. 119. Ibid. at 472. 120. The National Green Tribunal was established on 18 October 2010. 121. The author is currently researching this question