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such growth cannot come at the cost of irreparable ecological damage. This Court has already extensively considered the concept of sustainable development in the following decisions, the relevant paragraphs of which are reproduced below: (i) Vellore Citizens’ Welfare Forum (supra): “10. The traditional concept that development and ecology are opposed to each other is no longer acceptable. “Sustainable Development” is the answer. In the international sphere, “Sustainable Development” as a concept came to be known for the first time in the Stockholm Declaration of 1972. Thereafter, in 1987 the concept was given a definite shape by the World Commission on Environment and Development in its report called “Our Common Future”. The Commission was chaired by the then Prime Minister of Norway, Ms G.H. Brundtland and as such the report is popularly known as “Brundtland Report”. In 1991 the World Conservation Union, United Nations Environment Programme and Worldwide Fund for Nature, jointly came out with a document called “Caring for the Earth” which is a strategy for sustainable living. Finally, came the Earth Summit held in June 1992 at Rio which saw the largest gathering of world leaders ever in history—deliberating and chalking out a blueprint for the survival of the planet. Among the tangible achievements of the Rio Conference was the signing of two conventions, one on biological diversity and another on climate change. These conventions were signed by 153 nations. The delegates also approved by consensus three non-binding documents, namely, a Statement on Forestry Principles, a declaration of principles on environmental policy and development initiatives and Agenda 21, a programme of action into the next century in areas like poverty, population and pollution. During the two decades from Stockholm to Rio “Sustainable Development” has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting ecosystems. “Sustainable Development” as defined by the Brundtland Report

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means “Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs”. We have no hesitation in holding that “Sustainable Development” as a balancing concept between ecology and development has been accepted as a part of the customary international law though its salient features have yet to be finalised by the international law jurists.” (ii) Intellectuals Forum v. State of A.P.14: “84. The world has reached a level of growth in the 21st century as never before envisaged. While the crisis of economic growth is still on, the key question which often arises and the courts are asked to adjudicate upon is whether economic growth can supersede the concern for environmental protection and whether sustainable development which can be achieved only by way of protecting the environment and conserving the natural resources for the benefit of humanity and future generations could be ignored in the garb of economic growth or compelling human necessity. The growth and development process are terms without any content, without an inkling as to the substance of their end results. This inevitably leads us to the conception of growth and development, which sustains from one generation to the next in order to secure “our common future”. In pursuit of development, focus has to be on sustainability of development and policies towards that end have to be earnestly formulated and sincerely observed. As Prof. Weiss puts it, “conservation, however, always takes a back seat in times of economic stress”. It is now an accepted social principle that all human beings have a fundamental right to a healthy environment, commensurate with their well-being, coupled with a corresponding duty of ensuring that resources are conserved and preserved in such a way that present as well as the future generations are aware of them equally.”

14 (2006) 3 SCC 549

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15 (2009) 9 SCC 737

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polluter pays principle, and the public trust doctrine. The polluter pays principle, a widely accepted norm in interna- tional and domestic environmental law, asserts that those who pollute or degrade the environment should bear the costs of mitigation and restoration. This principle serves as a reminder that economic activities should not come at the expense of environmental degradation or the health of the population. …..

26. As consistently held in numerous decisions of this Court, the unequivocal right to a clean environment is an indispensable entitlement extended to all persons. Air, which is polluted beyond the permissible limit, not only has a detrimental impact on all life forms including humans, but also triggers a cascade of ecological ramifications. The same is true for polluted water, where the pervasive contamination poses a profound threat to the delicate bal- ance of ecosystems. The impact of environmental pollution and degradation is far reaching: it is often not only severe but also persists over the long term. While some adverse effects may be immediately evident, the intensity of other kinds of harm reveals itself over time. Persons who live in surrounding areas may develop diseases which not only result in financial burdens but also impact the quality of life. The development and growth of children in these communities may become stunted, creating a tragic legacy of compromised potential. Basic necessities, such as ac- cess to potable water, may not be met, exacerbating the challenges faced by these already vulnerable populations. Undoubtedly, such adverse effects are felt more deeply by marginalised and poor communities, for whom it becomes increasingly difficult to escape the cycle of poverty.

27. This Court is also alive to the concept of intergenerational equity, which suggests that “present residents of the earth hold the earth in trust for future generations and at the same time the present generation is entitled to reap benefits from it.” The planet and its invaluable resources must be conscientiously conserved

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and responsibly managed for the use and enjoyment of future generations, emphasising the enduring obligation to safeguard the environmental heritage for the well- being of all.

28. It is an undeniable and fundamental truth that all persons have the right to breathe clean air, drink clean water, live a life free from disease and sickness, and for those who till the earth, have access to uncontaminated soil. These rights are not only recognized as essential components of human rights but are also enshrined in various international treaties and agreements, such as the Universal Declaration of Human Rights, the Convention on Biological Diversity, and the Paris Agreement. As such, they must be protected and upheld by governments and institutions worldwide, even as we generate employment and industry. The ultimate aim of all our endeavours is for all people to be able to live ‘the good life.’ Without these basic rights, increased revenue and employment cease to have any real meaning. It is not merely about economic growth but about ensuring the well-being and dignity of every individual. As we pursue development, we must prioritize the protection of these rights, recognizing that they are essential for sustainable progress. Only by safeguarding these fundamental rights can we truly create a world where everyone has the opportunity to thrive and prosper.

29. We have heard these proceedings for several days and after a careful evaluation of the factual and legal material, we have come to the conclusion that the Special Leave Petitions do not warrant interference under Article 136 of the Constitution.” (v) M.C.Mehta v. Union of India16 “19.….As stated above, in the past when mining leases were granted, requisite clearances for carrying out mining operations were not obtained which have resulted in land

16 (2009) 6 SCC 142

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and environmental degradation. Despite such breaches, approvals had been granted for subsequent slots because in the past the Authorities have not taken into account the macro effect of such wide scale land and environmental degradation caused by absence of remedial measures (including rehabilitation plan). Time has now come, therefore, to suspend mining in the above Area till statutory provisions for restoration and reclamation are duly complied with, particularly in cases where pits/quarries have been left abandoned. Environment and ecology are national assets. They are subject to inter-generational equity. Time has now come to suspend all mining in the above Area on Sustainable Development Principle which is part of Articles 21, 48A and 51A(g) of the Constitution of India. In fact, these Articles have been extensively discussed in the judgment in M.C. Mehta’s case (supra) which keeps the option of imposing a ban in future open. Mining within the Principle of Sustainable Development comes within the concept of “balancing” whereas mining beyond the Principle of Sustainable Development comes within the concept of “banning”. It is a matter of degree. Balancing of the mining activity with environment protection and banning such activity are two sides of the same principle of sustainable development. They are parts of Precautionary Principle.”

RIGHT TO HEALTHY ENVIRONMENT

64. Right to life inherently includes the right to enjoy, pollution free environment, which are essential for the full enjoyment of life. If anything endangers or impairs the quality of life in derogation of laws, a citizen has the right to have recourse to Article 32 of the Constitution to address the pollution of environment which may be detrimental to the quality of life. This court has recognised the concept of ‘right to healthy environment’ as part of the ‘right to life’ under Article 21 and thereby has also recognised the ‘right to clean drinking water’ as a fundamental right. Infact, environmental rights, which encompass a group of collective rights, are now described as “third generation” rights. Therefore, the State, so as to sustain its claim of functioning for the welfare of its citizens, is bound to regulate water supply by safeguarding, maintaining and restoring the water bodies to protect

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the right to healthy water and prevent health hazards. This court has also laid down in many cases, that the States shall ensure that the water bodies are free from encroachments and steps must be taken to restore the water bodies. In this context, we may refer to the following judgments and observations made thereunder: (i) Subash Kumar v. State of Bihar17 “7. Article 32 is designed for the enforcement of Fundamental Rights of a citizen by the Apex Court. It provides for an extraordinary procedure to safeguard the Fundamental Rights of a citizen. Right to live is a fundamental right under Art 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Art. 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life. …..” (ii) State of Karnataka v. State of Andhra Pradesh18 “175. Water is a unique gift of nature which has made the planet earth habitable. Life cannot be sustained without water. In the National Water Policy issued by the Government of India in 1987, it was declared that water is a prime natural resource, a basic human need and a precious national asset. Water, like air, is the essence for human survival. The history of water availability and its user is tied up with the history of biologically evolution in all civilizations. It will not be wrong to say that not only the life started in water but rather water is life itself. It is essential for mankind, animals, environment, flora and fauna. There is no denial of the fact that in the ancient times water played an important role in the origin, development and growth of civilization all over the globe. Water is an important factor in the economic development of the countries which ultimately affects the social and human relations between

17 (1991) 1 SCC 598 : 1991 SCC OnLine SC 42 18 (2000) 9 SCC 572

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the habitants. Planned development and proper utilization of water resources can serve both as a cause as well as an effect off the prosperity of a nation. Water on earth is available in the form of frozen snow, rivers lakes, springs, water ways, water falls and aqueducts, etc.” (iii) A.P. Pollution Control Board II v. Prof. M.V. Naidu and Others19 “7. Our Supreme Court was one of the first Courts to develop the concept of right to ‘healthy environment’ as part of the right to “life” under Article 21 of our Constitution. [See Bandhua Mukti Morcha v. Union of India (1984 (3) SCC 161)]. This principle has now been adopted in various countries today.

8. In today’s emerging jurisprudence, environmental rights which encompass a group of collective rights are described as “third generation” rights. The “first generation” rights are generally political rights such as those found in the International Convention on Civil & Political Rights while “second generation” rights are social and economic rights as found in the International Covenant on Economic, Social and Cultural Rights. “Right to Healthy Environment”. (See Vol.25) 2000 Columbia Journal of Environmental Law by John Lee P.283, at pp.293-294 fn.29).”

(B) POLLUTION CAUSED BY TANNERIES

65. The livelihoods of people in Vellore District, particularly farmers, inland fishermen, and rural communities, have been severely impacted by the tanning industry. Excessive sand mining along riverbanks, especially the River Palar, has caused ecological damage, including lowered groundwater levels, riverbank erosion, and loss of fertile land. Farmers face water scarcity, degraded soil quality, and declining agricultural income, with crop failures becoming common. The toxic contamination of soil and water has also led to increased public health concerns, including respiratory and skin disorders. Tanneries in the district, operational since 1914 are a major contributor to these problems. They utilize chemicals, such as, calcium carbonate, sodium

19 (2001) 2 SCC 62 : 2000 SCC OnLine SC 1679

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chloride, and sulphuric acid in processing hides and skins. Chrome tanning, a dominant method, generates effluents containing heavy metals like chromium, lead, arsenic, and mercury, which contaminate groundwater and soil, posing serious risks to human health and ecosystems. Effluents discharge into fields, irrigation tanks, and the River Palar exacerbates the problem, with untreated wastewater often exceeding safe Total Dissolved Solids (TDS) levels, reaching up to 15,000 mg/l in some cases.

66. Data shows that on average, tanneries process approximately 1.1 million kilograms of raw hides daily, using 45–50 million litres of water and discharging 35–45 litres of wastewater per kilogram processed and thereby resulting in an effluent discharge of 37,458 kld (13.5 mcm annually). Solid waste generation ranges from 38.5 to 62 kilograms per 100 kilograms of raw hides, with only 20–32 kilograms of finished leather produced. The high levels of TDS in tannery wastewater, primarily due to sodium chloride and other chemicals, further degrade soil and water quality. This has significantly declined crop productivity, with tannery waste rendering agricultural land infertile over time. Further, groundwater, a primary source for drinking and domestic use in the district, is also heavily impacted, thus adversely affecting public health.20 Another Survey21 has also indicated the decline in the productivity and production of crops over the years. The systematic pollution will also have a cascading effect on the aquifers, thereby decreasing the availability of the groundwater in the surrounding areas. All these issues ultimately have far-reaching implications for the region’s socio-economic stability.

(C) CURRENT STATUS OF POLLUTION

67. The CPCB report dated 09.12.2024 states that the work of monitoring groundwater (infiltration wells) and outfalls (drains) / surface water along the River Palar is being carried out by the TNPCB from time to time. They also furnished status reports of pollution control measures adopted by the CETP and IETP of tannery units, which were collected and compiled by the TNPCB. It was revealed from the report that

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the TNPCB has collected samples from 34 outfalls (drains) directly discharging into the river and the other two drains (inlet & outlet of Pernambut Lake) in the years 2021 and 2022. Based on monitoring reports of the TNPCB, the status of these outfalls (drains) compared with the results of 2015, is summarised by us in the below table:

Present state of Outfalls in Palar River (2021-2022) Parameter BOD COD TSS TDS Chromium Chloride Sulphide

Biological Chemical Total Total Oxygen Oxygen Suspended Dissolved Demand demand Solids Salts Standard ≤ 30mg/l ≤ 250mg/l ≤ 100 mg/l ≤ 2100mg/l ≤ 2mg/l ≤ 1000 ≤ 2mg/l level set by mg/l PCB Highest 464 1848 1934 4320 BDL 2026 115 Range Sunnabukal Sunnabukal Sunnabukal Vadakarai (Below Vadakarai road road road Detection Sunambu kal limit) Lowest 32.8 OV bridge 263 108 2156 BDL 1150 4 Range Girisamudram Girisamudram Jaffrabadh (Below Minnur Viruthambatu Detection Limit) Note in 20 outfalls Similar to 2015 2015 levels 2015 levels N/A Higher Higher than comparison are meeting (164-304) (2104-7088) than 2015 2015 levels with 2015 general (251-1952) levels Data standard as Increasing Improvement against 5 in trend 2015 indicating decrease in number of outfalls in which exceedance of BOD standards was reported from 2015 (31-510)

The above table clearly shows higher concentrations of BOD, COD, TDS, Chloride and Sulphide in the Palar River stretches as compared to 2015. Further, the result also indicates that the drains are carrying untreated sewage and occasional influx of industrial effluent.

68. That apart, the samples were analysed for parameters such as pH, EC, TDS, COD, Total hardness, Chloride, Alkalinity, Sulphate, Sodium, Total Chromium and the monitoring results were compared with Indian Standard for drinking water specification IS 10500:2012.

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Present state of Groundwater and monitoring well in Palar River (2021-2024) Parameter BOD COD TDS Chromium Chloride Alkalinity Hardness IS - N/A 12/26 500-2000 0.05 mg/l 250/1000 200/600 mg/l 200/600 10500:2012 mg/l mg/l mg/l level - drinking water

Highest 28 296 3552 BDL 2275 210-910 mg/l 810- Range Malatru 1200mg/l Monitoring Madhannur Ramayanathopu in well at Walajah Madapalli Girisamudram headworks

Lowest Range 2-8 08 2020 BDL 74-415 89-245 mg/l 140-290 Navlock mg/l Chikramallur Veppur Kodayanchi Malatru

The above table indicates that most of the groundwater (infiltration wells) do not meet the permissible drinking water standards with respect to TDS, total hardness, chloride & alkalinity. Additionally, there is an increasing trend in the concentration of COD in the groundwater, which requires detailed assessment by the TNPCB through expert institutions, such as, NEERI, NGRI, etc. to study the extent of groundwater contamination, if any, and to identify and execute the remedial measures for the same.

Sewage Management

69. In 2015, the urban areas of Vellore District located on the banks of the River Palar such as Vaniyambadi, Ambur, Vellore, Melvisharam, Arcot, Ranipet and Walajahpet, did not have any Sewage Treatment Plant (STP) to treat the sewage generated by these towns. Untreated sewage from these municipal areas was either being utilised for irrigation by surrounding farmers or ultimately flowing into the river. At present, STPs have been constructed in two Municipalities i.e. Ambur & Ranipet and are operational. An STP has also been constructed in Vellore city, but is not yet operational. Thus, as of now, untreated sewage from the municipal limits of Vellore, Vaniyambadi, Melvisharam, Arcot and Walajahpet continues to flow into the river, while treated sewage is discharged from Ambur & Ranipet.

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Effluent Treatment Plants

70. The CPCB report reveals that at present, there are 434 tanneries connected to the 8 CETPs. The CETPs have been upgraded to ZLD system with improved salt recovery and sludge management. All 8 CETPs have installed Online Continuous Effluent Monitoring System (OCEMS) which are connected to the CPCB and TNPCB servers. Further, in 2015, 26 tanneries had individual ETPs and at present, there are 30 tannery units, of which 10 units have been closed either voluntarily or due to the directions issued by CPCB, while 20 units remain operational. All these 20 operational units have upgraded their IETPs by installing Multiple Eject Evaporators (MEE) combined with Agitated Thin Film Dryers (ATFD) as part of their ZLD systems, replacing their earlier solar evaporation ponds. These upgrades have enhanced salt recovery efficiency and optimised waste management processes. The CPCB report further states that there has been an improvement in the available ZLD system both for IETPs and CETPs compared to 2015. Despite the adoption of ZLD in the IETPs and CETPs, the higher concentration of reported parameters in outfalls and infiltration wells in stretches I, II, & III indicates occasional discharges from industrial activities, along with untreated sewage from the surrounding area. The report also highlighted the need for the TNPCB to be more vigilant with regard to the industries in the area. Additionally, adequate sewage management systems need to be installed in the area to prevent untreated sewage, that is discharged into the river.

(D) LIABILITY TO PAY COMPENSATION

POLLUTER PAYS PRINCIPLE

71. Coming to the aspect of liability, it would be relevant to discuss the “polluters pay principle” which is the universal principle followed for fastening liability on the polluter for the proportionate damage caused to the environment, resulting in violation of right to clean and healthy environment as guaranteed under Article 21 of the Constitution of India. In Indian Council for Enviro-Legal Action v. Union of India22, it was noted that when an activity is inherently

22 (1996) 3 SCC 212

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hazardous or dangerous, the individual or entity engaging in such activity bears absolute liability for any harm caused, regardless of the care exercised. Polluting industries, therefore, are under an obligation to fully compensate for the damage caused to affected communities. More importantly, the Court clarified that the Polluter Pays Principle extended beyond compensating victims of pollution; it included the cost of reversing environmental degradation, in other words, they are required to undertake all necessary remedial measures to remove pollutants and restore the environment. This principle, along with the Precautionary Principle, has been recognized as part of the law of the land, drawing strength from Article 21 of the Constitution, which guarantees the right to life and personal liberty. It underscores that environmental protection is not merely a regulatory obligation but a constitutional imperative aimed at safeguarding the fundamental rights of individuals and preserving ecological balance. The relevant paragraphs are as under: “65…..We are convinced that the law stated by this Court in Oleum Gas Leak case [M.C. Mehta v. Union of India, (1987) 1 SCC 395 : 1987 SCC (L&S) 37] is by far the more appropriate one — apart from the fact that it is binding upon us. (We have disagreed with the view that the law stated in the said decision is obiter.) According to this rule, once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on. In the words of the Constitution Bench, such an activity: (SCC p. 421, para 31) “… can be tolerated only on condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not”. The Constitution Bench has also assigned the reason for stating the law in the said terms. It is that the enterprise (carrying on the hazardous or inherently dangerous activity)

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alone has the resource to discover and guard against hazards or dangers — and not the person affected and the practical difficulty (on the part of the affected person) in establishing the absence of reasonable care or that the damage to him was foreseeable by the enterprise.

67. The question of liability of the respondents to defray the costs of remedial measures can also be looked into from another angle, which has now come to be accepted universally as a sound principle, viz., the “Polluter Pays” principle. [ (Historic Pollution — Does the Polluter Pay? by Carolyn Shelbourn — Journal of Planning and Environmental Law, Aug. 1974 issue.)] “The Polluter Pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution. Under the principle it is not the role of Government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer. The ‘Polluter Pays’ principle was promoted by the Organisation for Economic Cooperation and Development (OECD) during the 1970s when there was great public interest in environmental issues. During this time there were demands on Government and other institutions to introduce policies and mechanisms for the protection of the environment and the public from the threats posed by pollution in a modern industrialised society. Since then there has been considerable discussion of the nature of the Polluter Pays principle, but the precise scope of the principle and its implications for those involved in past, or potentially polluting activities have never been satisfactorily agreed. Despite the difficulties inherent in defining the principle, the European Community accepted it as a fundamental part of its strategy on environmental matters, and it has been one of the underlying principles of the four Community Action Programmes on the Environment. The current Fourth

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Action Programme [(1987) OJC 328/1] makes it clear that ‘the cost of preventing and eliminating nuisances must in principle be borne by the polluter’, and the Polluter Pays principle has now been incorporated into the European Community Treaty as part of the new articles on the environment which were introduced by the Single European Act of 1986. Article 130-R(2) of the Treaty states that environmental considerations are to play a part in all the policies of the community, and that action is to be based on three principles: the need for preventive action; the need for environmental damage to be rectified at source; and that the polluter should pay.”

72. Referring to the aforesaid judgment, this Court in Vellore Citizen Welfare Forum (supra) held in paragraph 12, as under: “12. The Polluter Pays Principle” has been held to be a sound principle by this Court in Indian Council for Enviro- Legal Action v. Union of India [(1996) 3 SCC 212 : JT (1996) 2 SC 196] . The Court observed : (SCC p. 246, para 65) “… we are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country.” The Court ruled that : (SCC p. 246, para 65) “… once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on”. Consequently, the polluting industries are thus “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

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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 damaged ecology.”

73. In M.C. Mehta v. Kamal Nath23, it was observed by this Court as follows: “8. Apart from the above statutes and the rules made thereunder, Article 48-A of the Constitution provides that the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. One of the fundamental duties of every citizen as set out in Article 51-A(g) is to protect and improve the natural environment, including forests, lakes, rivers and wildlife and to have compassion for living creatures. These two articles have to be considered in the light of Article 21 of the Constitution which provides that no person shall be deprived of his life and liberty except in accordance with the procedure established by law. Any disturbance of the basic environment elements, namely, air, water and soil, which are necessary for “life”, would be hazardous to “life” within the meaning of Article 21 of the Constitution.

9. In the matter of enforcement of rights under Article 21 of the Constitution, this Court, besides enforcing the provisions of the Acts referred to above, has also given effect to fundamental rights under Articles 14 and 21 of the Constitution and has held that if those rights are violated by disturbing the environment, it can award damages not only for the restoration of the ecological balance, but also for the victims who have suffered due to that disturbance. In order to protect “life”, in order to protect “environment” and in order to protect “air, water and soil” from pollution, this Court, through its various judgments has given effect to the rights available, to the citizens and persons alike, under Article 21 of the Constitution. The judgment for removal of hazardous and obnoxious industries from the residential

23 (2000) 6 SCC 213 : 2000 SCC OnLine SC 963

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areas, the directions for closure of certain hazardous industries, the directions for closure of slaughterhouse and its relocation, the various directions issued for the protection of the Ridge area in Delhi, the directions for setting up effluent treatment plants to the industries located in Delhi, the directions to tanneries, etc., are all judgments which seek to protect the environment.

10. In the matter of enforcement of fundamental rights under Article 21, under public law domain, the court, in exercise of its powers under Article 32 of the Constitution, has awarded damages against those who have been responsible for disturbing the ecological balance either by running the industries or any other activity which has the effect of causing pollution in the environment. The Court while awarding damages also enforces the “polluter-pays principle” which is widely accepted as a means of paying for the cost of pollution and control. To put in other words, the wrongdoer, the polluter, is under an obligation to make good the damage caused to the environment.” Therefore, the industries are liable to not only compensate but also bear the costs for restoring the river. Needless to point out that the remedial action would not stop at restoration, but it is a continuous process, to sustain the river, pollution free and a fresh cause of action would commence again if the industries and the local bodies fail in their duty.

(E) EXTENT OF LIABILITY – DEEMING FICTION AND PRECAUTIONARY PRINCIPLE

74. The idea of the Polluter Pays Principle, though seemingly progressive, must be carefully examined to ensure it does not result in the emergence of a “right to pollute” for those who are financially capable or willing to pay. One key question that arises is the extent of liability for the pollution caused, specifically, whether the liability ends once compensation, as determined by the Court or other authorities, is paid, or whether it is a continuing liability that persists until the actual pollution is curbed and its effects reversed. This Court has recognized that the Polluter Pays Principle, when applied absolutely, has not yet sufficiently mitigated the harm caused to the

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environment, yielding below-average results. The tanneries have clearly exploited this system, discharging effluents, assuming that payment of compensation grants them the right to pollute. This issue is not limited to the Vellore tanneries alone; it is a broader problem seen across industries in developing countries, where it is often seen as more cost-effective to pay the relatively low compensation than to invest in cleaner technologies that would reduce pollution. Industries, when faced with a choice between the marginal damage cost and the marginal cleaning cost, often opt for the former, thus perpetuating the cycle of environmental degradation. Few examples to illustrate the same as under: (a) Kanpur Tanneries24: Despite the Court’s order, it was revealed that the tanneries in Kanpur were operating illegally for all 30 days instead of the Government-mandated 15 days per month. These tanneries have also been discharging contaminated water into the river Ganga, continuing their harmful practices despite legal orders. (b) Bicchri Industrial Cluster25: The Court passed a verdict in 1999, ordering the company to pay Rs 37.4 crore for remediation. However, the company filed multiple interlocutory applications to delay the payment. In 2011, the Court directed the company to pay the fine along with compound interest at 12% per annum from November 1997 until the amount was fully paid or recovered. Despite this, the village continues to suffer from water contamination and scarcity, impacting drinking water availability, livestock, and agricultural yields. The community, which won the case, has been waiting for over three decades for justice, but compensation has not reached them, and the water crisis persists. (c) Perundurai26: In this case, although the Court directed industries to comply with the ZLD system, many units continue to violate the norms. They discharge untreated effluents into open places, borewells, wells, and rainwater, and bury sludge in the earth. The TDS levels reportedly reached as high as 20,000 ppm per liter, highlighting a continued disregard for environmental norms27.

24 1988 SCR (2) 530 25 1999 SCC (3) 212 26 Order dated 20.12.2004 passed by the Madras High Court in Writ Petition Nos. 15244 of 2004 27 https://www.newindianexpress.com/states/tamil-nadu/2018/Jun/16/perundurai-becomes-capital-of- cancer-in-erode-district-1829072.html

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75. Further, in Vellore Citizens Welfare Forum (supra), this Court endorsed the application of the absolute liability principle as an integral component of the polluter pays principle, so long as the polluting activity results in harm or damage. “12. … 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 polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.”

76. We may also refer to the following decisions, regarding this aspect: (i) Indian Council For Enviro-Legal Action (supra) “60. … Be that as it may, we are of the considered opinion that even if it is assumed [for the sake of argument] that this Court cannot award damages against the respondents in these proceedings that does not mean that the Court cannot direct the Central Government to determine and recover the cost of remedial measures from the respondents. Section 3 of the Environment (Protection) Act, 1986 expressly empowers the Central Government [or its delegate, as the case may be] to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of environment.......... Section 5 clothes the Central Government [or its delegate] with the power to issue directions for achieving the objects of the Act. Read with the wide definition of environment in Section 2(a), Sections 3 and 5 clothe the central Government with all such powers as are necessary or expedient for the purpose of protecting and improving the quality of the environment. The Central Government is empowered to

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take all measures and issue all such directions as are called for the above purpose. In the present case, the said powers will include giving directions for the removal of sludge, for undertaking remedial measures and also the power to impose the cost of remedial measures on the offending industry and utilize the amount so recovered for carrying out remedial measures. This Court can certainly give directions to the Central Government/its delegate to take all such measures, if in a given case this Court finds that such directions are warranted. We find that similar directions have been made in a recent decision of this Court in Indian Council for Enviro-Legal Action and Ors. [supra]. That was also a writ petition filed under Article 32 of the Constitution. Following is the direction: It appears that the Pollution Control Board had identified as many as 22 industries responsible for the pollution caused by discharge of their effluents into Nakkavagu. They were responsible to compensate to farmers. It was the duty of the State Government to ensure that this amount was recovered from the industries and paid to the farmers. It is, therefore, idle to contend that this Court cannot make appropriate directions for the purpose of ensuring remedial action. It is more a matter of form.” (ii) Bajri Lease LoI Holders Welfare Society v. State of Rajasthan28 “16. The CEC has recommended imposition of exemplary penalty of Rs.10 lakh per vehicle and Rs.5 lakh per cubic metre of sand seized, which would be in addition to what has already been ordered / collected by the State agencies as compensation. Compensation / penalty to be paid by those indulging in illegal sand mining cannot be restricted to the value of illegally-mined minerals. The cost of restoration of environment as well as the cost of ecological services should be part of the compensation. The “Polluter Pays” principle as interpreted by this Court means that the absolute liability for harm to the

28 (2022) 16 SCC 581

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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 damaged ecology”.

77. When there is a violation in compliance with the environmental laws, be it by engaging in activities directly involved in causing pollution or failure to take steps to curb the pollution and restore the environment or violating any terms of licence granted by any State or central authority and acts in a manner detrimental to the environment, the effect of which causes or is likely to cause degradation of the environment, then the deeming fiction of polluting the environment becomes applicable and the polluter is not only liable to payment of compensation but also to restore the environment. As we have already seen, there is a persistent duty on the State to ensure that all steps are taken to ensure the protection of the environment. The State, even in the absence of any law, must put in place a mechanism to address the issue of degradation by taking preventive measures. The measures should lean towards protection and preservation rather than facilitation of economic activity by reliance upon lack of scientific details for adverse effects. The State must endeavour through its research wings to identify the industries and activities which impacts or can impact the environment before permitting such activities as there is a possibility that the damage could not only be irreversible but also the effects of such damage could be far more threatening the human race than the commercial benefits arising out of such activity. This precautionary principle, that has been recognized in various judgments as seen above and in Vellore Citizen Welfare Forum’s case (Supra) was reiterated by this Court in T.N. Godavarman Thirumulpad, In re v. Union of India29, the relevant passage of which reads as under: “43. The approach of the Court in dealing with complaints of environmental degradation has been laid down by this very Bench in this writ petition itself in an order passed

29 (2022) 10 SCC 544 : 2022 SCC OnLine SC 716

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Vellore District Environment Monitoring Committee Rep. by its Secretary Mr. R. Rajebdran v. The District Collector, Vellore District & Others

on 9-5-2022 [T.N. Godavarman Thirumulpad v. Union of India, (2022) 9 SCC 306] in connection with another set of applications. In this order, it has been observed and held : (T.N. Godavarman Thirumulpad case [T.N. Godavarman Thirumulpad v. Union of India, (2022) 9 SCC 306], SCC pp. 315-16, paras 16-19) “16. Adherence to the principle of sustainable development is a constitutional requirement. While applying the principle of sustainable development one must bear in mind that development which meets the needs of the present without compromising the ability of the future generations to meet their own needs. Therefore, courts are required to balance development needs with the protection of the environment and ecology [T.N. Godavarman Thirumulpad (104) v. Union of India, (2008) 2 SCC 222]. It is the duty of the State under our Constitution to devise and implement a coherent and coordinated programme to meet its obligation of sustainable development based on inter-generational equity [A.P. Pollution Control Board v. M.V. Nayudu, (1999) 2 SCC 718]. While economic development should not be allowed to take place at the cost of ecology or by causing widespread environment destruction and violation; at the same time, the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment must go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment [Indian Council For Enviro- Legal Action v. Union of India, (1996) 5 SCC 281].

17. In Vellore Citizens’ Welfare Forum v. Union of India [Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647], this Court held that the “precautionary principle” is an essential feature of the principle of “sustainable development”. It went on to explain the precautionary principle in the following terms : (SCC p. 658, para 11)

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‘11. … (i) Environmental measures — by the State Government and the statutory authorities — must anticipate, prevent and attack the causes of environmental degradation. (ii) 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. (iii) The “onus of proof” is on the actor or the developer/industrialist to show that his action is environmentally benign.’

18. The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. It is based on scientific uncertainty. Environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake. Precautionary duties must not only be triggered by the suspicion of concrete danger but also by justified concern or risk potential [A.P. Pollution Control Board v. M.V. Nayudu, (1999) 2 SCC 718].

19. A situation may arise where there may be irreparable damage to the environment after an activity is allowed to go ahead and if it is stopped, there may be irreparable damage to economic interest [M.C. Mehta v. Union of India, (2004) 12 SCC 118] . This Court held that in case of a doubt, protection of environment would have precedence over the economic interest. It was further held that precautionary principle requires anticipatory action to be taken to prevent harm and that harm can be prevented even on a reasonable suspicion. Further, this Court emphasises in the said judgment that it is not always necessary that there should be direct evidence of harm to the environment.” While dealing with the applications in the present set of proceedings, we shall follow the same principles.”

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78. To tackle this issue, the NGT has adopted the above principles in the following cases: (i) Court on its own motion v. State of HP30: “36. The liability of the polluter is absolute for the harm done to the environment which extends not only to compensate the victims of pollution but is also aimed to meet the cost of restoring environment and also to remove the sludge and other pollutants. [Ref: Indian Council for Enviro-Legal Action v. Union of India supra]. The Supreme Court held that the person causing pollution by carrying on any hazardous or dangerous activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his commercial or industrial activity. In the light of these principles, it is clear that the persons who are causing pollution in the eco-sensitive areas resulting in environmental hazards must be required to compensate for the damage resulting from their activity. A large number of tourists and vehicles which are using the roads and are carrying on such other activities for their enjoyment, pleasure or commercial benefits must be made to pay on the strength of the ‘Polluter Pays’ principle. It will be entirely uncalled for and unjustified if the tax payers’ money is spent on taking preventive and control measures to protect the environment. One who pollutes must pay. We have already discussed at some length that the high tourist activity, vehicular pollution and deforestation attributable to acts of emission require to be compensated, restored and maintained in a manner that there is minimum damage and degradation of the environment. Such an approach can even be justified with reference to the doctrine of sustainable development.” (ii) Saloni Ailawadi v. Union of India31: “23.We may also observe that ‘Precautionary Principle’ and ‘Sustainable Development’ principle are part of Article

30 2014 SCC Online NGT 1 31 2019 SCC OnLine NGT 69

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21 of the Constitution and Section 20 of the National Green Tribunal Act, 2010. ‘Polluter Pays’ principle does not mean polluter can pollute and pay for it. It would include environmental cost as well as direct cost to people. Environmental cost is not restricted to those which is immediately tangible but full cost for restoration of environmental degradation32. If cheat devices leading to pollution are ignored only on account of absence of a procedural protocol, it will be against the said accepted principles of environmental jurisprudence. Accepted global procedural norm can be accepted unless prohibited in India expressly or impliedly. 24.The law has to encourage honesty and fair dealing in business transactions and certainly business considerations cannot override environmental protection….”

(F) DETERMINATION OF COMPENSATION

79. Now that we’ve discussed the aspect of liability, let us turn our attention to the determination of compensation for pollution-related damage. As highlighted earlier, polluters bear the absolute liability for the harm they cause to the environment. However, it is well known that quantifying the extent of that damage is never an easy task and is usually quite complex. Unlike tangible property damage, the harm inflicted upon ecosystems—such as the destruction of flora, fauna, aquatic life, and the disruption to micro-organisms—is not easily measurable in monetary terms. Additionally, the impact on local communities, particularly their livelihoods, is difficult to assess. The loss of biodiversity, degradation of natural resources, and long-term socio-economic consequences extend beyond the realm of financial valuation. Therefore, while the liability is clear, the process of determining an equitable compensation amount is fraught with challenges, as it must account for both the tangible and intangible damage inflicted on the environment and the affected communities. However, we can refer to past environmental cases, both Indian and international, to grasp the principles made therein relating to this aspect.

32 Research Foundation for Science v. Union of India, (2005) 13 SCC 186

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80. CASE LAWS

(i) Costa Rica v. Nicaragua33 The International Court of Justice, in the case titled “Certain Activities Carried Out by Nicaragua in the Border Area [Costa Rica v. Nicaragua, dated 02.02.2018], observed that the lack of certainty as to the extent of damage did not preclude awarding compensation for the impairment or loss of environmental goods and services (paras 35 and 86). The Court ultimately stated its view to the effect that “damage to the environment, and the consequent impairment or the loss of the ability of the environment to provide goods and services is compensable under international law.” Thus, as per the decision of the Court, the assessment of compensation for damages requires the Court to be able to determine a causal link between the wrongful act and injury suffered. While so, it was noted that environmental damage claims had their own particular issues concerning causation as damage could be the result of multiple concurrent causes or the lack of scientific certainty may make it difficult to establish the causal link. In regard to the methodology to be used to value the impairment or loss of environment, goods and service, the Court explained, it would select those elements of methods offered by the Parties that provided a “reasonable basis for valuation” to assess the value for restoration of the damaged environment (Nicaragua) as well as the impairment of loss of goods and services prior to recovery (Costa Rica) (para 53). The Court justified this approach stating that there is no prescribed method of valuation for the compensation of environmental damage under international law and the Court would have to take into account the specific circumstances and characteristics of each case. In other words, the Court was refraining from adopting a single purpose methodology for valuation of environmental damage in favor of a case-by-case approach (para 52). The Court went on to develop its own method of valuation of environmental damage “from the perspective of the ecosystem as a whole”, which is an overall assessment of the impairment or loss of environment goods or services rather than separate valuation of each different category.

33 [2018] ICJ Rep 15

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(ii) In Deepwater Horizen Oil Spill by British Petroleum case34, on April 20, 2010, the oil drilling rig Deepwater Horizon, operating in the Macondo Prospect in the Gulf of Mexico, exploded and sank resulting in the death of 11 workers on the Deepwater Horizon and the largest spill of oil in the history of marine oil drilling operations. 4 million barrels of oil flowed from the damaged Macondo well over an 87-day period, before it was finally capped on July 15, 2010. The United States filed a complaint in District Court against BP Exploration & Production and several other defendants alleged to be responsible for the spill. This led to multiple civil and criminal actions being initiated and billions of dollars in fine, settlements and restoration effort. The Polluters claimed the award to be a one-time payment, however, the British petroleum, allied companies and individuals were held liable on the basis of polluter pays principle being an absolute and continuing liability extending to restoration to a pre damage state of affairs. The litigation lasted three phases, numerous lawsuits and a final settlement of 20 billion US Dollars after the appeal was rejected by the US Supreme Court in 2015. (iii) In M.C. Mehta (supra), while dealing with Kanpur tanneries, this court has pointed out in paragraph 14, as follows: The financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence for the adverse effect on the public at large which is likely to ensue by the discharging of the trade effluents from the tannery to the river Ganga would be immense and it will outweigh any inconvenience that may be caused to the management and the labour employed by it on account of its closure. Moreover, the tanneries involved in these cases are not taken by surprise. For several years they are being asked to take necessary steps to prevent the flow of untreated waste water from their factories into the river.

34 United States v. BP Exploration & Prod., Inc. (In re Oil Spill by the Oil Rig “Deepwater Horizon”), 21 F. Supp. 3d 657 (E.D. La. 2014)

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Some of them have already complied with the demand. It should be remembered that the effluent discharged from a tannery is ten times noxious when compared with the domestic sewage water which flows into the river from any urban area on its banks. We feel that the tanneries at Jajmau, Kanpur cannot be allowed to continue to carry on the industrial activity unless they take steps to establish primary treatment plants. (iv) The aspect of determining compensation has been dealt with in detail in Adil Ansari vs M/S Gupta Exports and Ors, in Original Application No. 220/2019, wherein the National Green Tribunal observed as follows: “Calculating environmental compensation: 514.Taking into consideration multifarious situations relating to violation of environmental laws vis-a-vis different proponents, nature of cases involving violation of environmental laws can be categorized as under: (i) Where Project/Activities are carried out without obtaining requisite statutory permissions/consents/clearances/NOC etc., affecting environment and ecology. For example, EC under EIA 2006; Consent under Water Act, 1974 and Air Act, 1981; Authorisation under Solid Waste Management Rules, 2016 and other Rules; and NOC for extraction and use of ground water, wherever applicable, and similar requirements under other statutes. (ii) Where proponents have violated conditions imposed under statutory Permissions, Consents, Clearances, NOC etc. affecting environment and ecology. (iii) Where Proponents have carried out their activities causing damage to environment and ecology by not following standards/norms regarding cleanliness/pollution of air, water etc.

515. The above categories are further sub-divided, i.e., where the polluters/violators are corporate bodies/ organisations/associations and group of the people, in contradistinction, to individuals; and another category, the individuals themselves responsible for such pollution.

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516. Further category among above classification is, where, besides pollution of environment, proponents/violators action also affect the community at large regarding its source of livelihood, health etc.

517. The next relevant aspect is, whether damage to environment is irreversible, permanent or is capable of wholly or partially restoration/remediation.

518. Determination/computation/assessment of environmental compensation must, not only conform the requirement of restoration/remediation but should also take care of damage caused to the environment, to the community, if any, and should also be preventive, deterrent and to some extent, must have an element of “being punitive.” The idea is not only for restoration/ remediation or to mitigate damage/loss to environment, but also to discourage people/proponents from indulging in the activities or carrying out their affairs in such a manner so as to cause damage/loss to environment.

519. To impose appropriate ‘environmental compensation’ for causing harm to environment, besides other relevant factors as pointed out, one has to understand the kind and nature of ‘Harmness cost’. This includes risk assessment. The concept of risk assessment will include human-health risk assessment and ecological risk assessment. U.S. Environmental Protection Agency has provided a guideline to understand harm caused to environment as well as people. For the purpose of human-health risk assessment, it comprised of three broad steps, namely, planning and problem formulation; effects and exposure assessment and risk categorization. The first part involves participation of stakeholders and others to get input; in the second aspect health effect of hazardous substances as well as likelihood and level of exposure to the pollutant are examined and the third step involves integration of effects and exposure assessment to determine risk.

520. Similarly, ecological risk assessment is an approach to determine risk of environmental harm by human activities.

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Here also we can find answer following three major steps, i.e., problem codification; analysis of exposure and risk characterization. First part encompasses identification of risk and what needs to be protected. Second step insists upon crystallization of factors that are exposed, degree to exposure and whether exposure is likely or not to cause adverse ecological effects. Third step is comprised of two components, i.e., risk assessment and risk description.

521. In totality, problem is multi-fold and multi-angular. Solution is not straight but involves various shades and nuances and vary from case to case. Even Internationally, there is no thumb-rule to make assessment of damage and loss caused to environment due to activities carried out individually or collectively by the people, and for remediation/restoration. Different considerations are applicable and have been applied. …

525. When there is collective violation, sometimes the issue arose about apportionment of cost. Where more than one violator is indulged, apportionment may not be equal since user’s respective capacity to produce waste, contribution of different categories to overall costs etc. would be relevant. The element of economic benefit to company resulting from violation is also an important aspect to be considered, otherwise observations of Supreme Court that the amount of environmental compensation must be deterrent, will become obliterated. Article 14 of the Constitution says that unequal cannot be treated equally, and it has also to be taken care. Determination/ assessment/computation of environmental compensation cannot be arbitrary. It must be founded on some objective and intelligible considerations and criteria. Simultaneously, Supreme Court also said that its calculations must be based on a principle which is simple and can be applied easily. In other words, it can be said that wherever Court finds it appropriate, expert’s assessment can be sought but sometimes experts also go by their own convictions and belief and fail to take into account judicial precedents

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which have advanced cause of environment by applying the principles of ‘sustainable development’, ‘precautionary approach’ and ‘polluter pays’, etc.

526. Clean-up cost or TPC, may be a relevant factor to evaluate damage, but in the diverse conditions as available in this Country, no single factor or formula may serve the purpose. Determination should be a quantitative estimation; the amount must be deterrent to polluter/ violator and though there is some element of subjectivity but broadly assessment/computation must be founded on objective considerations. Appropriate compensation must be determined to cover not only the aspect of violation of law on the part of polluter/violator but also damage to the environment, its remediation/restoration, loss to the community at large and other relevant factors like deterrence, element of penalty etc.”

81. Further, certain guidelines for determining compensation have already been established. It is to be noted that the Principal Bench of the NGT vide order dated 31.08.2018 in the matter of Paryavaran Suraksha Samiti & another v. Union of India & Ors. WP (CIVIL) No. 375/2012 observed that “CPCB may also assess and recover compensation for the damage caused to the environment and the said fund may be kept in a separate account and utilized in terms of an action plan for protection of the environment. Such action plan may be prepared by the CPCB within three months”. Accordingly, the CPCB in its report published on July 15, 2019 laid down the formula for computation of environmental compensation. The formula for computing environment compensation was accepted by the NGT vide its order dated August 28, 2019 in Paryavaran Suraksha Samiti (supra). The said formula is: EC = PI x N x R x S x LF Wherein, EC stands for Environmental Compensation in INR, PI stands for Pollution Index of industrial sector, N stands for Number of days the violation took place, R stands for a factor in INR (₹) for compensation for the environmental harm caused by the industry, S stands for factor for scale of operation and LF stands for location factor. While the CPCB and State Pollution Control Boards (SPCB) largely appear to be following this formula, the NGT also took various other

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approaches towards determining environmental compensation. It seems that NGT has primarily adopted two methods for the imposition of environmental compensation: (a) levying 5-10% of the project cost as environmental compensation if it finds the industry to be defaulting; or (b) using a percentage of the annual turnover of the industry as the method for determining environmental compensation.

(G) GOVERNMENT PAY PRINCIPLE VIS-À-VIS RESPONSIBILITY OF THE GOVERNMENT

82. It is also apposite to state that while polluters bear absolute liability to compensate for environmental damage, the Governments (both Union and State) share an equally significant responsibility to prevent environmental degradation and ensure the implementation of effective remedial action. Moreover, Sections 3 and 5 of the Environment (Protection) Act, 1986, empower the Central Government to issue directions. Thus, the Central Government, with the assistance of the State Government, RPCB or any other agency or authority, authorized, empowered or constituted by it, if so required, is entrusted with determining the amount required for remedial measures, ensuring its recovery, and overseeing their execution. In fact, in Tata Housing Development Company Ltd v. Aalok Jagga and others35 it was observed as follows: “35. In Indian Council for Enviro Legal Action vs. Union of India and others, (1996) 5 SCC 281, this Court has made the following observations: ‘41. With rapid industrialisation taking place, there is an increasing threat to the maintenance of the ecological balance. The general public is becoming aware of the need to protect environment. Even though, laws have been passed for the protection of environment, the enforcement of the same has been tardy, to say the least. With the governmental authorities not showing any concern with the enforcement of the said Acts, and with the development taking place for personal gains at the expense of environment and with disregard of the mandatory provisions of law, some public-spirited

35 (2019) 14 SCALE 641

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persons have been initiating public interest litigations. The legal position relating to the exercise of jurisdiction by the courts for preventing environmental degradation and thereby, seeking to protect the fundamental rights of the citizens, is now well settled by various decisions of this Court. The primary effort of the court, while dealing with the environmental-related issues, is to see that the enforcement agencies, whether it be the State or any other authority, take effective steps for the enforcement of the laws. The courts, in a way, act as the guardian of the people’s fundamental rights but in regard to many technical matters, the courts may not be fully equipped. Perforce, it has to rely on outside agencies for reports and recommendations whereupon orders have been passed from time to time. Even though, it is not the function of the court to see the day-to-day enforcement of the law, that being the function of the Executive, but because of the non-functioning of the enforcement agencies, the courts as of necessity have had to pass orders directing the enforcement agencies to implement the law.”

83. Furthermore, we are also well aware that mere imposition of liability might not have much impact unless it is accompanied by strict enforceability. As mentioned earlier, in India, despite laws like the Water Act, 1974, and Environment Protection Act, 1986, enforcement mechanisms remain weak, as evidenced by persistent pollution in the river, 28 years after a court judgment in Vellore Citizens Welfare Forum (supra). We are conscious of the fact that normally the government cannot be held liable for the action of third parties. But, the State, which is entrusted with the duty to protect not only its citizens but also the environment, cannot absolve itself from its failure in implementing the laws and allowing the activities that continue in violation of the laws. The role of the State is not restricted to initial verification but also extends to continuous inspection and to ensure compliance of all laws and orders. It is pertinent to mention that the States could enforce the compliances of all the laws and the orders even during renewal of any licences. Therefore, it is equally important to recognize the role of the Government and other regulatory bodies as well to impose upon them, a responsibility with penalizing consequences in ensuring strict compliance with the

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orders and directions given by the Courts as well as the applicable environmental laws and principles. In other words, while the “Polluters Pay Principle” focuses on directly penalizing offenders, its effectiveness is inherently tied to the vigilance and enforcement mechanisms of the Government and regulatory bodies, and thus, in situations where authorities fail to regulate polluters adequately, the resultant environmental degradation underscores a shared responsibility. The ‘Government Pay Principle’ emerges from this context, aiming to hold governments accountable for regulatory and enforcement lapses. Examples from countries like South Africa, and Chile demonstrate how holding governments accountable can drive proactive environmental protection measures: (a) In the late 1980s, South Africa witnessed a shift towards government compensation for environmental harm caused by private injurers, which led to legislative intervention. Section 19 of the Environmental Conservation Act, 73 of 1989 empowers the government to take the necessary steps to repair the damage and to recover the cost from the polluter for its failure to take adequate measures 36. (b) In Chile37, the Framework Law contains provisions for citizen-suits to address environmental harm. The law allows individuals to initiate legal actions against local governments to recover the compensation for environmental damage. It provides that victims of environmental harm may require the municipality in which the activity damaging the environment occurred to take action on their behalf, holding the municipality jointly and severally liable for the environmental damage suffered by the petitioner in cases of government inaction. (c) In Fundación Natura contra Petro Ecuador case38, an Ecuadorian court, when approached by an environmental activist NGO, ordered the state agency to assess the damage and to compensate the community, holding that the state could sue the corporation once the assessment was completed.

36 Section 19 and 20 Environmental Conservation Act 73 of 1989. 37 Sullivan, M. (1996). Chilean environmental law. Comparative Environmental Law, 1. CHL-16 (Nicholas A. Robinson ed., 1996) 38 Fundación Natura contra Petro Ecuador de la Provincia de Buenos Aires, Expediente No. 221-98-RA Corte Constitucional de Ecuador, 1998), upholding Fundación Natura contra Petro Ecuador, Expediente No 1314 (Juzgado decimo primero de lo civil de Pichincga, April 15, 1998).

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Thus, by holding the Governments accountable, the approach ensures a dual-layered system of responsibility, fostering more stringent oversight and proactive environmental governance. In fact, the National Green Tribunal (NGT) has already adopted similar approaches by ordering Governments to compensate victims and recover costs from polluters in the decision cited supra.

(H) REDUCTION OF POLLUTION

84. Some of the techniques / methodologies / approaches followed to reduce the pollution caused by the industries are as under:

(a) EXTENDED PRODUCER RESPONSIBILITY (EPR) It is a policy that generally makes producers’ responsible for the environmental impact of their products throughout their lifecycle. In the present case, the tannery industries owe a duty of care to the environment and are accountable. EPR can serve as a pivotal strategy to mitigate pollution and ensure sustainable waste management. Tanneries must adopt traceability systems to track waste generation, treatment, and recycling, ensuring accountability. Financial mechanisms such as environmental fees and deposit- refund systems could incentivize compliance, while penalties and license revocation would deter violations. We are also of the view that the responsibility must not be restricted just until the life cycle of the product but also must extend until the effects are controlled, nullified and restoration is executed.

(b) EMISSION STANDARDS - COMMAND AND CONTROL PRINCIPLE Emission standards are regulatory limits that specify the maximum allowable levels of pollutants released into the environment, aiming to protect public health and preserve environmental quality. These standards are a key element of the Command and Control (CAC) principle, where governments set clear, enforceable rules to limit pollution. Under this approach, industries must comply with specific emission limits, with penalties such as fines or imprisonment (e.g., under the Water Act) for non-compliance. In addition to setting pollutant thresholds, regulators should also implement ambient standards, focusing on the overall quality of air, water, and soil by

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controlling pollution concentrations. Moreover, technology standards can be enforced, requiring industries to use specific pollution-control technologies to meet these regulatory requirements. Implementing these standards for the tannery industry can effectively reduce pollution and ensure long-term environmental protection.

(c) REGULAR IMPACT ASSESSMENT While many countries have made regular monitoring a part of their Environmental Impact Assessment (EIA) process, India officially recognized the need for ongoing assessments only in 2020. This development marks a significant step forward in ensuring that the environmental impacts of projects are not only evaluated before they begin but are also continuously monitored throughout their operational lifespan. Therefore, similar to the mandatory EIA under the Environment Protection Act, a Regular Impact Assessment (RIA) should be made mandatory for all industries identified as polluting. The tanneries must be directed submit periodical reports of the emissions, and the States and their mechanism must conduct independent audit of the emissions and take appropriate action. Without such regular assessments, court orders and regulatory measures risk being ineffective in addressing long-term environmental harm.

(d) EFFLUENT CHARGES/TAX An effluent charge is a financial penalty or tax imposed by government authorities on polluters, based on the amount of effluent discharged into the environment, typically calculated in rupees per unit of pollution. As an additional recommendation, the charge can be structured to apply specifically to effluent released beyond the permissible limit, with industries paying a tax per unit of excess pollution. This approach aligns with Pigouvian taxes (pollution taxes), designed to internalize the environmental costs of pollution. In India, introducing industry-specific effluent charges would not only incentivize industries to reduce their environmental impact but also help fund necessary pollution control measures. One key benefit of effluent charges is that they provide a mechanism for collecting detailed financial and technological data from each polluting source. Unlike emission standards, which primarily focus on limiting the volume of pollution, effluent charges require continuous monitoring

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of both the quantity of effluent discharged and the technologies used to mitigate it. This enhanced data collection improves regulatory enforcement and allows for more targeted, effective pollution control strategies, ensuring that industries are held accountable for their environmental impact.

(e) POLLUTANT RELEASE AND TRANSFER REGISTER (PRTR) / PARTICIPATORY CITIZENS APPROACH The Pollutant Release and Transfer Register (PRTR) is a system that collects and disseminates information about hazardous substance emissions and transfers from industrial facilities, ensuring transparency and community access to environmental data. Established in response to events like the Bhopal Disaster and the Rio Earth Summit (1992), PRTRs promote environmental education and participatory decision- making under the Aarhus Convention, 1998, which emphasizes three pillars: (a) Access to Information—citizens have the right to obtain environmental data, which authorities must provide transparently; (b) Public Participation—people must be informed and involved in environmental decision-making to enhance outcomes and legitimacy; and (c) Access to Justice—citizens can seek legal recourse for violations of environmental laws. Despite global adoption by countries like the U.S., Canada, and Turkey, India has yet to recognize citizens’ “right to know,” underscoring the need for public access to such crucial environmental information. Though under the Right to Information Act, 2005, information can be collected from the State or Central Board, the Board can disclose the compliance details, violations or actions taken by it, only if the particulars are readily available with it. Therefore, in public interest, the State/Central governments or Boards/departments must issue appropriate instructions or guidelines mandating the industries to disclose the periodical reports in the websites. Such conditions can also be imposed while granting or renewal of any licence or by introducing the same by including such conditions as mandates for compliance of Corporate Social Responsibility (CSR). Another emerging concept in the corporate world is the Environmental, Social Governance (ESG), a positive step by the corporates to pledge their commitment to preserve the ecology by assessing their impact on the environment. An interplay between the CSR and ESG ought to be facilitated to ensure not only compliance of the norms but also to ensure voluntary disclosure.

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ITALIAN TANNERIES – A CASE STUDY

85. One of the challenges in ensuring environmental compliance within India’s tanning industry is that the majority of businesses fall under the Small and Medium Enterprises (SME) category, with only a few large-scale entities in Tamil Nadu and Uttar Pradesh. Similarly, the Italian tanning industry, primarily composed of SMEs, has however managed to successfully limit pollution by focusing on the recovery, treatment, and reuse of waste products such as sewage sludge, trimmings, and shavings. According to reports, over 72% of the waste produced is sent to recovery plants, while only materials like sludges, paint residues, absorbent materials, non-recoverable poly-materials, inert materials, and a few others are disposed of. Additionally, the industry operates an interconnected system for exchanging waste products, which minimizes both waste and costs. Further, wastewater is treated and reused, reducing the reliance on fresh water and preventing pollution in rivers, canals, and groundwater. To achieve similar environmental benefits, India’s tanning industry should adopt best practices for wastewater reuse, including recovering chromium for reuse. Government-supported, consortium-based wastewater treatment plants where water is reused would help safeguard the fragile ecosystem.

86. In People Health and Development Council, represented by its Secretary, Erode-5 vs State of Tamil Nadu and Another39, the Madras High Court has pointed out certain effluent reduction measures as under: “22.The Board has also suggested that the parameter TDS in the effluent discharged from the existing primary and secondary treatment system could be contained less than 2100 mg/lit. under the individual Effluent Treatment Plants only by implementing suitable membrane technologies (Reverse Osmosis System) with suitable evaporation system for the rejects as tertiary treatment. By implementing the said R.O. system, the standards of 2100 mg/lit. for TDS could be achieved and further the permeate of R.O. system could be reused completely in the tanning process implementing the membrane technologies

39 2005 SCC OnLine Mad 110

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the effluent generated in the tanning process could be completely recovered and reused in the process, leaving a small quantity of rejects which could be evaporated through suitable evaporation systems, and discharge of treated effluent not satisfying the norms either on land for irrigation or on land for open percolation/into water courses could be avoided. The discharge of effluent by the respondent tanneries, after treatment in their existing treatment systems, on land for irrigation, without complying the TDS norms either within unit premises or land outside the premises owned by the unit cannot be construed as zero discharge system. 23.In the light of our discussion, it is clear that though all the tanneries in and around Kalingarayan channel and Bhavani River have Effluent Treatment Plants, in the absence of implementation of suitable membrane technologies, namely, Reverse Osmosis system (R.O. system), the TDS in the effluent discharged from the existing treatment system is not under control. Undoubtedly, all the tanneries and dying factories have to strictly adhere to the norms namely that the effluent discharge either on land or any water course shall not contain constituents in excess of the tolerance limit laid down for TDS as 2100 mg/lit. In order to achieve this goal, they have to adopt and implement suitable membrane technologies, Reverse Osmosis system with evaporation system for the rejects as tertiary system. This will go a long way in curbing the environmental hazard. For compliance of the same, this Court feels that a further reasonable time may be granted. Accordingly, all the tanneries/dyeing units located in Erode District are granted time till 31-08-2005. The District Collector and the officers of the TNPCB are directed to give wide publicity in the area concerned regarding the direction and the extension of time granted for compliance. It is made clear that those who are not willing to adhere to this direction and adopt the R.O. system, they are free to shift their concern to SIGC, Perundurai within that period. The Collector and the officers of the Board are directed to make periodical inspection to the tanneries/dyeing units

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for proper implementation of the above direction. Before conclusion, as observed in M.C. Mehta v. Union of India , though we are conscious of the fact that these tanneries bring more employment and revenue, but life, health and ecology have greater importance to the people…”

87. United Nations Environment Programme (UNEP) through its Mediterranean Action Plan (MAP), specifically the Marine Pollution Assessment and Control Unit (MED POL) prepared a report towards a More Sustainable Tannery Sector in the Mediterranean aiming to improve environmental practices in the tanning industry across Mediterranean countries. The report has also stated few of the available tools for improving the tannery sector. BAT (Best Alternative Technique) reference document for the tanning of hides and skins forms part of a series presenting results of an exchange of information between European Union (EU) Member States, the industries concerned, non-governmental organizations promoting environmental protection and the European Commission, to draw up, review, and where necessary, update BAT reference documents as required by Article 13(1) of the Directive 2010/75/EU of the European Parliament and the Council on industrial emissions (integrated pollution prevention and control). Such references can be undertaken by the TNPCB.

(I) RELEVANT PROVISIONS UNDER THE WATER ACT

88. We will not reiterate the provisions of law related to the issue at hand as it is well settled. However, we deem it necessary to highlight the relevant provisions of the Water (Prevention and Control of Pollution) Act, 1974. The Water Act provides for the constitution of the Central and State Pollution Control Boards and empowers them to carry out a variety of functions. These include establishing quality standards, research, planning and investigations to promote cleanliness of streams and wells and to prevent and control pollution of water. Importantly, it also provides that no industry, etc. which is likely to discharge sewage or trade effluents, can be established by any person without obtaining the consent of the State Board. The aforesaid provisions are extracted below for ready reference: “24. Prohibition on use of stream or well for disposal of polluting matter, etc.

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(1) Subject to the provisions of this section,— (a) no person shall knowingly cause or permit any poisonous, noxious or polluting matter determined in accordance with such standards as may be laid down by the State Board to enter (whether directly or indirectly) into any [stream or well or sewer or on land]40; or (b) no person shall knowingly cause or permit to enter into any stream any other matter which may tend, either directly or in combination with similar matters, to impede the proper flow of the water of the stream in a manner leading or likely to lead to a substantial aggravation of pollution due to other causes or of its consequences. (2) A person shall not be guilty of an offence under sub- section (1), by reason only of having done or caused to be done any of the following acts, namely:— (a) constructing, improving or maintaining in or across or on the bank or bed of any stream any building, bridge, weir, dam, sluice, dock, pier, drain or sewer or other permanent works which he has a right to construct, improve or maintain; (b) depositing any materials on the bank or in the bed of any stream for the purpose of reclaiming land or for supporting, repairing or protecting the bank or bed of such stream provided such materials are not capable of polluting such stream; (c) putting into any stream any sand or gravel or other natural deposit which has flowed from or been deposited by the current of such stream; (d) causing or permitting, with the consent of the State Board, the deposit accumulated in a well, pond or reservoir to enter into any stream. (3) The State Government may, after consultation with, or on the recommendation of, the State Board, exempt, by

40 Substituted by Act No. 53 of 1988, for the words “stream or well”

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Vellore District Environment Monitoring Committee Rep. by its Secretary Mr. R. Rajebdran v. The District Collector, Vellore District & Others

notification in the Official Gazette, any person from the operation of sub-section (1) subject to such conditions, if any, as may be specified in the notification and any condition so specified may by a like notification be altered, varied or amended.

25. Restrictions on new outlets and new discharges.— [(1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board,— (a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage); or (b) bring into use any new or altered outlet for the discharge of sewage; or (c) begin to make any new discharge of sewage: Provided that a person in the process of taking any steps to establish any industry, operation or process immediately before the commencement of the Water (Prevention and Control of Pollution) Amendment Act, 1988 (53 of 1988), for which no consent was necessary prior to such commencement, may continue to do so for a period of three months from such commencement or, if he has made an application for such consent, within the said period of three months, till the disposal of such application. (2) An application for consent of the State Board under sub-section (1) shall be made in such form, contain such particulars and shall be accompanied by such fees as may be prescribed.] (3) The State Board may make such inquiry as it may deem fit in respect of the application for consent referred to in sub-section (1) and in making any such inquiry shall follow such procedure as may be prescribed.

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(4) The State Board may— (a) grant its consent referred to in sub-section (1), subject to such conditions as it may impose, being— (i) in cases referred to in clauses (a) and (b) of sub-section (1) of section 25, conditions as to the point of discharge of sewage or as to the use of that outlet or any other outlet for discharge of sewage; (ii)in the case of a new discharge, conditions as to the nature and composition, temperature, volume or rate of discharge of the effluent from the land or premises from which the discharge or new discharge is to be made; and (iii) that the consent will be valid only for such period as may be specified in the order, and any such conditions imposed shall be binding on any person establishing or taking any steps to establish any industry, operation or process, or treatment and disposal system of extension or addition thereto, or using the new or altered outlet, or discharging the effluent from the land or premises aforesaid; or (b) refuse such consent for reasons to be recorded in writing. (5) Where, without the consent of the State Board, any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, is established, or any steps for such establishment have been taken or a new or altered outlet is brought into use for the discharge of sewage or a new discharge of sewage is made, the State Board may serve on the person who has established or taken steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, or using the outlet, or making the discharge, as the case may be, a notice imposing any such conditions as it might have imposed on an application for its consent in respect of such establishment, such outlet or discharge. (6) Every State Board shall maintain a register containing particulars of the conditions imposed under this section

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and so much of the register as relates to any outlet, or to any effluent, from any land or premises shall be open to inspection at all reasonable hours by any person interested in, or affected by such outlet, land or premises, as the case may be, or by any person authorised by him in this behalf and the conditions so contained in such register shall be conclusive proof that the consent was granted subject to such conditions.] (7) The consent referred to in sub-section (1) shall, unless given or refused earlier, be deemed to have been given unconditionally on the expiry of a period of four months of the making of an application in this behalf complete in all respects to the State Board. (8) For the purposes of this section and sections 27 and 30,— (a) the expression “new or altered outlet” means any outlet which is wholly or partly constructed on or after the commencement of this Act or which (whether so constructed or not) is substantially altered after such commencement; (b) the expression “new discharge” means a discharge which is not, as respects to nature and composition, temperature, volume, and rate of discharge of the effluent substantially a continuation of a discharge made within the preceding twelve months (whether by the same or a different outlet), so however that a discharge which is in other respects a continuation of previous discharge made as aforesaid shall not be deemed to be a new discharge by reason of any reduction of the temperature or volume or rate of discharge of the effluent as compared with the previous discharge.

26. Provision regarding existing discharge of sewage or trade effluent.— Where immediately before the commencement of this Act any person was discharging any sewage or trade effluent into a [stream or well or sewer or on land]41, the provisions

41 Subs. by Act 44 of 1978, s. 13, for “stream or well” (w.e.f. 12-12-1978)

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of section 25 shall, so far as may be, apply in relation to such person as they apply in relation to the person referred to in that section subject to the modification that the application for consent to be made under sub-section (2) of that section [shall be made on or before such date as may be specified by the State Government by notification in this behalf in the Official Gazette].

43. Penalty for contravention of provisions of section 24 Whoever contravenes the provisions of section 24 shall be punishable with imprisonment for a term which shall not be less than [one year and six months]42 but which may extend to six years and with fine.

44. Penalty for contravention of section 25 or section 26 Whoever contravenes the provisions of section 25 or section 26 shall be punishable with imprisonment for a term which shall not be less than [one year and six months]43 but which may extend to six years and with fine.”

89. In Gujarat Pollution Control Board v. M/s. Nicosulf Indst.& Exports Pvt Ltd44, a complaint was filed under various sections of the Water (Prevention and Control of Pollution) Act, 1974, against M/s. Nicosulf Industries & Exports Pvt. Ltd. and its directors for allegedly discharging 10,800 liters of polluted water daily during nicotine sulphate production, where the court held that under sections 24 and 25 of the Act, every industry is compulsorily required to obtain prior permission or approval of the Board for discharging its polluted water either within or outside the industry as per section 25(i) of the Act.

90. Additionally, in the 1983 case of U.P. Pollution Control Board v. M/s. Mohan Meakins Ltd. and Others45, relating to Gomti River pollution caused by the respondent therein, faced prolonged delays. The High court gave its judgment in 1999 and thereafter, this court held that

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