Author: Vaishnavi Navghare.
(1996) 5 SCC 647
NAMES OF PARTIES
Petitioner: Vellore Citizens Welfare Forum
Respondent: Union of India and Others.
Justice Kuldip Singh;
Justice Faizan Uddin;
Justice K. Venkataswami.
Nature is Superior than all other man made things in the world. In the contemporary era environmental protection is important than any profit earned by any company in the world. Therefore environmental ethics holds important place in Indian philosophy as well as in Indian constitution. After tragic Incident of ‘Bhopal Gas tragedy,’ Indian judiciary took great initiative in making environment pollution free by considering “Right to pollution free Environment” as the fundamental right under Article 21 of the Indian Constitution. After due to this step “Environment protection” was included in 42nd amendment by legislature. There are number of cases in India regarding environmental protection but the ‘Vellore Citizens Welfare Forum v. Union of India’ is the most celebrated case because it brought positive approach towards environmental protection laws in India.
This case not just focuses on environmental issue but it covers various legal angels. This case introduce major two principles to India that is ‘Polluter pays principle’ and ‘Precautionary principle’. It also focuses on “sustainable development” to bring stability between economic gain and environment protection. These principles were also discuss in the cases like ‘Indian Council for Enviro-legal Action V. Union of India’ (1996) 5 SCC 281 and ‘Research in foundation for science, Technology and Natural Resource policy v. Union of India’ AIR 2012 SC 2627 respectively but they only got inserted in Indian law through Vellore Citizens Welfare Forum case.
This article is a case study of ‘Vellore Citizens Welfare Forum v. Union Of India’ along with the importance of CSR principle in today’s era.
- There was a NGO named as ‘Vellore Citizen Welfare Forum’, it has filed a Public Interest Petition under Article 32 of the Constitution concerning severe pollution of soil and water which was causing due to discharge of untreated sewage water from 900 tyrannies built in 5 districts of Tamil Nadu.
- The Palar River in Tamil Nadu which was main Source of potable water in that area, used for consumption and irrigation was completely polluted due to this tyrannies. And it is on the verge of extinct now.
- Then a survey of sewage water was done and also area near tyrannies was checked and it was found that 176 different types chemicals are present in the tyrannies water. 35,000 hectares of land near the tannery was declared unfit for cultivation. Also water of 350 wells present that area was declared unsafe for consumption.
- Also order of the Tamil Nadu Pollution control board to built a effluent plant for proper disposal of effluents was left unheard.1
- Whether Principles such as polluter based principle and precautionary principle which are the important part of sustainable development holds any place in Indian law?
- Up to what extent we can compromise environment safety for future economic development?
- Whether tanneries should be allowed to keep on working at expense of life of lakhs of people residing there?
- The three articles which are dedicated to environment protection in our constitution. Are 48A, 51A(g), 21A.
48A- “The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.”
A(g)- “It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures.”
21A- “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
- The court cited that in the case of Indian council for Enviro-Legal Action v. Union of India2 explained the principle as of polluter based principle as “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.”3
- The Precautionary principle define by the court as “the environmental measures taken by the state authorities ‘must anticipate, prevent and attack the causes of environmental degradation.”
- From this court realize that it is high time for the country to realize the importance of environment and to stop damage that is causing to it.
- Then Court gave emphasis on the concept of sustainable development. Court introduced the principle of sustainable development so that development and securing environment can go in hand in hand. They highlighted its international sphere and also stated that it is accepted as customary international law. This principle was first introduced in Stockholm declaration in 1972. Definition of sustainable principle is given by the Brandtland Report, it states “means development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”4
- Court further said that conserving natural resources, assistance and cooperation, eradicating poverty, protecting environment, giving financial assistance to developing country, polluter base principle and precautionary principle are salient features of sustainable development. But court was of the view that precautionary and polluter base principle forms part of the municipal law.
- Then the court incorporated precautionary principle and polluter base principle in Indian Domestic law. These two principles were incorporated Article 47, 48A, 51A(g) of the Constitution of India also in Environment Protection Act, 1986, Water Prevention And Control of Pollution Act 1974 and Air Prevention And Control of Pollution Act 1981.
- Then government started taking immediate action for pollution in environment, it also put a ban on all industries operating within one kilometer of any water resources.
- Court realized the harm the tanneries are causing to the Palar river they gave the judgement in favour of Vellor forum and ordered the Tanneries to deposit a sum of Rs. 10,000 as fine.
- Even after tanneries were shut they set up singular contamination control devices and continue to operate. Then court advised that no tanneries will work unless the fulfillment of the criteria that is to set up contamination control devices under the guidance of pollution control board.
- Through Environment Protection Act, 1986 section 3(3) court also ordered to always keep eye on the working of tanneries.5
Precedent Set by the Case
- M.C Mehta v. Kamal Nath and Ors.6 In this case court applied the precautionary principle and polluter base principle and orders the accused party to pay the damages for the restoration.
- P. Pollution Control Board v. M.V. Nayadu (Retd) and Ors.7 In this case court applied the precautionary principle and clarified on the uncertainty regarding this principle.
- Bombay Cotton Mills Case, in this case court relied on the principle of sustainable development and emphasizes on the balance between the economic development and environmental protection by referring Vellor case.8
The ‘Vellore Citizens Welfare Forum V. Union Of India’ is the very significant judgement in the concerning environment protection. This judgement recognizes the right to pollution free environment by incorporating the two international principles that is Environment Protection and Polluter Based Principle in the Indian Law. Even if this judgement brought many good changes and new rules regarding environment protection but there are drawbacks in the way these new rules and law was adopted and enforced. Court in order to resolve the big conflict between protection of environment and future development took the sustainable development as its approach to deal with the issue, but court did not provide proper measure regarding how this concept will work and maintain balance between the two aspects to achieve the goal. The justification provided by the court while adopting this path in securing the environment is erroneous and based on controversial grounds.
Court has ordered tanneries to shut down and install the contamination control devices and ordered the authorities to look into its working. Whether the implementation of the same is actually done or not is question and whether it is implemented today also, 20 years after the judgement is a great concern. Government has to look on the implementation of certain measures given by the court otherwise the whole judgement will be of no use. Court also paved down the way for sustainable development through this case and realizes the importance of environment. But courts has to look on whether this principle is actually implemented and whether companies are carrying CSR activities to contribute towards the environment.
Drawback of the Judgment
- Court incorporated the polluter base and precautionary principle but did not gave the guideline for the enforcement of the same.
- Court also did not clarified that whether precautionary principle and polluter based principle form customs.
- Court incorporated these principles through Article 47, 48A, 51A(g) of the Constitution of India but on the plain reading of these Article they only state ‘state responsibility for maintaining healthy environment, and does not clear that how these principles can be incorporated in domestic laws.
- Court ordered tanneries to pay fine but it did not mention the grounds on which liability is to be fixed and did not gave the mechanism to derive individual liability. Therefore, when after some years analysis is done it was found that courts orders were not fully implemented and followed by the committee
- We can make eco-friendly practices like going paper-less, making eco-friendly products, recycle process mandatory for all companies.
- We can give specific Sustainable Development Goal to each company to ensure faster results.
- We can organize seminars and conference on specially for companies on CSR and sustainable development to encourage more companies to adopt this practices.
- We can make the laws and provisions strict regarding non compliance of the targets.
- We can give assistance to companies who are falling short in achieving their targets.
Sustainable Development and Corporate Social Responsibility(CSR)
- The European Commission defines CSR Principle as “A concept whereby companies decide voluntarily to contribute to a better society and a cleaner environment.”
- World Commission on Environment and Development (WECD 1987) defines sustainable development as “Development that meets needs of the present without compromising the ability of future generation to meet their own needs.‟
- The CSR principle is very important to maintain the balance between the damage cause by companies and securing environmental protection.
- India is the first country to provide statutory mandate of CSR. Carrying out CSR activities is compulsory for Indian companies as per section 135 of the Companies Act 2013. it is mandatory for the companies to spend their 2% of average net profits of previous three years on CSR activities.9
- As per the section 135 of the Companies act 2013, CSR Principle is applicable on the on the companies whose annual turnover is 1000 crores and more, companies having net worth of 500 crores or more and companies having net profit of 5 crores or more.
- Schedule 7 of the Companies Act provides with the list of all the activities that comes under the ambit of CSR principle and Ensuring environmental sustainability is one of them.
- On 26 July 2019, the Lok Sabha passed the Companies Act (Amendment) Bill 2019, in which they have clearly mentioned that company which will fail to contribute towards CSR activity will face fine and also imprisonment in some cases.10
- A decade ago the CSR activities carried out by the companies were mostly in relation to environment like plating tress, installing solar plants but now they are carrying out activities of deforestation and degradation to win the race of earning maximum profit.11
This case is in relation to environment protection but it holds equal importance in corporate law too. Economic benefit is very important for industries but securing environmental is the need of today’s hours. This case gave the concept of sustainable. development which strikes balance between both. This case ultimately shows that environment could not be compromised at any cost.
- https://thelegalassistance.in/2020/07/02/ellore-citizens-welfare-forum-vs-union-of-india-ors-case-summary/ednref2. (visited on 17th March 2021).
- AIR 1996 SCC 647.
- Vellore Citizen’s Forum Welfare v. Union of India (1996) 5 SCC 647.
- Shivam Tripathi, Revisiting Vellore citizens and question that looms large, (visited on 19th March 2021).
- (1997)1 SCC 388.
- Writ Petition (Civil)No. 17832 of 1997.
- https://www.lawnn.com/vellore-citizens-welfare-forum-versus-union-india/. (visited on 19th march 2012).
- Vikrant Sopan Yadav, “Sustainable development and corporate social responsibilities in India: A critique”, INTERNATIONAL JOURNAL FOR ADVANCE RESEARCH, 2020, p. 121-124.
- Ministry of Law and Justice, the Companies (Amendment) Act. 2019. http://www.mca.gov.in/Ministry/pdf/AMENDMENTACT_01082019.pdf, (visited on 18th March 2021).
- Good era, CSR and sustainable development: Do Indian companies care about the environment? Forbes India, https://www.forbesindia.com/blog/life/csr-and-sustainable-development-do-indian-companies-care about-the-environment/, (visited on 18th march 2021).