Since the advent of industrialization and in the ongoing phase of the modern world wherein the idea of development has been premised upon the production and consumption of things on a massive scale, the environment was never discussed. The silence on the issue continued largely because of a lack of acknowledgment and accountability by the world using the services of the ecosystem. The inadvertent and unforeseen challenges created by a relentless pursuit of ‘growth’ had been alarming. The rate at which natural resources have suffered is condemnable.
The global discourse on global warming and the protection of the environment has led to some hopeful measures that the world has finally come to acknowledge and incorporate. The fear of an increasingly iniquitous world stimulated actions to have environmental justice as a germane social goal. The essentiality of incorporating the environment in the development policies was generated by a culmination of events. For instance, the oil crisis, the Iran-Iraq war, the economic recession, the catastrophic oil spill, and the ozone layer depletion among others due to which the conventional idea of economic growth was challenged.
Under the 1972 and 1974 OECD Recommendations (1)(2), the Polluter-Pays Principle was adopted for the first time meaning that “the polluter should bear the “costs of pollution prevention and control measures”, the latter being “measures decided by public authorities to ensure that the environment is in an acceptable state”. In other words, the polluter has to bear the cost of steps that he is legally bound to take to protect the environment, such as measures to reduce the pollutant emissions at source and measures to avoid pollution by collective treatment of effluent from a polluting installation and other sources of pollution.” Subsequently, in the famous Brundtland Commission Report “Our Common Future” (1987) and later in The United Nations Conference on Environment and Development also known as the ‘Earth Summit’ , the concern for sustainability and internalization of environmental loss were incorporated internationally furthering the stance on ‘polluter pays principle’ globally.
In India, post-1990s after significant substantial and procedural innovation in the workings of the Judiciary, the right to life assumed an expansive space including the right to a pollution-free and safe environment. In 1996, “The Indian Council for Environment legal action vs the Union of India” , Justice Dalveer Bhandari applied the PPP. An environmentalists organizations brought to notice the sufferings of the villagers of Bichhri, Udaipur caused by Hindustan Agro Chemical limited. The activities of this industry caused serious damage to the land and the lives of people. The Judge mentioned having an internalization of the costs of ecological damage that shall be incurred by the industry or the private party.
Subsequently in “Vellore Citizens Welfare Forum vs Union Of India & Ors” on 28 August 1996 the judiciary decided to internalize the international laws on environmental pollution as a part of the Indian environment law including the PPP and precautionary principle. In this case, the citizens complained that the untreated effluents produced by Industries in Tamil Nadu were being discharged into the river causing harm to the crop and thus the livelihood of people. The most outstanding judgment often hailed as the watershed case in transforming the Environmental Laws of India is “M.C. Mehta vs Union of India & Ors” on 30 December 1996. Alternatively, called the Taj Trapezium case, wherein according to the report of the National Environment Engineering Report Institute and Varadarajan Committee in 1990 and 1995 respectively commissioned by the court, the chemical industry and Mathura refineries were the major polluters of the Taj Mahal. In this case, Justice Kuldeep expanded upon the PPP and also ordered changes in the functioning of Industries failing which Industries were prohibited from producing. Besides, the judgement accommodated the rights of workers who were likely to suffer from the shutdown of Industries that didn’t conform to the rules of the court. The judgment set the precedent to pay compensatory benefits to workers.
In “A.P. Pollution Control Board vs Prof.M.V.Nayudu (Retd.) & Others” on 27 January 1999, the court enable the tribunals and other environmental organizations to apply these principles in cases. In “Research Foundation for Science … vs Union of India (Uoi) And Anr” on 5 January 2005 as well substantiated further the argument espoused in “Vellore Citizens vs Union of India & Ors” . The legislature on the other hand as well incorporated PPP in The Central Government Act of The National Green Tribunal Act, 2010 in which Section 20 Tribunal applies certain principles. – “The Tribunal shall, while passing any order or decision or award, apply the principles of sustainable development, the precautionary principle, and the polluter pays principle.”
The PPP thus becomes an evolving mechanism used as a directive tool both by the Judiciary and the legislature to acknowledge environmental injustice and enable remedies to undo it. The incorporation of positive and negative externalities in the cost of production dismantles the illusion of unlimited natural resources and it stresses the distributive element of access to resources. It is indeed a breakthrough in the understanding of economic growth and development in India and globally.