The ‘Polluter Pays’ principle: challenges to the NGT in securing environmental justice

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The Polluter Pay’s Principle (PPP) is one of the key principles upon which India’s green Court, the National Green Tribunal (NGT) relies for delivering decisions.  PPP is an integral part of the environment jurisprudence of India as declared in unequivocal terms by the Supreme Court in the landmark case of Vellore Citizen’s Welfare Forum v. Union of India. Further, Section 20 of the National Green Tribunal Act, 2010 states The Tribunal, while passing any order or decision or award, shall apply the principles of sustainable development, the precautionary principle and the polluter pays principle.

The two broad rationales behind the implementation of PPP in the environmental jurisprudence include first, penalty or fine acts as a discouragement and deterrent and second, it forms compensation for the communities who have suffered damage due to pollution.

Despite delivering landmark judgments within a short span of coming into existence, NGT has been facing challenges on primarily three fronts. First, absence of appropriate formula for determining the compensation i.e. resorting to ‘guesswork’ for calculating compensation, Second, the sufficiency of the fines which have been imposed on the polluters and Third,  the difficulty of identification of a ‘polluter’ in numerous cases.

The appropriate formula for determining compensation is absent in the present framework which creates arbitrariness in delivery of justice. For example, in the case of Krishan Kant Singh v. Triveni Engineering Industries, the use of ‘guesswork’ at arriving at compensation was explicitly mentioned by the NGT. In this regard it should be considered that the very absence of a logical basis for imposing fines reflects a lack of direction in the broader scheme of environment jurisprudence.

Further, in the case of Krishan Kant Singh v. Simbhaoli Spirit Ltd., the question of sufficiency of fines imposed to serve as a deterrent was brought forth by the legal experts and environment activists. In this case, the Simbhaoli Sugar Mills and Distillery was fined Rs. 5 Crore and asked to remove the sludge and clean the Phuldehra drain. However, the fine imposed formed a very small percentage of the annual turnover of the company and thus whether it served deterrent enough was the primary question to which the NGT had no answer to.

Another challenge which is being faced at present is the problem of identifying the polluter. Reference in this regard can be made to the rampant discharge of industrial and household waste and effluents in the Yamuna River. The NGT passed an order stating that whoever dumps waste matter in the Yamuna River shall be ordered to pay a fine of Rs. 50,000. However, the implementation of this order could not be made possible because of presence of large number of polluters and hence difficulty in polluter identification.

Furthermore, a challenge which the NGT has been facing is on the administrative front with regards to the failure of compensation to percolate. For example, in a recent case brought by the fishermen of Hazira in Gujarat against Adani Group, the fine levied by NGT was deposited with the district collector of Surat, however, it is yet to be utilized for the affected fishermen and the mangroves in the affected area.

Therefore, it should be noted that NGT, a special tribunal formed for the purpose of expeditious disposal of cases pertaining to environment faces challenges which undermine the process of securing environmental justice.

Following are some of the proposals to combat the current challenges faced by NGT:

  1. Specialization is the key to the functioning of NGT as it is a special court for adjudication of environment related disputes. Thus, problems like formulation of compensation depending on the facts of each case can be solved through presence of members with relevant expertise.
  2. NGT should aim at quick and easy resolution of disputes. Most of the cases with regards to environmental disputes require immediate action and delay becomes the very anti-thesis to the objective for setting up a specialized court in the first place.
  3. Further, it must be acknowledged by the primary stakeholders in the environment disputes that a specialized court like NGT is in a better position to understand and suggest remedies with regards to key environmental problems. Thus, awareness must be spread regarding the need for speedy disposal of cases in environment disputes via NGT.

Therefore, the need of the hour with regards to challenges and ever-degrading environment is to recognize adaptive management, adjustment of goals and performances and monitoring the need for improvement to secure environmental justice.

-This article is brought to you in collaboration with Shreya Jha from Amity Law School, New Delhi.