Tannery Files: Tracing the SC Verdicts on IndiaS Polluting Tanneries
by K. Sriram & Sundip Biswas **
Cite as : (2004) PL WebJour 7
Special Nature of Tannery Cases: An Introduction
Tanneries are significant to the Indian economy, due to the export earnings that they generate and the employment opportunities they provide for people of the economically weaker sections of society. However, sustenance of tanneries is becoming increasingly difficult because of the alarming levels of environmental pollution caused by various tanning operations and practices.1 ..The leather industry has no right to destroy the ecology, degrade the environment and pose a health hazard. It cannot be permitted to expand or even to continue with the present production process unless the problem of pollution caused by the said industry is addressed and remedied. The task set out in the present paper is to trace and evaluate the series of cases, in which the Supreme Court has played a positive role in curbing environmental pollution caused by tanneries.
The tanneries are major agents of pollution of rivers and other water sources and are also annoying sources of public nuisance.2 The procedure involved in tanning leather often involves a long and prolix process. The leather development wing of the Indian Ministry of Commerce and Industry has described the process thus:
Hides and skins are obtained from either slaughtered or dead animals. The raw hides and skins thus obtained are known to be in the Green State. These are easily putrescible; if proper precautions are not taken they would easily rot and decay. Since tanneries are not always located very near the source of raw hides and skins, the question of preserving them for a temporary period till they reach a tanning centre assumes importance. Raw hides and skins are cured by wet salting, dry salting or drying. In the cured state, the raw materials can be preserved for a temporary period. In the third stage of temporary preservation, the hides and skins are pickled. During the next stage they are tanned in which state they can be preserved almost indefinitely. These tanned hides and skins are processed further to yield dressed hides and skins which are ready for use and can be preserved indefinitely.3
What clearly emerges from the above is that tanneries need to be careful in treating hides and skins as its perishable nature can be a source of much discomfort, inconvenience and nuisance4 to the public, if allowed to rot, leading to bad odour in the vicinity. This is only in addition to the noxious chemical discharges, effluents and sludge emanating from tanneries, which are a constant source of danger to the environment.
The crucial question is not whether developing countries can afford measures for the control of environmental pollution but it is whether they can afford to neglect them.5 The importance of the latter is emphasised by the fact that in the absence of adequate measures for the prevention or control of pollution, a nation would eventually be confronted with far more onerous burdens, such as to secure wholesome and adequate supplies of water. If developing countries embark on suitable pollution prevention policies during the initial stages of their industrialisation, they can avoid the costly mistakes committed in the past by many developed countries. It is, however, unfortunate that the importance of controlling pollution is generally not realised until considerable damage has already been done.6 There are immense benefits which result from the prevention of pollution. These include a general improvement in the standard of health of the population and the possibility of restoring stream waters to their original beneficial state.
Supreme Court decisions
Due to their immanent propensity to damage the environment, tanneries have always been under the watchful eyes of the Supreme Court. The following are the important judicial pronouncements in the realm of tannery control by the Supreme Court:
1. M.C. Mehta v. Union of India7 (Kanpur Tanneries matter)
This was perhaps one of the earliest cases where the activities of tanneries were brought to the attention of the Supreme Court. This case was a public interest litigation presented before a Division Bench of the Honble Supreme Court comprising of E.S. Venkataramiah and K.N. Singh, JJ. The petitioner M.C. Mehta, who was an active social worker had filed this petition inter alia for the issue of a writ/order/direction in the nature of mandamus to the respondents restraining them from letting out the trade effluents into River Ganga until the time they put up necessary treatment plants for treating the trade effluents in order to arrest the pollution of water on the said river. Respondent 1 was the Union of India, Respondent 7 the Chairman of the Central Board for Prevention and Control of Pollution, Respondent 8 the Chairman, Uttar Pradesh Pollution Control Board and Respondent 9 the Indian Standards Institute. Respondents 14 to 87 and 89 were the tanneries near Kanpur.
It was the complaint of the petitioner that neither the Government nor the people were giving adequate attention to stop the pollution of River Ganga. It was therefore sought that steps should be taken for the purpose of protecting the cleanliness of the stream in River Ganga. It was contended that the trade effluent8 discharged from tanneries was ten times noxious when compared with the domestic sewage water which flows into the river from any urban area on its banks and was thus a major source of pollution of River Ganga.
There was not much dispute on the question that the discharge of the trade effluents from these tanneries into River Ganga had been causing considerable damage to the life of the people who used the water of River Ganga and also to the aquatic life in the river. However, the tanneries of Kanpur had presented that due to lack of physical facilities, technical knowhow and funds, it had not been possible for most of them to install adequate treatment facilities. It was pleaded on behalf of a few tanneries that if some time was given to them to establish the pre-treatment plants they would install them. It was, however, submitted by all of them that it would not be possible for them to have the secondary system for treating waste water as that would involve enormous expenditure which the tanneries themselves would not be able to meet.
In his judgment Venkataramiah, J.9, held that the State was under a constitutional duty to protect and improve the environment10 and to safeguard the forests and wildlife of the country.11 In the opinion of the Court, it was a fundamental duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife, and have compassion for all living creatures.12 As a result, there was a statutory prohibition against the use of any stream or well for the disposal of polluting matter.13 This meant that no person could knowingly cause or permit any poisonous, noxious or polluting matter to enter, directly or indirectly, into any stream; or, knowingly cause or permit to enter into any stream any other matter which may tend, either directly or in combination with similar matters to impose an obstruction on the proper flow of the water of the stream.
The Court further held that it was the duty of the State Government, through the State Boards,14 and the Central Government to use the powers conferred upon them by statute to take all such measures as it deemed necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution.15 In cases of this nature, the Court could issue appropriate directions if it found that public nuisance or other wrongful acts affecting or likely to affect the public are being committed and the statutory authorities, who are charged with the duty to prevent such activities, are not taking adequate steps to rectify the grievance.16 Finally, it was said that 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 couldnt be permitted to continue to be in existence. This is because the adverse effects on the public at large which are likely to ensue by the pollution of the Ganga would be immense and would outweigh any inconvenience that may be caused to the management and the labour employed by it on account of closure of the tanneries. Thus, the financial capacity of the tanneries was to be considered as irrelevant while requiring them to establish primary treatment plants. It was, therefore, directed that those tanneries, which had failed to take the minimum steps required for the primary treatment of industrial effluent were to be closed down, and though such closure of tanneries could bring unemployment, loss of revenue, etc. life, health and ecology were held to have greater importance to the people.
What we see in this decision is a pro-active and bold stance taken by the Honble Supreme Court towards the protection of the fragile environment in which we exist. There is a realisation of the great role played by our rivers, especially the Ganga in the lives of millions of Indians and the dire need to protect it. The noteworthy aspect of this decision is the high standards of accountability that it creates for the concerned statutory bodies, with respect to the protection of the environment. Another aspect, which is worth noting, is the great emphasis it lays on the protection of environment over the economic interests and feasibility arguments advanced by the polluting tanneries.
2. Vellore Citizens Welfare Forum v. Union of India17 (Tanneries case)
This public interest petition under Article 32 of the Constitution of India was filed by the Vellore Citizens Welfare Forum against pollution which was being caused by the enormous discharge of untreated effluent by the tanneries and other industries in the State of Tamil Nadu. The matter was brought before the Full Bench of the Supreme Court, comprising of Kuldip Singh, J., Faizan Uddin, J., and K. Venkataswami, J.
Several tanneries operating in the State of Tamil Nadu were discharging untreated effluent into agricultural fields, roadsides, waterways and open lands. The untreated effluent was finally discharged in River Palar, which was the main source of water supply to the residents of the area. According to the preliminary survey made by the Tamil Nadu Agricultural University Research Centre (Vellore) nearly 35,000 hectares of agricultural land in the tanneries belt, had become either partially or totally unfit for cultivation. This was the effect of about 170 types of chemicals in the chrome-based tanning processes. Nearly 35 litres of water was used per one kilogram of finished leather, resulting in dangerously enormous quantities of toxic effluents being let out in the open by the tanning industry. These effluents spoilt the physicochemical properties of the soil and contaminate ground water by percolation. It was revealed that 350 wells out of a total of 467 used for drinking and irrigation purposes had been polluted as a result of which women and children had to walk miles to get drinking water.
There were more than 900 such tanneries that were operating in the five districts of Tamil Nadu. Some of them had been polluting the environment for over a decade and in some cases even for a longer period. The Supreme Court had in various orders indicated that these tanneries were liable to pay pollution fine and to compensate the affected persons as also pay the cost of restoring the damaged ecology.
Kuldip Singh, J., speaking on behalf of the Court held that the traditional concept of development and ecology being opposed to each other was no longer acceptable, and that the balance had to be found in Sustainable Development.18 The Court explained that the Precautionary Principle19 and the Polluter Pays Principle20 were the essential features of Sustainable Development. These principles were part of the law of the land by the operation of Article 21 and Articles 47, 48A and 51A(g)21 of the Constitution. They could also be derived from the Water (Prevention and Control of Pollution) Act, 1974 (the Water Act), the Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) and the Environment (Protection) Act, 1986 (the Environment Act).22 Also, since these principles were accepted as part of the customary international law there could be no difficulty in accepting them as part of the domestic law.23 Lastly, the source of the right against pollution stemmed from the inalienable common law right of a clean environment, which itself drew source from the common law right against Nuisance.24
In terms of the solutions, it was directed by the Court that an authority be constituted by the Central Government to find viable solutions to the problem.25 This authority was to be conferred with all the requisite powers. The authority was to perform three functions. Firstly, the authority, so constituted, would implement the Precautionary Principle and the Polluter Pays principle. The authority would, with the help of expert opinion, and after giving opportunity to the concerned polluters, assess the loss to the environment in the affected areas, as well as identify the individuals who have suffered because of the pollution and thereby assess the compensation to be paid to the said individuals. Secondly, the authority would have to determine the compensation to be recovered from the polluters as cost of reversing the damaged environment after laying down a just and fair procedure for completing the exercise.26 An industry, irrespective of whether it had set up the necessary pollution-control device, would be liable to pay for the past pollution generated by it if it resulted in the environmental degradation and suffering to the residents of the area. Fines that were collected were to be accredited to an Environment Protection Fund, which was to be utilised for compensating the affected persons and also for restoring the damaged environment. Finally, the authority so created could direct the permanent closure or relocation of the industry in case it evaded or refused to pay the compensation. Tanneries once closed were to be reopened only with the authoritys permission. It was also stated that the authority so created, was to be headed by a retired judge of the High Court and have members, preferably with expertise in the field of pollution control and environment protection. The authority, acting in consultation with expert bodies,27 was also to be empowered to frame schemes for reversing the damage caused to the environment by pollution. Noting the importance of the matter, the Supreme Court further requested the Chief Justice of the Madras High Court, to constitute a Special Bench called the Green Bench, to deal with the case, and other environmental matters, as was being done by the Green Benches, already functioning in Calcutta, Madhya Pradesh and some other High Courts.
In this decision we see that the two principles, namely, the Polluter Pays and the Precautionary principles were further ensconced into the fabric of environmental law in India. The Supreme Court acknowledged the urgency required to be shown in matters of environmental damage. The Court not only ordered the compensation of the affected parties, but also directed the creation of a fund in order to reverse the damage already caused by the polluting tanneries. The fund was intended to restore status quo, as regards the condition of the environment, which would have further deteriorated in the absence of intervention by the Supreme Court.
3. M.C. Mehta v. Union of India28 (Calcutta Tanneries matter)
This case arose as an extension of Kanpur Tanneries case, consequent to a PIL being filed under Article 32 of the Constitution. The PIL was initially directed against the tanneries located in the city of Kanpur, which the Court had dealt with in the previously discussed Kanpur Tanneries matter. However, during the issuance of the various directions in relation to the Kanpur tanneries and during the monitoring of the said directions, the scope of the petition was enlarged and the industries located in various cities on the banks of Ganga were called upon to stop discharging untreated effluent into the river.
In the present matter, tanneries in four clusters of Calcutta were posing a major environmental problem. According to the National Environmental Engineering Research Institute, following were the conditions prevalent at the site of the Calcutta tanneries:
(1) there were no treatment facilities for the effluents, waste water drainage and collection systems, as a consequence of which the untreated waste water, flowing through open drains, was posing serious environmental, health and hygiene problems;
(2) most of the tannery units were located in extremely congested and thickly populated, residential areas, affording little scope for the installation or future expansion and modernisation of effluent treatment plants.
In February 1993, nearly six years after the decision of the Supreme Court in the Kanpur Tanneries matter, the West Bengal Government informed the Court that the Calcutta tanneries were being shifted to a new location which was to be fully equipped with pollution-control devices. However, soon the State Government developed cold feet and sought for extension of time (3 years) for undertaking the shifting of the Calcutta tanneries. But what remained clear was that a choice had to be exercised between two alternatives. Either the tanneries were to be allowed to remain in their present locations but subject to the construction of a common effluent treatment plant;29 or they were to shift out to a new government-constructed leather complex, with all the facilities for treating the effluents.
The State Pollution Control Board had made it clear that the tanneries had been operating for a considerable period of time with no regard to environmental pollution control. According to them, shifting of the tanneries from the present location to another place and construction of common effluent treatment plants was the only practicable solution to control the environmental degradation as a whole. The Tanneries Assn. had strenuously contended that they had no objection in shifting to the new place, provided the State Government gave all the facilities to them. Thus, essentially what was required to be worked out was the dynamics of accounting the costs involved in relocation and setting up of the treatment plant.
Kuldip Singh, J., speaking for the Court held that the Calcutta tanneries had been operating in extremely unhygienic conditions and were discharging highly toxic effluents. Hence the State of West Bengal and the West Bengal Pollution Control Board were found to be wholly remiss in the performance of their statutory obligations. It was said that there was no possibility of setting up common effluent treatment plants at the existing locations of the Calcutta tanneries30 and thus they necessarily had to be relocated. This was because the proposed schemes of building a common effluent treatment plant in the existing premises was neither scientifically sound, nor could it be done without interfering with the normal life of the residents. The Court further directed that along with the relocation of the tanneries in a new government-acquired site, construction of a common effluent treatment plant was also to be undertaken out of State funding at the new site.31
The Court was uncompromising in its stance in making it clear that the tanneries which failed to avail the opportunity offered by the State of West Bengal to shift to the new complex were liable to be closed without any further notice, unconditionally32. The Court also pointed out that the area vacated by the tanneries was to be maintained as a green area in any form at the discretion of the State Government.33 However, unlike the Kanpur Tanneries matter where the Court had held that the environmental issues at stake outweighed the unemployment considerations, in the present case, the workmen employed in the Calcutta tanneries were held to be entitled to certain rights and benefits. The workmen were to have continuity of employment at the new place where the tannery was being shifted and the terms and conditions of their employment were also not to be altered to their detriment. Further, the period between the closure of the tannery at its old site and its restart at the place of relocation was to be treated as active employment and the workmen were to be paid their full wages with continuity of service. All workmen agreeing to shift with the tanneries were to be given one years wages as shifting bonus to help them settle at the new location. However, the workmen employed in the tanneries, which failed to relocate, were to be deemed to have been retrenched with effect from the closure dates of the tanneries. Also, the workmen who were not prepared to shift along with the relocated industries were to be deemed to have been retrenched under similar circumstances as those who were employed with tanneries, which didnt relocate.
With these directions, the case was transferred to the Calcutta High Court, which was held to be in the best position to deal with the case. The Green Bench already functioning in the Calcutta High Court was to treat the matter as a petition under Article 226 of the Constitution of India and proceed with it in accordance with law and also in terms of the directions issued by the Supreme Court.
In this decision we find that the Honble Supreme Court in spite of being uncompromising in securing the protection of the environment and prevention of pollution did not at the same time overlook the interests of the hundreds of people working in these tanneries. Thus, while the Court came to the conclusion that relocation was the only practical solution to the problem, it also ensured that the Government took adequate steps not to inordinately burden the tanning industry and its poor workers, economically.
A positive role was indeed played by the Supreme Court in clamping down on the polluting activities of the tanneries in both M.C. Mehta cases Kanpur as well as Calcutta and in Vellore case. The impact on community health, ecology and marine life forms was too severe for the Supreme Court to turn a blind eye to.
It should be reiterated that the leather industry in India occupies a prominent place in the economy especially because of its export earnings and its scope for employment. Thus the approach taken in the Calcutta Tanneries matter, whereby the Courts attitude was more directed towards striking a balance between the concerns of industry and environment is preferable. Therefore, rather than imposing a blanket order of closure, courts should emphasise on relocation of tanneries and protection of jobs as it has done in latter case. This requires active support of the Government.
Further, while courts have realised that beyond a certain point it is not economically feasible for many small, privately owned tanneries to incur expenditure on anything more than primary effluent treatment plants, it is now upon the courts to direct the Government to sponsor larger effluent treatment facilities which will go a long way in eradication of the problem of polluting tanneries. The Court was categorical about the accountability of the statutory bodies (like those created under the Water, Air and Environment Acts) formed for the purpose of enforcing environmental standards by industries. They cannot now remain inactive.
Finally, a positive development emerging out of the Tannery cases is the good follow up work which the Supreme Court has done after disposing of the cases or referring it to a Green Bench of the concerned High Court. In both Kanpur Tanneries case and in the Calcutta Tanneries matter, the Supreme Court has kept a watchful eye on the tanneries34 and passed a number of orders in order to ensure implementation of its directions.35