Polluter Pays, But Which Polluter? The Attribution Gap in Indian Environmental Liability

Abstrakt

In Vyakti Vikas Kendra India v Manoj Misra (2026), the Supreme Court of India set aside a decision of the National Green Tribunal holding the organiser of the 2016 World Culture Festival liable for damage to the Yamuna floodplain. The Court held that the polluter pays principle presupposes real damage and a causal link, and that the no-fault rule in section 17(3) of the National Green Tribunal Act 2010 is confined to accidents. This article accepts both holdings but argues that the judgment leaves open how contribution is to be proved where an ecosystem was already degraded and many actors have affected it: the attribution gap. Section 17(2), which permits equitable apportionment of harm that cannot be attributed to a single activity, has been little used, and section 20 makes both precaution and polluter pays rules of decision. Read together, these provisions support a structured inquiry: proof of injury, a candid baseline, a prima facie showing of contribution, a burden of production on the party holding the evidence, a final finding of material contribution on the balance of probabilities, apportionment, and a separate account of the public custodian’s share. Section 22, which confines appeals to substantial questions of law, should lead the Supreme Court to correct legal error in the Tribunal’s causal reasoning and ordinarily to remit contested science rather than decide it afresh.