Mass disaster and Environment Degradation: Legal Liability and Legal Remedies Satendra Kumar Sharma*

"The Sky is like Father The Earth is like Mother and The Space as Their Son The Universe consisting the Three is like a Family and Any kind of damage done to any one of the Three Throws the Universe out of Balance"

Rigveda, 160.2; 6.51.5 Introduction In Rigveda the whole universe is considered like a family.1 Peace on Earth depends on our ability to secure our living environment so we should effort in this way that most of our living environment may be secured in living conditions as the nature provided us. Many times we have to avoid the protection of our environment for the sake of the development of the country. It is my submission that we should consider our environment first at the time of industrialization of the country. The Supreme of India observed that the measures should be taken to reduce the risk of hazardous or risk to the community by taking all necessary steps for locating industries in a manner that would pose the least risk or danger to the community and for maximizing the safety requirements in such industries.2 Disasters are either natural or manmade. Natural disasters are caused by acts of God. Natural disasters, such as earthquakes, floods, tsunami, and cyclones, being beyond the control of human beings, the aspects relating to mitigation of damage, rescue, relief and rehabilitation assume importance. A Disaster Management Act, 2005 has been enacted mainly to cope up with the situations arising from such calamities. A high-level body designated as National Disaster Management Authority has been constituted under the said Act. The NDMA3 concentrates mainly on natural calamities and various aspects connected therewith, viz., capacity building, disaster preparedness and safety, risk reduction, etc.
*Satendra Kumar Sharma, LL.M. 4th Semester, Noida International University, Gautam Buddh Nagar, Uttar Pradesh, Indiia. 1 Rigveda, 160.2; 6.51.5. 2 Vellore Citizen Welfare Forum v. Union of India AIR 1996 SC 2715: (1996) 5 SCC 647. 3 National Disaster Management Authority.

Manmade disasters are attributable to conditions resulting from human conduct such as grossly negligent acts, gross inaction or serious errors. These are broadly: (i) Fire outbreaks especially in places to which the public has access including high-rise buildings, (ii) building collapses, (iii) stampedes in public places and (iv) industrial disasters viz., explosions, escape of noxious fumes and gases, mishaps in underground mines, etc., and (v) exposure to radioactive waste. Unlike natural disasters, preventive and regulatory measures assume greater importance in the case of man-made disasters. Of course, rescue and relief measures are common to both natural and man-made disasters. On account of the human element involved in triggering the man-made disasters, the victims can have recourse to civil and public law remedies and those responsible for culpable negligence may also be liable for criminal action under the provisions of Indian Penal Code or various special laws to which reference is made hereinafter. Specific remedies for claiming relief or compensation is available in certain statutes. Further, under the law of torts, compensation can be claimed in a Civil Court for the damage/injury caused on account of tortuous acts of negligence. Relief can also be sought against the public authorities by taking resort to Constitutional remedies under Article 32 and 226 of the Constitution. In the wake of frequent man-made disasters resulting in high casualties and untold sufferings to the people and the lack of adequate legal apparatus to provide relief to the victims of tragedies, it is felt that the law should be geared up to provide speedy and adequate redressal to the victims. It is also felt that the preventive aspect is being neglected, regulatory mechanisms to ensure preventive measures are utterly lacking and the law is too lenient towards those violating the safety regulations or otherwise contributing to the root causes of disasters. Representations have been made to the Central Government that there should be an effective law to deal with the man-made disasters and to provide adequate and speedy remedies to the victims and their kith and kin. The object of my assignment is to bring out those issues which are the subject matter of great discussion related with the mass disaster of environment, legal liability and legal remedies. The industrialization is no doubt very necessary but in the mean time the protection of environment is also very necessary. With it the object of assignment is also to describe the pros and cons of industrialization which every people and even nature has to face while the growing industrialization to develop the country. On one hand the globlisation and industrialization helps a country in developing. On other hand it is the biggest factor of the disaster of our environment of which we are also the parts. Many of legislations have been
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passed to protect the environment. There are many guidelines given by the Supreme Court of India to protect our environment and also for the damages caused by the industrialization but all in vain. Our environment is still not safe. We see that there is adequate legislation for the protection of the rights of the people and to protect the environment and to provide them justice whenever they become the victim of mass disaster. Many times it is seen that after many efforts a victim feel unjustified even after the judgment which is given no doubt in his favour as well as our environment also could not get its natural condition. Our environment gets effected even after adequate legislations and guidelines of the Apex Court of the land. It is a major question of discussion why it happens. It may be possible due to many reasons. One of these reasons may be non-compliance and unenforcement of the legislations and the directions and guidelines given by the Court. Why it happens so, it is also the question of great discussion. Well have to take some precautionary measures to protect our environment. The mechanism to provide justice which is adopted in our country is very traditional and unable to deal with the current problems well. We take only inadequate steps only after the mass disaster and a huge disaster of our environment. The procedure of justice in our country is such that it takes many years. There are many illustrations where aggrieved people, awaiting legal relief. In the matter of the disaster of environment and damages caused by it, legal relief proves unsatisfactory because legal remedies cant put our environment in the same shape as it was. When the environment gets effected, it takes many years to be cured so we should adopt precautionary measures. Legal remedies after disaster should be used only exceptionally. Law should be adequate and courts should be powerful enough to deal with matters for providing justice to the effected people. For that purpose only need is required thats law is to be taken out of the books, defined and analyzed and then disbursed to the aggrieved people to provide comfort and relief to them. Law is like a comforting balm in a phial. It cannot provide comfort till it is taken out of the phial by accustomed hands and applied at the site of pain. Law (Legislation) provides only the foundation of justice. The magnificent structure of justice is erected by the Judges and ultimately by that authority which is to implement the judgments of the Court. The Judges has to face different situations while dealing with the cases. How these new situations affect the judgment, Ill discuss all these things in my assignment with its appropriate suggestions. Other reasons are also responsible for unhappiness of victims of mass disaster, which also Ill discuss in my article with its suggestions which will be surely very helpful for making the legal remedies more effective more effective.
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Environmental Degradation The expression disaster is defined as follows: Disaster means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or manmade causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area. There are many social factors which are responsible for the environmental degradation. Those are population, poverty, urbanization. There are many other economic factors which are responsible for the environmental degradation. Those are industrialization, excessive use of natural resources and rapid growth of technology. Reasons of environmental degradation in India are as follows: 1. Population 2. Poverty 3. Urban Growth 4. Poor Infrastructure 5. Political Influence 6. Non-respect of Law 7. Non-respect of Judicial Decision of the Court The Right to Healthy Environment in India Right to Relief and Remedies At present, the victims of man-made disasters and the legal representatives of the deceased victims are entitled to relief under more than one Statute. Where substantial loss of life or human suffering is result of accidents arising from natural or man-made causes, the claimants should be eligible to get cash relief and medical assistance as an immediate palliative from out of the funds constituted under the Disaster Management Act. Irrespective of that, exgratia assistance is admissible under the Act on account of loss of life and for restoration of means of livelihood. Section 12 requires the National authority to recommend guidelines for the minimum standards of relief to be provided to persons affected by the disaster. Similar power is vested with the State authority under Section 19. The District authority is required to provide shelter, food, healthcare and services (vide Section 34). The relief admissible to the persons affected whether it is ex-gratia or a grant from the Disaster Relief Fund, has to be
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given without any loss of time and without any hassles. The quantum of relief and modalities of medical assistance should be laid down through guidelines. The persons affected may have another remedy under the Public Liability Insurance Act to get the relief to the extent of the amount specified in the Schedule, provided it is an accident that had arisen in the course of handling hazardous substance or operations. We have indicated that the said Act needs to be amended to provide greater relief. There is every need to ensure that the victims of disaster or their families get the relief under these two enactments within shortest possible time. The Collector/District Magistrate can be designated as an agency to process the claims and take all necessary steps to disburse the relief with utmost expedition. If the jurisdiction under the P.L.I. Act is continued with the Collector, (instead of sending the claims to the National Green Tribunal), that will quicken the process. The claimant should not under any circumstances be driven from pillar to post to get the entitled relief. As far as the workman is concerned, no relief can be extended to him or his dependents in view of the exclusion clause in Section 3. However he can seek relief under the Workmens compensation Act which lays down the principle of no fault liability as in the case of PLI Act. Under the said Act, the workman cannot however seek compensation both under that Act and by way of civil suit. In a disaster situation, the Commissioner under the W.C. Act, shall accord priority to the disposal of claims and pass orders within a maximum time-frame. The appropriate Governments will have to issue instructions in this regard to the Commissioners. The need to revise the multiplier relating to percentage of loss of earning capacity under the Act deserves examination. The District Legal Services Authorities can also play a useful role by coordinating with the victims and the authorities concerned so as to provide the needed legal assistance to the hapless victims. The Secretaries of LSAs should take initiative to contact the persons concerned and offer the necessary help even if the victims have not approached the LSAs. Even now, this is being done, but the endeavour shall be to enter the scene at the earliest. There are various regulations by which right to environment is given in India and by which these rights are protected. Indian regulation and legal action for specific environmental issues are dealt by various enactments like: 1. The Constitution of India 2. The Indian Penal Code 3. The Criminal Procedure Code 4. The Factories Act
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5. The Indian Forest Act 6. The Merchant Shipping Act, etc. 7. Disaster Management Act, 2005 Except the various legislations and the Constitution of India there are various Rules and Notification to deal with Environmental Issue, which are as follows: 1. Hazardous Wastes (Management and Handling) Rules in 1989; 2. Biomedical Wastes (Management and Handling) Rules in 1998; 3. Recycled Plastics (Manufacture and Usage) Rules 1999; 4. Environment (Silting for Industrial Projects) Rules 1999; 5. Municipal Solid Wastes (Management and Handling) Rules in 2000. The Constitution of India The Constitution of India came into force on 26th January, 1950. Originally, the constitution contains no specific provisions for environmental protection. However, certain specific provision have been incorporated by the Constitution (42nd Amendment) Act, 1976 and subsequent amendments. Indian Constitution is one of the very few constitutions in t he world, which provides for specific provision for the protection and improvement of the Environment. The constitution, being the fundamental law of the land has a binding force on citizens, non citizens as well as the State. The Fundamental Rights and the Directive Principles of the State Policy underline our national commitment to protect and improve the environment. The courts in India have also given a new interpretation to the constitutional provision relating to protection and improvement of the environment (the intended meaning of the environment in the constitution) may be explained with reference to the following head: 1. Constitution Forty Second Amendment:- In 1976, under the leadership of the then Prime Minister, Smt. Indira Gandhi, the Constitution (Forty Second Amendment) Act was passed and the provisions relating to the protection of environment for the first time were incorporated by adding a new provision Article 48-A in the Chapter, Directive Principles of State Policy. According to Article 48-A of the Constitution of India- the State shall Endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.
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Further, a new provision Article 51-A of the Constitution of India in the form of Fundamental Duties was also incorporated by the 42nd Amendment. According to the subclause (g) of Article 51-A of the Constitution of India, 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. The above two provision impose twofold responsibilities. On the one hand, it gives directive to the State for protection and improvement of environment, and on the other hand it casts/imposes a duty on every citizen to help in the preservation of natural environment. 2. Federal System of Government (Distribution of Legislative Power):From environmental point of view, allocation of legislative authority is very important. The constitution of India deals exhaustively with legislative powers pertaining to environmental law. The legislative powers under the scheme of the Constitution is divided into three lists viz., the Union List or List I, the State List or List II, the Concurrent List or List III. Part XI (Articles 245-263) of the constitution provides for the distribution of legislative powers between the union and the states. Article 246 of the Constitution of India distributes the subjects of legislative power in these three lists between the Centre and the States. The union list contains 97 subjects and the Parliament alone has the power to legislate. The State List contains 66 subjects and the States have power to legislate. However, in respect of Concurrent List, which contains 47 subjects, both the Parliament and the State Legislatures have the power to legislate. There are about 200 Central and State Legislation on environmental protection. The most important environmental legislation, passed by the parliament under Article 249 of the Constitution is The Water (Prevention and Control of Pollution) Act, 1974; The Air (Prevention and Control of Pollution) Act, 1974; The Air (Prevention and Control of Pollution) Act, 1981; and the Environment (Protection) Act, 1986. 3. Fundamental Rights:- Part III of the Constitution, containing Articles. 12 to 35, deals with fundamental rights. Articles 15(2) (b); Art. 21 and Article 24 provide for specific provision for environmental protection. Article 15(2) (b):- According to Art. 15(2) (b) of the Constitution of India, No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them be subjected to any disability, liability, restriction or condition with regard to: the use of wells, bathing ghats, roads and places of public resort, maintained wholly or partly out for state funds or dedicated

to the use of general public:. In simple words, Art. 15(2) of the Constitution of India prohibit discrimination on the ground of sex, race, religion, caste, place of birth etc. to make use of the public places the general public. The public places, which are part and parcel of the human environment, should be made available to the public. The preamble to our constitution ensures socialistic pattern of the society and decent standard of life, which can be pollution free environment. Article 21:- According to Article 21 of the constitution, no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 21 is the heart of the fundamental rights and has received expanded meaning from time to time after the decision of the Supreme Court in Maneka Gandhi v. Union of India4. Article 21 guarantees a fundamental right to life a life of dignity to be lived in a proper environment, free of danger of disease and infection. The right to live in a healthy environment as part of Article 21 of the Constitution was first recognized in the case of. Rural Litigation and Entitlement Kendra v. State of U.P.5 (Popularly known as Dehradun Quarrying Case), is the first case of this kind in India, involving issues relating to environment and ecological balance. The R.L. & E. Kendra and others in a letter to the Supreme Court complained about the illegal / unauthorized mining in the Missouri, Dehradun belt. As a result, the ecology of the surrounding area was adversely affected and it led to the environmental disorder. The Supreme Court treated the letter as writ petition under Article 32 of the Constitution of India and directed to stop the excavation (illegal mining) under the Environment (Protection) Act, 1986. The respondents contended/argued that the write petition was registered in 1983 and the Environment (Protection) Act was passed in 1986 and hence the criminal proceedings cannot be initiated with retrospective effect. The court rejected the contention of the respondents and held that the provisions of procedural law shall apply to ordinary criminal cases and not to the environmental cases. The court directed the Central and State Governments to take necessary steps to prevent illegal mining and to re-afforesation in the area of mining.

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AIR 1978 SC 597. AIR 1988 SC 2187

In M.C. Mehta vs. Union of India6 (Popularly known as Oleum Gas Leak Case) The Supreme Court treated the right to live in pollution free environment as a part of fundamental right to life under Article 21 of the Constitution. Further the A.P. High Court in T. Damodar Rao v. S.O., Municipal Corporation, Hyderabad7 laid down that right to live in healthy environment was specially declared to be part of Article 21 to the Constitution. Article 24: Article 24 of the Constitution speaks about exploitation of child labour. It says that No child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment this provisions is certainly in the interest of public health and part of the environment. Further, Article 39 (e) and 39 (f) under Directive Principles of State Policy provide for the protection of the health and strength of children below the age of 14 years. In Peoples Union for Democratic Rights v. Union of India8 the Supreme Court held that the prohibition under Art. 24 could be enforced against any one, be it the State or private individual. In pursuance of this obligation, parliament enacted the Child Labour (prohibition and Regulation) Act, 1986. The Act prohibits specifically the employment of children in certain industries. 4. Directive Principles of State Policy:- Part IV of the Constitution, Containing Articles 36 to 51, deals with Directive Principles of State Policy. The directive principles form the fundamental feature and are designed to achieve socio economic goals. Article 39(b):- The expression material source under Art. 39 (b) of the Constitution of India means all things, which are capable producing wealth for the community. In includes those, which are already vested in the State but also in the hands of private individuals. Further, the expression distribution in Article 39 (b) of the Constitution of India does not mean that ones property is taken over and is distributed to others. It also includes nationalization which is an effective means to prevent concentration of wealth in a few hands so as to benefit the society at large.

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AIR 1987 SC 1086. AIR 1987 A.P. 171. 8 AIR 1982 SC 1473

Article 47:- Article 47 of the Constitution of India provides that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties. The improvement of public health also includes the protection and improvement of environment without which public health cannot be assured. Article 48:- It deals with organization of agriculture and animal husbandry. Article 48 of the Constitution of India directs the State to take steps to organize agriculture and animal husbandry on modern and scientific lines. In particular, it should take steps for preserving and improving the breeds and prohibiting the slaughter of cows and calves and other milch and draught cattle. Article 49:-It deals with protection of monuments and places and objects of national importance. Article 49 of the Constitution of India requires the State to protect c-very monument or place or object of artistic or historic interest (declared by or under law made by parliament to be of national importance) from spoliation, disfigurement, destruction, removal, disposal or export. 5. Fundamental Duties (51-A):- Art. 51-A of the Constitution of India was added under the Constitution (42nd Amendment) Act 1976, which deals with 'Fundamental Duties' under Part IV-A. Article 51-A enlists ten fundamental duties designed for restructuring and building a welfare society 'State. Article 51-A(g) specifically deals with the fundamental duty with respect to environment. It provides "it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. (To put it simply Article 51-A(g) refers to the fundamental duty of every citizen to protect and improve 'natural environment'. Indian Penal Code 1860:The Indian Penal Code deals with the various forms of offences and the penalties. It also contains provisions for protecting environment with the penal sections.

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Important provisions of this Act:1. Section 268 deals with Public Nuisance and Section 290 provides the punishment which is Rs200. Section 291 provides if the nuisance is still continuing then the punishment is with simple imprisonment for six months or with fine or both. For punishments under this section the complainant must first obtain an injunction under Section 142 & Section 143 of the Code of Criminal Procedure. 2. Section 269 provides whoever unlawfully or negligently spreads the infection of any disease dangerous to life shall be punished with imprisonment for six months or with fine or both. 3. Section 270 provides for punishment for some malignant act which is likely to spread infection of diseases & which is dangerous to life shall be punished with imprisonment of two years or fine or both. 4. Section 277 provides for punishment for fouling water or public water or public spring or reservoir shall be punished for three months or with fine of Rs1000 or both. 5. Section 278 lays down punishment for making atmosphere noxious to health shall be punished with imprisonment for six months or with fine of Rs1000 or both. 6. Section 433 makes mischief punishable which causes inundation or obstruction to public drainage attending with damage shall be punished with imprisonment for five years or fine or both. 7. Section 435 makes punishable a mischief by fire or explosive substance with intent to cause damage shall be punished with imprisonment for seven years with fine. 8. Section 436 provides punishment for mischief by fire or explosive substance with intent to destroy house shall be punished with imprisonment for ten years with fine. The legislation which is of utmost relevance to the subject in question is The Disaster Management Act, 2005. The Act is aimed at prevention and mitigation of effects of disasters and for undertaking a holistic, coordinated and prompt response to any disaster situation. It is meant to provide for requisite institutional mechanisms for drawing up and monitoring the implementation of the disaster management plans and ensuring measures by various wings of government (vide Statement of Objects and Reasons). It provides for setting up of a National Disaster Management Authority under the Chairmanship of the Prime Minister, State Disaster Management Authorities headed by the Chief Ministers and District Disaster Management Authorities headed by District Magistrates. It also provides for constitution of a National Disaster Response Force and setting up of National Institute of Disaster Management. The
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Act also provides for the constitution of Disaster Response Mitigation Funds at the National, State and District levels. The Act also provides for specific role for local bodies in disaster management. The Act requires the establishment of National Institute of Disaster Management, the functions of which include preparation of training modules for human resources development and promotion of awareness among stakeholders. The National Disaster Management Authority and the State level and District level authorities have been put in place pursuant to the said Act. Further, in many States, Disaster Relief Funds have been created and the Central Government makes substantial contribution thereto. Even earlier to this legislation, some States have enacted the State Disaster Management Acts. Though the Act is primarily designed to take care of the disasters caused by natural calamities on a large scale, the expression disaster in the Act has a very wide connotation including within its fold man-made disasters. Judicial Interpretation of Environmental Laws A vivid definition was given by the Supreme Court of India in M.C. Mehta v. Kamal Nath9 as any disturbance of the basic environment elements, namely air, water and soil, which are necessary for life, would be hazardous to life within the meaning of Article 21. In its another case the Apex Court emphasized on the precautionary measures by saying that the precautionary principle requires the State to anticipate, prevent and attack the causes of environmental degradation.10 In Animal and Environmental Legal Defence Fund v. Union of India11 the Supreme Court of India emphasized to preserve the fragile ecology of the forest area. In M.C. Mehta v. Kamal Nath12 the Supreme Court of India enunciated the doctrine of Public Trust. The public trust doctrine, as discussed by the Court in this judgment was a part of the law of the land. The prior approval granted by the Government of India, Ministry of Environment and Forest and the lease-deed dated 11.04.1994 in favour of the Motel were quashed. The lease granted to the Motel by the said lease-deed in respect of 27 bighas and 12 biswas of area, is cancelled and set aside. The Himachal Pradesh Government shall take over the area and restore it to its original-natural conditions. The Motel shall pay compensation by way of cost for the restitution of the environment and ecology of the area. The pollution caused by
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AIR 2000 SC 1997: (2000) 6 SCC 213: 2000 AIR SCW 1854. M.C. Mehta v. Union of India (1997) 3 SCC 715. 11 (1997) 3 SCC 549: AIR 1997 SC 1071: (1997) 2 SCALE 493. 12 (1997) 1 SCC 388: 1997 (2) Civil LJ 1.
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various constitutions made by the Motel in the riverbed and the banks on the river Beas have to be removed and reversed. The Indian Express published an article reporting that Span Motels Private Limited, which owns Span Resorts, had floated another ambitious venture, Span Club. The family of Indian politician Kamal Nath has direct links with this company. The club was built after encroaching upon 27.12 bighas of land, including substantial forestland, in 1990. The land was later regularised and leased out to the company on April 11, 1994. The regularisation was done when Nath was Minister of Environment and Forests. This encroachment led to the swelling of the Beas River, and the swollen river changed its course and engulfed the Span Club and the adjoining lawns, washing it away. For almost five months now, the Span Resorts management has been moving bulldozers and earth movers to turn the course of the Beas for a second time. A worrying thought was that of the river eating into the mountains, leading to landslides which were an occasional occurrence in that area. In September, these caused floods in the Beas and property estimated to be worth Rs. 105 crore was destroyed. The Government of India, Ministry of Environment and Forests by the letter dated 24.11.1993, addressed to the Secretary, Forest, Government of Himachal Pradesh, Shimla conveyed its prior approval in terms of Section 2 of the Forest (Conservation) Act, 1980 for leasing to the Motel 27 bighas and 12 biswas of forest land adjoining to the land already on lease with the Motel. An expert committee formed to assess the situation of the area arrived at the following conclusion, The river is presently in a highly unstable regime after the extraordinary floods of 1995, and it is difficult to predict its behaviour if another high flood occur in the near future. A longterm planning for flood control in the Kullu Valley needs to be taken up immediately with the advice of an organisation having expertise in the field, and permanent measures shall be taken to protect the area so that recurrence of such a heavy flood is mitigated permanently. The forest lands which have been given on lease to the Motel by the State Governments are situated at the bank of the river Beas. Beas is a young and dynamic river. The river is fastflowing, carrying large boulders, at the time of flood. When water velocity is not sufficient to carry the boulders, those are deposited in the channel often blocking the flow of water. Under such circumstances the river stream changes its course, remaining within the valley but swinging from one bank to the other. The right bank of the river Beas where the motel is located mostly comes under forest, the left bank consists of plateaus, having steep - bank
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facing the river, where fruit orchards and cereal cultivation are predominant. The area being ecologically fragile and full of scenic beauty should not have been permitted to be converted into private ownership and for commercial gains. Union Carbide Corporation v. Union of India & (Bhopal Gas tragedy) Occurrence: 3rd December 1984. Place of Occurrence: Bhopal, Madhya, India. Company: Union Carbide Corporation Chemical: Methyl Isocyanate (27 Tons) The Bhopal Gas Tragedy case raised legal, moral and ethical questions about the liabilities of the companies and subsidiaries, and Governments policies to attract industry for investment while protecting the environment and the citizens. But the Court could not exculpate anybody alleged to have committed an environmental crime. The case formed for criminal negligence for gas disaster that killed thousands of people. It was an environmental disaster. Verdict of the Court came after 25 years on June 7, 2010 sentenced former union carbide India Chairman Keshub Mahindra and six others to two years imprisonment and monetary compensation to victim. Narmada Bachao Andolan of 1985 is the powerful non -violent movement of mass of people against construction of dam on river Narmada. The ground is loss of land and livelihoods of displaced person and issue of Rehabilitation and Resettlement. The petitioners, Narmada Bachao Andolan, challenged the implementation of the Sardar Sarovar project on several grounds, ENVIRONMENTAL & SOCIAL is one of them. Indian

Supreme Court cleared the project stating that dam of this size will not cause any ecological disaster. In Narmada Bachao Andolan v. Union of India13 case the Supreme Court's decision was sought for stoppage of construction of the Sardar Sarovar dam. The court initially ruled the decision in the Andolan's favor, thereby affecting an immediate stoppage of work at the dam and directing the concerned states to first complete the rehabilitation and replacement process.

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AIR 2000 SC 3751: (2000) 10 SCC 664.

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The Court deliberated on this issue further for several years but finally upheld the Tribunal Award and allowed the construction to proceed, subject to conditions. The court introduced a mechanism to monitor the progress of resettlement pari passu with the raising of the height of the dam through the Grievance Redressal Authorities (GRA) in each of the party states. The courts decision referred in this document, given in the year 2000 after seven years of deliberations, has paved the way for completing the project to attain full envisaged benefits. The court's final line of the order states, "Every endeavour shall be made to see that the project is completed as expeditiously as possible". Subsequent to the courts verdict, Press Information Bureau (PIB) featured an article which states that: "The Narmada Bachao Andolan has rendered a yeoman's service to the country by creating a high-level of awareness about the environmental and rehabilitation and relief aspects of Sardar Sarovar and other projects on the Narmada. But, after the court verdict it is incumbent on it to adopt a new role. Instead of 'damning the dam' any longer, it could assume the role of vigilant observer to see that the resettlement work is as humane and painless as possible and that the environmental aspects are taken due care of." Vellore Citizens Welfare Forum v. Union of India14 case was filed through a Public interest petition - under Article 32 of the Constitution of India. Pollution caused by discharge of untreated effluent by the tanneries and other industries in the State of Tamil Nadu. The untreated effluent is discharged in river Palar which is the main source of water supply to the residents of the area. Supreme Court traced the source of the constitutional and statutory provisions for the right to a pollution-free environment as the basic jurisprudence of the land and directed the Central Government to take immediate action under provisions of Environment Act. The Court also referred to precautionary principle and the concept of burden of proof. In this case the Apex Court further added that the chemical and other hazardous industries which are essential for economic development may have to be set up. But measures should be taken to reduce the risk of hazard or risk to the community by taking all necessary steps for locating such industries in a manner that would pose the least risk or danger to the community and for maximizing safety requirement in such industries.

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AIR 1996 SC 2715: (1996) 5 SCC 647.

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In M.C. Mehata v. Union of India15 the Supreme Court of India gave many direction regarding hazardous chemicals. The case of M.C. Mehta v. Union of India originated in the aftermath of oleum gas leak from Shriram Food and Fertilisers Ltd. complex at Delhi. This gas leak occurred soon after the infamous Bhopal gas leak and created a lot of panic in Delhi. One person died in the incident and few were hospitalized. The case lays down the principle of absolute liability and the concept of deep pockets. Facts The case came up before the five-judge bench of the Supreme Court after a three-judge bench had referred it to a higher bench because certain questions of seminal importance and high constitutional significance were raised in the course of arguments when the writ petition was originally heard. 1. The Bench of three Judges permitted Shriram Foods and Fertiliser Industries (hereinafter referred to as Shriram) to restart its power plant as also plants for manufacture of caustic chlorine including its by-products and recovery plants like soap, glycerine and technical hard oil, subject to the conditions set out in the Judgment. 2. The main issue in the original writ petition which was filed in order to obtain a direction for closure of the various units of Shriram on the ground that they were hazardous to the community. 3. But while the writ petition was pending there was escape of oleum gas from one of the units of Shriram on 4 and 6 December 1985 and applications were filed by the Delhi Legal Aid & Advice Board and the Delhi Bar Association for award of compensation to the persons who had suffered harm on account of escape of oleum gas. 4. The Court thought that these applications for compensation raised certain important issues and those issues should be addressed by a constitutional bench. The Objection of the Defendant There was only one preliminary objection filed by the counsel for the defendant, and this was that the Court should not proceed to decide these constitutional issues since there was no claim for compensation originally made in the writ petition and these issues could not be said

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1987 AIR 1086, 1987 SCR (1) 819.

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to arise on the writ petition. However, the Court, while rejecting this objection, said that though it is undoubtedly true that the petitioner could have applied for amendment of the writ petition so as to include a claim for compensation but merely because he did not do so, the applications for compensation cannot be thrown out. These applications for compensation are for enforcement of the fundamental right to life enshrined in Article 21 of the Constitution and while dealing with such applications we cannot adopt a hyper-technical approach which would defeat the ends of justice. Judgment The first question which requires to be considered is as to what is the scope and ambit of the jurisdiction of this Court under Article 32. The Court wholly endorsed what had been stated by Bhagwati, J. in Bandhua Mukti Morcha v. Union of India16 as regards the true scope and ambit of Article 32. It may now be taken as well settled that Article 32 does not merely confer power on this Court to issue a direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people and for that purpose this Court has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights. The next question which arises for consideration on these applications for compensation is whether Article 21 of the Constitution of India is available against Shriram which is owned by Delhi Cloth Mills Limited, a public company limited by shares and which is engaged in an industry vital to public interest and with potential to affect the life and health of the people. The issue of availability of Article 21 against a private corporation engaged in an activity which has potential to affect the life and health of the people was vehemently argued by counsel for the applicants and Shriram. The Court traced the evolution of the Doctrine of State Action to ascertain whether the defendants in this case fall under the definition of the term state, as provided under Article 12, or not. The Court also looked into the Industrial Policy of the Government. Under the Industrial Policy Resolution 1956 industries were classified into three categories having regard to the part which the State would play in each of them. The first category was to be the exclusive responsibility of the State. The second category comprised those industries which would be progressively State owned and in which the State would therefore generally take the
16

AIR 1997 SC 2218: (1997) 10 SCC 549.

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initiative in establishing new undertakings but in which private enterprise would also be expected to supplement the effort of the State by promoting and development undertakings either on its own or with State participation. The third category would include all the remaining industries and their future development would generally be left to the initiative and enterprise of the private sector. If an analysis of the declarations in the Policy Resolutions and the Act is undertaken, we find that the activity of producing chemicals and fertilisers is deemed by the State to be an industry of vital public interest, whose public import necessitates that the activity should be ultimately carried out by the State itself, in the interim period with State support and under State control, private corporations may also be permitted to supplement the State effort. The argument of the applicants on the basis of this premise was that in view of this declared industrial policy of the State, even private corporations manufacturing chemicals and fertilisers can be said to be engaged in activities which are so fundamental to the Society as to be necessarily considered government functions. Issue of absolute liability On the question of developing a new doctrine to attach liability the court commented that; We must also deal with one other question which was seriously debated before us and that question is as to what is the measure of liability of an enterprise which is engaged in a hazardous or inherently dangerous industry, if by reason of an accident occurring in such industry, persons die or is injured. Does the rule in Rylands v. Fletcher apply or is there any other principle on which the liability can be determined? The rule in Rylands v. Fletcher was evolved in the year 1866 and it provides that a person who for his own purposes being on to his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril and, if he fails to do so, is prima facie liable for the damage which is the natural consequence of its escape. The liability under this rule is strict and it is no defence that the thing escaped without that person's wilful act, default or neglect or even that he had no knowledge of its existence. This rule laid down a principle of liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such thing escapes and does damage to another, he is liable to compensate for the damage caused. Of course, this rule applies only to non-natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or

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the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory authority. This rule evolved in the 19th Century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. We need not feel inhibited by this rule which was evolved in this context of a totally different kind of economy. Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis--vis the tortious principle of strict liability under the rule in Rylands v. Fletcher. We would also like to point out that the measure of compensation in the kind of cases referred to in the preceding paragraph must be co-related to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The larger and more prosperous the

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enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise. The Order of the Court The Supreme Court made the following observation: Since we are not deciding the question as to whether Shriram is an authority within the meaning of Article 12 of the Constitution of India so as to be subjected to the discipline of the fundamental right under Article 21 of the Constitution of India, we do not think it would be justified in setting up a special machinery for investigation of the claims for compensation made by those who allege that they have been the victims of oleum gas escape. But we would direct that Delhi Legal Aid and Advice Board to take up the cases of all those who claim to have suffered on account of oleum gas and to file actions on their behalf in the appropriate court for claiming compensation against Shriram. Such actions claiming compensation may be filed by the Delhi Legal Aid and Advice Board within two months from today and the Delhi Administration is directed to provide the necessary funds to the Delhi Legal Aid and Advice Board for the purpose of filing and prosecuting such actions. Thus the High Court was directed to nominate one or more Judges as may be necessary for the purpose of trying such actions so that they may be expeditiously disposed of. In Subhash Kumar v. State of Bihar17 the Supreme Court of India observed that right to pollution free air falls within Article 21 of the Constitution of India. Defects in the Environmental Laws of India 1. Lack of appropriate skills amongst the law enforcement agencies 2. Inadequate infrastructural facilities 3. Lack of proper understanding of environment laws 4. Lack of coordination among the law enforcement authorities and officers 5. Jurisdictional conflicts 6. Shortage of skilled and trained legal personnel 7. No initiatives are being taken to recruit law officers who possess knowledge, skills and understanding of environmental issues and laws

17

AIR 1991 SC 420: (1991) 1 SCC 598: 1991 AIR SCW 121.

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Reforms Stipulated the Strategies and Actions for regulatory reforms and substantive reforms are as follows: 1. Institutionalize a holistic and integrated approach to the management of environmental and natural resources, in line with the National Environment Policy 2. Identify emerging areas for new legislation, in line with the National Environment Policy 3. Review the body of existing legislation, in line with the National Environment Policy. 4. Take steps to adopt and institutionalize techniques for environmental assessment of sector policies and programmes 5. Ensure accountability of the concerned levels of Government. REFORMS: Process Orientation 1. To ensure faster decision making with greater transparency, and access to information, use of information technology based tools will be promoted 2. To realize greater decentralization, State level agencies may be given greater responsibility for environmental regulation and management 3. Mechanisms and processes would be set up to identify entities of Incomparable Value in different regions. Conclusion From the above discussion, it is evident and clear that even prior to the development of the Environment Protection Act, 1986 and the Rio Declaration the Indian judiciary has set up a new jurisprudence for the environment protection and also for the prevention of environmental pollution. If this thought is interpreted further i.e. use of criminal machinery for the protection of the environment, it is sure that the environmental problems can be solved speedily and economically, and a revolutionary change can be brought not only to safeguard the environment but also safeguard the lives of the public at large. Because in the present context as said by Justice V.R. Krishna Iyyer "it is not how many laws we have, it is how

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effectively we implement". Hence invoking various provisions of the law will pave a way for the better environmental governance and also for the abatement of environmental nuisance. Environmental jurisprudence has been an ever changing stream of policies and enactments. Government of India must ENFORCE the LAW. Government of India must take active steps in curbing the factors that degrade the environment (Vellore Case). Government of India must focus on the environmental damage and its remedies (Bhopal Case). Government of India must bring Clarity on Jurisdiction (Narmada Case). There must not be any Conflict of Interest between environment and development- (Narmada Case). Government of India must focus shifting to conservation and maintenance of natural environment.

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