FIXING LIABILITY IN ENVIRONMENTAL CASES - RECENT TRENDS

Environment is a concern of every one of us. Howsoever, advanced the human civilization, science, technology may be at a given moment of time, man still is dependent upon the other forms of life for its existence. He is dependent on nature. The protection of environment is a common subject to all. Article 48-A of the Constitution of India provides that the State shall endeavour to protect and improve the environment and to sagfeguard the forests and wild life of the country. Article 51-A of the Constitution imposes as one of the Fundamental Duties on every citizen the duty to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures'.

In view of various statutory provisions and constitutional provisions, polluter pays principle and precautionary principle are part of the environmental law of the country. These two principles along with public trust principle and inter generational equity principle become part of sustainable development.

IN VELLORE CITIZEN'S WELFARE FORUM VS UNION OF INDIA (1996) 5 SCC 647 : Justice kuldip singh held that The Precautionary Principle means in the context of the municipal law - means : (i) Environmental measures - by the State Government and the statutory authorities - must anticipate, prevent and attack the causes of environmental degradation, (ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation, (iii) The "onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign.

He also explains The Polluter Pays Principle as the polluter pays principle as interpreted by the Supreme Court means that the absoulute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restroing the environmental degradation.

IN M.C. MEHTA VS KAMAL NATH (1997) 1 SCC 388

Justice Kuldip singh understands Public Trust Doctrine as "the notion that the public has a right to expect certain lands and natural areas to retain their natural characteristic is finding its way into the law of the land. The ancient Roman Empire developed a legal theory known as the "Doctrine of the Public Trust". The Public Trust Doctrine primarily rests on the principle that cetain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership".

"The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use of private ownership or commercial purposes." Thus the Public Trust Doctrine is a part of the law of the land."

Fixing the Liability in Environmental Cases :

Rejecting the individualistic theories of common law our Parliament has recently enacted the Environment (Protection) Act, 1986 for the purpose of protecting and improving our environment. It widely distributed powers on all those who are traditionally classified as not aggrieved persons to take environmental dispute to courts. This is clearly harmony with out Constitutional goals which no only man date the State to protect and impose the environment and to safeguard the forests and wildlife of the country (Article 48-A); but which also hold it to be the duty of everyone of out citizens to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures (Article 51-A(g)).

The Supreme Court in case of Rural Litigation and Entitlement Kendra Dehradun and other v. State of U.P., ordered the closing down of certain categories of lime-stone quarries to maintain ecological balance and to preserve public health on recommendation of Bandopadhaya Committee.

On a case study of the court cases on environmental law, it is clear that it were the public spirited persons or institutions who had come to the court for the cause of environmental protection from pollution. It may be a case of 'Lime stone quarries of the Moussourie Hills' or 'Bhopal Gas Tragedy' or 'Oleum Gas Leakage' or 'Pollution' of Ganges waters a Kanpur', it is the social action litigation brought by the public spirited individual or organisation which has come forward to protect the environment from pollution. It is to be noticed that not much has been done under this Act by the central Government to stop the today pollution of the environment by the environmental pollutants.

Hazardous and inherently dangerous industry :

In a fast developing country like India where industrial and economic initiatives and exploitationmay exceed the social and environmental limits and lead to accidents like the one that happened in Bhopal the principles of Common Law liability for compensating victims of pollution become grossly inadequate. To meet such contingency, a new indigenous jurisprudence of absolute liability in disapproving the application of the exceptions to the Rylands v. Flecther rules was adopted. In M.C. Mehta v. Union of India, the Supreme Court held -"(W)here an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to any one on account an accident in the operation of such hazardous and inherently dangerous activity.... the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such laibility is not subject to any of the exceptions which operates vis-a-vis the tortious principle of strict liability in Rylands v. Fletcher". It was also held that the measure of compensation must be co-related to the magnitude and capacity of the enterprise so that the compensation will have a deterrent effect.

Public Liability Insurance Act, 1991 :

For the purpose of providing immediate relief to the persons affected by accident occurring while handling any hazardous substance and for matters connected therewith or incidental thereto, the Public Liability Insurance Act, 1991 was enacted.

This Act provides for Mandatory Public Liability Insurance for installations handling hazardous substances to provide minimum relief to the victims. Such an insurance apart from safeguarding the interests of the victims of accidents also provide cover and enable the industry to discharge its liability to settle large claims arising out of major accidents. The mandatory public liability insurance has been based on the principle of "no fault" liability as it is limited to only relief on a limited scale. However, availability of immediate relief did not prevent the victims to go to Courts for claiming larger compensation.