JUDICIAL REMEDIES FOR ENVIRONMENT POLLUTION The remedies available in India for environmental pollution comprise of statutory as well

as common law remedies. The term common law is derived from the latin word lex communis. The common law is force in India under Article 372 of the Constitution of India. The common law remedies available for environmental pollution are, nuisance, trespass, negligence and strict liability. The statutory remedies includes: Citizens suit, e.g., an action brought under section 19 of the Environmental (Protection) Act, 1986, an action under section 133, Criminal Procedure Code, 1973 for public nuisance covered with the framework of section 268, Indian Penal Code,1860:and an action brought by filling a writ petition under Article 32 in the Supreme Court of India or under Article 226 in the High Court. Common Law & Statutory Remedies Damage: Damages refer to pecuniary compensation for a tortuous act, but it is not found in India because the damages awarded for tortuous acts here are too low and have no deterrent effect on the polluter. Thus the award of nominal damages defeat the basis and the objective underlying the damage theory which is to deter the wrongdoer. In contrast to the above mentioned position the approach of the Indian Judiciary has undergone a change recently. In Shriram Gas Leak case, involving a leakage of Oleum gas which resulted in substantial environmental harm to the citizens of Delhi, the Apex court held that the quantum of damages awarded must be proportionate to the magnitude and capacity of the polluter to pay. However, the Apex Court has deviated from this test in the Bhopal Gas Tragedy case wherein the court awarded U.S. $470 million to the Bhopal gas victims which was far below the magnitude and the capacity of the polluter, Union Carbide. Injunction: The grant of injunction may require a polluter to refrain from doing a particular thing or to do a particular thing. Injunction may be temporary or perpetual injunction. Section 94 $ 95 along with Order 39 of the Civil Procedure Code,1908 deal with grant of temporary injunction. Except this grounds temporary injunction can also be granted by the court for any other reason, on the existence of three conditions: prima facie case, likelihood of irreparable injury, the balance of convenience in favour of the grant of injunction. The grant of perpetual injunction is governed by Sec.37 to 42 on the Specific Relief Act,

1963. The purpose is restrain the polluter indefinitely from resorting to polluting activity. Nuisance: Nuisance means anything which annoys, hurts or that which is offensive. Nuisance may be in the form of offensive smells, noise, air, or water pollution. The common law of nuisance is concerned with the unlawful interfering with the persons use or enjoyment of land or of some right over, or in connection with it. Nuisance is of two types: Private Nuisance- It is a substantial and unreasonable interference with the use and enjoyment of ones land. Public Nuisance- It is an unreasonable interference with a general right of the public. Trespass: It means intentional or negligent direct interference with personal or proprietary rights without lawful excuses. The two essential requirements for trespass are: 1) There must be intentional or negligent interference with personal or proprietary rights. 2) The interference with the personal or proprietary rights must be direct rather than consequential. One of the main advantages of bringing an action in trespass is that there is no need to show damage. Trespass is actionable per se, therefore all that needs to be shown is some interference. Whereas most environmental pollution cases involve some form of damage, this actionability per se enables an injunction to be obtained far more easily. Negligence: The law of negligence is a fault based system. In order to succeed in negligence there has to be some fault on behalf of the defendant. The three main principles of negligence are that the plaintiff must establish that (a) the duty of care is owed by the defendant to the plaintiff : (b) that the defendant has breached that duty ; and (c) that there has been foreseeable damage resulting from the breach. Strict Liability: The rule enunciated in Rylands v. Fletcher by Blackburn J. is that the person who for his own purpose brings on his land and collects and keeps there anything likely to be a mischief, if it escapes, must keep it as its peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. The doctrine of strict liability has considerable utility in environmental pollution cases especially cases dealing

with the harm caused by the leakage of hazardous substances.The Supreme Court of India has, however, developed the principle of absolute liability for enterprises engaged in hazardous or inherently dangerous activities in well known Shriram Gas Leak case where the harm resulted from the hazardous activity of the Shriram unit. The Shriram enterprise was held absolutely liable to compensate the harm. THE CONSTITUTIONAL ASPECTS OF ENVIRONMENTAL LAW Environmental protection has found a special mention in the Indian Constitution. 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 state policy underline our national commitment to protect and improve the environment. The interpretation given to Article 21 of the Constitution has added new dimension to the quality of life and the effect of environment relating thereto. Distribution of Legislative Powers: The constitution under Article 246 provides for division of powers between the Union and the States. Part XIII of the Constitution contains provisions governing the legislative and administrative relations between the Union and the States. The parliament and the legislatures of any state have exclusive power to make laws with respect to the matters contained in List I (Union List) and List II (State List) in the VIIth Schedule of the Constitution respectively.In addition to this, the Union and the State also enjoy concurrent powers to make laws on any subject enumerated in List III (Concurrent List) of the Schedule. The Constitution Forty- Second Amendment: It was for the first time, that the Constitution (Forty Second Amendment)Act,1976 incorporated Article 48-A into the Constitution. The provision reads as follows: The State shall endeavor to protect and improve the environment and to safeguard the forest and wildlife of the country.The Amendment also inserted Part VI-A in the constitution enumerating fundamental duties of the citizens under Article 51-A (g) which reads as :It shall be duty of every citizen of India to protect and improve the natural environment including forests, lakes,, and wildlife and to have compassion for living creature. It also inserted entry 17-A in List III just after entry 17 which provided for forest.Similarly, the subject of protection of wild animals and birds was also transferred from List II , entry 20 and incorporated in List III entry 17-B.

The Directive Principles of State Policy: Part IV of the Indian Constitution lays down certain fundamental principles of State Policy. In this connection it is worthwhile to point out that in several environmental cases the courts have been guided by the language of Article 48-A.In Sachida Nand Pandey v. State of West Bengal, the Supreme Court , relying upon the Constitutional directives concerning protection of environment observed whenever a problem of ecology is brought before the court , the court is bound to bear in mind Article 48-A and Article 51-A(g).When the court is called upon to give effect to the Directive Principles and the Fundamental Duties , the court is not to shrug its shoulder and say that priorities are a matter of policy and so it is a matter of the policy making authority. Article 253 and Environmental Legislation: Article 253 of the Constitution gives power to Parliament to make laws implementing international obligation of the country as well as any decision taken at an international conference, association or other body. The provision reads, Notwithstanding anything in the foregoing provision of this chapter, parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty , agreement or convention with any other country or any decision made at any international conference ,association or other body.The authority vested in Parliament under the provisions contained in Article 253 has been exercised by it in enacting the Air (Prevention and Control) Act, 1981, and the Environment (Protection) Act, 1986. Fundamental Rights vis--vis Environment: Part III of the Constitution of India incorporates fundamental rights which have been made judicially enforceable. An attempt here is being made to examine this perspective in the context of environmental protection. (a) The Right to a wholesome Environment: It has been laid down by the Supreme Court in Maneka Gandhis case that if a law is enacted by a legislature which touches upon the life and liberty of a person and curtails it, then it is mandatory requirement that the procedure established by it for curtailing the liberty of a person must be reasonable, fair and just.Environmental pollution which spoils the atmosphere and thereby effects the life and health of the person has been regarded as amounting to violation of Article 21 of the Constitution.

In T. Damodar Raos case which related to stop the Life Insurance Corporation and the Income Tax Department from building residential house in a recreational zone, the Andhra Pradesh High Court held ,it would be reasonable to hold that the enjoyment of life and its attainment and fulfillment guaranteed by Article 21 of the Constitution embraces the protection and preservation of natures gifts without which life cannot be enjoyed.The slow poisoning by the polluted atmosphere caused by environmental pollution and spoliation should be regarded as amounting to violation of Article 21 of the Constitution. The court held that the attempt of the respondents to build houses in this area is contrary to law and also contrary to Article 21 of the Constitution. (b) The Right to Livelihood: The right to livelihood is implicit in the constitutional guarantee of right to life enshrined in Article 21 of the Constitution. The provision has served as an effective check governmental action which tend to affect the environment and disrupt the normal life style of the poor people. In Olga Tellis v. Bombay Municipal Corporation the court held:Deprive a person of his right to livelihood and you shall have deprived him of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21. (c) The Right to Equality :- Article 14 of the Constitution states that the state shall not deny to any person equality before the law or the equal protection of laws within the territory of India, guarantees the right to equality. This article is the principle instrument to strike at the arbitrariness of an action should it involve a negation of the right to equality. The right to equality as enshrined in Article 14 of the Constitution may be infringed by government decisions which may have impact on the environment, particularly in cases, where permissions are arbitrarily granted, for instance, for construction that are in contradistinction of development regulation or for mining consequences. Thus, we find that Article 14 can be used as a potent weapon against governmental decisions threatening the environment. (d) Freedom of trade and environment :- Article 19 (1)(g) gives to all citizens a right to practice any profession or to carry on any occupation, trade and business. The question which needs to be answered here is : Whether a person, agency or industry has a right to carry on a business or trade in a manner which is causing an injury to the public and posing health hazard to the

society at large? This question came for consideration in the case of Abhilash Textiles v. Rajkot Municipal Corporation.The court held that the petitioners cannot be permitted to the profits at the cost of the public health as they had no right to carry on their business without complying with the requirement of the law. (e) Constitutional Remedies: Art.32 and 226 of the Constitution of India confer power to the Supreme Court and High Court respectively to issue writs in the nature of habeas corpus, mandamus, certiorari and prohibition are generally resorted to in environmental matters. The writ mandamus is issued against an administrative, quasi judicial or judicial authority. It is issued by a court to command action by a public authority which is vested with the power and wrongfully refuses to exercise it or to undo what has been done in contravention of a statute. The writs of certiorari and prohibition are designed to restrain public authorities from acting in excess of their authority. Certiorari is an order to an inferior court or quasi-judicial body to transmit the record of pending proceedings to superior court for review. The writ of prohibition prevents a lower court or tribunal from assuming a jurisdiction which it does not possess. The main distinction between certiorari and prohibition is that they are issued at different stages of the proceedings. The writ of prohibition is issued when the matter is pending before an authority to prohibit the concerned authority from proceeding any further with the matter whereas certiorari if issued only after the concerned authority has decided a question before it. For instance, writ of certiorari will lie against a municipality that considers a builders application and permits construction contrary to development rules such as height restriction, or that disregards zoning requirements and wrongly sanctions an office building in an area reserved for a garden. Certiorari would also lie against pollution control board that considers the application of an industry and wrongly permits it to discharge effluents beyond prescribed levels. Environmental writs are petitions to abate pollution. When a fundamental right including a right to a wholesome environment has been violated, relief through Articles 32 and 226 is fully appropriate. Where no fundamental right is involved, High Court will decline to exercise its jurisdiction if an equally effective remedy is available and has not been used. Section 28 of the Water Act & Section 31 of the Air Act provide the alternative remedy of administrative appeals to polluters

who are dissatisfied with the pollution control board decisions.Thus, a polluters with the pollution control board decision may be resisted on the ground that an alternative remedy is available. Moreover, Environmental disputes that involve complicated questions of fact to be resolved after recording evidence, a suit is appropriate remedy, rather than a writ petition. For example, if pollution injures health, a suit for damages is appropriate because evidence to establish causation would have to be adduced and also because damages are not normally awarded under Articles 32 and 226.ENVIRONMENTAL PROTECTION: THE JUDICIAL APPROACH Environment protection during the last few years has become not only a matter of national concern but of global importance. Decline in environment quality has been evidenced by increasing pollution, loss of vegetal cover and bio-diversity, excessive concentration of harmful chemicals in the ambient atmosphere of food chains, growing risks of environmental accidents and threat to life support systems. This has drawn the attention of entire world community so how could the judiciary remain a silent spectator when the subject has acquired high importance and become a matter of caution and judicial notice. Justice has correctly stated that Judiciary exists for the people and not vice-versa.Judiciary , therefore cannot sit in silence and helplessly but must come forward actively to make good the deficiencies of law and provide relief wherever and whenever required. Besides the traditional role of interpretation and application of law, the judiciary can perform the educative function of infusing an awareness of the massive problems of environmental degradation through a series of illuminating judgments and through judicial activism it can evolve new jurisprudential techniques of environmental jurisprudence.The main question that arose for consideration in this regard are: what precisely is the role of courts in handling cases relating to environmental protection? Whether the technique of PIL has contributed in tackling environmental issues and improving the quality of public health? Whether the Judiciary has been able to develop new principles for more effective control and prevention of environmental pollution? Whether the courts can be regarded as an effective agency to curb violation of environmental laws? What are the mew areas where the courts have laid down specific guidelines for protecting the environment? Public Nuisance : The Judicial Response: Criminal law provisions as contained in sections 268,277,278 and 290 of the Indian Penal Code and

provisions of chapter X (section 133 to 143) of the Criminal Procedure Code of 1973 provide effective , speedy and preventive remedies for public nuisances cases including insanitary conditions, air , water and noise pollution. The positive signal of environment protection is manifest in the judicial trend as set in the judgment delivered by V.R. Krishna Iyer and O. Chinappa Reddy, JJ in Ratlam Municipality Case wherein the apex court realizing the gravity of pollution observed, Public nuisance because of pollutants being discharged by big factories to the detriment of poorer section is a challenge to the social justice, component of the rule of law.The judgment of the Supreme Court in this case is a land mark in the history of judicial activism in upholding the social justice component of the rule of law by fixing liability on statutory authorities to discharge their legal obligation to the people in abating public nuisance and making the environmental pollution free even if there is a budgetary constraints. It is significant also, as it interpreted section 133 of Cr.P.C. to impose a mandatory duty on a magistrate to remove a public nuisance whenever one exists. Public Interest Litigation And Environment Protection: The traditional rule of Locus Standi required two prerequisites as a basic principle for the application of it. They were such as that the petitioner himself should have a grievance and that the petitioners own right must be in jeopardy. But with the advent of welfare state bidding farewell to laissez faire, the traditional rule of locus standi did not find much favour. So, in India, along with many parts of the world, a process of liberalization began and the rule expanded to make it easily accessible for the deprived and the underprivileged citizens The Emerging Profile of PIL: The process of liberalization in the traditional doctrine has given rise to a new form of litigation, popularly known as Public Interest Litigation in India. In fact Public Interest Litigation is a strategic arm of legal aid movement to bring justice within the reach of the poor. In contrast to the traditional mode, in the new rule , the petitioner seeks to champion a public cause for the benefit of all society and to prevent a egregious state of affairs or illegitimate policy from continuing into the future . PIL with reference to Environmental Protection: Introducing the PIL concept into pollution cases , in Ratlam Municipal Council v. Vardhichand , J. Krishna Iyer observed that , social justice is due to and therefore the people must be able to trigger off the jurisdiction vested for their

benefit to any public functioning.Thus he recognized PIL as a constitutional obligation of the courts. As a result of this development, a spate of environmental cases has been brought before the courts through public interest litigation. They have been filed either by individuals, voluntary organizations or by letter/petitions sent to judges. Some of the leading judicial pronouncements on this point are: DELHI GAS LEAK CASE: In M.C. Mehta v. Union of India,popularly known as the Delhi Gas Leak or Oleum Gas Leak Case, the Supreme Court of India was confronted with multi-dimensional and complex issues relating to environmental pollution such as concerning the true scope and ambit of Article 21 and 32 of the Constitution ; the principles and norms for determining the liability of large enterprises engaged in manufacture and sale of hazardous products ,the basis on which damages in case of such liability should be quantified ; whether such large enterprises should be allowed to continue to function in thickly populated areas; and if so permitted what measures should be adopted to reduce the risks to minimum to the workers and community living in the neighborhood. The facts of the case is that the petition was filed by a public spirited lawyer M.C. Mehta who sought to close and relocate Shri Ram Caustic Chlorine and Sulphuric acid plants located in 76 acre industrial complex, in a thickly populated west section of Delhi. In two consequent Oleum gas leaks from the plant one advocate was killed. In view of this the inspector of Factories and Assistant Commissioner (Factories) issued separate orders prohibiting Shriram from operating their plants. But being aggrieved by the order the later filed a writ petition challenging the prohibitory order issued under the Factories Act of 1948 and sought interim permission to reopen the caustic chlorine plant. After controversies between the parties with regard to the recommendations of various committees, the court through its order on December 18, 1985 constituted another committee called Nilay Chaudhary Committee to enquire into the implementation of the earlier recommendations and to report to the court and suggest measures to be adopted against the hazards or possibility of leaks, and pollution control devices to reduce the risk to minimum. The judgment of the apex court in this case is historic one in the field of environmental justice. The Supreme Court laid down two important principles of law: First, the power of the Supreme Court to grant remedial relief for a proved infringement of a fundamental right (in case if Article 21)

includes the power to award compensation. Thus, the court not only widened the scope of Article 21 by including in it protection of environment but also included a liability in tort for those harmed others by pollution. Second, the judgment opened a new frontier in the Indian jurisprudence by introducing a new no fault liability standard (absolute liability) for industries engaged in hazardous activities which has brought about radical changes in the liability and compensation laws in India. The new standard makes hazardous industries absolutely liable from the harm resulting from its activities. GANGA POLLUTION CASE: In M.C. Mehta v. Union of India, the petitioner prays for the issue of mandamus to the respondents restraining them from letting out the trade effluents into the river Ganga till they take necessary steps for treating the trade effluents in order to arrest the pollution of water in the said river. It is the complaint of the petitioner that the large industries on the bank of the river are disposing the trade effluents of the factories and also the sewage of the towns and cities and that neither the people nor the government are giving adequate attention to stop the pollution of the river. On receiving the petition the court directed the issue of notice under O 1, r 8 of CPC asking the industries not to allow the trade effluents and the sewage into the river Ganga without appropriately treating them before discharging them into the river. The court held that the tanneries at Jajmau, Kanpur cannot be allowed to continue to carry out the industrial activity unless they take step to establish primary treatment plants. For every breach of a right there should be a remedy. It further laid down that the tanneries which have not set up primary treatment plants must stop running their tanneries. The ban against letting out trade effluents either directly or indirectly would continue till a pre-treatment process was made by setting up primary treatment plants as approved by the state pollution control board. Those who had already put up such tanneries were allowed to continue subject to the condition that they kept the plants in sound working order. In M.C. Mehta v. Union of India which is an adjoining case to that of the above mentioned case, the court perused the state laws on local bodies and held that Nagar mahapalikas and municipal boards are primarily responsible for the maintenance of cleanliness in the areas under their jurisdiction and the protection of their environment. In the instant case the scientific officer of the state board filed an affidavit which pointed to the inaction of the Kanpur Nagar

Mahapalika. Some directions given to the Kanpur Nagar Mahapalika by the Supreme Court are: 1) The mahapalika should take action under the provisions of the relevant bye laws and direct the dairies either to be shifted or arrange for removal of waste from the existing dairies. 2) Take steps to lay sewerage line and increase size of existing ones in labour colonies.3) Construct sufficient number of public latrines and urinals to prevent defecation on openland.4) Ensure that police take steps to see that half burnt bodies or dead bodies are not thrown into the river.5) The Government both the state and the centre and the Union territories may promote consciousness of cleanliness.6)Create national awareness about the deterioration of the environment. DEHRADUN QUARRYING CASE: Mining in forest areas creates a question of conflict with the idea of ecological security of the land. It can lead to deforestation. It may destroy biodiversity and even eliminate wildlife from the areas. The leading case in this regard isRural Litigation and Enlightment Kendra v. State of Uttar Pradesh..It is the first momentous decision of the apex court wherein it was required to balance environmental and ecological integrity against industrial demands on forest resources. In this case the Supreme Court entertained complaints from the rural litigation and entitlement Kendra, Dehradun alleging that the operations of lime stone quarries in the Mussoorie-Dehradun region resulted in degradation of the environment affecting the fragile ecosystems in the area. The court as well as the Government of India appointed committees to look into the impact of stone quarrying in Mussoorie. The former is called the Bhargawa Committee and the latter, the Working group. Three more committees also looked into different aspects. The Supreme Court in this case moving under Article 32 ordered the closure of some of this quarries on the ground that these were upsetting the ecological balance though the judgment did not make a reference to Article 21 but involving of jurisdiction by the court under Article 32 presupposed the violation of right to life guaranteed under Article 21. The decision of the apex court in this case is undoubtedly a high water mark in the judicial history of India. It calls for prevention of ecological ruin by closure of quarries, protection and improvement of environment through reclamation and afforestation and of generation of employment for the good and noble task of ecological balance. CALCUTTA TAJ HOTEL CASE: In Sachidanand Pandey v. State of West Bengal, which is an important town planning case, the facts of the case is

that The Government of West Bengal gave on lease to the Taj Group, four acres of land belonging to the Calcutta Zoological Garden for the construction of a five star hotel. It was this giving away of the land that was challenged by a PIL petition by the secretary of the Union of workmen of the Zoological Garden and a life member of the zoo. On the lease being upheld in favour of the hoteliers, an appeal was made in the Supreme Court on the contention that the construction would interfere with the animals in the zoo and disturb the ecology by causing greenery and the plants to disappear. While on the other hand the respondents pleaded that the land scaping was so designed to encourage tourism and that it would not disturb the ecology but improve the surroundings of the place. The court took the stand in favour of the Government as it was observed by J. Chinappa Reddy: Obviously, if the Government is alive to the various considerations requiring thoughts and deliberation and has arrived at a conscious decision after taking them into account, it may not be for this court to interfere in the absence of malafides. On the other hand, if relevant considerations are not borne in mind and irrelevant considerations influence the decision the court may interfere in order to prevent a likelihood of prejudice to the public. The court further held that whenever a problem of ecology is brought before the court, the court is bound to bear in mind Art.48-A and Art.51A (g) of the Constitution. When the court is called upon to give effect to the Directive Principles and Fundamental Duty, the court is not to shrug its shoulders and say that priorities are a matter of policy and so it is a matter for the policy- making authority. THE BHOPAL CASE: In Union Carbide Corporation v. Union Of India facts are as such that the early morning hours of December 3, 1984, a poisonous grey cloud (forty tons of toxic gases) from Union Carbide India Limited (UCILs) pesticide plant at Bhopal spread throughout the city. Water carrying catalytic material had entered Methyl Isocyanate (MIC) storage tank No. 610. The killer gas spread through the city, sending residents scurrying through the dark streets. No alarm ever sounded a warning and no evacuation plan was prepared. When victims arrived at hospitals breathless and blind, doctors did not know how to treat them, as UCIL had not provided emergency information. It was only when the sun rose the next morning that the magnitude of the devastation was clear. Dead bodies of humans and animals blocked the streets, leaves turned black, the smell of burning chilli peppers lingered in the air.

Estimates suggested that as many as 10,000 may have died immediately and 30,000 to 50,000 were too ill to ever return to their jobs.After 26 years, the court verdict for the Disaster finally came. Some 25 years after the gas leak, 390 tons of toxic chemicals abandoned at the UCIL plant continue to leak and pollute the groundwater in the region and affect thousands of Bhopal residents who depend on it. On June 7, 2010, seven ex-employees including the former chairman of UCIL were convicted in Bhopal of causing death by negligence and sentenced to two years imprisonment each. An eighth former employee was also convicted but had died before judgment was passed. The sentences will run concurrently. The quantum of fine that chief judicial magistrate Mohan P Tiwari of the trial court in Bhopal has imposed is paltry. The court could have awarded exemplary fine on the accused and the delinquent company. Behind it stood the government, which had diluted the charges, so that convictions came only under sections 304-A (causing death by negligence), 336, 337 and 338 (gross negligence), and 35 (common intention) of the India Penal Code.Warren Anderson, who was then the CEO of Union Carbide, was arrested, but was released on bail. Likewise, the Government of India passed the Bhopal Gas Leak Disaster Act that gave the government rights to represent all victims in or outside India, and used this to strike a bad deal with UCC, according to which it agreed to pay US$470 million (the insurance sum, plus interest) in a full and final settlement of its civil and criminal liability. This meant a total of Rs. 12,000 approximately per person. The US Court has ruled that there can be no extradition of Anderson since according to US law, that his company was guilty is immaterial. His personal criminality has to be proved. Now owned by Dow Corporation, Union Carbide denies responsibility for the tragedy. They are willing to take the profits of Union Carbide India, but not take responsibility for its crimes. And the judiciary has shown that while it is willing to sentence to death an individual who kills for profit or for terrorism, when it is a matter of big corporate bodies it will soft pedal.