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Indian Council for Enviro-Legal Action v. Union of India

Parties Involved

PetitionersIndian Council for Enviro-Legal Action
RespondentUNION OF INDIA
Citation: AIR 1999 SC 1502

Facts of the case

This was a writ petition filed by an environmentalist organization called Indian Council for Enviro-Legal Action (Petitioner) against a group of chemical industries (Respondents 4 to 8), owned and operated by the same group of individuals and situated in the same geographical region. This group was located in Bicchri, a small village set in the Udaipur District of Rajasthan, India. North of this village is where the first major industrial establishment, Hindustan Zinc Limited (a public sector concern), was established. It did not cause any issues; however, the real trouble began in 1987 when a chemical plant, Hindustan Argo Chemicals Limited (Respondent 4), started production of certain chemicals like Oleum (concentrated form of sulphuric acid) and Single Super Phosphates. And the real calamity took place when a sister concern of it, Silver Chemicals (Respondent 5), started the production of ‘H’ acid in their plant exclusively for export purposes. The manufacture of ‘H’ acid gave rise to huge quantities of highly toxic effluents – in particular, iron-based and gypsum-based sludge – which, if not treated properly, posed grave threats and consequences to the Earth. These by-products were essentially poisonous.

According to a report, about 2500 tonnes of highly toxic sludge was released during the production of about 375 tonnes of ‘H’ acid. These establishments were not disposing off the sludge in the proper manner and instead it was just thrown out in the open in the field areas. This had seriously damaging effects. Over a period of time, these toxic chemicals began to drain deep into the ground which caused the aquifers and subterranean supply of water to get polluted. The water in the wells and streams in the village area started to turn dark in colour and was badly affected, making it unfit for any use. The soil had also been deteriorated, rendering it unfit for cultivation, which was a huge blow for the villagers for most of them depended on agriculture for their livelihoods. The chemicals caused death and disease among the villagers.

Such disastrous outcomes raised an echo in the Parliament and the Minister assured that action will be taken but nothing effective was done on the spot. The villagers then rose in revolt which led to the imposition of Section 144 of the Criminal Procedure Code by the District Magistrate in the area and the shut-down of Silver Chemicals in January 1989.

Issues

1] What should be the quantum of liability of companies involved in a hazardous industrial activity if such activity causes harm to life, health, and livelihood of individuals who may be subject to risk due to such activity?

2] Should the Respondents be liable to pay the original compensation amount or a new amount with interest as they have been deferring compliance with the judgment?

3] Does the rule established in Rylands v. Fletcher case apply to this case as well?

Provisions

1] Single European Act, 1986 (European Community Treaty) – ‘Polluter Pays Principle’ [Article 130R(2)]

2] Sections 3, 4, and 5 – Environment (Protection) Act, 1986

3] Article 48A of the Indian Constitution

4] Article 51A(g) of the Indian Constitution

5] Section 24 (1) and 33A of Water (Prevention and Control of Pollution) Act, 1974

6] Air (Prevention and Control of Pollution) Act, 1981

7] Hazardous Wastes (Management and Handling) Act, 1989

8] Article 21 of the Indian Constitution (Right to live in a healthy environment)

9] M. C. Mehta v. Union of India [Oleum Gas Leak Case] (1987 (1) SCC 395) judgment

Principles

The court applied the principle of ‘Polluter Pays’ for the first time. This principle demands that “the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause pollution or produce the goods which cause pollution”. In other words, it means that the responsibility to undo the damages caused due to environmental degradation as a result of one’s activities must be borne by that person itself, and not the government or taxpayers. This principle thus imposes absolute liability.

Judgement

  • The Supreme Court relied on the judgement given in the case of M. C. Mehta v. Union of India. This case is responsible for the inclusion and evolution of the rule of absolute liability in India. This rule states that “if any person is engaged in any inherently dangerous or hazardous activity, and if any harm is caused to any person during the carrying out of such hazardous activity, then the person who is carrying out such activity will be absolutely liable and cannot plead defence”. The Supreme Court held that this rule is applicable to this case.
  • The court decided that the Central Government shall determine the amount of compensation for damages and remedial measures. In case of failure of compliance on the Respondents’ part, the court noted that the Central Government can recover the amount in accordance with law for which the court directed the factories, plants, machinery and all other immovable assets possessed by the Respondents’ to be attached.
  • In a follow-up judgement in 2011, 15 years after the passing of the ultimate judgement, the court heard a Writ Petition alleging that the Respondents kept filing multiple interlocutory applications to evade the order of the Supreme Court and paying the compensation amount. Based on these observations, the Supreme Court ordered the applicant industry to pay Rs. 37,385,000 /- along with compound interest at 12% per annum from April 11, 1997 till the amount is paid off. It also directed the applicant industry to bear the costs of litigation. In addition to this, the court also directed the applicant industry to pay Rs. 10 lakhs which is to be used for carrying out remedial measures in Bicchri and other surrounding areas of Udaipur District.

Analysis

This a very “unusual and extraordinary” litigation wherein even after 15 years of declaration of final judgement by the court (date of judgement – February 13 1996), the case has been deliberately kept alive by the Respondents by filing multiple interlocutory applications to avoid complying to the judgement due to which the judgement has still not acquired finality.

The quantum of payment is decided, the rule of absolute liability and the Polluter Pays principle imposed, interest is levied on the compensation amount to ensure that the harm done is compensated for and that it is proportionate to the devastation caused, so that the accused does not end up taking the advantage of his own wrongs. As for the non-compliance with the court order and the evasion of liability by the Respondents, it should have been dealt with more harshly and way before the pendency of the case reached 15 years because the harm caused to the villagers was too great in magnitude and in need of quick action to not have been compensated for 15 whole years. The villagers lost their livelihood, their sources of food and water, and some even lost their loved ones due to death and disease caused by being perilously exposed to the toxic chemicals released and thrown. They were in need of immediate remedial measures. So to conclude, while it is clear that all aspects of the case have been addressed and orders delivered for rectification of the injustices and violations caused, we still cannot say that justice was served to the poor villagers who seem to be the only party truly at loss in this case.

Written By Arya Nanal