The ideals of a socialist Constitution as ours include a duty upon the state to protect its citizens from all harm. In this regard, the highest standard of protection is in the form of fundamental rights given to citizens under Part III of the Constitution, whereby a violation of any of them enables any citizen to approach the Supreme Court directly. In addition to these rights, there are also certain Fundamental Duties that citizens are expected to follow. Further, the makers of our Constitution foresaw certain other duties that may gain importance in the future, and enshrined these in Part IV of the Constitution under the Directive Principles of State Policy for any future legislations relating to the same. In our current times of rapid industrialization and indiscriminate use of our natural resources, it has become vital to follow the path of sustainable development in order to preserve our rich resources for generations to come. In this regard, the Constitution has provided within its framework, certain provisions that deal with the Environment and its protection. Article 48A, under the Directive Principles of State Policy, is one such provision. It states that “the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country”. Further, Article 51A sets out the fundamental duties of the citizens, sub-section (g) being – “to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures”.
The judiciary has also played its role in delivering progressive judgments with respect to protection of the environment in most cases. It has delved into not just the mere legal aspects but also intricate details requiring specialized knowledge and awarding compensation and the like (an example could be the role of Tribunals and subsequently courts in settling inter-state water disputes). So much so that certain critics of this power of the judiciary have dubbed the Supreme Court as “Lords of Green Bench” or even “Garbage Supervisors”. [1]
In the past all actions for environmental torts against companies and industries were governed by the principle of strict liability. However, with rapid industrialization and increase in the use of hazardous materials, the need for even stricter norms arose.
The principle of strict liability was first laid down by Blackburn J. in the 1868 House of Lords judgment of Rylands v. Fletcher [2] . In this case, a mill owner employed some contractors to construct a reservoir on his land to provide water for his mill. The contractors came upon some old shafts and passages on the defendant’s land, which communicated with the mines of the neighbour of the defendant, although no one suspected this. The contractors did not block them up, and when the reservoir was filled the water from it burst through the old shafts and flooded the plaintiff’s mines. It was found as a fact that the defendant had not been negligent, although the contractors had been. But the House of Lords held the defendant liable laying the foundation for the principle of strict liability as follows:
“The person who for his own purposes brings on his lands and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default; or perhaps that the consequence was of vis major, or the act of god; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient.”
The rule recognized ‘No fault’ or ‘Strict Liability’, i.e., even if the defendant was not negligent or rather, even if the defendant did not intentionally cause the harm he could still be held liable under the rule. [3]
Later on, however, it became necessary that industries and corporations did not escape liability by claiming to come within the exceptions of the Rylands rule. This gave rise to the concept of absolute liability, wherein the defendant has no defence available to him to escape liability for public nuisance. The ‘polluter pays’ principle is essentially an extension of the rule of absolute liability making the polluter liable to pay the cost of restoration of the environment. It has found statutory acknowledgment in many common law countries. This principle has also been recognized by the Supreme Court of India in the Oleum Gas Leak case. This paper traces the development of the principle of absolute liability for environmental harm, starting from the Rylands principle.
In the course of this paper, the researcher shall endeavour to answer the following questions :
What is the rationale behind the ‘polluter pays’ principle providing for absolute liability?
What has been the Indian judicial trend with regard to absolute liability?
How far has the Indian Legislature followed this judicial trend and the reasons for the same?
What are the challenges faced by the polluter pays principle?
Liability under the Rylands rule is strict in the sense that it relieves the claimant of the burden of showing fault; however, it is not absolute since there are a number of exceptions to the rule of strict liability. The following exceptions to the rule have been recognized by Rylands v. Fletcher. [4]
Default of the claimant: If the escape of the hazardous good was due to plaintiff’s own fault or negligence. This was held in the case of Eastern and South African Telegraph Co. Ltd. v. Capetown Tramway Co 1902 [5]
Act of God: Vis Major or Act of God is a good defence in an action under the Rule of Strict Liability. In the 1875 case of Nichols v. Marsland [6] , the defendant had a series of artificial lakes on his land in the construction and maintenance of which there had been no negligence. Owing to unusual rainfall, so great that it could not have been reasonably anticipated, the reservoirs burst carrying away four country bridges. The court of appeals held that an act of God is a defence in cases of reservoir failures.
Act of third party: In cases where the wrong done has been by someone who is a stranger and the defendant has no control over him.
Consent of the claimant: Cases where the plaintiff has given his consent to accumulate the hazardous thing in the defendant’s land for the purpose of common benefit.
Statutory Authority: Any act done under the authority of a statute. This exception is not applicable when there is negligence.
Here comes the distinction between strict and absolute liability. Absolute liability is a principle that has done away with the exceptions provided with under the Rylands rule. Here, by virtue of the thing in question being so inherently dangerous that an escape would cause widespread harm, the principle absolute liability has been introduced in many common law countries including India.
The principle of strict liability further evolved in the case of Cambridge Water Company v. Eastern Counties Leather PLC [7] where a rule relating to foreseeability of damage was included in the realm of strict liability. i.e. a person would not be strictly liable for any act as long as it could not be reasonably foreseen that the damage could have occurred. [8]
SECOND CASE?
The Rylands principle has prompted many common law jurisdictions to enact statutes providing for absolute liability in cases of water leakage and impoundment causing public nuisance. The basis of such liability is ‘no fault’ liability. For instance, one statute in the state of Wyoming, USA providing for liability of owners of reservoirs reads:
“Nothing in this act shall be construed to relieve an owner or owners of any reservoir, dam or diversion system of any legal duties, obligations or liabilities incident to their ownership or operation of or any damages resulting from the leakage or overflow of water or for floods resulting from the failure or rupture of the fill or structure for such works”. [9]
The latter part of the provision establishes the fact that the owners would be absolutely liable for any damage caused by any leakage of their respective reservoirs. Many of the statutory principles do not recognize the exceptions to the rule laid down in Rylands. Such a principle of liability provides for ‘liability without fault’ or absolute liability.
One of the prominent examples of absolute liability is the Comprehensive Environmental Response, Compensation and Liability Act [10] in the U.S.A containing clean up provisions. The other legislation includes the Environmental Cleanup Responsibility Act of the State of New Jersey of the United States.
The latter statute imposes a liability on the landowner if his land is found to be a cause of environmental pollution, irrespective of whether he was at fault [11]
In Ontario, Canada, the Environmental Enforcement Statute Law Amendment Act, 2005 seeks to impose absolute liability for violation of environmental regulations. The state of Utah, in the U.S.A also has the Hazardous Substances Mitigation Act [12] which provides for absolute liability for release of hazardous materials. [13] The liability includes payment of investigation and abatement costs. Some states in the USA also impose absolute liability for discharge of pollution into the waters of that state. Such liability would also extend to oil spills which have far reaching environmental implications. [14]
These statutory rules are consistent with the common rule among legal scholars which asserts that the polluter should bear direct responsibility for the cost of the pollution she imposes on the rest of society — the “polluter pays” principle. This also implies that the polluter should take into internalize his liability for environmental harm in his cost benefit analysis before setting up a unit that may cause harm to the environment. It is necessary to draw a balance between the benefit and the costs incurred in the functioning of such a unit [15] .
The above proposition may often be seen as a shift of the ‘polluter pays’ principle from one of absolute liability to that of a ‘license fee’ payable to cause harm to the environment. In the Indian context, it becomes imperative that the welfare of the rural masses is given utmost importance. Such welfare cannot be compromised with by merely permitting large multinational corporations set up polluting industrial units for a mere fee. Hence, the suitability of such a shift in the Indian scenario, given the developing nature of the primarily agrarian Indian economy is doubtful. The Indian judiciary rightly believes in the precautionary principle with absolute liability imposed on the polluter in case of a breach.
The basis of criminal liability for environmental harm is the causing of nuisance to the public, which is also conceived in India under Section 268 of the Indian Penal Code. Section 269 of the Code also provides criminal liability for a negligent act that threatens the spread of infection or disease. Chapter X B of the Code of Criminal Procedure, 1973 deals with public nuisance. Moreover, Section 144 provides for a procedure to deal with public nuisance. By definition, ‘public nuisance’ includes harm to the environment [16] . However, none of these criminal statutes provide for absolute liability.
In an absolute liability offence, it is no defence a person can be “morally innocent in every sense”. “Yet he is branded as a malefactor and punished as such.” [17] In such a case, a person can be convicted of an offence on proof merely that the prohibited act was committed, with no mental element or mens rea being required.
One major piece of legislation that provides for strict criminal liability in the USA is the Pennsylvania Solid Waste Management Act that regulates the transportation, storage and disposal of hazardous waste. There are other statutes that also provide that the polluter may be liable without showing of intent.
For example, a violation of section 691.602 of the Clean Streams Law [18] does not require a showing of intent [19] . However, in the case of Kaites v. Department of Environmental Resources [20] the court failed to hold a person liable without some showing of culpable conduct. Even if there is absolute liability for a violation of the Act, such a liability cannot be imposed without some showing of negligence. The Fish and Game code of the USA which criminalizes the introduction of any material hazardous to the life of fish in water states that it is not necessary to prove that the violation has actually caused the death of, or damage to, any particular fish. [21] It imposes strict criminal liability regardless of a voluntary act if the defendant allows such a harmful substance to enter the water. But in the case of Commonwealth v. CSX Transportation Inc, [22] two trains were traveling on adjacent tracks when the trains derailed due to heavy rain and flooding. This resulted in corn syrup contained in one of the trains getting spilled into a nearby river killing approximately 10,000 fish. The defendants were charged for allowing a substance, deleterious to fish, to be spilled into the waters of the commonwealth.
The Courts have not been too kind on statutes which impose absolute criminal liability on individuals irrespective of mens rea or intention to commit a crime, which is a fundamental principle of criminal law. Hence, the polluter pays principle of absolute liability, which provides for civil remedy has by far been the most viable principle of imposing liability for environmental harm.
The first instance of the principle absolute liability was considered by an Indian Court is that of Madras Railway Co. v. Zamindar [23] where the water collected in a pond for agricultural purposes escaped and caused damage to the railway track and bridges. However, this mechanism to store rainwater was used throughout the country and since ages. The collection of water in such a way was a necessity and a natural use of the land. Looking, then, at the enormous benefit conferred on the public by these tanks, considering that their existence is an absolute and positive necessity, for without them the land would be wilderness, and the country a desert, the application of this rule was restricted and the defendant was not held liable.
However, in the landmark case of M.C. Mehta v. Union of India (Oluem gas leak case) [24] , the principle of absolute liability for environmental harm was first discussed in depth. The Supreme Court promulgated the principle of absolute liability moving one step ahead of the principle laid down in Rylands v. Fletcher which included exceptions to the rule. Imposition of strict liability rules would have allowed the companies to go free without any liability towards the affected people.
In this case, oleum gas from a fertilizer plant of Sriram Foods and Fertilizers leaked and caused damage to several people. The action was brought through a writ petition under Art.32 of the Indian Constitution by way of public interest litigation as the Court thought that these applications for compensation raised certain important issues and those issues should be addressed by a constitutional bench. The first issue in question was the admissiblity of the matter under Article 32 of the Constitution for violation of Article 21. In view of the industrial policy [25] , the writ petition against the private corporation was held maintainable. The company sought to seek sabotage as a defence to escape liability. However, the Supreme Court laying down the principle of absolute liability lay down that if an enterprise engages in dangerous substances, it must be held absolutely responsible to ensure the safety of the common public. The principle of absolute liability is operative without any exceptions. It does not admit of the defences of reasonable and due care, unlike strict liability [26] . They must take all steps to prevent any accident. If, even after all precautions, accident happens, the company still should be made absolutely liable for the damages.
The court had in mind that it was within a period of one year that a second case of large scale leakage of noxious gas in India took place, as just a year back the Bhopal Gas Tragedy had taken place where more than 3000 persons had met tragic and untimely death and lakhs of others were subjected to diseases of serious kind. The Supreme Court also recognized the social obligation of the company to compensate the sufferers depending on the magnitude and capacity of the enterprise so as to have a deterrent effect. This is also known as the ‘deep pocket’ theory.
‘The polluter pays principle has been held to be a sound principle in the case of Indian Council for Enviro-Legal Action vs. Union of India (The Bichhri village Case [27] ). The issues were two-fold in the case: (1) Should the Corporation be held responsible to meet the cost of the remedial action to remove and store the sludge in safe and proper manner? (2) Should they be made liable for the loss and suffering caused to the village where the industrial complex was located?
The Supreme Court observed:
“We are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country…
…Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on.”
Consequently, it was held that the company producing H acid which polluted the nearby water bodies would be absolutely liable for any harm caused to the environment and to the villagers, including the cost of environmental degradation upholding the Rylands principle. Further, in Vellore Citizens’ Welfare Forum v. Union of India and Ors [28] the precautionary principles and polluter pays principle were held to be part of the environmental law of the country. It was held that remediation of the damaged environment is part of the process of sustainable development.
In the Gujarat High Court judgment of in Pravinbhai Jashbhai Patel v. State of Gujarat and Ors. [29] , the standard of 1% of turnover being paid was adopted for closure of polluting units and payment of compensation by such units for polluting river and land under the ‘polluter pays’ principle. The basis of this decision in that case was that the polluting industrial units were not meeting the Gujarat Pollution Control Board norms and the continued violation of the law by industrial units had become a habit.
Cases of absolute liability extend not only to degradation of the environment, but also the violation of laws that aims to protect the environment. Hence, the ratio in the case of Deepak Nitrite Ltd. v. State of Gujarat and Ors [30] that a ‘mere violation of the law in not observing the norms would result in degradation of environment would not be correct’ is evidently confined to the facts of that case. In the said case the fact that the industrial units had not conformed to the standards prescribed by the pollution control board was not in dispute but there was no finding that the said circumstance had caused damage to environment. The decision also cannot be said to have laid down a proposition that in absence of actual degradation of environment by the offending activities, the payment for repair on application of the polluter pays principle cannot be ordered.
The above position was taken in the case of Research Foundation for Science Technology and Natural Resources Policy v. Union of India. [31] In the year 1997, considering the alarming situation created by dumping of hazardous waste, its generation and serious and irreversible damage as a result thereof to the environment, flora and fauna, and also having regard to the magnitude of the problem as a result of failure of the authorities to appreciate the gravity of situation and the need for prompt measures being taken to prevent serious and adverse consequences, a High Powered Committee (HPC) was constituted by this Court with Prof.M.G.K. Menon as its Chairman, in terms of order dated 30th October, 1997. The Committee comprised of experts from different disciplines and fields and was required to examine all matters in depth relating to hazardous waste. The report of the committee indicated the presence of Hazardous waste oil in 133 containers lying at the Nhava Sheva Port. An Illegal import of waste oil in 133 containers in garb of lubricating oil by importers was going on. Such an import was not only in violation of the Environment Protection Act, 1986, but also of the Hazardous Waste Management Rules, 1988. The court also looked into The Basel Convention on the Control of Trans boundary Movements of Hazardous Wastes and their Disposal that was adopted by the conference of the Plenipotentiaries. The 15 importers were ordered not to re-export their consignment. Instead, they were held absolutely liable to pay the cost of destruction of the 133 containers of waste oil by incineration, though no harm had been caused to the environment.
The principle of absolute liability has also been extended by the judiciary to cases of environmental harm caused before the enactment of statutes. For instance, Kerala High Court judgment of Nature Lovers Movement v. State of Kerala and Ors [32] dealt with occupation of forest land prior to 1977. Here, the encroachers of forest areas using forest land for non forest purposes were held liable to pay consequent to the issue of title deed in his favour a reasonable amount of compensation for injury caused by him to general public. Such a compensation was payable by him on regularization of his occupation of forest land for land occupied prior to 1977.
The Rajasthan High Court, in the case of Indian Asthama Care Society and Anr. v. State of Rajasthan and Ors [33] recognized the principle of absolute liability of manufacturers of Gutkha and Pan masala for plastic pollution caused by used packets of Gutkha. To sum it up, in the case of Intellectual Forum, Tirupathi v. State of A.P. and Ors., it was stated [34] that merely asserting an intention for development will not be enough to sanction the destruction of local ecological resources. The Court should follow a principle of sustainable development and find a balance between the developmental needs and the environmental degradation caused by it.
It has been accepted as a fundamental objective of government policy to abate pollution. [35] A reference to Article 7 of the draft approved by the working group of the International Law Commission in 1996 on Prevention of Trans-boundary Damage from Hazardous Activities to includes the need for the State to take necessary ‘legislative, administrative and other actions’ to implement the duty of prevention of environmental harm [36] . Jagannatha Rao, J. in A.P. Pollution Control Board’s case [37] , while emphasizing the precautionary as well as Polluter Pays Principle strongly stressed the need for appropriate amendments in the environmental statutes, rules and notifications observing thus:
It appears to us from what has been stated earlier that things are not quite satisfactory and there is an urgent need to make appropriate amendments so as to ensure that at all times, the appellate authorities or tribunals consist of Judicial and also technical personnel well versed in environmental laws. Such defects in the constitution of these bodies can certainly undermine the very purpose of those legislations.
Environmental concerns have been placed at same pedestal as human rights concerns, both being traced to Article 21 of the Constitution of India. There is very little legislation in India which provide for absolute liability, irrespective of the exceptions to the Rylands rule. One such example is Section 92A of the Motor Vehicles Act, 1938 also recognizes this concept of ‘liability without fault’. However, when it comes to absolute liability for environmental harm in India, the legislature has been largely silent.
The Bhopal Gas Tragedy involving the Union Carbide Corporation and the Oleum gas leak case involving Sriram foods has prompted the legislature to enact the Public Liability Insurance Act, 1991 facilitating absolute liability in case of widespread harm to the public and public nuisance, including harm to the environment due to hazardous substances. Under the Public Liability Insurance Act, 1991, every person owning or having the control over the handling of hazardous substances (that is, manufacturing, processing, treating, packaging, storing, transporting, converting, selling or transferring hazardous waste) must take out insurance policies, to give relief to any person in case of death, injury, or damage to property that has resulted from an accident. Importantly, this Act imposes a ‘no fault’ liability upon the owner of the hazardous substances, and the claimant shall not be required to plead and establish that the death, injury or damage was a result of any wrongful act, neglect or fault of any person [38] . This is the statutory expression of the absolute liability principle.
No general environmental legislation applicable to ‘hazardous products’ has been adopted in India. There are some specific regulations applicable to certain products that are hazardous. For instance, the Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Micro-Organisms and Genetically Engineered Organisms or Cells, 1989, also require that any person who imports, exports, transports, manufactures or sells any hazardous micro-organisms or genetically engineered organisms and substances or cells, or products containing such organisms, must first obtain a prior
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