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Industry, Environment and the Judiciary

by
Yashpal Singh and Rajesh Saxena

With the promulgation of the Water (Prevention and Control of Pollution) Act 1974, India initiated a process of establishing a regime for control of pollution . A Central Act of Parliament, consequently adopted by the state legislatures, the Water Act, established the Water Pollution Control Boards, which were consequently, with the promulgation of the Air (Prevention and Control of Pollution) Act 1981, entrusted with the responsibility of Air Pollution Control also. The gruesome Bhopal episode paved the way to the Environment Protection Act,1986, which for the first time empowered the executive to issue orders to restrain pollution. Section 5 of the E.P.Act gave powers to the Central Government (redelegated to State Governments at a later stage) to issue directions which could include directions for closure of an industry and suspension of water and power supply. The Water and Air Acts were suitably amended to give these powers to the State Pollution Control Boards. Judicial redress could always be sought.

It was somewhere during the evolution of these tools that public interest litigation was also recognised as a cooperative effort in which the petitioner, the state or the public authority and the court endeavoured to secure legal rights, benefits and priveleges conferred upon the weaker sections of society and to reach social justice to them. It was also emphasized that the state or public authority which is arrayed as a respondent in public interest litigation should in fact welcome it as it would give an opportunity to right a wrong or to redress an injustice done to the poor and weaker section of the community whose welfare is and must be the prime concern of the State or the Public authority. It was this period that witnessed the emergence of the courts as courts for the poor and struggling masses of the country and of public interest litigation as a tool to solve problems of the poor and the vulnerable sections of society.(S.P.Gupta and others vs. President of India and others, AIR 1982, S.C.149; Peoples Union for Democratic Rights and others vs Union of India and others, AIR 1982, S.C. 1973)

Of special importance to enviro-legal action is writ Petition no. 8209 and 8821/83, which was the first public interest Litigation in the country, involving issues related to environmental and ecological balance. It brought into sharp focus the conflict between development and conservation and emphasised the need for reconciling the two in the large interests of the country. Against an imbalance to ecology and hazard to healthy environment due to working of lime stone quarries in the Mussoorie ranges, the Supreme court ordered the closure of lime stone quarries.

The ball had been set rolling for a dynamic movcment in the country. Coupled with increasing environmental awareness and an imperative need to conserve environment, individuals and groups started looking to the courts for a judicial redressal to social problems. The Supreme court stated that it would respond even to a letter addressed by any individual in matters of public interest. A number of issues were thrown up. It was recognised that non compliance of pollution control laws was a serious offence. Non conformity to standards stipulated by the Pollution Control Board elicited decisions involving immediate closure. Episodal pollution and hazards thereof brought to the fore the importance of industrial siting and absolute liability. Industries were asked to shift from non conforming land use areas. Forest rights were restored, workers rights protected, health compensations awarded. A number of important directions were given by the courts from time to time which have served as indicators of judicial thought and the seriousness with which they view environmental inaction.

  1. Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to any one on account of an accident in the operation of such hazardous or inherently dangerous activity resulting in the escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected in the accident and such liability is not subject to any of the exceptions which operate vis a vis the tortious principle of strict liability. In such a case, the measure of compensation must be correlated to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The larger and more prosperous the enterprise, the greater must be the amount of compensation. (A.I.R. 1987, S.C. 1086, M.C.Mehta Vs. Union of India and others. Oleum Gas leak case).

  2. Where in a public interest litigation owners of some of the tanneries discharging effluents from their factories in Ganga and not setting up a primary efluent treatment plant in spite of being asked to do so for several years, did not care in spite of notice to them even to enter appearance in the Supreme Court to express their willingness to take appropriate steps to establish the pretreatment plants, it was held that so far as they were concerned an order directing them to stop working their tanneries should be passed. It was further observed that the financial capacity of the tanneries should be considered as irrelevant while requiring them to install PETPs. (A.I.R. 1988, S.C. 1037, M.C.Mehta Vs. Union of India and others. Tannery matter)

  3. Where a person is not a riparian owner but he is a person interested in protecting the lives of the people who make use of the water flowing in the river Ganga his right to maintain the petition connot be disputed. (A.I.R. 1988, S.C. 1115, W.P. no 3727/85; Municipal Corporation matter) . It has been held that in the case of prosecution of Industries for pollution of River Ganga,

  4. Stay by High courts should not normally be granted and if granted the matter should be disposed off within a short period, say about two months.

  5. Where as a consequence of a wilful default of the industry in providing details, the name of the industry is wrongly disclosed in the complaint, there are no grounds for quashing complaints against Chairman, Managing Directors and other Directors of the Company. (A.I.R. 1988, S.C. 1128; U.P. Pollution Control Board vs. Modi Distillery)

  6. Where an industry liable to pay cess under the Water(Prevention and Control of Pollution) Cess Act 1977, installs a plant for the treatment of sewage or trade effluent and the plant is running successfully, the assessee is entitled to rebate. A prior consent under section 25(1) of the Water Act 1974 is not necessary (A.I.R. 1991, S.C. 597; Rajasthan State Electricity Board vs. The Cess Apellate committee and others)

  7. Where remedial measures are required, the Supreme Court directed the Central Government to assess the amount which the respondents are liable to pay to improve and restore the environment in the area, damaged by their action. (The damage was in initial estimates found to be Rs 40 crores.) In case of failure of the respondents to pay the amount, the same could be recovered by the Central Government in accordance with Law. The order also stated the all chemical industries whether big or small should be allowed to be established only after taking into consideration all the environmental aspects and their functioning should be monitored closely to ensure that they do not pollute the environment round them. The idea of an environmental audit conducted periodically and certified annually, by specialists in the field, duly recognised, can also be considered.

    The respondents were also directed to pay a sum of Rs. Fifty thousand by way of costs to the petitioner(1996 /2 SCALE; writ petition /c No. 967 of 1989 with w.p. Nos. 94/90; 824/93 and 76/94. Indian Council of Enviro Legal Action vs. Union of India and others. Bichri case).

  8. The Supreme Court ordered the closure of 168 hazardous industries in Delhi and also ordered them to shift out side the capital. The court has given protection to the workers by directing that they shall be treated as continuing in their employment, with a shifting allowance. Those who want to quit their jobs or cannot shift could claim retrenchment benefits plus the shifting allowance, (AIR 1996, S.C. 2231; w.p 4677/85; M.C.Mehta vs. Union of India and others) Similarly on 19 Dec 1996, the Supreme Court directed 550 tanneries to a new site by April 1997. They were asked to deposit 25% of the price of the new land. All units which deposit the money were directed to be permitted to operate till they are relocated. Directions were also issued that workmen will not be retrenched but allowed to continue at the same site. They should be considered as actively employed between the closure and relocation. The tanneries opting for closure will have to pay 6 years (Six) wages to the retrenched workers. ( Jan. 1997) Similarily the Supreme Court to save the Taj Mahal from pollution being caused by polluting industries at Agra ordered for the shifting/ relocation of industries and directed some to adopt gas based technologies.

  9. The Supreme court has fined two Sonepat Units, Rs. 50,000 each for discharge of effluents in the Yamuna river. (Business India, Bombay, 27.08.96) Another unit had been fined Rs 10 lakhs by the Supreme Court for violating provisions of section 45 of the water act.

  10. The Supreme court has ordered that compensation be paid to the heirs of the deceased workers, suspected to have succumbed to silicosis;ailing workers and even to those who have succumbed to the desease because of living in the neighbour hood of quartzite crushing units in Jhargram, West Bengal (The Pioneer,New Delhi, 05.09.96)

  11. A special court in Pali, sentenced the owners of a textile printing unit to simple imprisonment of 18 months and a fine of Rs. 2000 for polluting a river ( Statesman , New Delhi, 11.09.96)

  12. The Green bench of the Madras High Court has ordered the closure of stone crushing units within 500 metres from residential areas (The Hindu, Madras 24.09.1996; The Hindu, Delhi, 22.12.96) It has also directed the Pollution Control Board to take immediate steps to close down the foundries situated in the primary residential areas of Coimbatore city.

  13. The Supreme court has ordered the polluting tanneries in Tamil Nadu to compensate the affected persons and to pay the cost of restoring the damaged ecology.(W.P./ c no. 914; Vellore Citizens Forum vs. Union of India; Business Line, New Delhi)

  14. The Gujrat High Court has ordered the closure of dyeing and printing units, holding them responsible for polluting the drinking water. The dyeing units were also required to pay 1% of their 3 years turn over as penalty to the people affected by the polluted water (The Business and Political Observer, New Delhi, 08.08.97)

  15. The Supreme Court has delegated the Central Ground Water Board as an authority in order to regulate and control ground water development and penalise violaters. The Board can resort to penal provisions contained in the E.P.Act.

In an economy striving for sustainable development, fear does play an important role in achieving the goals of environmental policy, but, it should not be regarded as the only means to the end. Environmental Awareness has to be brought about in a way that the imperativeness of conservation and the means to do so become imbibed in our life styles, compliance becomes voluntary and environment becomes a cutural movement.