Chapter IV

CONSTITUTIONAL MANDATE, LAW MAKING POWER AND STATUTORY CONTROL IN INDIA

(A) Right to Disaster-free Environment

Industrial accidents did occur in India during the eighteenth and the

nineteenth centuries as a consequence of the process of industrialization which

had then begun. But the impact of these accidents were not of major

significance. Basing itself on such situations the Constituent Assembly did not

anticipate huge environmental disasters of Bhopal type. As a result, effective

provisions to tackle such disaster are missing from the Constitution.

Recently, however, courts in India have accepted a healthy environment

as part of the Fundamental Right to life1• In Rural Litigation and

Entitlement Kendra Dehradun Vs State of Uttar Pradesh2, the Supreme

Court recognised the right to a clean environment as a part of the Right to Life

but in an indirect fashion. In this case, the court said that the economic

hardship caused to the lessees of a quarry was outweighed by the necessity to

protect and safeguard the right of the people to live in a healthy environment.

It is clear that every industrial disaster will definitely cause damage to

environment. It will also affect human lives, cattle, agricultural land as well

as other sources of livelihood. Thus, industrial disasters will always pose a

serious threat to the right to life. In M.C. Mehta Vs Union of lndia,3 the

1 Art. 21 of the Constitution of India states: "No person shall be deprived of his life or personal liberty except according to procedure established by law."

2 AIR 1988 SC 2187. This case arose by way of a writ petition under Article 32 of the Constitution of India. The very fact that the petition was admitted indicates that court recognised the "Right to environment" as a fundamental right. The issue involved in this case was whether the court could interfere with mining rights given to lessees on the ground that mining activities caused ecological disturbance and thereby violated the rights of the people to live.

3 AIR 1987 SC 965.

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Supreme Court has acknowledged the existence of a direct threat to the life of

workers and of the general public in and around a factory engaged in the

manufacture of hazardous products. By analogy and extension it can be said

that the right to life also includes the right to a disaster-free environment.

In several other cases, the Supreme Court of India and the different

High Courts have inferred that the right to a safe and clean environment is a

part of right to life. In M.C.Mehta Vs Union of India4 the Supreme Court

stated that closure of tanneries may bring unemployment, loss of revenue, but

life, health and ecology have greater importance to the people. High Courts

have been more categorical in recognising the right to the natural environment

as a part of Fundamental Rights. In Kinkri Devi Vs State,5 the Himachal

Pradesh High Court stated that if a just balance is not struck between

development through tapping of natural resources and the protection of ecology

and environment, there will be a violation of Fundamental Rights conferred by

Article 14 and 21 of the Constitution of India. InT. Damodar Rao Vs The

Special Officer, Municipal Corporation of Hyderabad,6 the Andhra

Pradesh High Court clearly stated that the right to environment is part of the

right to life guaranteed by Art. 21 of the Constitution of India. It said, "the

slow poisoning by the polluted atmosphere caused by environmental pollution

and spoilage should also be regarded as amounting to violation of Art. 21 of the

Constitution." In Madhavi Vs Tila Kan/ the Kerala High Court recognised

4 AIR 1988 SC 1037. This writ petition was filed because several tanneries, situated on the bank of the river Gangaes, were polluting the river, by discharging trade effluents.

5 AIR 1988 H.P. 4,9. This writ petition arose because of excavation oflime stone in Sirmaur district in the Shivalik hills. The excavations had posed danger to the flora, fauna and environment of the surrounding areas.

6 AIR 1987 A.P. 171.

7 1988 (2) K.L.T. 730. Workshop of the respondent was causing injury and physical discomfort to the community. Petition was first filed under Sec. 133 Cr.P.C and subsequently it came to the High Court.

83

the right to enjoy life, as a serene experience, and in quality superior to mere

animal existence. It further added that the right to live in peace, to sleep in

peace and to repose as well as the right to health are part of the right to life.

The same High Court in another case stated that the right to clean water and

air are attributes of right to life, for these are the basic elements which sustain

life itself.8 In another case the Rajasthan High Court observed that

environmental degradation violated the Fundamental Right to life.9

Freedom to Carry on Occupation, Trade or Business vis-a-vis Right to Disaster-free Environment

Can an industry be closed on the ground that it has caused a disaster

? Does the law provide for the possibility of preventive closure of a hazardous

industry ? Can the owner of an industry challenge the closure of the industry

on the ground that such closure violates the right to equality guaranteed under

Article 1410 or freedom to carry on trade, an occupation or a profession as

guaranteed under Article 19 ?11 Can the workers argue that their right to a

livelihood is being violated ?

No doubt the Constitution of India guarantees the right to equality but

it prohibits only class legislation. It permits reasonable classification for the

purpose of legislation. The tests for valid classification 12 are that (i) it must

be founded on an intelligible differention and (ii) that differention must have

a rational relation to the object sought to be achieved by the statute in

8 Attakoya Thangal Vs Union of India, 1990 KLT 580.

9 L.K.Koolwal Vs State of Rajasthan, AIR 1988 Raj. 2, this case arose by way of writ petition filed by the people of Jaipur asking for a direction to the municipal authorities to provide sanitation.

10 Art. 14 of the Constitution of India states: "The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."

11 Art. 19(1) states: "All citizens shall have the right-... (g) to practice any profession, or to carry on any occupation, trade or business."

12 Budhan Vs State of Bihar, (1955) 1 SCR 1045 (1049); Barak chand Vs Union of India, (1969) 2 SCC ; Hanij Vs State of Bihar, AIR 1958 SC 731.

84

question. There can be classification on the basis of a difference in the nature

of trade, calling or occupation, which is sought to be regulated. 13 The special

treatment may be based on the urgency of the remedy or the degree of public

injury. 14 Laws c~:m be made to regulate only a particular type of mischief or

they may be confined only to a particular area. 15 Laws can be made even to

close a single individual industry if circumstances justify the closure 16 Various

judicial decisions support the proposition that if the industry is being closed on

the ground of its hazardous threat, this will not amount to violation of the

right to equality.

As far as the right to occupation, trade or business is concerned, it is not

an absolute right. It is subject to many restrictions including the "interest of

the general public"17• The term "interest of the general public" has a wide

connotation. It includes implementation of the Directive Principles18 and the

interests of public health and morals. 19 Laws can even be made to prevent the

private citizens from carrying on the industry partially or exclusively. 20 But

the, protection provided for by Article 19 is available only to Indian citizens.

This right will not be relevant, if a law is enacted to regulate an industry

carried on by an alien.The protection will not be available to a foreign

company, even though its shareholders are Indian citizens.

13 Pandurang Vs A.P.P.S.C, AIR 1963 SC 268.

14 Ram Krishnn Dalmia Vs Tendulkar, 1958 SCR 279.

15 Ibid.

16 See generally, Mittal Vs Union of India, AIR 1983 SC 1 Lachman Vs State of Punjab, AIR 1963 SC 223.

17 Art. 19(6) states that state can impose reasonable restrictions on the rights guaranteed under Art. 19 (g) in the interest of the general public.

18 Municipal Corporation Vs Jan Md., 1986 AIR SC 1205.

19 State of Maharashtra Vs Himmatbhai, 1970 AIR SC 1157.

20 Art. 19 (6) (ii) of the Constitution of India, amended by Sec. 3 of the Constitution (First Amendment) Act,1951.

85

In Abhilash Textile Vs Rajkot Municipal Corporation/ 1 the issue

before the Gujarat High Court was that whether there was any right to carry

on business or trade in an unregulated manner, and whether there was a right

to cause a nuisance to the public and pose a health hazard to society at large.

The court said that no one had a right to carry on a business so as to cause a

nuisance to society. It stated that the fundamental right to carry on a trade or

business was subject to reasonable restrictions and regulations imposed in the

interest of general public. In Chhatisgarh Hydrate Lime Industries,

Bilaspur Vs Special Area Development Authority (SADA) Bilaspur/2

the Madhya Pradesh High Court stated that pollution caused by an existing

industry did not make out a case for allowing others to pollute. As for the

workers' rights to livelihood was concerned, the Supreme Court held that a

price had to be paid for protecting the environment.23 Workers' rights could

also be denied on the ground that life is more important than livelihood. In

P.C.Cherian Vs State of Kerala,24 the Kerala High Court observed that the

danger that the general public had to face because of the pollution of the air,

outweighed the advantage of providing jobs for only a few persons.

(B) Constitutional Directive to Control Disasters

When the Constitution of India was framed and adopted there were

various pre-existing pieces of legislation covering a wide variety of

environmental issues.25 Some provisions26 dealing with the improvement of

21 AIR 1988 Guj 57, this petition arose because Abhilash textile industry was discharging dirty water from the factory without purifying the same and thereby causing public nuisance and health hazard.

22 AIR 1989 M.P. 82.

23 M.C.Mehta Vs Union of India, AIR 1988 SC 1037.

24 1981 KEL.L.T 113.

25 P.Chandrasekhara Rao, " Environmental Perspective in the Indian Constitution" ,Indian Journal of International Law, (July-December 1983). The concerned enactments are: The Indian Penal Code 1860, The Code of Criminal

(continued ... )

86

public health, organisation of animal husbandry, preservation of national

monuments were placed under the "Directive Principles of State Policy". These,

though not enforceable by any court, are fundamental in the governance of the

country, and the state is duty bound to apply these principles in making laws.

In spite of these provisions the term "environment" was missing from the

Constitution of India. For the first time two provisions, namely Article 48A and

Article 51A(g), having a direct bearing on environment, were added to the

Constitution in 1976.27 Article 48A states: " The state shall endeavour to

protect and improve the environment and to safeguard the forest and wild life

of the country."

Article 51A (g) imposes a duty on every citizen of India "to protect and

improve the natural environment, including forests, lakes, rivers, and wild life

25(. .. continued) Procedure 1898; The Poison Act, 1919; The Indian Boiler's Act, 1923; The Indian Forest Act, 1927; The Mines and Minerals (Development and Regulation) Act,1947; The Factories Act, 1948.

26 Article 4 7 of the Constitution of India states: " The state shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the state shall endeavour to bring about prohibition of the consumption expect for medical purposes of intoxicating drinks and drugs which are injurious to health." Article 48 of the Constitution of India states: " The state shall endeavour to organise agriculture and animal husbandry on modern and scientific line and shall in particular take steps for preserving and improving the breeds and prohibiting the slaughter, of cows and calves and other milch and draught cattle." Article 49 of the Constitution of India states: "It shall be the obligation of the state to protect every monument or place or object of artistic or historic interest declared by or under law made by Parliament to be of national importance from spoilation, disfigurement, destruction, removal, disposal or import as the case may be."

27 In the Parliament several amendments were suggested to broaden the provisions relating to environment but it was preferred to have broader terms. It was thought that existing words are wide enough to cover the underlying concern of the amendments. India, Lok Sabha Debates, series 5 , vol LXV, session 18,number 5 of October 29, 1976, col. 94-116; India, Rajya Sabha Debates, official report, vol XCVIII No 5,Nov. 9, 1996 col. 158-171; also See Armin Rosencranz Shyam Divan, Martha L. Noble, Environmental Law and Policy in India, (Tripathi Bombay, 1991) Tripathi, p. 53.

87

and to have compassion for living creatures." These provisions reflect the

growing concern of the government over environment.

Clearly, these provisions do not expressly mention the term 'industrial

disasters'. Nevertheless, by implication, problems relating to industrial

disasters could be read in Directive Principles as well as into the Fundamental

Duties. Article 48A enjoins the state to protect and improve the environment

and to safeguard the forest and wild life of the country. Every industrial

disaster will definitely prejudicially affect the environment. An Industrial

disaster occurring in the vicinity of a forest will cause damage to the forest, as

well wreak havoc on the wild life inhabiting the surroundings. Henceforth

protection and improvement of the environment include the prevention of

industrial disasters as well. According to Article 4 7 it is the duty of the state

to improve public health. Any industrial disaster is bound to affect public

health. A directive to control disasters can be inferred from this provision.

Article 51 of the Directive Principles of State Policy mandates that the state

shall endeavour to foster respect for international law and treaty obligations

in dealings of organised peoples with one another. There is a rapid growth of

international environmental law and the right to a disaster-free environment

has now emerged as an international norm. Under several multilateral and

bilateral treaties, India has accepted obligations to control industrial disasters

expressly or by implication. 28 Hence, it can be said that the controlling of

industrial disaster has emerged as a constitutional directive to the state to

28 International treaties and agreements entered into by India shall not have the force of a municipal law without appropriate legislation (Varghese Vs Bank of Cochin, AIR 1980 SC 470). If there are no contrary legislations, Indian courts will respect international law (Gramophone Company Vs Birendra AIR 1984 Sc 667). If there are express contrary legislations, Indian courts will prefer Indian law (Ali Akbar Vs UAR, AIR 1966 SC 230). It does not mean that Indian courts will outrightly reject norms of international law, rather courts will try to interpret municipal law in such a way that possibly any established principle of international law are not violated. An international treaty may even be implemented by exercise of executive power under Art. 53 of the Constitution of India (In re Berubari Union, AIR 1960 SC 845).

88

consider while making laws.

(C) Duty to Protect from Disasters

Article 51A (g) of the Constitution of India imposes a duty on every

citizen of India to protect and improve the natural environment. 29 Every

industrial disaster is bound to destroy the natural environment. Hence it can

be said that every citizen of this country owes a Fundamental Duty to prevent

industrial disasters. Article 51A (g) confers the right on every citizen to apply

to the court for appropriate relief.30 The paucity of funds or staff is no excuse

for the non-fulfilment of constitutional obligations on the part of the state. No

doubt, the fundamental duty is not really enforceable, but if the state makes

any law to prohibit any act or conduct which is violation of any of the duties

set out above, the court can uphold such law interpreting it as a reasonable

restriction on conduct otherwise permitted.31 Courts can also take cognizance

of these duties while interpreting statutes.32 The Supreme Court has issued

several directives to the state in view of Article 51A (g).

Legal Significance of Directive Principles and Fundamental Duties

What is the legal significance of the Directive Principles of State Policy?

The Supreme Court in Sachidanand Pandey Vs State of West Bangal33

opined that whenever a problem of ecology was brought before the court, the

29 The Swaran Singh Committee provided a list of Fundamental Duties. This committee suggested that non-compliance may be made punishable by law made by Parliament. It further suggested that provision should be made that no law imposing such penalty or punishment should be called in question in any court on the ground of infringement of any of the Fundamental Rights or on the ground of repugnancy to any other provision of the Constitution. This suggestion was rejected. See Dr.Paras Diwan, "Does Our Constitution Need a Second Look" ( Sterling: New Delhi, 1978).

30 L.K.Koolwal Vs State of Rajasthan, AIR 1988 Raj 2.

31 Mumbai Kamgar sabha Vs Abdul bhai, AIR 1976 SC 1455.

32 Ibid.

33 Sachidanand Vs State of West Bengal, AIR 1987 SC 1109; see also Rural Litigation Vs State of U.P, AIR 1987 SC 359.

89

court was bound to bear in mind Articles 48A and 51A (g) of the Constitution

of India. It further added that while being called upon to give effect to the

Directive Principles and the Fundamental Duties, the court was not to shirk

its responsibility. The court could not say that setting priorities was a matter

of policy and so it was a matter for the law-making authority. The Supreme

Court further held that the least that the court could do was to examine

whether appropriate considerations were applied and irrelevant ones were

excluded. Justice Reddy, speaking for the court stated that the Supreme Court,

had the power to interfere to prevent a likelihood of prejudice to the public

under Article 37 of the Constitution. In M.C.Mehta Vs Union of India34•

The Supreme Court based its judgment on Articles 48A and 51A(g) of the

Constitution of India. The court pointed out that those provisions imposed

obligations on the state as well as on the people to protect the environment. In

T.Damodar Rao Vs The Special Officer, Municipal Corporation of

Hyderabad,35 the Andhra Pradesh High Court stated that Article 48A

imposed an obligation on the govemment, including the courts to protect the

environment. What does the phrase "protect and improve" which is part of

Articles 48A and 51A(g) signify ? It signifies an obligation of affirmative

govemmental action in order to improve the quality of the environment. The

protection of a degraded environment is not sufficient.

The Gujarat High Court in Surat Municipal Corporation V s Ramesh

Chandra Shantilal Parikh36 was of the opinion that Indian courts should

34 AIR 1988 SC 1037 (Ganga Pollution Case).34. AIR 1987 AP. 171.

35 AIR 1987 AP. 171.

36 AIR 1986 Guj 50. Courts are part of state as defmed in Article 36 read with Article 12. Hence courts have a responsibility to ensure implementation of the Directives while interpreting the Constitution. Apparently Directives are addressed to the legislature but courts also do some judicial law-making. Law is also developed by interpretation by judiciary. Thus courts are bound to take cognizance of the Directives while interpreting law. See generally, Keshavanand Bharati Vs State of Kerala, (1973) SCC 225.

90

follow the constitutional mandate since it derives its power from the

Constitution. According to the court, the judiciary plays an active role in the

implementation of the constitutional directives and maintenance of a just social

order. In Citizens of Bundi Vs Municipal Board Bundi17, the Rajasthan

High Court observed that the safeguards contained in constitutional mandates

of Articles 47, 48A, 51, 51A (g) could not be undermined and weakened for

commercial benefits.

The issue of the legal significance of Directive Principles was also before

the Constituent Assembly. The Constituent Assembly was of the opinion that

no government would ignore these Directives because in a democracy,

ultimately, political parties have to face the people.38 In the post-Constitution

period, there was an attempt to give supremacy to the Directive Principles over

Fundamental Rights. 39 But the amended provisions were annulled. The

question of the judicial value of the Directive Principles has come before the

Supreme Court in several cases. In Akhil Bharatiya Soshit Karmachari

Sangh Vs Union of India40, it has been held that the Directive Principles

are fundamental in the governance of the country and it is the duty of the state

to apply these principles in making laws. In Ratlam Municipality Vs Vardhi

Chand41 the Supreme Court observed, "Where Directive Principles have

found statutory expressions in Dos and Don'ts, the court will not sit idly by

37 AIR 1988 Raj. 132.

38 Constituent Assembly, Debate, vol. VII, p.476. The Framing of India's Constitution (A Study). (The Indian Institute of Public Administration, New Delhi, 1968).

39 See Minerva Mills Vs Union of India, AIR 1980 SC; in which a five judge bench of the Supreme Court by 4 to 1 majority, struck down Article 31C as amended by 42nd Amendment as unconstitutional on the ground that it destroyed the "basic structure" of the Constitution by giving primacy to Directive Principles over the Fundamental Rights.

40 AIR (1981) 1 sec 246.

41 AIR 1980 SC 1622.

91

.,

allowing municipal government to become a statutory mockery." The Court was

of the opinion that the law will be enforced relentlessly and the plea of lack of

funds will be poor alibi when people in misery cry for justice. It further added

that officers in charge and even elected representatives will have to face a

penalty under the law if they defy constitutional and other statutory directives.

(D) Law Making Power

(i) Scheme of Division

The Constitution of India decentralises law making power in India

between the Union and the States.42 Subjects on which they can make laws

have been ~vided.43 Parliament has been given exclusive powers to legislate

on the subjects enumerated in the Union List while the legislatures of the

states can exclusively legislate on subjects in the State List, but this power is

subject to clause (1) and (2) of Article 246. Parliament as well as state

legislatures both have been given the power to legislate on subjects falling

within the Concurrent List. Under this provision, Parliament has unfettered

power, but the power of the state legislatures is subject to clause (1) of Article

42 Article 245(1) states,"Subject to the provisions of this Constitution Parliament may make laws for the whole or any part of the territory of India, and the legislature of a state may make laws for the whole or any part of the state." Article 245(2) states, "No law made by Parliament shall be deemed to be invalid on the ground that it would have extra territorial operation."

43 Article 246 states," Subject matter of laws made by Parliament and by the legislatures of states. (1)

(2)

(3)

(4)

Notwithstanding any thing in clause (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the seventh Schedule (in this Constitution referred to as the "Union List") Notwithstanding anything in clause (3), Parliament, and subject to clause (1), the legislature of any state also have power to make laws with respect to any of the matters enumerated in List III in the seventh· Schedule (in this Constitution referred to as the "Concurrent List") Subject to clause (1) and (2), the legislature of any state has exclusive power to make laws for such state or any part thereof with respect to any of the matters enumerated in List II in the seventh Schedule (in this Constitution referred to as the 'State List') Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a state notwithstanding that such matter is a matter enumerated in the State List."

92

246. Parliament has the power to make laws on any subject for any part of the

territory of India not included in a state even though such subject has been

placed under the State List. Though there is no uniform pattern of allocation,

apparently subjects of national significance have been given to the Centre

while those of local significance, have been left with the States. For certain

subjects, the Centre as well as States have been assigned power to operate

concurrently.44

Subjects, mentioned in the Union List and relating to industry and

environment are "Industries declared by Parliament by law to be necessary for

the purpose ·of defence or for the prosecution of war", 45 "Patents, inventions

and designs";46 "Industries, the control of which by the Union is declared by

Parliament by law to be expedient in the public interest";47 "Regulation and

development of oilfields and mineral oil resources, petroleum and petroleum

products, other liquids and substances declared by Parliament by law to be '

dangerously inflammable";48 "Regulation of mines and mineral development

to the extent to which such regulation and development under the control of

the Union is declared by Parliament by law to be expedient in the public

interest";49 "Regulation of labour and safety in mines and oil fields"; 50

"Regulation and development of inter state rivers and river valleys to the

extent to which such regulation and development under the control of the

44 M.P.Jain "Indian Constitutional Law" (Bombay : Tripathi, 1978).

45 The Constitution of India, the Union List, entry 7.

46 Ibid; entry 49.

4 7 Ibid; entry 52.

48 Ibid; entry 53.

49 Ibid; entry 54.

50 Ibid; entry 55.

93

Union is declared by Parliament by law to be expedient in public interest";51

"Industrial disputes concerning Union employees. "52

Under entry 97 of the Union List, any other matter not enumerated in

List II or List III including any tax not mentioned in either of those lists is

under the Union List53• Relevant subjects mentioned under the State List are

"public health and sanitation",54 "Intoxicating liquors, that is to say the

production, manufacture, possession, transport, purchase and sale of

intoxicating liquors", 55 "Regulation of mines and mineral development subject

to List I",56 "Industries subject to the provisions of (entries 7 and 52) of list

I",57 "Gas and Gas- works"58•

Under the Concurrent List subjects like welfare of labour including

conditions of work, provident funds, employers liability, workmen's

compensation;59 factories,60 boilers61 are to be found. Though there is no

subject mentioned titled 'Industrial Disasters' laws can be enacted to control

industrial disasters under above mentioned subjects. Some subjects relate to

a particular type of industry, but some entries are of a general character. The

subject "industrial disasters" can even be read as a part of entry 97 of the

51 Ibid; entry 56.

52 Ibid; entry 61.

53 Ibid; entry 97.

54 The Constitution of India, the State list, entry 6.

55 Ibid; entry 8.

56 Ibid; entry 23.

57 Ibid; entry 24.

58 Ibid; entry 25.

59 The Constitution of India, the Concurrent list, entry 24.

60 Ibid; entry 36.

61 Ibid; entry 37.

94

Union List62 and the Centre can legislate on this subject. The power to

legislate with respect to industrial disasters can also be inferred from the

Directive Principles of State Policy.

(ii) Residuary Power of Legislation

No constitution, howsoever meticulously drafted could provide a solution

to all problems emerging with time.63 This is why most of the constitutions

provide for residuary powers.64 In India, if a situation arises which does not

fall under any of the specific entries, Parliament, can legislate on the subject

exercising its residuary powers under entry 97 of the Union List.65

(iii) Legislation in National Interest

The Indian Parliament has been given the power to legislate with

respect to a matter in the State List if this is in the national interest.66 Such

legislation is possible only when the Council of State passes a resolution to that

effect by a two-third majority. Such law will cease to have effect on the expiry

of six months from the time the resolution has ceased to be in force. Things

done or omitted to be done before the expiration of the said period will remain

operative.67

(iv) Legislation by Consent

Parliament has the power to legislate for two or more states by the

62 Entry 97: "Any other matter not enumerated in List II or List III including any tax not mentioned in either of these Lists".

63 Hopes, aspirations and expectations in a developing society are always in transition. Legislation may be needed in the future which fathers of the Constitution might not have contemplated. See V.N.Shuk.la, Constitution of India, Eastern Book Company, Lucknow (1982) p.477.

64 In the USA and Australia residuary powers rest with federating state while in Canada it is with the Union.

65 Sat Pal & Co. Vs Lt. Governor of Delhi, (1979) 4 SCC 232.

66 Article 249 (1), The Constitution of India.

67 Article 249 (3); Ibid.

95

consent of those states.68 Such legislation can be adopted by any other State

by a resolution to that effect. Such law, if made, can be amended or repealed

only by Parliament. This provision is a major source of law making power for

environmental legislation. The Water (Prevention and Control ofPollution)Act

of 1974 was enacted under this provision.69

(v) Legislation to Implement International Agreements

Article 51(c) states that the State shall endeavour to Foster respect for

international law and treaty obligations in the dealings of organised peoples

with one another. Every treaty obligation does not acquire the status of

municipal law. Before it acquires the force of law, municipal legislation to that

effect is needed. Article 253 of the Constitution of India confers on Parliament,

the power to legislate for implementation of international agreements. 70

Environmental problems generally have trans-boundary impacts. Since

the Stockholm conference in 197271, and even more since the Rio

68 Article 252(1) of the Constitution of India states, "If it appears to the legislatures of two or more states to be desirable that any of the matters with respect to which Parliament has no power to make laws for the states except as provided in Articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the Houses oflegislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and to any other State by which is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of Legislature of the State." Article 252(2) states, "Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State."

69 Water is a State subject (entry 17 of the State List). This Act was passed when some states requested the Parliament to legislate on the subject. All States approved implementation of this Act. This Act was also subsequently amended (Amendment Act, 1988) by the Parliament.

70 Under Article 253 the 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 countries or any decision made at any international conference, association or other body.

71 11 ILM 1416 (1972).

96

Conference72 on 1992 there is a growing consciousness 1n the world

community that the environment must be protected at all costs. In India, under

entry 14 of the Union List, Parliament has the exclusive power to make laws

with respect to" entering into treaties and agreements with foreign countries

and implementing of treaties, agreements and conventions with foreign

countries." Article 253 read with Article 51 (g) and entry 14 implies that if the

Union Government has entered into a treaty, it must be implemented. Article

253 confers on Parliament power to legislate, irrespective of the scheme of

distribution of powers to implement a treaty or a decision made at an

international conference.73 But Parliament cannot make a law even to

implement an international agreement in contravention of provisions like those

contained in the Fundamental Rights.74 India has been party to several

international treaties which contains proVIsion respecting industrial

disasters.75 Hence under the above discussed provisions, the Indian

Parliament can make appropriate laws with respect to industrial disasters.

Two important statutes have already been enacted under· Article 253.

The Air (Prevention and Control of Pollution) Act, 1981 and the Environment

(Protection) Act, 1986 were passed to implement decisions taken at the

72 31 ILM 814 (1992).

73 "The treaty interpreting power in India can override the nonnal federal State jurisdictional lines" M.P. Jain Indian Constitutional Law, p.72.

74 Maganbhai Ishwerbhai Patel Vs Union of India, (1970) SCC 400.

75 India has been party to many international treaties including the Convention concerning the protection of workers Against Ionizing Radiations (Geneva 1960); the International Convention on Civil Liability for Oil Pollution Damage (Brussels, 1975); the convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin .Weapons, and on the Their Destruction (London, Moscow, Washington, DC, 1972); The Stockholm Declaration 1972; Convention on Early Notification of a Nuclear Accident on Radiological Emergency (Vienna, 1989); Rio Declaration 1992. Source: United Nations Environment Programme, Register of International Treaties and other Agreements in the field of the Environment (1992).

97

Stockholm Conference in 1972.76

(E) Statutory Controls

In India though there are more than two hundred Central and State

piece oflegislation77 related to environment, there are very few statutory laws

or provisions to control industrial disasters. Events leading to the Bhopal

tragedy establish that the disaster was anticipated, but adequate measures

were not taken to prevent it.78 The absence of effective statutory provisions

to prevent industrial disasters was an important factor behind this event.

Traditional laws provide some mechanisms to control industrial accidents 79

but they do, not directly relate to Bhopal type of industrial disaster., The

aftermath of Bhopal disaster has led to the enactment of some legislation like

the Environment Protection Act, 1986 and the Public Liability Insurance Act,

1991. It has also resulted in trend-setting judgements in different related fields

76 (a) Preamble of the Air (Prevention and Control of Pollution Act; " ... Where as decision were taken at the United Nations conference on the Human Environment held in Stockholm in June 1972, which India participated, to take appropriate step for the Preservation of the quality of the air and control of air pollution; And where as it is considered necessary to implement the decisions aforesaid in so far as they relate to the preservation of the quality of air and control of air pollution." (b) Environment Protection Act, 1986; Prefatory note-statement of objects and Reasons---- "The world community resolve to protect and enhance the environmental quality found expression in the decisions taken at the United Nations conferences on the Human Environmental held in Stockholm, in June 1972. Government oflndia participated in the concerns, while several measures have been taken for environmental protection both before and after the conference, the need for a general legislation further to implement the decisions of the conference has become increasingly evident."

77 See Tiwari Committee Report (for recommending legislative measures and administrative machinery ensuring environment protection 1980), Department of Science and Technology, Government of India.

78 See chapter VI "Bhopal Disasters: A case study".

79 These laws are: The Fatal Accidents Act 1955; The Indian Explosives Act 1984; The Indian Penal Code 1860; The Code of Criminal Procedure 1898; The' Civil Procedure Code 1908; The Boilers Act 1923; The Petroleum Act, 1934; The Mines and Minerals (Regulation and Development) Act 1947; The Factories Act, 1948 and The Industries (Development and Regulation)Act 1951.

98

such as the Shriram gas leak cases.

(i) Public Nuisance and the Indian Penal Code

In India, the concept of "public nuisance"80 deals with situations which

materially affect the reasonable comfort and convenience of a class of the

public. It is a penal offence which punishes conduct which affects the pubiic at

large or a considerable portion of it.

An action or an illegal omission, causing air or water pollution or the

discharge of an industrial substance containing poisonous substances are

instances of public nuisance. A public nuisance may be the cause or the result

in an industrial disaster. Public nuisance differs from private nuisance.81

An industrial disaster definitely interferes with the health, safety,

comfort and convenience of the public generally. "It causes common injury,

danger or annoyance to the public or to the public in general who dwell or

occupy property in the vicinity of the industry. Smoke, fumes and smell either

together or singly which materially interfere with the ordinary physical comfort

of the human existence constitute a nuisance in law.82 The scope of this

provision is wide enough to include not only "health hazard" but even

80 Sec. 268 of the Indian Penal Code makes public nuisance a criminal offence; "A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury obstruction, danger or annoyan.ce to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage." Public nuisance has been also defined in s.3(48) of the General' Clauses Act and Sec.41 of the Specific Relief Act.

81 Private nuisance is a tort or a civil wrong where a person suffers damage over and above that suffered by the general public. Private nuisance is an unlawful interference with a person's use or enjoyment of land or some other right such as riparian right or interferes with the use and enjoyment of land such as an unpleasant smell, loud noise, pollution of groundwater etc. See Gayatri Singh, Kerban Anklesaria and Collin Gonslaves The Environmental Activists Hand Book, p.253.

82 B. Venkatappa Vs B.Lovis, AIR 1986 AP.239.

99

"annoyance".83 The grievance lies in the inconvenience, in fact, caused to the

occupier of the premises with respect to which the nuisance is created or to the

owner if the premises are in fact unoccupied,84 and not in the intent or

knowledge of the person responsible. Though the provisions contained in sec.

268 are broad and many cases of industrial disasters could be dealt under it,

but the punishment provided in sec.290 is such that it has no effect at all that

is a fine of 200 rupees.85 In cases of public nuisance, it is not a defence that

it was caused by acts of servants, if it was done in the course of

employment. 86

Industries use various chemicals as primary materials. Deadly chemicals

are prepared and stored. If due to negligent conduct, such substances escape,

this may result in an industrial disaster. Sec.284 of the Indian Penal Code

makes such conduct punishable.87 This Code makes negligent conduct with

respect to fire or combustible matter,88 explosive substances89 and machinery

also punishable. Sec. 278 of the Indian Penal Code makes voluntarily fouling

of the atmosphere, so as to make it noxious to the health of persons, in general,

dwelling or carrying on business in the neighbourhood or passing along a

83 P.C. Cherian Vs State of Kerala, 1981 KLT 113.

84 Attorney General Vs Tod Heatly, (1897) 1ch. 560.

85 Sec. 290 of IPC states "whoever commits a public nuisance in any case not otherwise punishable by this code, shall be punished with fine which may extend to two hundred rupees.

86 R. Vs Stephens (1866) L.R.Q.B. 702.

87 Sec. 284 of the Indian Penal Code states "Whoever does with any poisonous substance, any act in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any person, or knowingly or negligently omits to take such order with any poisonous substance in his possession as is sufficient to guard against any probable danger to human life from such poisonous substance, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

88 Indian Penal Code, sec. 285.

89 Ibid; Sec. 286.

100

public way, punishable. Any guilty person is punished with fine which may

extend to five hundred rupees.

(ii) Controls Under the Criminal Procedure Code

The Code of Criminal Procedure provides for speedy, summary and

effective methods for dealing with situations where there is imminent danger

to the public interest.90 A Magistrate can take action to abate a public

nuisance either on the basis of a police report or other information or even suo

moto.91 An order, thus made cannot be called in question in a civil court.92

Under this Code, appropriate and urgent action can be taken if there is any

apprehended danger of an industrial disaster. Section 291 of the Code makes

violation of an injunction punishable by up to six months imprisonment. The

Magistrate has the power to regulate industrial activities and if the situation

warrants it even to stop it.

90

Section 133 of the Cr.P.C. has been invoked several times to abate

Cr.P.C., sec. 133 (1) states," Whenever a District Magistrate or a sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a Police officer or other information and on taking such evidence (if any) as he thinks fit,. considers-........... . (b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be removed prohibited or such goods or p73 merchandise should be removed or the keeping thereof regulated; or (c) that the construction of any building, or, the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; ......... such Magistrate may make a conditional order requiring the person carrying on such trade or occupation, or keeping any such goods or merchandise, within a time to be fixed in the order-...... (ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed;" Tulsi Ram (1939) Lah. 381( This Provision should not be allowed to be used as a substitute for litigation in civil court).

91 Ibid.

92 Ibid; Sec. 133(2) states: "No order duly made by a magistrate under this section shall be called in question in any Civil Court." The High Court has jurisdiction to interfere in revision with orders passed under this section. Muthuswami Vs Thangamma Ayyar (1929)53 Mad.320.

101

•

'

environmental harm. Though the plain meaning of the language of the section

gives the impression that the Magistrate's power to issue conditional orders is

his discretion, the Supreme Court in Ratlam Municipality Vs Vardhi

Chand has decided otherwise.93 But a Magistrate has no jurisdiction under

Section 133 to deal with private disputes.94 In Madhavi Vs Tilakan95, the

Kerala High Court observed that a state concerned with the general welfare

was duty bound to protect the environment. The Court said, 11 We recognised

every man's home to be his castle which can not be invaded by toxic fumes, or

tormenting sounds. This principle expressed through law and culture consistent

with nature~s ground rules for existence has been recognised in Sec. 133(1)(b). 11

Indian Courts have even approved the removal of a business enterprise from

a residential locality on the grounds of nuisance.96

Can a single member of the public file a complaint against a hazardous

industry? The Madhya Pradesh High Court in Krishna Go pal V s State of

M.P.97 replied in the positive. The court said that the complaint of a single

person is sufficient to initiate action under Sec. 133 Cr. P.C.

Under Sec. 133, action can be initiated to prevent or to remove all types

of public nuisance even if there are other special statutory laws dealing with

93 AIR 1980 SC 1922. In this case the Supreme Court stated, " Sec. 133 Cr.P.C. is categoric although reads discretionary. Judicial discretion when facts for its exercise are present, has a mandatory import ...... The imperative tone of Sec.133 Cr.P.C. read with punitive temper of Sec. 188 IPC makes the Prohibitory act a mandatory duty." Sec. 188 IPC makes disobedience of an order promulgated by a public servant lawfully empowered to promulgate such order, punishable.

94 Dhareppa Ballapa Gondej Vs Sub-divisional Magistrate, 1984(2), KAR.L.J 444.

95 n.7.

96 Ajeet Mehta Vs State of Rajasthan 1990 Cr.L.J 1996. In this case the Rajasthan High Court endorsed the order of the Magistrate under Sec. 133 of Code of Criminal Procedure directing the removal of a business enterprise from a residential locality.

97 1986 Cri.L.J.396 (M.P). In this case the Court said, "Merely because one complainant and has come forward to complain about the nuisance can not be said to be not a public nuisance contemplated by Sec. 133 Cr.P.C."

102

the situation.98 The Andhra Pradhesh High Court in M/s Nagarjuna Paper

Mills Ltd. Vs SDM and Regional Development Officer, Sangareddy9B

was of the view that the Magistrate's power under Sec. 133 was not affected

by provisions of the Water (Prevention and Control of Pollution ) Act and the

Air (Prevention and Control of Pollution) Act or the powers of the Pollution

Control Boards. Under section 143 Cr.P.C. an Executive Magistrate may order

any person not to repeat or continue a public nuisance as defined in the Indian

Penal Code or any special or local law.

Urgent Cases of Nuisance or Apprehended Danger

In order to deal with urgent cases of nuisance or apprehended danger,

sec. 144 of Criminal Procedure Code,100 confers an omnibus power on the

District Magistrate, the Sub-divisional Magistrate, or any other Executive

98 The Supreme Court oflndia in the Ratlam Municipality Vs Vandhi Chand, had opined that all types of public nuisance can be dealt with under Sec. 133. However in Tata Tea Ltd Vs State of Kerala, the Kerala High Court and in Abdul Hamid Vs Gwalior Rayon, the Madhya Pradesh High Courts were of the opinion that the special statl~~s on pollution of water and air have to prevail over the provisions of the Cr. P.C. and the Indian Penal Code.

99 1987 Cri, L.J. 2071; In this case the Magistrate had issued conditional order shutting down a paper mill which has failed to take adequate pollution control measures. While challenging the order, the defendant argued that the State Pollution Control Board had exclusive power to regulate air and water pollution.

100 According to sec. 144 Cr.P.C. in cases where in the opm10n of District Magistrate, a Sub divisional Magistrate or any other Executive Magistrate especially empowered by the State Government, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by sec. 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management. The reason behind making such order is that, in the opinion of the Magistrate, such direction is likely to prevent obstruction ,annoyance or injury to any person lawfully employed, or danger to human life, health or safety, ..... ". In cases of emergency order may be passed ex-parte. An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally. The order shall not remain in force for more than two months from its date however for preventing danger to human life, health or safety ...... the State Government may by notification extend upto six months from first date.

103

Magistrate to issue orders which become absolute at once. The rationale behind

this provision is the urgency of the situation. If there is no urgency, the

exercise of power under this section will not be justified. 101 An order passed

under this section must be of a temporary nature. 102

(iii) Controls under the Civil Procedure Code

Section 91 of the Civil Procedure Code103 deals with public nuisance

or other wrongful acts which affect a large number of people. Since an

industrial disaster invariably affects a considerable number of people, this

provision is very much relevant to authorize preventive measures, and to

require relief or rehabilitation. In 1976 this provision was amended to make it

more relevant to changing circumstances. 104 Before the enactment of this, Act

only a person who had suffered special damage could file a suit. Under this

provision the Advocate-General or two or more persons, with the leave of the

Court, may bring a suit either for a declaration or injunction or for any other

101 R. V. Kelkar, 'Lectures on Criminal Procedure' (Eastern Book Company, 1980) p. 326.

102 M.E. Supply and Co. Vs State of Bihar, 1973 Cri. L.J. 144, (Patna High Court).

103 Code of Civil Procedure, Sec.91(1) States, "In the Case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,-(a) by the Advocate-General, or (b) with the leave of the Court by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act."

104 "As society advances and the life of the community becomes more complex the importance of injuries to the public (as contrasted with injuries to private individuals) increases public nuisances are familiar and well understood types of injuries to the public, but there are other injuries to the public, and there ought to exist a provision for enabling responsible persons to file for the removal of public injuries of other kinds." Vide 54 th Law Commission's Report pp.10, 11. In amended provision instead of suits Relating to Public matters a new heading 'Public Nuisance and other wrongful Acts affecting the Public' was substituted.

104

relief irrespective of any special damage. 105 The new provision includes

provisions for the granting of "such other relief'. This includes "damages" and

the removal of the nuisance. This section can be invoked to take preventive

measures if there is any danger of an industrial disaster. If the disaster has

already taken place, this provision can be used to order measures for the

mitigation of ill effects of the disaster. But when no relief is sought and there

is no claim, there can be no declaration under this section. 106 Section 91 does

not take away any right of instituting a suit which may exist independently of

this provision. 107

(a) Injunctions

An injunction is a "judicial process whereby a party is ordered to refrain

from doing or to do a particular act or thing. 108 In India an injunction may

be granted under Sec. 36 to 42 of the Specific Relief Act, 1963 and under Order

39 Rules 1 to 5 of the Civil Procedure Code. Injunctions are either temporary

or perpetual. 109 A temporary injunction is interim in nature. It is granted on

any interlocutory application of the plaintiff.

Rule 1 of Order 39 of the Civil Procedure Code states that where in any

suit, it is provided by affidavit or otherwise.-(a) that any property in dispute

in a suit is in danger of being wasted, damaged or alienated by any party to

the suit, or wrongfully sold in execution of a decree, or (b) that the defendant

threatens, or intends to remove or dispose of his property with a view to

defrauding his creditors, or (c) that the defendant threatens to disposses the

105 Special damage is that damage which would be suffered by an individual beyond what is suffered by him in common with others. Khir Singh Vs Brij 1949 N. 314 (Sarkar, "Civil Procedure Code" p. 212).

106 Sarkar, Civil Procedure Code p. 212.

107 Code of Civil Procedure, Sec. 91(2).

108 Halsbury's Laws of England (2nd ed.) vol. 18, p.3.

109 S.P.Sathe, Administrative Law (Tripathi, Bombay, 1979) p. 274.

105

plaintiff or otherwise cause injury to the plaintiff in relation to any property

in dispute the Court may by order grant a temporary injunction .... " The power

to grant a temporary injunction is discretionary, but this discretion has to be

judiciously exercised on certain legal principles. 110

A perpetual injunction is granted as a part of the disposition of the suit

and is granted in response to the assertion of a right or the commission of an

act violating a legal right. An injunction can be granted by any Court in the

exercise of its inherent power. It can be issued against the government as well

as against private persons. In a suit claiming an injunction the Court can

examine disputed questions of facts as in any other suit. The court can also

grant damages in lieu of or in addition to an injunction111

It is clear that the process of obtaining an injunction can be a very

effective tool in dealing with industrial disasters. But it is doubtful that

circumstances relating to industrial disasters correspond to the factors

enumerated under Order 39, Rule 1, of the Civil Procedure Code for the

granting of injunctions. Can the Court issue an injunction in situations that

are outside the scope of Order 39 Rule 1 ? The Supreme Court in Manoharlal

Chopra Vs Rai Baja Seth Hiralalii2 has observed that in the interest of

justice, courts have an inherent power to issue temporary injunctions even if

circumstances do not fall within the language of Order 39. In the light of this

judgement, an injunction suit may be filed against any industry which is

110 The Court before granting injunction must see that (1) there is a bona fule contention between the parties, (ii) there is likelihood of the plaintiff suffering irreparable injury and (iii) the balance of inconvenience favours the granting of the injunction.

111 Sathe, "Administrative Law", n.109. According to section 80 of the Civil Procedure Code, a two months notice is necessary for filing a suit against Government for injunction, but this requirement can be dispensed with the per­mission of the court.

112 AIR 1962 SC 527.

106

posing a serious threat. In Ram Baj Singh Vs Babulal113, the Allahabad

High Court said that if special damage and substantial injury is proved a

permanent injunction can be issued.

(b) Declaratory Order

Declaratory order114 in the nature of a civil remedy can be sought to

deal with industrial disasters. Provisions respecting such relief are contained

in section 91 of the Civil Procedure Code and section 34 of the Specific Relief

Act, 1963. 115

To issue or not to issue declaratory order is the discretion of the court.

The Supreme Court under Article 32 116 or the High Court under Article 226

can issue declaratory order as relief.

113 AIR 1982 Allahabad 285. The grievance ofthe plaintiff applicant was that the brick grinding machine of the defendant was generating dust which polluted atmosphere and entered the consulting chamber ofthe plaintiff appellant. This pollution was causing substantial injury to the plaintiff and his patients.

114 "Judgements and orders are usually determinations of rights in the actual circumstances of which the court has cognisance, and gives some particular relief capable of being enforced. It is, however, sometimes convenient to obtain a judicial decision upon a state of facts which has not yet arisen or a declaration of the rights of a party without any reference to their enforcement. Such mere declaratory judgement may now be given, and court is authorised to make binding declarations of rights whether any consequential relief is or could be claimed or not."Halsbury's Laws of England, as stated in S.P.Sathe's Administrative Law n-109. A declaration seeks no more than to state the legal position and does not seek to change the respective legal positions of the parties. Thus a declaration is suitable for a situation where there are uncertainties over whether or not certain set of facts fall within the categories of law" see Simon Ball and Stuart Bell, Environmental Law (Universal Book, New Delhi, 1991), p. 27.

115 Specific Relief Act 1963, sec. 34 states: "Any person entitled to any legal character, or to any right as to any property may institute a suit against any person interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief. Provided that no court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so".

116 K.K Kochuni Vs. StateofMadras, AIR 1959 SC 725, See Sathe, Administrative Law, n. 109. p.277.

107

(iv) Mischief

Industrial disasters invariably cause damage to living beings and

property. If there were any intent or knowledge on the part of responsible

persons, they can be held liable for the offence of Mischief. Section 425 of the

Indian Penal Code defines mischief by stating that, "Whoever, with intent to

cause, or knowing that he is likely to cause, wrongful loss or damage to 'the

public or to any person, causes the destruction of any property, or any such

change in any property or in the situation thereof as destroys or diminishes its

value or utility, or affects it injuriously, commits mischief." For the offence of

mischief, it is not necessary that the property destroyed should belong to the

person injuriously affected (vide explanation 1). One may commit an offence of

mischief even by the destruction of his own property (vide explanation 2). The

punishment provided for the offence of mischief is either imprisonment of up

to three months or a fine, or both. 117 If the offence of mischief has caused loss

or damage to the amount of fifty rupees or more, the punishment provided for,

is imprisonment for a term which may extend to two years, or fine, or both. 118

Mischief by killing, poisoning, maiming or rendering useless any animal of the

value often rupees or more, is punishable with imprisonment for a term which

may extend to two years or a fine or both. 119 Mischief by killing or maiming

cattle, etc., of any value or any animal of the value of fifty rupees is punishable

for a term which may extend to five years or a fine or both. 120

117 Indian Penal Code, Sec. 426.

118 Ibid; Sec. 427.

119 Ibid; Sec. 428.

120 Ibid; Sec. 429 states, "whoever commits mischief by killing', poisoning, maiming or rendering, useless any elephant, Camel, horse, mule, buffalo, bull, cow or ox whatever may be the value there of or any other animal of the value of fifty rupees or upwards shall be punished with imprisonment of either description for a term which may extend to five years, or with fine or with both."

108

(v) Controls under the Indian Boilers Act, 1923

The Indian Boilers Act, 1923 provides certain statutory rules to deal

with industrial accidents 121 resulting from explosions or damage to boilers.

Reports of any accident to the appropriate inspector has been made mandatory.

Under section 18 of the Act, if any accident occurs to a boiler122 or steam

pipe, the owner or the person in-charge thereof, shall within twenty four hours

of the accident report the same in writing to the inspector. Every report should

contain a true description of the nature of the accident and of the injury, if any,

caused thereby to the boiler or to the steam pipe or to any person, and must

be of sufficient detail to enable the inspector to judge the gravity of the

accident. 123 The Act provides penalties for the violation of certain regulatory

no~. Any owner of a boiler who uses it at a higher pressure than allowed, is

liable to punishment, with a fine which may extend up to five hundred

rupees. 124 If the offence is continuing one, an additional fine of up to one

hundred rupees for each day after the first day in regard to which he is

convicted may be imposed. 125 Any person who,"fails to report an accident to

a boiler or steam pipe when so required by section 18126," or "tampers with

a safety valve of a boiler so as to render it inoperative at the maximum

121 Sec. 2(a) of the Indian Boilers Act 1923 defines "accident" as an explosion of a boiler or steam pipe or any damage to a boiler or steam pipe which is calculated to weaken the strength thereof so as to render it liable to explode.

122 'Boiler' as defined in sec. 2(b) of the Indian Boilers Act 1923 means any closed vessel exceeding 22.75 litres in capacity which is used expressly for generating steam under pressure and includes any mounting or other fitting attached to such vessel which is wholly or partly under pressure when steam is shut off. "Owner" as defined in sec. 2(d) of the Indian Boilers Act, 1923 includes any person using a boiler as agent of the owner thereof and any person using boiler which he has hired or obtained on loan from the owner thereof.

123 Ibid; Sec. 18.

124 Ibid; Sec. 23.

125 Ibid;

126 Ibid; Sec. 24(d).

1 oq

pressure at which the use of the boiler is authorised under this Act," 127 or

allows another person to go inside a boiler without effectively disconnecting the

same in the prescribed manner from any steam or hot water connection with

any other boiler or from fuel mains 128," shall be punishable with a fine which

may extend up to five hundred rupees. 129

(vi) Controls under the Factories Act, 1948

(a) General Duties of the Occupier

The Factories Act, 1948 provides certain legal mechanisms to control

industrial disasters. This Act was substantially amended in 1986 and a new

chapter entitled "Provisions relating to hazardous process" 130 was added.

Section 7 A of the Act imposes general duties on the occupier. 131 Every

occupier shall ensure so far as is reasonably practicible the health, safety and

welfare of all workers while they are at work in the factory. 132 The duty of

127 Ibid; Sec. 24 (e).

128 Ibid; Sec. 24(£).

129 Ibid; Sec. 24.

130 Sec. 2 (cb) of the Factories Act, 1948 defines "hazardous process" as any process or activity in relation to an industry specified in the first schedule where, unless special care is taken raw materials used there in on the intermediate or finished products, bye products, wastes or effiuents thereofwould,(i). Cause material impairment to the health of the persons engaged in or connected there with, or (ii). result in pollution of the general environment.

131 Ibid, sec. 2 (n) defines "occupier" as the person who has ultimate control over the affairs of the factory provided that (i). in the case of a firm or other association of individuals, any one of the individual partners or members thereof shall be deemed to be the occupier; (ii). in the case of company, any one of the director shall be deemed to be the occupier; (iii) in the case of a factory owned or controlled by the Central Government or any State government or any local authority, the person or persons appointed to manage the affairs of the factory by the Central government, the State government or the local authority, occupier shall ensure so far as is reasonably practicable as the case be, shall be deemed to be the occupier.

132 Ibid. Sec. 7A (1)." Factory" has been defined in Sec 2(m) of the Act. It means any premises including the precincts thereof-(i) whereon ten or more workers are working or were working on any day of the preceding twelve months and in any part of which a manufacturing process is

(continued ... )

110

the occupier includes, (a) the provision and maintenance of plant and systems

of work in the factory that are safe and without risks to health, 1:13 (b)

arrangements in the factory for ensuring safety and avoidance of risks to

health in connection with the use, handling, storage and transport of articles

and substances· 134 '

(c) the provision of such information, instruction, training and supervision as

are necessary to ensure the health and safety of all workers at work; 135 (d)

the maintenance of all places of work in the factory in a condition that is safe

and without risks to healtth and the provision and maintenance of such means

of access to- and egress from, such places as are safe and without such

risks; 136 (e) the provision, maintenance or monitoring of a working

environment in the factory for the workers that is safe, without risks to health

and adequate as regards facilities and arrangements for their welfare at

work.137

(b) General Duties of Manufacturers, Importers or Suppliers

Every person who designs, manufactures imports or supplies any article

for use in any factory has the obligation to see to it that safety and health of

the workers are not put in peril. 138 It is obligatory on the part of the importer

132( ... continued)

133

134

135

136

137

138

being carried on with aid of power, or is ordinarily so carried on, or (ii) whereon twenty or more workers are working or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on, -but does not include a mine subject to the operation of (the Mines Act, 1952) or a mobile unit belonging to the armed forces of the Union, a railway running shed or a hotel, restaurant or eating place.

Ibid; Sec. 7 A(2)(a).

Ibid; Sec. 7 A(2)(b).

Ibid; Sec. 7 A(2)(c).

Ibid; Sec. 7 A(2)(d).

Ibid; Sec. 7 A(2)(e).

Ibid; Sec. 7B(1).

111

of an article, designed or manufactured outside India, to see to that it conforms

to Indian standards. 139 Necessary research is required to be done to eliminate

or minimise any risk, to the health or safety of the workers, which the design

or article may give rise. 140 Wastes and eftluents, before disposal must be

properly treated so as to render them innocuous. 141 While operating a plant

at a pressure that is above atmospheric pressure, a safe working pressure must

not be exceeded. 142

(c) Precautions Against Dangerous Fumes, Gases Explosion or Fire

The Fact\>ries Act, 1948 provides precautions against dangerous fumes,

gases etc. "No person shall be required or allowed to enter any chamber, tank

vat, pit pipe, flue or other confined space in any factory in which any gas,

fume, vapour or dust is likely to be present to such an extent as to involve risk

to persons being overcome thereby, unless it is provided with a manhole of

adequate size or other effective means of regress". 143 Before allowing entry

to any confined space, all practicable measures should be taken to remove ariy

gas, fume, vapour or dust and to prevent any ingress of such gas fume, vapour

or dust. 144 A certificate to this effect is also necessary from the competent

authority. 145 It is necessary for any person while entering a confined space

to wear suitable breathing apparatus and a belt securely attached to a rope,

139 Ibid;

140 Ibid, Sec; 7B (2).

141 Ibid; Sec; 12(1).

142 Ibid; Sec. 31(1) states, "if in any factory, any plant or machinery or any part thereof is operated at a pressure above atmospheric pressure, effective measures shall be taken to ensure that the safe working pressure of such plant or machinery or part is not exceeded".

143 Ibid; Sec. 36(1).

144 Ibid; Sec. 36(2).

145 Ibid.

112

the free end of which must be held by a person outside the confined space. 146

No portable electric light or any other electric appliance of voltage exceeding

twenty four volts permitted to be used inside confined spaces without adequate

safety devices. 147 Only a flame-proof lamp or light is to be permitted to be

used if there is a possibility of the presence of any inflammable gas, fume or

dust. 148 If any manufacturing process produces dust, gas, fumes or vapour

which is likely to explode on ignition, all practicable measures must be taken

to prevent such an explosion. 149 There must be effective enclosure of the plant

or machinery used in such processes. 150 There must also be provision for the

removal or prevention of accumulation of such dust, gas, fume or vapour. 151

Similarly there must be exclusion or effective enclosure of all possible sources

of ignition. 152 No plant, tank or vessel which contains or has contained any

explosive or inflammable substance is to be subjected to any welding, brazing,

soldering or cutting operation which involves the application of heat without

adequate preventive measures. 153 Such volatile substances are not to be

allowed to enter a plant, tank or vessel after any such operation until the

metal has cooled sufficiently to prevent any risk of igniting the substance. 154

In every factory, all practicable measures shall be taken to prevent the

outbreak of fire and its spread, both intemally and externally. 155 In every

146 Ibid.

147 Ibid; Sec. 36A(a).

148 Ibid; Sec. 36A(b).

149 Ibid; Sec. 37(1).

150 Ibid; Sec. 37(1)(a).

151 Ibid; Sec. 37(1)(b).

152 ·Ibid; Sec. 37(1)(c).

153 Ibid; Sec. 37(4).

154 Ibid.

155 Ibid; Sec. 38(1).

113

factory, safe means of escape for all persons in the event of a fire 156 and all

necessary equipment and facilities for extinguishing a fire 157 must be

provided and maintained. Effective measures must be taken to ensure that in

every factory, all the workers are familiar with means of escape in case of

fire 158• They must be adequately trained in the routine to be followed in such

a situation. 159

(d) Provisions Relating to Hazardous ~rocess

The occupier of a factory involving a hazardous process must lay down

a detailed policy with respect to the health and safety of the workers employed

therein. Such policy must be filed at the time of the original registration of the

factory160• The occupier of a factory must also inform the chief inspector of

the nature and details of the hazardous process involved. 161 Measures must

also be set out for the handling, usage, transportation and storage of hazardous

substances inside the factory premises. 162 AB well measures must be laid

down for the disposal of such substances outside the factory premises. 163

(e) Workers Participation in Safety Management

The occupier of any factory involving hazardous process or hazardous

substances, must set up a safety committee, 164 and this committee should

consist of an equal number of representatives of the workers and of

156 Ibid; Sec. 38(1)(a).

157 Ibid; Sec. 38(1)(b).

158 Ibid; Sec. 38(b).

159 Ibid.

160 Ibid; Sec. 41 B(2).

161 Ibid; Sec. 41 B(5).

162 Ibid; Sec. 41 B(7).

163 Ibid.

164 Ibid, Sec. 41 G.

114

management. 165 This committee has the obligation to promote co-operation

between the workers and the management in maintaining proper health at

work. 166 This committee should also review periodically the measures

taken. 167

(f) Warnings About Imminent Danger

If the workers employed in a factory, involving a hazardous process have

reasonable apprehension that there is a likelihood of imminent danger to their

lives or health due to any accident, they may bring the same to the notice of

the occupier, agent, manager or any other person who is in charge of the

factory. 168 S~ch person must take immediate remedial action. 169 If such

person is not satisfied about the existence of any imminent danger, the matter

is to referred to the nearest inspector whose decision will be final. 170

(g) Notice

If in any factory, an accident causing death or bodily injury occurs, by

reason of which the person injured is prevented from working for a period of

forty eight hours or more immediately following the accident, the manager of

the factory must send notice of this incident to the appropriate authorities. 171

Such authority must make an inquiry into the occurrence within one month of

the receipt of the notice or if such authority is not the inspector, the authority

165 Ibid.

166 Ibid.

167 Ibid.

168 Ibid; Sec. 41 H(1).

169 Ibid; Sec. 41 H(2). "It shall be the duty of such occupier, agent, manager, or the person

. incharge of the factory or process to take immediate remedial action if he is satisfied about the existence of such imminent danger and send a report forthwith of the action taken to the nearest inspector".

170 Ibid; sec. 41 H(3).

171 Ibid; sec. 88(1).

115

shall cause the inspector to make an enquiry within the said period. 172

(h) Penalties and Procedure

If in, or in respect of, any factory there is any contravention of any of the

provisions of the Factory Act, or of any rule made thereunder or of any order

in writing given thereunder, the occupier and manager of the factory shall each

be guilty of an offence and punishable with imprisonment for a term which

may extend upto two years or a fine which may extend upto one lakh rupees

or both. 173 If the contravention is continued after conviction, there will be a

further fine which may extend upto one thousand rupees for each day on which

the contravention is so continued. 174 If the contravention of any of the

provisions of Chapter IV175 or any rule made thereunder, or under section

87176 has resulted in an accident causing death, the fine shall not be less

than twenty five thousand rupees. 177 In the case of an accident causing

serious bodily injury the fine shall not be less than five thousand rupees. 178

The above provisions are subject to rules as are otherwise expressly provided

in the Act. 179 If any person who has been convicted of any offence punishable

under the above provisions repeats such offence, he will be punishable on a

subsequent conviction with imprisonment for a term which may extend upto

three years or a fine which shall not be less than ten thousand rupees but

which may extend upto two lakh rupees or both. 180 But, for any adequate and

172 Ibid; sec. 88(2).

173 Ibid; Sec. 92.

174 Ibid.

175 Ibid.

176 Ibid; Sec.87 provides certain regulations related to dangerous operations.

177 Ibid; Sec. 92.

178 Ibid.

179 Ibid.

180 Ibid.

116

special reasons to be mentioned in the judgement, the Court may impose a

lesser fine. 181 If the contravention of any of the provisions of Chapter IV or

any rule made thereunder or under section 87 results in an accident causing

death, the fine shall not be less than thirty five thousand rupees. 182 If the

accident caused serious bodily injury, the fine shall not be less than ten

thousand rupees. 183

Under the Factories Act, an inspector has been given several

responsibilities. This Act provides a penalty for obstructing the inspector from

performing his duties. 184 Non-compliance or contravention of any of the

provisions of sections 41 B, 41 C and 41 H of the Factories Act or rules made

thereunder are punishable with imprisonment for a term which may extend

upto seven years and a fine of up to two lakh rupees. 185 If such failure or

contravention continues there can be an additional fine, which may extend upto

five thousand rupees for every such additional day after the first

conviction, 186 If such failure or contravention exceeds one year after the date

of conviction, the offender may be punished with imprisonment for a term

which may extend upto ten years. 187 The Act provides an exemption from

181 Ibid; Sec. 94.

182 Ibid.

183 Ibid.

184 Ibid; Sec.95 states: "Whoever willfully obstructs an inspector in the exercise of any power conferred on him by or under this Act, or· fails to produce on demand by an inspector any register or other documents in his custody kept in pursuance of this Act or of any rules made there under, or conceals or prevents any worker in a factory from appearing before, or being examined by, an inspector, shall be punishable with imprisonment for a term which may extend to six months or with fme which may extend to ten thousand rupees or with both".

185 Ibid; Sec. 96A. Sec. 41B provides for compulsory disclosure of information by the occupier. Sec. 41C provides specific responsibilities of the occupier in relation to hazardous process. Sec. 41H enumerates right of workers to warn about imminent danger.

186 Ibid; sec 96A(1).

187 Ibid; sec. 96A(2).

117

liability, of an occupier or manager, if it is proved that some other person

committed the offence in question without the knowledge, consent or

connivance of the occupier or manager. 188 The occupier or manager is also

required to prove that he used due dilligence to enforce the execution of the

Act. 189 That 9ther person, committing the act may be convicted of the offence

and shall be liable to the same punishment, as if he were the occupier or

manager of the factory. 190 The occupier or manager of factory will be

discharged from liability under this Act in respect of such offence. 191 The

Court in addition to awarding any punishment may ask the occupier or

manager to take such measures as may be specified for remedying the matters

in respect of which the offence was committed. 192 The Court can take

cognizance of any offence under the Act only on the complaint of, or with the

previous concurrence, in writing, of an inspector. 193 Only a court of a

Presidency Magistrate or Magistrate of the first class or a higher court is to try

any offence punishable under the Act. 194 The court can take cognizance of any

offence punishable under the Act only if complaint is made within, 3 months of

the date on which the alleged commission of the offence came to the knowledge

of an inspector. 195 If the offence consists of disobeying a written order made

by an inspector, complaint thereof may be made within six months of the date

188 Ibid; sec. 101.

189 Ibid.

190 Ibid.

191 Ibid.

192 Ibid; Sec. 102(1).

193 Ibid; Sec. 105(1).

194 Ibid; Sec. 105(2).

195 Ibid; Sec. 106.

118

on which the offence is alleged to have been committed. 196 The place where

the plant is, for the time being, situated shall be deemed to be the place where

the offence has been committed. 197 Such place will determine the jurisdiction

to deal with the offence. 198 The Act also imposes some obligations 199 on the

workers and also grants them some rights.200 These obligations and rights

can be proved helpful in controlling industrial disasters. The Act also provides

to persons acting in good faith protection against any suit, prosecution or other

legal proceedings. 201 The Act has precedence over the Contract Labour

(Regulation & Abolition) Act,1970 or any other law for time being in force. 202

(F) Controls Under Special Environmental Statutes

(i) The Water Act

The Water (Prevention and Control of Pollution) Act of 1974203 is

196 Ibid.

197 Ibid; Sec. 106A.

198 Ibid.

199 Ibid; Sec. 111 states, "(i) No worker in a factory- (a) shall willfully interfere with or misuse any appliance, convenience or other thing provided in a factory for the purposes of securing the health , safety or welfare of the workers there­in; (b) shall willfully and without reasonable cause do any thing likely to endanger himself or others; and (c) shall willfully neglect to make use of any appliance or other thing provided in the factory for the purposes of securing the health or safety of the workers there in.(ii) If any worker employed in a factory contravenes any of the provisions of this section or of any of rule or order made there under,he shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to one hundred rupees or with both".

200 Ibid; Sec. 111A states:" Every worker shall have the right to (i) obtain from the occupier, information relating to worker's health and safety at work, (ii) get trained within the factory wherever possible or to get himself sponsored by the occupier for getting trained at a training centre or institute, duly approved by the chief inspector, where training is imparted for worker's health and safety at work, (iii) represent to the inspector directly or through his representative in the matter of inadequate provision for protection of his health or safety in the factory."

201 Ibid; sec. 117.

202 Ibid; sec. 199.

203 This Act was amended in 1978 and revised in 1988 in order to make it more relevant.

119

comprehensive legislation204 dealing with environmental pollution,

particularly water pollution.

Disposal of polluting Matter

According to section 24 of this Act, no person shall knowingly cause or

permit any poisonous, noxious or polluting matter (determined in accordance

with such standards as may be laid down by the State Board) to enter directly

or indirectly into any stream or well. It also prohibits the mixing of any matter

into any stream which directly or in combination with similar matter may

impede the proper flow of water of the stream and which may lead to a

substantial aggravation of pollution due to other causes. 205 This Act provides

certain restrictions on new outlets and new discharges.206 If any person was

already discharging any sewage or trade effluent into a stream or well or sewer

or on land he must satisfy the consent requirement of section 26 of the Water

Act. In Aggarwal Textile Industries Vs State of Rajasthan/07 the

Rajasthan High Court dealt with a number of issues, they were whether

section 24 (1) read with section 24 (3) of the Water Aceos violates provisions

of Constitution of India, particularly those dealing with freedom of trade

(guaranteed under Article 19) and whether section 24 of the Water Act imposed

204 This Act is very wide and it covers (i) river (ii) watercourse (whether flowing or for the time being dry), (iii) inland water (whether natural or artificial); (iv) sub-terranean waters; (v) sea or tidal waters. See sec. 2(j) of the Water Act.

205 The Water Act 1974, Sec. 24(1)(b).

206 According to sec. 25(1) (a) of the Water Act, 1974 prior consent of the State Board is imperative if any person wants to establish or take any step to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade eflluents into a stream or well or sewer or on land.

207 S.B.C. Writ Petition No. 1375/80, 2.3.1987 (Rajasthan High Court, unreported).

208 Sec. 24(3) of the water Act states: " The State Government may, after consultation with or on the recommendation of, the State Board, exempt, by notification in the official Gazette, any person from the operation of sub-section (1) subject to such conditions, if any, as may be specified in the notifications and any condition so specified may by a like notification be altered, varied or amended."

120

certain restrictions on fundamental rights. The Court was of the opinion that

section 24 (1) of this Act did not impose an unreasonable restriction on the

right of the petitioners to carry on a trade or business. The Court further

added that the question of breach of provisions of section 24 was a matter

arising for determination in criminal proceedings and could not be adjudicated

in writ proceedings. The contravention of the provisions of section 24 is

punishable with imprisonment for a term which is not to be less than one year

and six months but which might extend up to six years and a fine. 209

Likewise contravention of provisions of section 25 or section 26 is punishable

with imprisonment for a term which of not less than one year and six months,

but which might extend to six years and a fine. 210 The Act provides enhanced

penalties for a repeat conviction.211 It mandates the publication of the name

of an offender who repeats a like offence.212

(ii) The Air Act

The Air (Prevention and Control of Pollution) Act, 1981 was enacted to

provide for the protection, control and abatement of air pollution. It was

amended in 1987. It is aimed at implementing the decisions taken at the

Stockholm Conference, 1972.213 Any industrial disaster is likely to cause air

209 The Water Act, Sec. 43.

210 Ibid; Sec. 44.

211 Ibid; Sec. 45 states, "If any person who has been convicted of any offence under Sec. 24 or Sec. 25 or Sec. 26 is again found guilty of an offence involving a contravention of the same provison, he stall, on the second and on every subsequent conviction be punishable with imprisonment for a term which shall not be less than two years but which may extend to seven years and with fine."

212 Ibid; Sec. 46 states, "If any person convicted of an offence under this Act commits a like offence afterwards it shall be lawful for the court before which the second or subsequent conviction takes place to cause the offender's name and place of residence, the offence and the penalty imposed to be published at the offender's expense in such news papers or in such other manner as the court may direct and the expenses of such publication shall be deemed .to be part of the cost attending the conviction and shall be recoverable in the same manner as a fine."

213 Besides other things this conference aimed at preservation of the quality of air and control of air pollution. See preamble to the Air Act, 1981.

121

pollution and degrade the quality of air. Various provisions of this Act relate

to control of industrial disasters, though indirectly. Amomg other things, this

Act also deals with the control of noxious emissions from specified industrial

processes. This Act applies only to Air Pollution Control Areas. State

Governments have been given the power to declare a particular area within a

state an Air Pollution Control Area.214 The Act entrusts to the executive a

major role in the abatment of air pollution.215

(iii) The Environment (Protection) Act

The purpose of the Environment (Protection) Act is stated to be the

implementation of the decisions taken at the United Nations Conference on the

Human Environment, 1972, in so far as they relate to pollution, the

improvement of environment and the prevention of hazards to human beings,

other living creatures, plants and property.216 Environmental hazards sought

to dealt with also include industrial disasters.

Prevention and Control

Any person carrying on industrial operations is not to allow emissions

or discharges of environmental pollutants in excess of prescribed

standards. 217 Persons handling hazardous substances are to comply with

214 The Air Act, Sec. 19.

215 See Chapter V, "Executive Controls of Industrial Disasters."

216 "Existing laws generally focus on specific types of pollution or on specific categories of hazardous substances. Some major areas of environmental hazards are not covered. There also exist uncovered gaps in areas of major environmental hazards. There are inadequate linkages in handling matters of industrial and environmental safety. Control mechanisms to guard against slow, insidious build up of hazardous substances, especially new chemicals, in the environment are weak. Because of multiplicity of regulatory agencies, there is need for an authority which can assume the lead role for studying, planning and implementing long term requirements of industrial safety and to give direction to, and co-ordinate a system of speedy and adequate response to· emergency situations, threatening the environment." Prefatory Note, statement of Objects and Reasons, The Environment (Protection) Bill 1986.

217 See The Environment (Protection) Act, Sec. 7.

122

procedural safeguards. 218 According to section 9 of this Act, where the dis­

charge of any environmental pollutant occurs in excess of the prescribed

standards or is likely to occur, due to any accident or other unforeseen act or

event, the person responsible for such discharge and the person in-charge of

the place are bound to prevent or mitigate the environmental pollution caused

as a result of such discharge. Such person is also forthwith to report the fact

of such occurrence or apprehension of such occurrence to such authorities or

agencies as may be prescribed. 219 Such authorities or agencies on receipt of

the information with respect to the fact or apprehension of the nature referred

earlier should as early as practicable cause appropriate remedial measures to

be taken.220 The expenses, if any, incurred by the authority or agency with

respect to such remedial measures, if not paid, may be recovered from the

persons concerned as arrears of land revenue of public demand.221

Contravention of the provisions of the Act, the rules made, orders or directions,

issued thereunder are punishable offences.222 For each such failure or

contravention, the penalty prescribed is imprisonment for a term which may

extend up to five years or a fine which may go up to one lakh rupees, or

both. 223 An additional fine up to five thousand rupees may be imposed for

every day during which such failure or contravention continues after the first

conviction. 224 If such failure or contravention continues beyond a period of

one year after conviction, the offender is punishable with imprisonment for a

218 Ibid; Sec. 8.

219 Ibid; Sec. 9(1).

220 Ibid; Sec. 9(2).

221 Ibid; Sec. 9(3).

222 Ibid; Sec. 15(1).

223 Ibid.

224 Ibid.

123

term which may extend up to seven years.225

(iv) Bar of Jurisdiction

The Water Act and the Air Act bar the jurisdiction of any Civil Court to

entertain any suit or proceeding in respect of any matter, which an appellate

authority constituted under these Acts is empowered to determine.226 Any

Court or other authority is not to grant an injunction in respect of any action

taken or to be taken in pursuance of any power conferred by or under these

Acts.227 According to section 22 of the Environment (Protection) Act, no Civil

Court shall have jurisdiction to entertain any suit or proceeding in respect of

any thing done, action taken or order or direction issued by the Central

Government or any authority or officer in pursuance of any power conferred by

or in relation to functions under that Act.

(v) Overriding Effect

The provisions of the Water Act are to have effect notwithstanding

anything inconsistent therewith contained in any other enactment.228 The Air

Act also contains a similar provision.229 Unlike these two Acts, the

Environment (Protection) Act contains a different provision. According to

section 24(1), subject to the provisions of section 24(2) this Act is to have effect

notwithstanding anything inconsistent therewith contained in any other

enactment. Section 24(2) states that if the concerned act or commission is an

offence under any other Act, the offender found guilty. of such offence shall be

liable to punishment under the other Act and not under this Act. Thus though

225 Ibid; Sec. 15(2).

226 The Water Act, sec. 58; The Air Act, Sec. 46.

227 Ibid.

228 The Water Act, sec. 60.

229 Sec. 52 of the Air Act states: "Save as otherwise provided by or under The Atomic Energy Act, 1962 (33 of 1962), in relation to radioactive air pollution, the provisions of this Act shall have effect notwithstanding any thing inconsistent therewith contained in any enactment other than this Act."

124

this Act provides deterrent penalties, section 24 makes it a paper tiger. 230

Standards prescribed under the Environment (Protection) Act are also the

subjects of statutes like the Water Act or the Air Act.231 There is also the

possibility of two statutes prescribing different standards and different

penalties for the release of the same pollutants.232 This may lead to

unpredictability and non- uniformity in the application of the laws.233

(G) Tort Action

One way to control industrial disasters is to commence a common law

tort234 action against the occupier of the factory. In India, the law of tort is

based on the common law of England.235 Though some laws have been

codified under (1) the Fatal Accidents Act, 1855; (2) the Patents and Designs

Act, 1911; (3) the Workmen's Compensation Act,1923; (4) the Employer's

Liability Act, 1938 and (5) The Specific Relief Act, 1963, some principles are

still in uncodified form and these are applicable in India by virtue of Article

372 of the Constitution of India. 236 Liability for tort is based on co-existence

230 See N.S. Chandrasekharan, "Environmental Protection: Two Steps Forward and One Step Back" Journal of Indian Law Institute (New Delhi, 1988), vol. 3012, p.192.

231 See Rosencranz, Divan & Noble n.27, p.72.

232 D'Monte "Environmental Law Has No Teeth", Encology, 25 Sept., 1986.

233 Ibid.

234 Tort as defined by Salmond is, "a civil wrong for which the remedy is common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation." Frasely has defined tort as, "an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party." Unliquidated means pecuniary compensation. See Durga Das Basu, "The Law of Torts" (Prentice, New Dehli, 1979) p.1.

235 Common Law implies customary law of England inferred from judicial decisions.

236 The Constitution oflndia, Article 372 states that all pre independence laws will continue in force until altered, repealed or amended by a competent legislature or other competent authority. But this will be subject to other provisions of the Constitution.

125

of two conditions, namely damage suffered by the plaintiff resulting from an

act of the defendant and the wrongful intent or culpable negligence on the part

of the defendant. 237 Under tort law, the victim of an industrial disaster can

sue the occupier for damage. The purpose of payment of damages is to

compensate the victim for the alleged tortious act, and also have the subsidiary

effects of detering similar action in the future.

(H) Remedies of Writs

The right to a wholesome environment is a Fundamental Right. 238 A

wholesome environment by definition include a disaster-free environment. One

of the remed.ies available to control industrial disasters is the invoking of the

writ jurisdiction of the Supreme Court as well as that of the High Courts. The

right to move the Supreme Court is available only for the enforcement of the

Fundamental Rights239 while under Article 226240 the High Courts can be

approached for the enforcement of a Fundamental Right and for any other

purpose. The Supreme Court has the right to issue directions or orders or writs

237 Basu, n.234.

238 Rural Litigation and Entitlement Kendra Vs State of Utter Pradesh, AIR 1985 SC 652, M.C.Mehta Vs Union of India, AIR 1987 SC 1086; T.Damodar Rao Vs Special Officer Municipal Corporaion of Hyderabad, AIR 1987 A.P. 171; L.K.Koolwal Vs State of Rajasthan, AIR 1988 Raj. 2.

239 The Constitution of India, Art. 32 (1) states, " The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed."

240 Ibid; Art. 226 (1) states: "Notwithstanding anything in Article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any government, within those territories, direction, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose." Art. 226 (2) states: "The power conferred by clause (1) to issue directions, orders or writs to any government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such ~vernment or authority or the residence of such person is not within those territories."

126

including writs in the nature of mandamus prohibition and certiorari,

whichever may be appropriate.241 A writ of mandamus lies against a judicial,

quasi judicial or administrative authority. The writ of mandamus is a judicial

remedy which is in the form of an order from a superior court to any

subordinate court, government, corporation or public authority to do or to

forbear from some specific act which that body is obliged under law to do or

refrain from doing, as the case may be, and which is in the nature of a public

duty, or in certain cases of statutory duty.242 Mandamus can also be issued

against a private individual if it is proved that he is colluding with a public

authority.243, Thus if a Pollution Control Board while ignoring the possibility

of an industrial disaster, is not taking any preventive measure, a writ can be

issued against it. The writ can also be issued if the Pollution Control Board is

acting in contravention of statutory requirements. If a municipality is not

discharging its statutory duty of cleaning the industrial garbage which may

cause a disaster, then the writ can be issued against it. The writ can also be

issued against a government department or even against a subordinate court

which is not exercising its power.

In Ram Pal Vs State of Rajasthan/44 the Rajasthan High Court

observed that when the statute imposes a duty, the performance or non­

performance of which, is not a matter of discretion, then the court has a power

to issue a mandamus directing the local body to do what the statute requires

it to do.

241 Art. 32(2) of the constitution of India states: "The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari which ever may be appropriate, for the enforcement of any of the rights conferred by this Part."

242 See AT. Markose, "Judicial Control of Administrative Action in India," p.364; As reported in foot note. 18 of Constitution of India, by Shukla, n.63.

243 Sohanlal Vs Union of India, AIR 1957 Sc.529.

244 AIR 1981 Raj 121.

127

The writs of prohibition245 and certiorari246 are other writs which the

court can issue for the control of industrial disasters. If any ordinary court,

environmental court or tribunal is acting without jurisdiction or in excess of its

jurisdiction, the writ of prohibition can be used. It can also be issued against

erring municipalities or Pollution Control Boards. The writ of prohibition does

not lie against an authority discharging executive functions. 247 The writ of

certiorari can be issued in various situations relating to industry. It can be

issued if a court or tribunal makes a decision which ignores environmental law.

But the power of the Supreme Court is not confined to the issuing of these

writs. Since .the term used in Article 32 is "direction or orders or writs in the

nature of ... " the Court can prevent or control industrial disaster by the issuing

of any order, direction or writ of similar nature. The court can also grant

declaratory relief or an injunctive order.

A writ can also be issued by a High Court directed to any person or

authority including in appropriate cases, any government agency within its

territorial jurisdiction. Besides writs, the High Court can also issue directions

or orders for the enforcement of a:o.y of the Fundamental Rights or for any

other purpose. Hence the High Courts possess enormous powers to take

measures for accident prevention and disaster management. In the past,

several writ petitions relating to environmental issues have been filed in

different High Courts and by and large the response of these courts has been

245 A writ of prohibition is issued against a court or tribunal possessing judicial or quasi judicial powers. It commands the court or tribunal to whom it is issued to refrain from doing some thing it is about to do. The ground for issuing this writ is either absence of jurisdiction or excess of jurisdiction.

246 The writ of certiorari can be issued on any of the following grounds i.e. (i) lack of jurisdiction, excess of jurisdiction or failure to exercise jurisdiction (ii) error oflaw on the face of the record; and (iii) violation of the rules of natural justice. See S.P. Sathe, Administrative Law, (Bombay, 1979) p. 263. If finding of fact has been arrived without any evidence it will be considered as error oflaw. See Syed Yakoob Vs Radha Krishnan, AIR 1964 SC 477.

24 7 Brij Khandelwal Vs Union of India, Air 1975 DEL 184.

128

positive.248

Limitations

The power of the Supreme Court and the High Courts to issue writs are

subject to some limitations, for example, the doctorines of res judicata,249 and

laches,250 or the existence of alternative remedies. 251 Under the principle

of res judicata once an environmental writ has been rejected by a High Court

under Article 226, it cannot be moved for, in the same court with respect to the

same cause of action. But the issues can be raised on appeal. If a petition

under Article 226 was considered on its merits, it could not be re-litigated

under Article 32 on the same facts and for obtaining the same or similar orders

or writs, but if a petition under Article 226 was not dismissed on its merits, but

because oflaches or the existence of a alternative reme_dy, the dismissal would

not amount to a bar to a subsequent petition under Article 32.

Does the doctrine of laches have application in relation to industrial

disasters ? In such cases generally petition is filed by public spirited

individuals, victims or voluntary organisations. Various complicated questions

248 These are some of the writs filed in different High Courts on environmental issues: T. Damodar Rao Vs S.O.Municipal Corporation, Hyderabad, AIR 1987, A.P. 171; N.S. Subha Rao Vs Government of A.P, AIR 1968 A P.98. L.K. Koolwal Vs State of Rajasthan, AIR 1988 Raj, 2, 4; Kinkri Devi Vs State of Himachal Pradesh, AIR 1988 H.P. 4,9; Rampal Vs State of Rajasthan, AIR 1981 Raj 12.

249 Principle of res-judicata has been enumerated in sec. 11 of the Code of Civil Procedure Act, 1908. If a suit or an issue has already been adjudicated by a court of competent jurisdiction, between the same parties, it cannot be re-agitated before another court. For application of the principle of res-judicata matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue, either actually or constructively in the former suit. The former suit must have been a suit between the same parties or between parties under whom they or any of them claim. Parties must have litigated under the same title in the former suit and the court must have been a competent court.

250 Laches implies inordinate delay in invoking the jurisdiction of the court. See Shukla, n.63, p. 407.

251 Writ should not be issued if any alternative remedy, equally efficient and adequate exists. See Shukla n.63 p.404.

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are involved, very often relevant information is not readily available. Hence,

delay is often overlooked in the public interest.252 The petition under Article

32 is not a suit and it is not a petition or an application to which the

Limitation Act applies.253 But the parties aggrieved mu~t move the court at

the earliest possible time. No period can be indicated for bringing the action

and the question is one for the court's discretion in each case. 254

Under Article 32, the right to move the Supreme Court is itself a

Fundamental Right, hence this court cannot reject a petition if there is

violation of a Fundamental Right. 255 But the power of the High Court under

Article 226 is of a discretionary nature and subject to the exhaustion of

alternative remedies. However, the rule of exhaustion of alternative remedies

is not an inflexible rule. Rather it is a rule of policy, convenience and discretion

than of law.256 In the case of industrial disasters there are very few legal

provisions. There is also an absence of a clear alternative forum where the

disaster victims can go. Thus a writ to deal with an industrial disaster cannot

generally be denied on the ground of alternative remedy.

Appointment of commission

The Supreme Court under Article 32 and the High Courts under Article

226 have the inherent power to appoint commissions.257 The courts can also

appoint monitoring committees. In the Shriram Gas Leak case258 the

252 See Rosencranz, Divan and Noble, n.25, p.l15.

253 Trilokchan Motichan Vs H.B. Maunshi, (1969) 1 Sec 110.

254 Ibid;

255 K.K. Kochunni Vs State of Madras, AIR 1959 SC 725.

256 U.P. V Moh Nooh, AIR 1958 Sc 86.

257 In L.K Koolwal Vs State of Rajasthan, AIR 1988 Raj 2, Rajasthan High Court appointed a commissioner to report on the insanitary conditions in the city . Also see M.C Mehta VS Union of India ( Shriram Gas Leake case); Shivaram Shantaram Wagle Vs Union of India (Irish Butter Case), AIR 1988 SC 952; and Dehradun Quarrying case.

258 M.C. Mehta Vs Union of India, AIR 1987 SC 965.

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Supreme Court appointed several expert committees.

(I) Problem of Standing vis a vis Industrial Disasters

(i) Public Interest Litigation

Issues of standing, injury, violation of rights, are you the aggrieved

person are often faced by petitioners invoking the jurisdiction of the court

under the traditional adversary system of justice. In the past, orily the person

or persons whose rights had been infringed were allowed to apply for writs of

certiorari and mandamus.259 That rigid formalism is not the rule now. In

S.P.Gupta Vs Union of India.260 (Judges Transfer case), the Supreme

Court gave an expanded meaning to the requirements of locus standi. The

court said "any member of the public having sufficient interest can maintain

an action for judicial redress for public injury arising from breach of public

duty or from violation of some provisions of the Constitution."261 The law is

not an end in itself, it is only a means for an end which is attainment of

justice. Procedure is but a handmaiden of justice and the cause of justice can

never be allowed to be jeopardised by any procedural technicalities. The

Judicial system will die if it remains blind to the stark realities prevailing in

the society. The impact of industrial disasters is not confined to a particular

class. It affects the life and health of the community surrounding the concerned

industry, as well as affecting the general environment. Hence any member of

the public possesses the right to invoke the jurisdiction of the court.

Technicalities in the procedural law should not be available as a defence when

a matter of grave public importance is to be given consideration by the

court.262 Courts have even considered letters addressed to it as a writ

259 Exception was in favour ofthe writ of habeas corpus, where any person can file the writ to secure the release of person in illegal detention.

260 AIR 1982 SC 149.

261 Ibid.

262 Rural Litigation and Entitlement Kendra, Dehradun Vs State of Uttar Pradesh, AIR 1987 SC. 2187.

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petition263• In one case, the Supreme Court allowed an unconnected cause to

be argued without asking for amendment to the petition. 264

Limitations

In Shri Sachidanand Pandey Vs State of West Bengal265, the

Supreme Court for the first time cautioned public-minded or public-spirited

individuals to exercise restraint and responsibility in initiating such cases. It

suggested that such cases could be entertained only in extraordinary situations,

where basic human rights were violated or when the acts complained of, were

shocking to the judicial conscience. In the Judges Transfer case266 Justice

Bhagwati had also advised against the excessive use of this mode oflitigation.

In Subash Kumar V State of Bihar67 theSupreme Court stated that public

interest litigation must be filed only in public interest not for personal interest.

263 In Mahesh R. Desai Vs Union of India, writ Petition No. 989 of 1988, the Supreme Court considered a letter as a writ petition. Letter was in a form of complaint that unplanned development in violation of Government Directives was destroying national coast line. Like wise the Dehra Dun Quarrying case was also initiated by a writ petition.

264 M.C. Mehta Vs Union of India, AIR 1987 SC 1086. In ihi:s c~5~ .-:;:Ligi~3.l petit!-::-~ was for the closure of Shriram's hazardous industrial plant and its relocation away from Dehli's populated localities. While the petition was pending, there was an escape of oleum gas from the plant. As a result several persons were injured. They filed applications for compensation in the original writ. It was urged on behalf of Shriram that the court could not decide the compensation claim, because it had not been made in the original petition. Besides that, the petition was not amended to incorporate a compensation plea. The Court overruled this objection by saying that a hyper-technical approach could not defeat the ends ofjustice.

265 AIR 1987 SC 1109. In this case sale of a plot ofland belonging to the Zoological Garden to the Taj Group of Hotels was challenged on ecological grounds.

266 S.P.Gupta Vs Union of India, AIR 1982 SC 149. In this case, the Supreme Court observed, "We may also point out that as a matter of prudence and not as a rule of law, the court may confine this strategic exercise of jurisdiction to cases where legal wrong or legal injury is caused to a determinate class or groups of persons or the Constitutional or legal right of such detenninate class or group of persons is violated and as far as possible, not entertain cases of individual wrong or injury at the instance of a third party where there is an effective legal aid organisation which can take care of such cases."

267 1991(1) Scale 8. See also Chhetriya Pradushan Mukti Sangrash Samiti V State of UP 1990 AIR SC 2060.

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(ii) Representative Action

Order 1 Rule 8 of the Code of Civil Procedure, 1908 provides following

conditions for a representative action268; (i) that the class be numerous, (ii)

that members of the class have the same p73 interest in the suit, (iii) that the

court permits a few persons to sue or be sued on behalf of the entire class and

(iv) that the court issues a notice to all persons having the same interest.

Class action suits can be a very effective mode of dealing with industrial

disasters. Since there is a multiplicity of laws and provisions relating to

industry and environment, there are differences of remedies as well as

jurisdiction. , If the victims of industrial disasters file petitions in different

forums, there is every possibility of different remedies. Instead of individual

petitions, class actions should be preferred because they will result in

uniformity of remedy. The Government of India filed a class action suit under

the Bhopal Gas Leak Disaster Act 1985 first in the US District Court on behalf

of all Bhopal gas disaster victims.269 In M.C.Mehta Vs Union of India270

(Tanneries Case), notices were issued i.u a la.i·g.:. u.u...7..b~:::- ~fi.!!d.1_"!.5t.ri~lunits and

local bodies under Order 1 Rule 8 of the Civil Procedure Code. Class action

suits by their nature can accommodate more complexities and allow pooling of

resources to get adequate technical evidences.271

268 A class suit cannot be compromised or settled until all the members of the class have been given due notice. If a decree is passed it is binding on all members of the class. According to explanation introduced by 1976 Amendment, "community of interest" or "common general interest" is sufficient. In Kodika Gounder Vs Velandi Gounder, AIR 1959, Mad 281, the Madras High Court observed, " ... the principal consideration that should weigh with a court is whether it is satisfied that there is sufficient community of interest as between the plaintiffs or defendants as the case may be to justify the adoption of the procedure provided under 0.1 R.8 ... "

269 For detail see Chapter VI, "The Bhopal Industrial Disaster: A Case Study."

270 M.C.Mehta Vs Union of India, AIR 1988 SC 1037.

271 See Rosencranz, Divan & Noble n.27 p.137.

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(iii) Citizen's Suit Provisions

Can a concerned citizen (or voluntary organisation), sue, nat as a

representative of someone else, but in his or her own right ? Various statutory

provisions give citizens standing to sue. Section 19 of the Environment

(Protection) Act states that court shall take cognizance of any offence under

this Act if a complaint has been made by any person who has given notice of

not less than sixty days in the manner prescribed, of the alleged offence and

of his intention to make a complaint, to the Central Government or the

authority or officer authorised as aforesaid. According to section 43 of the Air

Act, the court shall take cognizance of any offence on a complaint, filed by any

person who has given notice of not less than sixty days, in the manner pre­

scribed, of the alleged offence and of his intention to make a complaint to the

Board or officer authorised as aforesaid. Section 49(1) of the Water Act also

contains a similar provision.272 Section 91(1) of the Civil Procedure Code

permits the case of a public nuisance or other wrongful act, a suit for a

declaration or injunction or other relief may be instituted with the leave of the

court, by two or more persons even though there are not the victims. The

constitution of India imposes a duty on the citizens to protect the natural

environment273. Duties to protect the natural environment implies a right to

sue.274

This part of the study clearly ·establishes that Indian Constitution

recognises the right to disaster free environment. It also provides Directives

272 According to section 49(1), "No court shall take cognizance of any offence under this except on a complaint made by ..... (b) any person who has given notice of not less than sixty days in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Board or officer authorised as aforesaid .... "

273 Article 51A(g).

27 4 See Rural Litigation Entitlement Kendra Vs State of Uttar Pradesh (Dehradun Quarrying case), AIR 1985 SCC 52; M.C. Mehta Vs Union of India (AIR 1987 SC 965; AIR 1988 Sc 1037, AIR 1988 SC 1113).

134

and imposes Duties to control industrial disasters. There are various subject

categories under which laws can be made to control industrial disasters. The

Indian Penal Code, the Boilers Act, the Factories Act, the Water Act, the Air

Act and the Environment (Protection) Act all provide a set of rules to control

industrial disasters. Under the constitutional scheme, the remedies of writs are

also available. In addition Indian Courts have developed the doctrine of Public

Interest Litigation. There are also provisions for citizen's suits as well as

representative actions to deal.~ with such disasters.

The next chapter describes the various regulatory measures in India.

Issues like the right to information, executive controls under the Air Act, the

water Act, the Environment (Protection) Act, the Hazardous Wastes

(Management and Handling) Rules, 1989, the Manufacture, Storage and

Import of Hazardous Chemical Rules, 1989 and the Factories Act will be

discussed. The discussion will also cover environmental audit, problems of

industrial location and legal aspects of environmental impact assessment.

Issues like corporate liability, liability of government departments and the

application of absolute liability rule will be discussed. This part also contains

a critical appraisal of the Public Liability Insurance Act, 1991 and the National

Environmental Tribunal Bill, 1992. Various Compensation issues will also be.·

dealt with.

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