15.Environmental Law & Busines

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    Environment Law & Business

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    Why Environment Law for Business

    managers Environmental Managers to environmental

    management for managers Personal liability of managers

    Fundamental Responsibility of Industry to protectenvironment New interpretation to Constitutional and statutory

    rights and remedies- Linking EnvironmentalProtection with Right to Life (Art.-21)

    Causing pollution is civil wrong and crime Legal Awareness leads to adoption for measures

    to prevent and control pollution

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    India is known for too many laws

    More than 200 laws directly and indirectly are related to environmentalpollution . Some of them are.

    The Oriental Gas Company Act,1857

    The North India Canal and Drainage Act,1873

    Indian Penal Code, 1860 (Sec 277,278) Civil Procedure Code,1908 (Sec 91)

    Criminal Procedure Code, 1973 (Sec 133)

    Explosive Substances Act,1908

    Mines and Mineral Act,1947

    Motor Vehicles Act , 1938 Factories Act,1948 as amended in 1987 and

    Many more Central and State Enactments

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    Basis of Law : Public opinion Vs. International Pressures

    Specific Environmental laws

    The Water (Prevention and Control Of Pollution) Act,1974

    The Water (Prevention and Control Of Pollution) Cess Act,1977

    The Air (Prevention and Control Of Pollution) Act,1981

    The Environmental(Protection),1986

    The Public Liability Insurance Act,1991

    The National Environmental Tribunal Act,1995

    The National Environmental Appellate Authority Act,1997

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    Judiciary and PIL

    A procedural innovation

    An effort for co-operative/collaborative move

    An access to public Justice

    A source of law reform ideas

    An instrument of educate public regarding theirlegal rights and their duties (for healthy

    environment to protect natural resources forsustainable development)

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    JUDICIAL ACTIVISM & PIL : TO SERVE THE CAUSE OF ANTI-POLLUTION

    Municipal Council, Ratlam V. Vardhi Chand AIR 1980 SC 1622.

    Justice Krishna Iyer-Discharge of pollutants by big factories isdetriment of poor Section

    challenge to the Social Justice Component of the Rule of LawJudgement based on Sec. 133 of Cr. P.C., 1973. ( PublicNuisance)

    Direction to Municipal Council to stop the discharge of effluentsfrom Alcohol Plant

    Direction to the State Govt. to Stop pollution.

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    ENVIRONMENTAL PETITIONS &SUPREME

    COURT on ECOLOGICAL IMBALANCES Rural Litigation & Entitlement Kendra, D. Dun v.

    state of Uttar Pradesh AIR 1985 SC652 (the firstreported Case)

    Supreme Court ordered the closing of mining operation asblasting caused ecological imbalances and hazards tohealthy environment.

    Issues relating to Rights to Pollution free/Environment &Ecological imbalance

    Right to Life and Personal Liberty means Right to haveliving atmosphere congenial to human existence

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    Closure of industries (and Installation ofenvironmental equipment).. is a price that has to

    be paid for protecting and safeguarding the right of

    the people to live in healthy environment withminimal disturbance of ecological balance.

    Rural Litigation and Entitlement Kendra, Dehradunv. State of Uttar Pradesh AIR 1985 SC 652 at 656

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    ENVIRONMENTAL POLLUTION & PRINCIPLE OF

    LIABILITYM.C. MEHTA V. UNION OF INDIA

    (SHRIRAM CHEMICAL CASE )

    AIR 1987 SC 965 Leakage of Oleum gas resulted in injury to a large number

    of public in Delhi

    Threat to clean environment by large enterprise in thicklypolluted areas

    What is status of the right to pollution free environment

    Ambit & Scope of Art. 12, 21, 32 of the Constitution of Indiain relation to the principle & norms for determining Liability

    Principles of Liability

    Basis of Liability

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    The Principal of Absolute Liability :

    an enterprise which is engaged in a hazardous or inherentlydangerous industry which poses a potential threat to the health an

    safety of the persons working in the factory and residing in thesurrounding areas owes an absolute and non-delegable duty tothe community to ensure that no harm results to anyone onaccount of hazardous or inherently dangerous nature of the activity

    which it has undertaken. The enterprise must be held to be underan obligation to provide that the hazardous or inherentlydangerous activity ......must be conducted with the higheststandards of safety and compensate for such harm and it shouldbe no answer to the enterprise to say that it has taken all

    reasonable care and the harm occurred without any negligence onits part.

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    Rules of Strict and Absolute Liability

    Till the Bhopal case : common law principle of No fault liability

    for compensating the victims of pollution

    The post-Bhopal period: principle of absolute liabilitydisapproving the application of exceptions to principle of strict

    liability.

    Law recognises the rule of No Fault Liability i.e. liability withoutfault:

    If a person is held liable for some harm even though he isnot negligent in causing the same,or

    Where there is unintentional harm, or

    Where the person may have been made some positiveefforts to prevent the harm

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    This is known as the Rule of strict liability or Rule in

    Rylands v. Fletcher, (1868).

    According to the rule: If a person brings on his land and keeps there any dangerous

    thing i.e., a thing which is likely to do mischief if it escapes hewill be prima facie answerable for the damage caused by itsescape even though he had not been negligent in keeping itthere. The liability arises not because there was any fault ornegligence on the part of person, but because he kept somedangerous thing on his land and same has escaped from thereand caused damage.

    Exceptions: if escape was due to plaintiff's own default; or act ofstranger or the consequence of vis major, or the act of God;

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    No fault Liability for escape of dangerous thing even ifnot negligent

    Exceptions

    1. Plaintiffs own default

    2. Act of God

    3. Consent of Plaintiff

    4. Act of third party

    5. Statutory authority

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    Measurement of liability

    In case of enterprise engaged in hazardous industrial activities,

    if by reason of an accident death or injuries are caused topersons,Court has only two options:

    Either the rule in Rylands v. Fletcher with all its exceptions;or

    New and more strict principle governing the liability should beevolved

    In Shriram (leakage of Oleum gas ) case, the Supreme Court

    thought that

    Persons having hazardous and inherently dangerousindustries could escape the liability for the environmental andhealth hazards by pleading some exception to the rule in

    Rylands.

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    The Supreme Court evolved the new rule of Absolute

    Liability

    to deal with an unusual situation which has arisen or

    which is likely to arise in future

    on account of hazardous and inherently dangerous industries

    which are concomitant to an industrial economy.It will not be subjected to any of the exceptions laid downunder the rule in Rylands.

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    The Principal of Absolute Liability :

    an enterprise which is engaged in a hazardous or inherentlydangerous industry which poses a potential threat to the health an

    safety of the persons working in the factory and residing in thesurrounding areas owes an absolute and non-delegable duty tothe community to ensure that no harm results to anyone onaccount of hazardous or inherently dangerous nature of the activity

    which it has undertaken. The enterprise must be held to be underan obligation to provide that the hazardous or inherentlydangerous activity ......must be conducted with the higheststandards of safety and compensate for such harm and it shouldbe no answer to the enterprise to say that it has taken all

    reasonable care and the harm occurred without any negligence onits part.

    as s o a ty

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    as s o a tyThe enterprise must be strictly liable for causing harm as a part of

    social cost for carrying on the hazardous or inherentlydangerous activity. The court observed:

    If an enterprise is permitted to carry on a hazardous orinherently dangerous activity for its profit, the law must presumethat such permission is conditional on the enterprise absorbingthe cost of any accident arising out of it.It will indemnifyallthose who suffer from of such hazardous activity regardless ofwhether it is carried on carefully or not.

    The enterprise alone has the resources to discover and guard