Shriram Food Fertilizer Case Project

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Shriram Food Fertilizer Case Project

  1. 1. 1 PROJECT REPORT & CRITICAL ANALYSIS -PUBLIC INTEREST LITIGATION M.C MEHTA V. UNION OF INDIA AIR 1987 SC 965 (Shriram food fertilizer case) Coram: 3 P.N Bhagwati, C.J.I D.P Madon & G.L Oza, J.J BY ANDREA JOHNSON ROLL NO-13 SECOND LL.B (3YRS) M.G.M LAW COLLEGE
  2. 2. 2 INDEX SR.NO TOPIC PAGE.NO SIGN 1 AN INTRODUCTION TO PUBLIC 3-9 INTEREST LITIGATION 2 FACTS OF THE CASE 10-11 3 ISSUES INVOLVED 12 4 PRAYER OF THE PETITIONER 13-14 5 PRAYER OF THE RESPONDENT 15-16 6 JUDGEMENT OF THE CASE 17-21 7 CONCLUSION,CRITIQUE & 22-27 SUGGESTIONS 8 REFERENCE 28
  3. 3. 3 “It is dangerous to be right when the government is wrong.” -Voltaire (1694-1778) AN INTRODUCTION TO PUBLIC INTREST LITIGATION Public interest litigation is popularly known as PIL and is defined as litigation conducted in the interest of the Public. Justice S.Awasthy contemplating the concept of Public Interest Litigation once said that “Public Interest litigation is the name given to the right of any member of the public having sufficient interest to maintain an action for judicial redress for public injury arising from breach of public duty or violation of some provisions of the constitution or the law and seek enforcement of public duty and observance of such constitutional or legal provisions.” It is this principle that forms the core of our constitution and reaffirms the new found magnetism of the concept of PIL as a silent social revolution within the judicial process. A strategic arm of the legal aid movement, it brings justice within the reach of millions of poor, illiterate people who are oblivious of their rights as a citizen of a Sovereign, Socialist, Secular and Democratic country. The evolution of Public Interest Litigation in India is the result of a conscious effort made by eminent jurists like Justice P.N Bhagwati and Justice Krishna Iyer who were dissatisfied with the traditional concept of ‘locus standi’ which meant that only an aggrieved party could knock the doors of justice and seek remedy for his grievance, and a person who has not been personally aggrieved cannot seek redress from the courts of justice as a proxy or on behalf of an aggrieved person. The relaxation of the rule of ‘locus standi’ paved way for a new wave of judicial activism in a system which previously embraced a rudimentary form of litigation that catered to a class of private vested interests. The Supreme court of India woke up to this new found awareness during the post emergency period in the 1980’s.The juristic revolution of the 80’s converted the apex court of India to the
  4. 4. 4 supreme court of India for all citizens. The concept of public interest litigation was spearheaded by Justice P.N Bhagwati who through many landmark decisions, and alterations made to the “rule of standing” enabled citizens, public interest groups, NGO’s and consumer groups to seek legal redress in cases where the interest of the common man or sections of the society are at stake. The Supreme Court encouraged this juristic revolution by entertaining writs filed in public interest. This practice of viewing letters as petitions on an ‘adhoc’ basis i.e. initiating an action for a particular cause at hand without due consideration of wider application was established by the supreme court in the ‘Judges transfer case’- S.P Gupta v. Union of India AIR 1982 SC 149, whereby the court held that a “public interest litigation can be filed by any member of public having sufficient interest for public injury arising from the violation of legal rights so as to obtain judicial redress”. It implied that one could bring an action under PIL for the enforcement of public duty against a statutory or public authority or to acquire the observance of constitutional provisions.” Letters and telegrams stating grievances or legal injuries endured by a person or written on behalf of a class of persons who are physically, socially and economically challenged were tried and disposed of as writ petitions under article 32 of the Constitution of India. Article 32 guarantees and provides safeguards to the enforcement of fundamental rights contained in our constitution. It has empowered the Supreme court to issue directions and orders in the nature of writs such as ‘Habeas corpus’, ‘Mandamus’, ‘Prohibition’, ‘Quo warranto’ and ‘Certiorari’. The writ of ‘Mandamus’ is considered to be the most important from the point of view of Public Interest Litigation since it is a writ of a most extensive remedial nature. ‘Mandamus’ literally means ‘we command’ and is basically used to compel performance of public duties and enforce private rights when they are withheld by public officers. Justice Bhagwati being a strong defender for the cause of PIL observed in the case of Bandhua Mukti Morcha v. Union of India, the context of article 32 and public interest litigation in the following words “When a person or class of persons to whom legal injury caused by reason of violation of fundamental right Is unable to approach the court for judicial redress on account of poverty or disability or socially or economically disadvantaged position, any
  5. 5. 5 member of public acting bona fide can move the court for relief under article 32, so that the fundamental rights may become more meaningful not only for the rich and the well to do who have the means to approach the court but also for the large masses of people who are living a life of want and destitution and who are by reason of lack of awareness, assertiveness and resources unable to seek judicial redress. The government and its officers must welcome public interest litigation because it would provide them an occasion to examine whether the poor and the downtrodden are getting their social and economic entitlements or whether they are continuing to remain victims of deception and exploitation at the hands of the stronger and more powerful sections of the community.” Examining the power of courts in issuing writs in the context of the constitution, Article 226 highlights the power given to the high courts in entertaining a PIL that has been brought forth through any of the writs mentioned in article 32. The high court has been given very wide discretionary powers in issuing writs, but it must be exercised keeping in mind certain recognized grounds of limitations such as exercising the powers conferred to issue writs within the areas of its jurisdiction and that the person to whom the High court is empowered to issue the writ must be within this territorial jurisdiction. Even though the power of the High court under article 226 are discretionary in nature and is outside the purview of enforcement of fundamental rights, the court must use it with caution and should subject itself to self-imposed limitations. From the point of view of a Public Interest Litigation, the powers conferred on the High court act as an instrument to assist the Supreme Court in narrowing down and verifying the veracity of all PIL petitions which has been subject to abuse in recent times. One can therefore say that the first reason for liberalizing the rule of standing is that it is necessary to secure fundamental rights to the underprivileged of the country. The second reason is that in the modern welfare state, individual rights and duties are giving place to collective rights and duties of class or groups of persons. For example, the discharge of effluents in a lake or river, emission of noxious gas, and increasing public transport fares, result in public injury and is distinguished from a private injury. In such cases, every member of the public should have standing to challenge the action; otherwise the injury would go without any redressal to the issue. The third reason is that “it is only by liberalizing the rule of locus standi that it is possible to effectively police the corridors of powers and prevent violations of law. Further, if no one will have standing to challenge cases of public wrong or public injury, then there will be no rule of law." Therefore it is now a settled principle that whenever there is a public
  6. 6. 6 wrong or public injury caused by an act or omission of the state or a public authority which is contrary to law, any member of the public acting bonafide and having sufficient interest can maintain an action for redressal of such public wrong or public injury. The relaxed and liberalized approach towards the “rule of standing” or ‘locus standi’ through PIL has broadened the scope of judicial activism and the role of social interest groups who have committed themselves with much fervor to the cause of under trials, victims of environmental manipulation, women and children, the physically challenged etc thus assisting the courts in widening its arms of justice and fairness. However, this liberalizing of the concept of ‘locus standi’ has also brought about a flip-side to the device of PIL-its misuse. Recent cases of PIL point out to a large number of frivolous or self- interest motivated petitions filed in the disguise of PIL which adds to the woes of an already burdened judiciary. Being an inexpensive legal remedy, the abuse of PIL is now rampant with many social activists observing that it is fast becoming a handy tool of harassment which is in contradiction to the true nature and motive of public interest litigation. The Court, in its efforts to make the process fool-proof ensures and verifies the authenticity of the contents of petition that has been filed under the guise of a PIL before commencing the proceedings. It also appoints an amicus curie i.e. a friend of the court who would usually be a specialist in the field that the case is related to, or is a social scientist, or an officer of court who would make the necessary inquiry into the matter or conduct an investigation and submit a detailed report to the court thus assisting the court with its judgment. The court itself has framed certain parameters that act as guidelines when it comes to the management and disposal of PIL petitions. Therefore, one can say that a PIL includes  Any legal wrong or injury may be both the violation of fundamental rights and legal rights  Any victim of illegal injury may be a person or a class of persons unable to claim relief before the court themselves due to a socially or economically disadvantaged position.  Any member of public or the society can file a petition under a PIL on behalf of such a person or class of persons
  7. 7. 7  The Supreme Court can be moved under a PIL only for the violation of fundamental rights whereas the high court can be moved for the violation of any legal right, fundamental or otherwise.  The court may issue an order or writ for redressal of grievances that may require affirmative action or continuous monitoring. The court may also direct the payment of compensation to the persons wronged in appropriate cases. PIL differs from ordinary litigation in the sense that a suit is not brought forth in a PIL to enforce an individual’s legal right but is intended to promote and defend the interest of public. The scope of a lawsuit under PIL is not confined to any specific violation such as personal injury, or breach of contract but it is to be determined by the courts as to what should be entertained as a PIL. The relief is more often than not negotiated by the parties to a PIL lawsuit than being improvised by the court. The court’s involvement in the case does not end at the pronouncement of the judgment but requires constant and active monitoring by the Judiciary and in most cases; committees are set up to supervise the implementation of remedial measures. Cases ranging from human rights and constitutional laws to environmental protection and consumer protection have all benefited from the Public interest machinery whose success depends on the awakened, public spirited people and organizations that are independent from the government and are genuinely concerned about the welfare of people. The downtrodden, underprivileged and other socially and economically challenged classes of people have found a new voice through PIL which must not be put out. The role of PIL in environment related issues is also noteworthy. Governmental agencies had failed to effectively enforce environmental laws and other principles outlined by international conventions such as the United Nations conference on human environment also known as the Stockholm conference. The Indian constitution had introduced the principles of environmental protection by the 42 amendment to the constitution in the form of articles 48(A) and 51A (g). In the words of the constitution, article 48(A) part of the directive principles of state policy considers that “the state shall Endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.” Whereas article 51A (g) part of the chapter on fundamental duties obliges every citizen of the country “to protect and improve
  8. 8. 8 the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.” Even though the constitution laid down these duties and obligations for the protection of our environment, the non-compliance of statutory norms by polluters resulted in a widespread acceleration of environmental degradation. Water and air pollution in particular were having adverse effects on public health and this prompted environmentalists, NGO’s and citizens who were subject to such pollution to approach the courts, particularly the higher judiciary, for suitable remedies. In the course of time, the courts through various PIL’s recognized the importance of giving sustainable development its due consideration and along with it also observed the “polluter pays principle” and “precautionary principle” which came to be the highlight of most environmental cases. The relaxation of the ‘rule of standing’ led to the possibility of having several petitioners for the same environmental issue or disaster thus helping the court to view the issue from an environmental perspective instead of viewing it as a mere dispute between two parties. It also brought back the focus sharply to the conflict between the protection of environment and development, where the concept of sustainable development gained prominence. PIL’s were found to be more efficient in dealing with environmental issues as these were more concerned with the rights of the community as a whole than individual interests. The judiciary in its quest to find suitable solutions to environmental issues within the framework of Public Interest litigation looked to constitutional provisions to provide the courts with the required jurisdiction to redress the issues more specifically. Article 142 empowered the Supreme Court to mould its decisions specific to these issues which is instrumental in achieving complete justice. Article 21 which is Right to Life is often brought up in environmental PIL’s which is to be interpreted in the right sense according to the facts of the case. The court in this context has observed that “The right to live is a fundamental right under Article 21 of the Constitution, and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has the right to have recourse to Article 32 of the Constitution…” The Bhopal gas tragedy, Shriram food & fertilizer case, Taj trapezium case, Ganga water pollution case, Narmada bachao andolan case and Vellore citizen’s welfare forum case are all examples of environmental litigations that covered a wide range of issues that brought forth
  9. 9. 9 judicial activism to the fore by PIL. It was characterized by a non-adversarial approach that laid emphasis on enlisting the help of amicus curiae, the appointment of committees to investigate and monitor schemes for the improvisation, protection and prevention of environmental issues, and dealt with the issue of detailed interim orders in the form of continuous mandamus under articles 32 and 226 of the Indian constitution by the supreme court and high court respectively. In the words of Justice Bhagwati, "public interest litigation is essentially a co-operative or collaborative effort on the part of the petitioner, the State or public authority and the court to secure observance of the constitutional or legal rights, benefits and privileges conferred upon the vulnerable sections of the community and to reach social justice to them. Public interest litigation is a part of the legal aid movement which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity. Thus, through the device of public interest litigation, the Supreme Court is trying to fulfill a constitutional obligation that the large masses of people belonging to the deprived and exploited sections of humanity may be able to realize and enjoy the socio-economic rights granted to them and these rights may become meaningful for them instead of remaining mere empty hopes." Through PIL, Social activism has been revived and has been renewed with a vigor that was hitherto absent from the judicial system of our country. At a time when corruption is rife and the system seems incompetent to deal with all the adverse effects of a divided government and a burdened judiciary that is day by day evolving itself into an entity that is against the democratic ideal India envisioned itself in, the PIL comes through to knock the doors of justice becoming the voice of the common man, the voice of the people who make this country, a country.
  10. 10. 10 FACTS OF THE CASE AIR 1987 SC 965 M.C Mehta v. Union of India  M.C Mehta, the petitioner in this case was an advocate and leading consumer activist. He filed a public interest litigation requesting the courts to lay down the norms for determining the liability of enterprises engaged in the manufacture and sale of hazardous products and the closure of ‘Shriram’ on the ground that it was hazardous to the community.  The enterprise in question is Shriram food & fertilizers industries (referred to as Shriram) which is a caustic chlorine plant run by the Delhi Cloth Mills Ltd commissioned in 1949.  During the pendency of the petition filed by M.C Mehta, the Delhi administration pursuant to a question raised in the parliament about the hazardous nature of the these enterprises appointed an expert committee. This committee headed by Mr. Manmohan Singh made an extensive inquiry and submitted a detailed report to the government outlining various recommendations to minimize the hazards that complied with pollution control and safety measures.  On the 4th of December, 1985, a major leakage of Oleum gas took place from one of the units within the plant, affecting not only its employees but also those who resided around the plant. This occurred during the pendency of the first petition requesting the closure of the caustic chlorine plant on account of its hazardous nature.  Two days later, on the 6th of December 1985, another leakage took place although a minor one when Oleum gas leaked out again from the joints of a pipe in the plant.
  11. 11. 11  The Delhi administration had immediately responded to the crisis by issuing an order dated 6th dec 1985 passed by the district magistrate, Delhi directing Shriram to stop the manufacture and processing of hazardous and lethal chemical and gases.  A second set of writ petitions were filed by the Petitioner under Article 32 of the Constitution, which provides for a writ against the State in case of breach of fundamental rights and to entertain appropriate compensation claims. The court directed two teams of experts, namely the Nilay Singh Choudhary committee appointed by the court and the Agarwal committee appointed by the petitioner to ascertain whether the recommendations of the Manmohan Singh committee (set up during the pendency of the first petition that requested the closure of the shriram units) has been implemented in accordance with the pollution control and safety measures.  A third committee, the Seturam committee was also appointed by the Lt.Governor of Delhi to carry out an on-the-spot inspection and make its recommendations.  Persons affected by the gas leak (which in this case were nearly 2 lakh people within a three kilometer radius) were also allowed to file compensation claims within a given period of time with the Chief metropolitan magistrate.
  12. 12. 12 ISSUES INVOLVED  The first issue in contention was whether the caustic chlorine plant of Shriram should be allowed to restart the plant and if so, subject to what conditions keeping in mind that the operation of the plant should no longer pose a hazard or risk to the community.  The second issue brought forth to discuss was whether Shriram which manufactures and is engaged in the production of hazardous substances at the cost of environment and human life should be held absolutely liable.  The third issue is whether ‘Shriram’ could be considered to be a ‘state’ within the ambit of article 12.  The fourth issue raised was whether the applications for compensation filed under article 21 is available against Shriram which is owned by Delhi Cloth Mills Limited, a private corporation and which is engaged in an industry vital to public interest and with potential to affect the life and health of the people.
  13. 13. 13 PRAYER OF THE PETITIONER 1. Whether Shriram should be allowed to restart its operation of the caustic chlorine plant which poses a potential health hazard to the community which is a violation of fundamental rights under article 21 of the Indian constitution i.e. right to life. On behalf of the petitioner, the first argument to be presented is that Shriram, a private enterprise that was engaged in the operation of a caustic chlorine plant should be subject to closure of all its units as it posed a hazard or risk to the community that was a violation of the right to life and personal liberty which is a fundamental right guaranteed under article 21. Although the constitution does not explicitly mention the right to health, its justification is based on article 21.The directive principles of state policy under article 39, 41, 42 and 47 which deal with healthcare provides the state with a mandate to raise public health standards, and although they aren’t enforceable, they do act as guidelines for the state to observe. The petitioner vehemently argued that the court must not permit shriram to restart its caustic chlorine plant because there was always a element of hazard or risk to the community in its operation. He urged that that chlorine is a dangerous gas and even if utmost care is taken, the possibility of its accidental leakage cannot be ruled out and therefore it is imprudent to run the risk of allowing the caustic chlorine plant to be restarted. The right to life under article 21 should be interpreted to incorporate right to health and Shriram which is engaged in the production of hazardous substances injurious to life and the health of the community at large must not be allowed to restart and be subject to closure unless it is subject to strict guidelines for its operation. 2. The second issue on behalf of the petitioner is whether Shriram can be held absolutely liable having engaged itself in the manufacture of hazardous substances that is injurious to the community at large. In regards to the second issue of determining the liability of Shriram, which is engaged in hazardous or inherently dangerous industry, if by reason of an accident occurring in such industry, persons die or are injured, shouldn’t it be considered to be held absolutely liable? Shriram is an enterprise that is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas and owes an absolute and non-delegable
  14. 14. 14 duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. 3. The third issue is whether Shriram is a “state” under article 12 so as to hold it liable under article 21 for violation of fundamental rights. The next issue that must be brought forth is whether Shriram can be considered to be a “state” within the meaning of article 12 so as to subject it to comply with compensation claims for the violation of article 21 which is a fundamental right. The activity of producing chemicals and fertilizers is deemed by the State to be an industry of vital public interest according to state industrial policy whose public import necessitates that the activity should be ultimately carried out by the State itself, in the interim period with State support and under State control; private corporations may also be permitted to supplement the State effort. Under this interpretation, even private corporations manufacturing chemicals and fertilizers can be said to be engaged in activities which are as fundamental to the Society as to be necessarily considered government functions. Therefore Shriram must be considered to be a state under article 12 and be held liable to pay compensation. It would also be imperative to observe that the powers granted to the Supreme Court under article 32 is not only preventive but also remedial in nature and has the right to provide relief against the breach of fundamental rights and it must be observed in this case. 4. The fourth issue is whether Claims for compensation against shriram can be claimed under article 21 for the violation of fundamental rights stated in the aforesaid article of the constitution. On account of the injury caused to the people due to the Gas leak, claims for compensation must be entertained, as these applications for compensation are for enforcement of the fundamental right of right to life enshrined in Article 21 of the Constitution. Shriram must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm or injury results on account of such activity, the enterprise must be held absolutely liable to compensate for such harm. And since such harm and injury has already resulted and has affected the lives of its workmen and people living in the vicinity of the plant, it should be held liable for such appropriate compensation as the court deems fit in order to secure justice for it
  15. 15. 15 PRAYER OF THE RESPONDENT 1. The first defense put forth by the respondent is with regards to whether the caustic chlorine plant should be allowed to restart or not. The defense counsel had emphatically argued against the permanent closure of the caustic chlorine plant by stating that if the plant was not allowed to restart its operation, it would not be possible to operate the plants manufacturing the down stream products, the resultant being that more than 4000 workers would be thrown out of employment. It was also stated that since shriram had complied with all the recommendations of the Manmohan Singh committee and nilay Singh choudhary committee, the possibility of risk or hazard to the community had been considerably minimized and brought to nil, and therefore the caustic chlorine plant must be permitted to restart its operation. 2. The second defense that the counsel has pleaded is that Shriram should not be considered to be a “state” within the ambit of article 12 of the Indian constitution. On behalf of the respondent, the issue which is brought forth is whether it should be considered to be a state under article 12 of the constitution, so as to subject it to the liability of compensation under article 21 of the constitution which provides for remedial measures for the breach of fundamental rights. The defense would like to argue that Shriram an enterprise owned by Delhi Cloth mills Ltd is a private corporation which cannot be said to come within the purview of article 12 that defines what could be included to be a “state”. Article 12 explicitly mentions that the state does not include a non-statutory body exercising no statutory powers, for example, a company, unless made an agent of the government, A judicial or quasi judicial authority and Private bodies having no statutory powers or not being supported by any state act or not being an agency of the state.
  16. 16. 16 3. The third defense pleaded by the defense counsel is that Shriram could not be held absolutely liable to pay compensation as claims for compensation weren’t filed in the original writ petition and since the defense has already pleaded that shriram cannot be considered to be a “state” under article 12, it cannot be held liable to compensate the victims. The third defense argued on behalf of the respondent with regards to its liability to pay compensation, the enterprise in its defense would like to state that Court should not proceed to decide these constitutional issues since there was no claim for compensation originally made in the writ petition and these issues could not be said to arise on the writ petition. And since, the defense has already prayed to the honorable court that Shriram cannot be included in the definition of article 12 of the constitution, it should not be held liable to pay compensation.
  17. 17. 17 JUDGEMENT OF THE CASE CORAM: 3 P.N BHAGWATI, C.J.I, D.P Madon & G.L Oza, J.J Judgment delivered by J.P.N Bhagwati, C.J.I a. SCOPE OF ARTICLE 12- The court while considering the availability of Article 21 against a private corporation engaged in an activity which has potential to affect the life and health of the people traced the evolution of the Doctrine of State Action to ascertain whether the defendants in this case fall under the definition of the term state, as provided under Article 12, or not. The Court also looked into the Industrial Policy of the Government. Under the Industrial Policy Resolution 1956 industries were classified into three categories having regard to the part which the State would play in each of them. The first category was to be the exclusive responsibility of the State. The second category comprised those industries which would be progressively State owned and in which the State would therefore generally take the initiative in establishing new undertakings but in which private enterprise would also be expected to supplement the effort of the State by promoting and development undertakings either on its own or with State participation. The third category would include all the remaining industries and their future development would generally be left to the initiative and enterprise of the private sector. If an analysis of the declarations in the Policy Resolutions and the Act is undertaken, we find that the activity of producing chemicals and fertilizers is deemed by the State to be an industry of vital public interest, whose public import necessitates that the activity should be ultimately carried out by the State itself, in the interim period with State support and under State control, private corporations may also be permitted to supplement the State effort. The argument of the applicants on the basis of this premise was that in view of this declared industrial policy of the State, even private corporations manufacturing chemicals and fertilizers can be said to be engaged in activities which are as fundamental to the Society as to be necessarily considered government functions. b. LIABILITY-The court while determining the liability of shriram considered whether a new doctrine of liability should be evolved to include such industries that engage themselves
  18. 18. 18 in the production of hazardous substances or should the rule in Rylands v. Fletcher apply. The rule in Rylands v. Fletcher was evolved in the year 1866 and it provides that a person who for his own purposes being on to his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril and, if he fails to do so, is prima facie liable for the damage which is the natural consequence of its escape. The liability under this rule is strict and it is no defense that the thing escaped without that person's willful act, default or neglect or even that he had no knowledge of its existence. This rule laid down a principle of liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such thing escapes and does damage to another, he is liable to compensate for the damage caused. Of course, this rule applies only to non-natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory authority. This rule evolved in the 19th Century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. The court need not feel inhibited by this rule which was evolved in this context of a totally different kind of economy. Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. The court commented “We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken”. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part.
  19. 19. 19 “We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher.” “We would also like to point out that the measure of compensation in the kind of cases referred to in the preceding paragraph must be co-related to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise” c. POWER OF THE SUPREME COURT UNDER ARTICLE 32 -The court examining the scope of article 32 in this case commented that under Article 32(l) of the Constitution, the supreme court is free to devise any procedure appropriate for the particular purpose of the proceeding, namely, enforcement of a fundamental right and also has the power to issue whatever direction, order or writ as may be necessary in a given case including all incidental and ancillary power necessary for the enforcement of a fundamental right. The power of the Supreme Court is not only injunctive in ambit, that is preventing the infringement of fundamental rights, but it is also remedial in scope and provides relief against a breach of the fundamental rights already committed. In the circumstances, the Court has the power to grant compensation in appropriate cases. The Court also said that compensation could be awarded against Shriram Food and Fertilizer Corporation thereby bringing private corporations within the purview of Article 32 of the Constitution.
  20. 20. 20 The court in its aforesaid judgment on the case also ordered certain conditions that would have to be observed by Shriram and suggestions of a general nature in the following manner: OBSERVATIONS OF THE COURT: 1.The court observed that it was clear by the reports of the various expert committees that Shriram had been negligent in the operation and maintenance of the caustic chlorine plant and did not take the necessary measures for improving the design and quality of the plant, equipment and installing adequate safety devices and instruments with a view to ensuring the maximum safety of the workers and the community living in the vicinity and that the glaring deficiencies that were brought out in the writ petition compelled the management of shriram to carry out various alterations and adopted various measures in accordance with the recommendations by the Manmohan Singh committee and nilay Singh choudhary committee. Therefore the court thinks it’s imperative to appoint an expert committee that would monitor the operation and maintenance of the plant and equipment and ensure the continued implementation of the recommendations of these two committees. This committee appointed by the court shall inspect the caustic chlorine plant at least once in a fortnight and examine whether the recommendations of the aforesaid two committees are being scrupulously implemented by the management. 2. Every worker in the caustic chlorine plant should be properly trained and instructed in regard to the functioning of the specific plant and equipment in which he is working and he should also be educated and informed as to what precautions should be taken and in case of leakage of chlorine gas, what steps should be taken to control and contain such leakage. 3. Loud speakers shall be installed all around the factory premises for giving timely warning and adequate instructions to the people residing in the vicinity in case of leakage of chlorine gas. The management shall maintain proper vigilance in the plant. 4.The management of Shriram will deposit in this court a sum of Rs.20 lakhs as and by way of security for payment of compensation claims made by or on behalf of the victims of oleum gas if and to the extent to which such compensation claims are held to be well founded. The management of Shriram will also furnish a bank guarantee to the satisfaction of the registrar of this court for a sum of Rs.15 lakhs which shall be encashed by the registrar wholly or in
  21. 21. 21 part in case there is any escape of chlorine gas within a period of three years from the date of this judgment and would be utilized towards the payment of compensation to the victims of chlorine gas, the quantum of compensation being determinable by the district judge. 5.The court observed that there is an increasing number of cases based on environmental pollution and ecological destruction that requires the input of neutral scientific expertise to assist decision making and therefore under the circumstances urged the government of India to set up an ecological sciences research group consisting of independent, professionally competent experts in different branches of science and technology that could act as an information bank for the court and would encourage the government to consider setting up environment courts on a regional basis with one professional judge and two experts drawn from the ecological sciences research group. 6. The court also expressed gratitude to the petitioner for taking the bold initiative in bringing this public interest litigation to the court without which no improvisations would have been sought or implemented by Shriram and the community would have been subject to continued risk from the operation of the plant. The court directed Shriram to pay the petitioner a sum of Rs.10000 by way of costs as a token of the court’s appreciation of the valiant battle the petitioner fought against a giant enterprise and achieving substantial success.
  22. 22. 22 CONCLUSION, CRITIQUE & SUGGESTIONS The Shriram food fertilizer case, close on the heels of the Bhopal gas tragedy not only marked a revival of sorts in the interpretation of fundamental rights enshrined in the constitution but also brought about a new wave of awareness about increasing environmental issues which was the result of an industrialization spurt that started in the late 1970’s. The right to a pollution free environment is a part of right to life, and these two cannot be separated, because the intrinsic bonds between these two are very strong. It is an undeniable fact that a contaminated environment will kill Human life. Thus, the right to pollution free environment underlies the right to life, which is meaningless in the absence of pure, decent and healthy life supporting eco-system which sustains life. In the relentless pursuit of industrializing the economy and putting it on a pedestal, the environment suffered a great deal and with it, did the country’s people. In India, industrialization took place without due consideration of its impact on the environment which was degrading day after day due to the non-implementation of precautionary measures and proper management of disposal methods. The Indian constitution guarantees fundamental rights in such a manner that it can be interpreted according to the circumstances of the case and in that sense it’s more flexible than rigid thus allowing broader definitions to be assimilated and subjecting it to an evolutionary approach by the courts. So it shouldn’t be a surprise then that the High courts and Supreme courts have unanimously held that Right to life is guaranteed in human rights jurisprudence. Right to Life is guaranteed by customary International Law, the UDHR and the International Covenant on Civil and Political Rights. The scope of right to life has expanded to include quality of Life. Therefore the right to food, medical care, education and pure and decent environment would all fall within the purview of Right to life under article 21.The right to living is evolving from the right to life. Thus environmental protection becomes mandatory to the quality of life. The High Court and the Supreme Court of India have read the Right to wholesome environment as part of right to life guaranteed in Article 21 of the Constitution of India. Article 21 enunciates that no person shall be deprived of His life or personal liberty except according to the procedure established by law. The slow contamination of air due to environmental pollution amounts to a violation of the fundamental right of right to life. In fact, the right to-life Guaranteed in Article 21 of the Constitution embraces the protection and preservation of nature's gifts without which life
  23. 23. 23 cannot be enjoyed. Moreover, environmental Degradation has disastrous impact on the right to livelihood which is a part of the right to life. Every citizen has the fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Constitution. Anything which endangers or impairs by conduct of anybody either in violation or derogation of laws, that quality of life or by People is entitled to be taken recourse of article 32 of the Constitution. In cases of industry related environmental pollution by ways of gas leakage or by discharging untreated industrial effluents into water bodies, the court has opined that “If an industry is established without obtaining the requisite Permission and clearances and if the industry continued to be run in blatant disregard of citizens living in the vicinity, this court has the power to intervene and protect the fundamental right to life and liberty of the citizens of the country.” The Bhopal Gas tragedy is a live example of the dangerous consequences of industrial gas pollution. Nearly 40 tons of toxic methyl isocyanides (MIC) gas escaped into the atmosphere on the night of December 3rd 1984 causing the death of nearly 3500 people who lived in the vicinity and approximately 2lac people were affected by the disaster. The Supreme Court held that the right to life and liberty included Pollution free environment guaranteed under Article 21.The Fundamental Duties under Article 48A and 51A (g) were also referred to in this decision. The court ordered the Union carbide corporation to pay compensation amounting to us$ 470 million. A similar approach was adopted in the Shriram food fertilizer (oleum gas leak) case which occurred as if on cue exactly a year later on 4th December 1985 when Oleum gas leaked out of its caustic chlorine plant. In this case the Supreme Court clarified the position of damages when harm results from the hazardous or inherently dangerous nature of the activity. In such cases, the court held that the compensation “must be correlated to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The larger and more prosperous the enterprise the greater must be the amount of compensation payable by it.” The directive principles of state policy (DPSP) which act as guidelines for the state explicitly mention the duty to protect the environment through article 48A and by means of fundamental duties enshrined in article 51A (g). Article 48A proclaims that the state shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country. The Directive Principles possess the legal status of being complementary to
  24. 24. 24 Fundamental rights and impose an obligation on the Government, including Courts to protect the environment. Article 5 1A (g) imposes a duty on every citizen to protect and improve the natural environment including forests, lakes rivers and wild life and to have compassion for living creatures. Preservation of environment and keeping the ecological balance unaffected is task which every citizen must undertake as a Social obligation. This provision of fundamental duty flows from the World Charter for Nature [Adopted by the United Nations General Assembly on 28th October, 1982]. This Charter recognizes the rights of the individuals and non-governmental Entities by providing that all persons shall have access to means of redress when their environment has suffered damage or degradation. The neglect and failure to abide by Articles 48A and 51A (g) of the Constitution is nothing short of betrayal of the fundamental law of the State. CRITQUE OF THE CASE: I selected this case because in many ways the Shriram case was a catalyst that brought about judicial activism in the field of environmental issues. Apart from deciding on some really seminal issues based on constitutional provisions like examining the powers of the SC under article 32, or interpreting the right to life enshrined in article 21 to be inclusive of the right to health and determining the liability of industries engaged in the manufacture of hazardous substances, it was after the Bhopal gas tragedy and Shriram food fertilizer case that the government realized the need for legislation that specifically catered to environmental issues and suited the conditions prevailing in the country. It was during this time that Public interest litigations really came into prominence, and majority of them dealt with environmental issues that ranged from gas leak disasters, water pollution due to untreated industrial effluents to the protection of forests, coastal areas and relocation of industries from densely populated areas. This recognition for separate legislation to help assist courts with its decision making process from the environmental perspective resulted in the passing of the environmental protection act in 1986 when the country was recovering from the brink of two major gas leak disasters. The Supreme Court’s suggestion in the Shriram case to set up environmental courts on a regional basis was considered to be an appropriate recommendation as issues involving ecological imbalances and environmental pollution was increasing as urbanization infiltrated previously untouched green zones.
  25. 25. 25 The judgment pronounced in this case became a compelling force to pass a competent law that would deal with environmental issues. Prior to this act, there was no legislation that dealt with the standards of various pollutants or their allowable limits. Penal provisions were found to be ineffective when dealing with large scale environmental disasters, and neither were there enactments that defined what environment is or what pollution is. The act was enacted to fulfill the constitutional obligation laid on the state, keeping in mind the background of India’s environmental scenario. Another important aspect of the Shriram case was the applicability of the principle of strict liability that was adopted from the English courts in the case of Rylands v.Fletcher. In the case of Shriram, the same principle was applied albeit a little differently. In Rylands v. Fletcher, the court opined that if a person brings on his land and keeps there any dangerous thing, he will be prima facie answerable for the damage caused by its escape even though he has observed due diligence in containing it. But the rule in Rylands v. Fletcher was subject to exceptions which were  Act of God- This phrase denotes those acts that take place directly and exclusively due to natural causes without human intervention, for e.g., floods, earthquakes etc. It is attributed to the Latin maxim ‘Actus dei nemini facit injuriam’ which means that law would not hold any man responsible for the act of god.  Consent of the plaintiff- If the plaintiff or the person or class of persons have consented to such an act knowing fully well the consequences of the act, it would be an exception to the rule of strict liability and respondent or defendant would not be held under the principle of strict liability.  Act of third party- An act of any third party independent of the plaintiff and respondent could not be taken to hold the respondent liable for the third party’s act.  Statutory authority- If there is a statutory provision that envisages provisions for such liability; it becomes an exception to the rule. In the case of Shriram, the court evolved the rule of strict liability to suit the fast changing society, urbanization and the growing population. The rule of liability applied in the Shriram case was not subject to any of the exceptions laid down in the case of Rylands v. Fletcher. The court was of the opinion that enterprises engaged in the manufacture of such hazardous substances which poses a potential threat to the health
  26. 26. 26 and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community and must be held absolutely liable and that the defense of observing due diligence cannot be allowed. In my opinion, the court’s approach of laying down the principle of “no fault liability” in the case of shriram was correct to the extent of the circumstances of the case. I also feel that the court by permitting shriram to restart the operation of the caustic chlorine plant was broadminded enough to embrace the concept of sustainable development, as a policy that ordered the closure of all such industries engaged in hazardous substances would end all progress on the industrial front. Because such industries, even though hazardous in nature is essential for economic advancement but that of course does not mean that steps to avert such hazards or risks should not be taken. A national policy for relocating such industries and creating buffer zones ensuring that the public is not affected by the operation of such industries shows that courts did keep future progress and the well being of the community in mind while formulating the order. However, I fail to understand the purpose behind declaring Shriram a ‘state’. Does it mean that Shriram is not liable for violating fundamental rights just because it is a private corporation? Irrespective of being a private or public company, the fact is that shriram was engaged in industrial activities of a hazardous nature, how does being a “state” only make it liable? Does the hazardous nature of the industry diminish or decrease because it would come within the ambit of article 12? It does not, and therefore I personally feel that article 12 shouldn’t have been brought into the picture at all. Constitutionally, article 12 explicitly mentions all types of corporations that could and could not be interpreted as a “state”. My question is why it should become mandatory to prove that a corporation or company is a “state” within the meaning of article 12 when it has prima facie violated the principles of article 21 which is a basic fundamental right. Whether state or not, every company should be held liable for the violation of fundamental rights, and that should be the only criteria when imposing liability. And therefore I feel that though the court did interpret shriram as a state under article 12, as it was engaged in activities which are as fundamental to the Society as to be necessarily considered government functions, in the future the scope of article 12 should not be questioned when private corporations are to be held liable, the principle of No-fault
  27. 27. 27 liability should be applied for the breach of fundamental rights whether it comes within or outside the purview of being a state. SUGGESTIONS: In the case of Shriram, besides expanding the meaning of constitutional provisions to accommodate future PIL’s revolving around the same set of principles that were dealt with in this case, the judiciary managed to evolve its own doctrine of liability which was derived from the English case of Rylands v. Fletcher, although the newly evolved rule of liability by the Indian courts does not subject itself to any of the exceptions established in the English doctrine of strict liability. The Indian judiciary has abandoned a hyper- technical approach while dealing with this case and has won the cause of justice both for the victims of the Oleum gas leak and for the newly evolved form of litigation i. e public interest litigation. I would like to suggest that the Indian judiciary should evolve itself into an independent juristic entity than be dependent on English laws which were evolved at a different time period to suit an economy and social structure and form of government that is different from ours. In doing so, not only would that enable our jurists to pool together their experience and jurisprudence which is vast but also update our legislations keeping in view our growing judicial expertise thus making the system wholesome, intellectual and truly unique. END
  28. 28. 28 REFERENCE:  CONSTITUTIONAL LAW OF INDIA (seventh edition) –D.D BASU  PAPER ON ENVIRONMENTAL POLLUTION -DR .I.A KHAN & HEALTH HAZARDS  PAPER ON ARTICLE 21 & RIGHT TO POLLUTION -DR. SAYED MASWOOD FREE ENVIRONMENT-A HUMAN RIGHT APPROACH  PAPER ON PUBLIC INTEREST LITIGATION -JUSTICE S.AWASTHY
  29. 29. 29 “There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest.”

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