Case Brief: Indian Council for Enviro-Legal Action and Ors. Vs. Union of India (UOI) and Ors.

Name of the Case	Indian Council for Enviro-Legal Action and Ors. Vs. Union of India (UOI) and Ors.
Citation	2013 INSC 204
Date of the Judgement	13.02.1996
Petitioner	Indian Council for Enviro-Legal Action
Defendants	Union of India, Rajasthan Pollution Control Board, Government of Rajasthan, Hindustan Agro Chemicals Limited, Silver Chemicals, Rajasthan Multi fertilisers, Jyoti chemicals
Bench/ Judges	B.P. Jeevan Reddy and B.N. Kirpal, JJ.
Statutes Involved	Constitution of India, Environment Protection Act,1986, Water (Prevention and Control of Pollution) Act,1974
Important Articles/ Sections	“Environment (Protection) Act, 1986 - Section 4; Environment (Protection) Act, 1986 - Section 5; Water (Prevention and Control of Pollution) Act, 1974 - Section 33, Water (Prevention and Control of Pollution) Act, 1974 - Section 33A”

FACTS OF THE CASE

“Bichhari is a small village in Rajasthan. To its north is a major industrial establishment, which was a public sector concern. That did not affect the village. In 1987, Hindustan Agro Chemicals Limited commenced the production of certain chemicals like oleum and single super phosphate. Another industry, Silver Chemicals, also commenced production of ‘H’ acid. This acid was specifically meant for exports. However, its manufacture gave rise to huge quantities of toxic effluents, such as iron-based and gypsum-based sludge. These wastes, if not treated, can become poison that can harm the environment, water, and everything. 

All these manufacturing units are established in the same complex and are controlled by the same group of individuals. They are located within the limits of Bichhari Village.

An important fact to be noticed is that the production of ‘H’ acid is considered to be highly wasteful, and that is why it is banned in Western countries, but they still need it. 

Silver Chemicals is said to have produced 350 mt of acis, and Jyoti Chemicals' total production is known to be around 20 mt. However, together they have produced 2400-2500 Mt of highly toxic sludge besides other pollutants. The untreated waste is thrown out freely, and they have percolated into the bowels of the Earth, contaminating even the groundwater. The soil has become polluted, rendering it unfit for cultivation. And water in wells is unfit for consumption. 

A social action Litigation has been filed praying for appropriate remedial measures.” 

PROVISIONS INVOLVED

“Constitution of India

Article 12: defines the state

Article 21: right to life and personal liberty

Article 130(2): Seat of Supreme Court

Article 226: writ jurisdiction of High Court

Article 32: writ jurisdiction of Supreme Court

Article 48A: Duty of state to protect and improve the environment

Article 51 A: Duty of the citizens to protect and improve the environment and to have compassion for all living beings

Environment Protection Act,1986

Section 2(a): defines environment

Section 3: It grants the Central Government significant powers to protect and improve the environment.

Section 5: Power of Central Government to issue directions

Section 6: Rules to regulate environmental pollution

Section 7: It restricts any industry to discharge effluents outside the limits

Water (Prevention and Control of Pollution) Act,1974

Section 24(1): Restricts the throwing of any toxis substance into the water bodies

Section 25: Restricts discharge of sewage or trade effluent

Section 33:POwer of state government to make an application before the court to restrict any person from discharging effluents

Section 33A: Power to give directions” 

LEGAL ISSUES

The following issues have emerged for the court to discuss

1. Whether the remedial measures necessary to have been carried out by the plant? If yes, then what shall be the quantum of it?
2. Whether the respondents responsible for the alleged pollution caused by them in Bichhari Village?
3. Whether and to what extent can the respondents be made responsible for defraying the cost of remedial measures?
4. Whether the industry concerned forms a ‘state’ under Article 12 of the Constitution of India?

ARGUMENTS FROM THE PETITIONER’S SIDE

The learned counsel from the petitioner’s side argued that

1. The industries were operating without the ‘no-objection certificates’ and requisite clearances from the required authorities.
2. There has been severe and irreversible damage to the environment, such as contamination of groundwater, land, soil, and wells, etc. which have affected several people and cattle.
3. They highlighted the failure of the Union and the State government to effectively enforce the regulations and legislation.

ARGUMENTS FROM THE RESPONDENT’S SIDE

The learned counsel from the respondent’s side argued that

1. Both the units- Silver Chemicals and Jyoti Chemicals- have stopped their operations since 1989 and are closed.
2. Some of the units have been granted a No-objection Certificate from time to time by the authorities.
3. The writ petition is not maintainable as they are not ‘state’ as under Article 12 of the Constitution of India.
4. The Rajasthan Pollution Control Board had adopted a hostile behavior towards them.

JUDGMENT PRONOUNCED

“The bench allowed the petition.

The court observed that if the respondents establish and operate their plants contrary to law, flouting all safety norms provided by la,w the pollution control board was bound to act, which cannot be said to be out of animosity or hostility. Repeated and persistent operations call for repeated orders. This criticism is not only unfair but also charitable. 

The court responded that this writ is Not for issuance of appropriate red order or directions against the respondents but is directed again to Union of India Government of Rajasthan and Rajasthan pollution control board to compelled them to perform their duties in joint by the act on the grounds that their failure to carry out their statutory obligation is seriously undermining the right to life guaranteed by article 21.

The court also observed that no report has been placed before it that establishes Hindustan Zinc Limited is responsible for pollution at Bichhari village.

So far as so responsibility of the respondents for causing the pollution in the Well, 12 and the active passes concern this clearly established by the analysis of the report that respondent are responsible for the pollution. the court hold that respondents alone I responsible for all the damage to the soil or not to the underground water and to the village Bichhri.  damage has been portrayed in several reports. NEERI work ed out the cost for damage reversal which is more than crore rupees.  

As for the question of the industries being a state within the meaning of article 12, the court left that open and placed reliance on the Union Carbide Case wherein the obiter was that the constitution bench directed the Central government can be directed to undertake the remedial measures with the powers given to them under section 3 of the Environment Protection Act and it can take all such measures it may deem necessary for the purpose of protecting the environment.

The court applied the precautionary principle, Precautionary principle in the context of municipal law means that 

1. The state and the regulatory bodies must anticipate, prevent, and attack the cause of the environmental degradation.
2. Where there are threats of serious damage, the lack of scientific certainty should not be used as a tool to postpone the preventive measures against the degradation.
3. The onus or burden of proof is on the actor or company, or industry on whom allegations have been made. 

The bench also made its decision on the basis of polluter pays principle according to which once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the Loss caused to any other person by his activity, irrespective of the fact whether he took all precautions or not. Their liability shall be absolute. The bench is of the belief that remediation of the damage is a part of sustainable development.

Directions given by the court are as follows:

1. The central government child determine the amount  required for carrying out the remedial measures including removal of sledges in the area affected and adjacent villages.
2.  as there was continuous persistant and insulin violations of law along with attempts to conceive the sludge the discharge of toxic appluence and non implementation of orders of the court,  these Industries will be characterize as ‘rogue industries’. 
3. No distinction shall be made between small scale industry or a large scale industry if that industry is having potential to cause Environment Degradation and their functioning should be closely monitored.”

CONCLUSION

“The court ruled strongly against the chemical companies in the Bichhri Villgage. The bench relied on the important principles of the environmental jurisprudence such as polluter pays pronciple and precautionary principle. This set a clear message that industries cannot pollute the environment at any cost and escaoe responsibility. They are directed to pay the cost for the cleanup.”