TABLE OF CONTENTS

INTRODUCTION TO PIL PAGE NO. 2

sFACTS OF THE CASE PAGE NO. 7

ISSUES INVOLVED PAGE NO. 9

PRAYER OF THE PETITIONERS PAGE NO. 10

PRAYER OF THE RESPONDENTS PAGE NO. 12

JUDGEMENT OF THE CASE PAGE NO. 13

DISCUSSION PAGE NO. 14

CONCLUSION PAGE NO.21

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 M.C MEHTA v. UNION OF INDIA
(AIR 1987 SC 965)

AN INTRODUCTION TO PUBLIC INTEREST 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
anv 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 dutv and observance of such
constitutional or legal provisions.”

It is this principle that forms the core of our constitution the new found magnetism of the
concept of PIL as a silent social revolution within the judicial process. A strategic ann 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 lyer 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 converted the apex court of India to the
supreme court of India for all citizens. The concept of public interest litigation was
spearheaded by Justice PN 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

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interest. This practice of viewing letters as petitions on an adhoc basis Le. 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 India1, whereby
the court held that a “public interest litigation can be Bled bv anv 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 dutv against a statutory or public authoritv 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 m the
nature of writs such as Habeas corpus', Mandamus, Prohibition, Quo warranto and
Certiorari2.

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.3the 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,
any member of public acting bona fide can move the court for relief under article 32. so that
the fundamental rights mav become more meaningful not onlv 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,

1
AIR 1982 SC 149
2
Article 32, The Indian Constitution.

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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
economicentitlements or whether thev 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 m 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 wrong or public injury

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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 fever to the cause of under trials, victims of
environmental manipulation, women and children, the physically challenged etc thus
assisting the courts in widening its aims of Justice and fairness.

However, this liberalising 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 observxng that xt xxs 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 . a friend of the court who would usually be a
specialist m the field that the case is related to, or 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.

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 The Supreme Court can be moved under a PIL only for
the violation of fundamental rights

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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 PIL differs from ordinary litigation in the sense that a suit ls 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 m 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.

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FACTS OF THE CASE

M.C Mehta v. Union of India

(AIR 1987 SC 965)

 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 Shrimm 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

 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 his employees but also those who
resided around the plant. This occurred during the pendency of the first petition
requesting the closure ofthe 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.

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 The Delhi administration had immediately responded to the crisis by issuing an order
dated 6th of December 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 xn case of
breach of fundamental rights and to entertain appropriate compensation
claims. The court directed two teams of experts, namely the Nilay Singh
Chondhary committee appointed by the court and the Agarwal
committee appointed by the petxtxoner 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 Setnram 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 8ilometre radius) were also allowed to file
compensation claims within a given period of time with the Chief metropolitan
magistrate.

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ISSUES INVOLVED

ISSUE 1

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.

ISSUE 2

Whether Shriram manufactures and is engaged in the production of hazardous substances at

the cost of environment and human life should be held absolutely liable.

ISSUE 3

Whether Shriram could be considered as a State under article 12.

ISSUE 4

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 people.

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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 communitv which is a violation of
fundamental rights under article 21 of the Indian constitution Le. 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, it justification is
based on article 2l.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 m 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 occuring in such

10 | P a g e
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 m the surrounding areas and 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.

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 flus 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

11 | P a g e
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 m 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

PRAYER OF THE RESPONDENT

1. The first defense put forth bv 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 pemlanent 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 downstream 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 Smgh committee and 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 beconsidered 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 and enterprise owned by Delhi Cloth mills Ltd is a private
corporation which cannot be said tocome within the purview of article 12 that

12 | P a g e
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,
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.

3. The third defense pleaded by the defense counsel is that Shriram could not be
held absolutely liable to pav 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 petitions 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.

JUDGEMENT OF THE CASE

The Supreme Court delivered its Judgement on the 19th of December and on the basis of
absolute liability held that as Shriram could not be subjected to the discipline under Article
21, the enterprise having not been decided as “Authority” within Art 12 of the constitution.

The court also instructed Shriram to comply with all the recommendations of the Nilay
Choudary and Manmohan Singh Committees and issued a strict notice that failure to do so
will result in the immediate closure of the Plant and accordingly directed the Legal Aid and

13 | P a g e
Advise Board and the Delhi Bar Association to Approach the appropriate Courts to Claim
compensation for the victims of the Oleum Gas Escape.

DISCUSSION

I. CONSTITUTIONAL PROTECTION
The constitution of India is not an inert but a living document which evolves and
grows with time. The specific provisions on environment protection in the
constitution are also result of this evolving nature and growth potential of the
fundamental law of the land. The chapter on fundamental duties of the Indian
Constitution clearly imposes duty on every citizen to protect environment. Article 51-
A (g), says that “It shall be duty of every citizen of India to protect and improve the
natural environment including forests, lakes, rivers and wild life and to have
compassion for living creatures.” The Environment (Protection) Act, 1986 defines
environment as “environment includes water, air and land and the interrelationship
which exists among and between air, water and land and human beings, other living
creatures, plants, micro-organism and property”.

According to Article 21 of the constitution, “no person shall be deprived of his life or
personal liberty except according to procedure established by law”. In M.C. Mehta
vs. Union of India4, availability of Art. 21 against a private corporation engaged in an
activity which has potential to affect the life and health of the people was vehemently
argued by counsel for the applicants and Shriram. It was emphatically contended by
counsel for the applicants, that the American doctrine of State Action and the
functional and control test enunciated by the Supreme Court in its earlier decisions,
that Art. 21 is available. The Supreme Court treated the right to live in pollution free
environment as a part of fundamental right to life under Article 21 of the Constitution.

Article 21 has received liberal interpretation from time to time after the decision of
the Supreme Court in Maneka Gandhi vs. Union of India5. Article 21 guarantees
fundamental right to life. Right to environment, free of danger of disease and

4
AIR 1987 SC 1086
5
AIR 1978 SC 597

14 | P a g e
 infection is inherent in it. Right to healthy environment is important attribute of right
to live with human dignity. The right to live in a healthy environment as part of
Article 21 of the Constitution was first recognized in the case of Rural Litigation and
Entitlement Kendra vs. State6, (Popularly known as Dehradun Quarrying Case). It is
the first case of this kind in India, involving issues relating to environment and
ecological balance in which Supreme Court directed to stop the excavation (illegal
mining) under the Environment (Protection) Act, 1986.

Public Interest Litigation under Article 32 and 226 of the constitution of India
resulted in a wave of environmental litigation. The leading environmental cases
decided by the Supreme Court includes case of the installation of safeguard at a
chlorine plant in Delhi (M.C. Mehta V. Union of India, AIR 1988 SC 1037), closure
of limestone quarries in the Dehradun region (Dehradun Quarrying case7), etc.

II. INTERNATIONAL CONVENTIONS

1. National Biodiversity strategies and action plan (NBSAPs) are the principal
instruments for implementing the convention at the national level ( Article 6 ).
The convention requires countries to prepare a national biodiversity strategy( or
equivalent instrument) and to ensure that this strategy is mainstreamed into the
planning and activities of all those sectors whose activities can have an impact (
positive and negative) on biodiversity. To date [2012-02-01], 173 Parties have
developed NBSAPs in line with Article 6.

2. Convention on Long-Range Trans boundary Air Pollution (LRTAP),

Geneva, 1979, often abbreviated as Air Pollution or CLRTAP, is intended to
protect the human environment against air pollution and to gradually reduce and
prevent air pollution, including long-range trans boundary air pollution. It is
implemented by the European Monitoring and Evaluation
Programme (EMEP), directed by the United Nations Economic Commission for
Europe (UNECE).

6
AIR 1988 SC 2187
7
AIR 1985 SC 652

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3. Convention on the Control of trans boundary Movements of Hazardous
Wastes and their Disposal, Basel, 1989, usually known as the Basel
Convention, is an international treaty that was designed to reduce the movements
of hazardous waste between nations, and specifically to prevent transfer of
hazardous waste from developed to less developed countries (LDCs). It does not,
however, address the movement of radioactive waste. The Convention is also
intended to minimize the amount and toxicity of wastes generated, to ensure their
environmentally sound management as closely as possible to the source of
generation, and to assist LDCs in environmentally sound management of the
hazardous and other wastes they generate.

4. Convention on Civil Liability for Damage Caused during Carriage of

Dangerous Goods by Road, Rail, and Inland Navigation Vessels (CRTD),
Geneva, 1989.

5. Convention on the Transboundary Effects of Industrial Accidents, Helsinki,

1992,it is a United Nations Economic Commission for Europe (ECE) convention
signed in Helsinki, Finland, on 17 March 1992, that entered into force on 19 April
2000. The Convention is designed to protect people and the environment against
industrial accidents. The Convention aims to prevent accidents from occurring, or
reducing their frequency and severity and mitigating their effects if required. The
Convention promotes active international cooperation between countries, before,
during and after an industrial accident. The Convention helps its Parties -- that is
States or certain regional organizations that have agreed to be bound by the
Convention -- to prevent industrial accidents that can have transboundary effects
and to prepare for, and respond to, accidents if they occur. The Convention also
encourages its Parties to help each other in the event of an accident, to cooperate
on research and development, and to share information and technology.

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III. Legal Protocal
The Supreme Court referred to the existing case laws:-

In Rajasthan Electricity Board v. MohanLal8 , the Supreme Court was called upon
to consider whether the Rajasthan Electricity Board was an 'authority' within the
meaning of the expression 'other authorities' in Art. 12. Bhargava. J. who delivered
the judgment pointed out that the expression 'other authorities' in Art. 12 would
include all constitutional and statutory authorities on whom powers are conferred by
law. And if anybody of persons has authority to issue directions, the disobedience of
which would be punishable as a criminal offence that would be an indication that the
concerned authority is 'State'.

Ray. C. J., in Sukhdev v. Bhagat Ram9 , where Mathew. J. propounded a broader

test, where he emphasized on the concept of 'State'. He expanded on this dictum by
stating that the emerging principle appears to be that a public corporation being an
instrumentality or agency of the 'State' is subject to the same constitutional limitations
as the 'State' itself, namely, that the corporation is the creation of the 'State' and that
there is existence of power in the corporation to invade the constitutional rights of the
individual.

In Ramanna D. Shetty v. International Airport Authority10 the Court held that

there is no cut and dried formula which would provide the correct division of
corporations into those which are instrumentalities or agencies of Government and
those which are not. The Court made an analogy on the concept of State Action as
developed in the United States wherein private agency if supported by extra-ordinary
assistance given by the State may be subject to the same constitutional limitations as
the State. The Court also held that if extensive and unusual financial assistance is
given and the purpose of such assistance coincides with the purpose for which the
corporation is expected to use the assistance and such purpose is of public character, it

8
1967 AIR 1857, 1967 SCR (3) 377
9
AIR 1975 SC 1331
10
1979 AIR 1628, 1979 SCR (3) 1014

17 | P a g e
 may be a relevant circumstance supporting an inference that the corporation is an
instrumentality or agency of the Government.
The criteria that evolved in RamanaShetty's case , was applied in Ajay Hasia v.
Khalid Mujib , where it was further emphasized that: where constitutional
fundamentals vital to the maintenance of human rights are at stake, the Government
may act through the instrumentality or agency or it may employ the instrumentality or
agency of judicial persons to carry out its function. It is really the Government which
acts through the instrumentality or agency of the corporation and for the purpose of
convenience of management and administration. If the Government acting through its
officers is subject to certain constitutional limitations it must follow a fortiori that the
Government acting through the instrumentality or agency of a corporation should be
equally subject to the same limitations.
It was held that Courts should be anxious to enlarge the scope and width of the
fundamental rights by bringing within their sweep every authority which is an
instrumentality or agency of the Government or through the corporate personality of
which the Government is acting, whether through natural persons or through
corporate entities to the basic obligation of the fundamental rights.

IV. RECOMMENDATION
Hazardous industries are enterprises engaged in hazardous process which may cause
adverse effect on health of the people and the environment unless special care is taken
to the leakage of the raw material or by product. In this era of open global market
economy hazardous industries are playing a decisive role in the economic
development and in the advancement of the economy, but simultaneously they are
causing the problem of risk to human life and environment. The developing countries
like India suffer from the acute problem of environmental pollution.

The origin of the national policy on chemical and hazardous industries relates to two
major incidents of gas leakage, the Bhopal tragedy in 1994 and the oleum gas leak
tragedy in 1995. In these cases the Hon’ble Supreme Court felt that the English
doctrine of Strict Liability adopted by the House of Lords in Rayland v. Fletcher
would not suffice the changing need of the liability principle in India. So the Hon’ble
Supreme Court felt the need of adopting the principle of Absolute Liability or else the
Court of law would fail to provide justice to the victims of these large scale

18 | P a g e
environmental disaster. 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 in the tortious principle of strict liability. 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.

The principles that came up from this historical case was the Principle of Absolute
Liability, secondly the Principle of Polluters Pays, thirdly the Principle of
Precautionary Measures, and finally the Principle of Highest Safety Standards came
up in this particular case.

There after a number of enactments were made by the union legislature for the
purpose of controlling the environmental pollution, like the Hazardous Waste
(Management and Handling) Rules, 1989, secondly the Manufacturing Storage and
Import of Hazardous Waste Chemical Rules, 1989, thirdly the Public Liability
Insurance Act, 1991, fourthly the National Environmental Tribunal Act, 1995, an
even many more legislation are made on the protection of environment from
pollution.

Again the scope of Art 21 was enlarged the Right to human health and healthy
environment was approved, the Right of enjoyment of pollution free water and air for
full enjoyment of life as a part of Right to Life was approved. And Right to clean
environment was also comprehended as a Right under Art 21 of The Constitution of
India.

In addition to all these the judgment of M.C.Mehta case gave a new dimension to the
Tort Laws in India. Before this case the principle of strict liability was applicable
where the defendant could take the plea of defenses, but this ruling of the Supreme
Court the Absolute principle came up. Though the Court of Law is always open to
hear any kind of injustice done to people and it provides compensation to the victims

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whose rights are violated or who have suffered loss due to the negligence of others
but at this juncture the Hon’ble Court could not provide any compensation to the
victims of the oleum gas leake tragedy. The Court could have given an interim
compensation to the victims and to the families of those who have died in the course
of the disaster. The interim compensation could have helped the victims by way of
proper habilitation, providing proper medical facilities and others.

Latter the Hon’ble Court has given exemplary compensation to the victims of the
oleum gas tragedy and even today the Court is of the view that the compensation that
was granted was not enough as compared to the losses suffered. Till date the Hon’ble
Court is thinking of providing more compensation to the victims, as people who are
living even today in the area where the tragedy took place are suffering a lot, as the
oleum gas is still present in the atmosphere. A lot of cases of still born child came up,
and the medical report of many showed that the presence of oleum gas is the reason
for those still born child. What ever may it be the situation I hope that the Hon’ble
Court will definitely provide the victims with appropriate compensation, as the
Hon’ble Court deems fit keeping in mind the principles of Natural Justice.

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CONCLUSION

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 pollution free environment is a part of a right to life, and these two cannot be
separated, because the intrinsic bonds between these two are very strong. It is 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 the sense it’s more flexible than
rigid thus allowing broader definition 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
Court 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 and pure and decent environment
would fall within the purview of Article 21.

Thus environmental protection becomes mandatory to the quality of life. The High court and
Supreme Court of India have read the Right to wholesome environment as a part of right to
life guaranteed in Article 21 of the Indian Constitution. 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 embraces the protection and

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preservation of nature’s gifts without which life 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 life and living
as contemplated by Article 21. 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.

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