M J Antony: Legal walls against toxic imports

OUT OF COURT

Dumping of toxic waste by developed countries is a growing threat to developing nations. Lawmakers and enforcement agencies are slack in this field.

Thus, the judiciary has to step in to protect the environment and health of the people. The Supreme Court is slowly and steadily developing principles that could have a deterrent effect upon errant entities that damage ecology for quick profit.

Some of them have already realised from experience that these principles could hurt more than the laws that are either weak, or not enforced.

Last week's judgement in Research Foundation for Science vs Union of India has not only imposed penal liability on importers of hazardous substances, but also raised more signposts for the errant industries.

In this public interest litigation, the court appointed a committee in 1997, headed by Prof M G K Menon "in view of the alarming situation created by dumping of hazardous waste, its generation and serious and irreversible damage to the environment, and also having regard to the magnitude of the problem as a result of the failure of the authorities to appreciate the gravity of the situation and the need for prompt measures to prevent serious and adverse consequences".

It has been recommending various steps to tackle the specific problems periodically referred to it. In the latest judgement, the court ordered the destruction of 133 containers of waste oil imported by various companies in this country. This order may send warning signals to similar importers and industries.

However, beyond this immediate step, the judgement has far-reaching implications for the industry as a whole. The court reinforced two principles it had developed over the years and raised the liability of industries that handle hazardous wastes.

The court has adopted as a law the "precautionary principle" enunciated in the Rio Declaration. It states that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation.

The other rule is a more immediate deterrent. It is the "polluter pays" principle. It means that the producer of goods should be responsible for the cost of preventing or dealing with any pollution that the process causes.

This includes environmental cost as well as direct cost to people or property. The principle does not mean that the polluter can pollute and pay for it. The nature and extent of cost will vary from case to case.

Apart from reiterating these rules, the present judgement developed the theory of strict liability to suit the present and future business activities.

The courts are now somewhat restricted by the 19th century English rule of strict liability expounded in Rylands vs Fletcher. The courts have carved out several exceptions to the absolute liability principle. However, the present Supreme Court judgement said: "In a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to be carried on as part of the developmental programme, the court should not feel inhibited by this rule merely because the new law does not recognise this rule of strict and absolute liability in case of an enterprise engaged in hazardous activity. Law has to grow in order to satisfy the needs of the fast-changing society and keep abreast with the economic development taking place in the country."

Therefore, the Supreme Court concluded: The liability of an industry engaged in hazardous activity is absolute and non-delegable; if any harm results to anyone on account of the accident in the operations, all those who are affected must be compensated without apportioning blame; there are no exceptions to the rule as in England; the law presumes that the permission granted to the industry is conditional on the unit absorbing the cost of any accident arising from its activity. It alone has the resource to discover and guard against the dangers and to provide warning against potential hazards.

These are far more formidable rules than any the government can draft or enforce under the present circumstances. Though these are judge-made rules, their violation would invite severe punishment if complaints are taken to the court by an alert citizen or association.