POLLUTER PAYS PRINCIPLE

The polluter pays principle lays down that the individuals or the industries causing pollution or carrying out activities which tend to pollute the environment are bound to make compensation to all the individual sufferers as well as the required to make compensation for the damage done to the environment.
It was held by the Supreme Court in the case of M. C. MEHTA v KAMAL NATH[1] that the polluter is under an obligation to make good the damage caused to the environment.
Any person, whose activities lead to environmental degradation shall be responsible to make good that loss or damage. Such as person shall have an absolute liability to make good that damage.
The term ‘absolute liability’ indicates that the polluter can in no way avoid his liability. Where his liability for remediation is concerned, he cannot take the aid of any exception, for the rule of absolute liability is not subject to any exception[2].
In Council for ENVIRO LEGAL ACTION v UNION OF INDIA[3], it was contended that the principle on which the liability of the respondents to defray the costs of remedial measures will be determined is, the “Polluter Pays”, that is, the responsibility for repairing the damage is that of the offending industry.
Thus, the “Polluter pays principle” clearly indicates that the absolute liability for the harm caused to the environment is on the polluter and it extends not only to compensate the victims of the pollution but also at the cost of restoring the environment its natural condition.
In the VELLORE CASE[4], it was held that the remediation of the damaged environment is a part of the process of sustainable development and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.
Thus, the cost of reversing the damaged ecology comes very much in the ambit of this principle and is included in the cost of the project.
BURDEN OF PROOF
According to the polluter pays principle, the onus is also on the individual or the industrialist to prove that his activities were environmentally benign. This principle was also laid down in the VELLORE CASE[5]
Thus, the burden of proof lies on the person carrying on development activities to show that his activities cannot and do not harm the environment in any manner.
Similarly, in the ENVIRO-LEGAL CASE[6], it was held that the remediation of the damaged environment was considered very much a part of the process of sustainable development and the onus of the same lay on the polluter.
The developed industrialist is required not only to make good any damage caused to the environment because of the pollution and other hazards caused by his activities and is also liable to make good any damage caused to the environment.
In the BHOPAL GAS TRAGEDY[7], the polluter company Union Carbide Ltd. was ordered to make good all the damage caused to the environment due to its negligence which led to the escape of the poisonous methyl isocyanide gas. In SHRIRAM FOODS AND FERTILIZERS INDUSTRIES v UNION OF INDIA[8], where the manufacturing process was closed down due to the leakage of oleum gas, the Supreme Court ordered that the chairman and the managing director shall be personally liable for payment of compensation for death or injury.

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[1]  MC Mehta v Kamal Nath (2000)6 SCC 213

[2] M C Mehta v UOI AIR1987 SC 1086

[3] Council for Enviro-legal action v UOI (1996) 5 SCC 281

[4]  Vellore citizen’s welfare forum v UOI AIR 1996 SC 2715

[5]  Vellore citizen’s welfare forum v UOI AIR 1996 SC 2715

[6]  Council for Enviro-legal action v UOI (1996) 5 SCC 281

[7]  Union Carbide Corporation v UOI (1986)2 Comp. LJ 169(US)

[8]  4 Shri Ram foods and fertilizers industries v UOI AIR 1987 SC965

PRECAUTIONARY PRINCIPLE

The precautionary principle lays down that before carrying out any development activity, the protagonist must try to analyze the damage which could be caused to the environment due to his activities and try to prevent the same.
Articles 48[1], 48-A[2] and 51 A clause (g)[3] of the Constitution of India make it mandatory to protect and improve the environment.
It has been held in NARMADA BACHAO AANDOLAN v UNION OF INDIA[4] that – the precautionary principle is applicable only where the effect of any industry upon the ecology or the environment is known and not otherwise.
The precautionary principle basically aims at avoiding any risk or damage to the environment which could be foreseen by the industrialist.
In A.P. POLLUTION CONTROL BOARD v PROF. M. V. NAYUDU[5], it has been held by the Supreme Court that – the principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity.
Similarly, in the case of S. JAGANNATH v UNION OF INDIA[6], where the question was whether modern techniques of shrimp farming are environment friendly it was contended by the court that the traditional type of shrimp farming are environmentally benign and pollution free. But the modern technological type of farming using chemicals to create more produce create pollution and has degrading effect on the environment and ecology and therefore, the same cannot be permitted.
Thus, here too, the principle of precaution was sought after so as to prevent any damage to the environment.
The basic principles are that
1-Environmental measures by the State government and the statute should attack the cause of environmental degradation.
2- Where there are threats of severe and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
3- The onus of proof is on the actor or the developed industrialists to show that his action does not affect the environment.
The precautionary principle clearly states that where it is easy to analyze and foresee what damage can be caused to the environment, every step should be taken to prevent that damage.
Under the precautionary principle, the industrialist is required to undertake those procedures which cause the least damage to the environment.
In the NARMADA CASE[7], Justice Barucha held that an adverse impact on the environment can have disastrous consequences for the present generation as well as for the generations to come, and thus, all precaution has to be taken.
Thus, it is required that precaution is taken while initializing large projects for any unplanned or unscientific project can have a long lasting adverse impact on the environment which will damage not just the present but the future as well.
Similarly, the Supreme Court in M.C. MEHTA v UNION OF INDIA[8], observed that for the protection of the lakes from degradation, it is necessary that the construction in their vicinity is limited.
Thus according to this principle a definite check is imposed upon all development activities.
Thus, the most important step to be taken is the prevention of pollution and damage to the environment.
The importance of this principle is manifesting from the point that the Supreme Court has from time and again considered it a part of the concept of sustainable development.
 In a recent case of M. C. MEHTA v UNION OF INDIA[9] which related to vehicular pollution in Delhi, the Supreme Court again pointed out that the precautionary principle is enshrined in the concept of sustainable development. The court further pointed out that it required that there is enough breathing space in the city and for the same it is necessary that vehicular pollution is curbed.

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[1] Article 48 Organisation of agriculture and animal husbandry The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle

[2]Article  48A Protection and improvement of environment and safeguarding of forests and wild life The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country

[3] Article 51 A(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

[4]  Narmada Bachao Andolan v UOI (2000)10 SCC 664

[5]  AP pollution control board v Prof  M V Nayudu(1999) 2SCC718

[6]   S Jagannath v UOI  AIR 1998 SC 811

[7]  Narmada Bachao Andolan v UOI (2000)10 SCC 664

[8]  M C Mehta v UOI AIR 1996 SC 1977

[9]  M C Mehta v UOI AIR 2002 SC 1696

Right to Information

Under the Indian Constitution, the right to information[1] as well as the freedom of press[2] flow directly from the right to freedom of speech and expression provided under Article 19(1)(a)[3] of the same. These rights have not been expressly provided but are construed impliedly. Hence, the same are subject to the restrictions under Article 19(2)[4]. These two rights are not above the freedom of speech and expression and are hence, subjected to the same restrictions.

The freedom of press and the right to information are corollary in the present technological era. Via various media any individual can get access to any amount of information. Internet plays an important role in providing any amount of information within seconds. Further, any item of public interest or anything dealing with public figures once published on internet is further published by the press via news channels and newspapers. So even a person who does not use internet gets to know what all details are available online.

With the passage of Right to Information Act, various bodies are under an obligation to provide information regarding their administration on their websites. These include not just the government departments but also private organizations. Further, any civilian can ask for such information by filing a petition for the same.

The right to information has proved to be helpful in checking corruption at various levels as well. Access to information helps in determining the funding of various political parties during elections. It is a basic right in a democratic set up.

However, with such a vast amount of information available at the click of a button, various issues have also stemmed up like national security, privacy, information regarding public enterprises and so on.

(a)    Right to information and national security:

An important aspect regarding right to information is of how much information pertaining to national defense can be brought into public domain? Can matters of imminence be discussed in public domain?

The details regarding a nation’s armed forces is a well kept secret for the simple reason that any leakage of the same to the enemy nations will weaken its frontiers. Right to information does not give a right to discuss a nation’s security measures in public. The information regarding a nation’s arms and ammunitions and other security measures are to be shielded from the world’s scrutiny, for the simple reason that such publication can seriously damage its security.

The State can impose reasonable restrictions in the right to information where it affects the national security or any other matter affecting the nation’s integrity.[5]

(b)   Right to information and film censorship:

Films form a part of the freedom of expression given under Article 19. No separate rights are expressly provided for films in the Constitution. Films are subject to the restrictions provided for freedom of speech and expression under Article 19(2) on the grounds of obscenity, morality, public order, national security, maintaining friendly relations with foreign states, maintaining the integrity of nation, defamation or inciting offence and contempt of court. While dealing with obscenity or morality, it is to be seen how much the content has the power to corrupt the minds of the viewers.[6] A film influences the mind of the audience in more than one way due to the presence of sight, sound, surroundings and is therefore necessary to be monitored. However, where a film showcases the reality of the society or where it is a biography, it becomes difficult to say that it corrupts the minds of the audience.

(c)    Right to information and right to privacy:

Article 21[7] states that no person shall be deprived of his life and personal liberty except by procedure established by law. The Apex Court has observed in number of instances that right to privacy is an inherent aspect of right to life[8]. Every individual has got a right to preserve his private life, shield his personal moments from the public gaze. Every individual has a right to privacy even if he might be a public figure, a celebrity, a man of the world.

Telephone tapping infringes the provisions of Article 21 unless it is permitted under “procedure established by law”.[9]

How to balance the rights under Articles 21 and 19?

Articles 19 and 21 are complementary and supplementary to each other. While Article 21 preserves the very existence of a man, Article 19 gives socio-political freedom to the citizens of this country. Article 19 gives freedom to citizens alone subject to certain conditions while Article 21 protects the right to life of every individual. The right to life and liberty under Article 21 cannot be taken away by any authority except by the procedure established by law[10].

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[1] Association for democratic reforms v UOI

[2] Express Newspaper v Union of India; Sakal Papers v Union of India

[3]Article 19( 1): All citizens shall have the right

(a) to freedom of speech and expression;

[4] Under Article 19 clause (2), the State can make a law imposing reasonable restrictions on the freedom of speech and expression in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

               

[5] L.K. Koolwal v State of Rajasthan; Dinesh Trivedi M P v Union of India

[6] K A Abbas v Union of India

[7]Article  21:Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law

[8] Govind v State of Maharashtra; Kharak Singh v State of U P

[9] People’s union for civil liberties v Union of India

[10] Maneka Gandhi v UOI, --- interpreted as due process of law clause

Right to privacy

The right to privacy is not provided separately under the Indian Constitution, instead it is a part of Article 21 itself. In R. Rajagopal v State of Tamil Nadu, the Supreme Court has expressly held that the right to privacy is very much a part of the right to life and personal liberty. A citizen has a right to safeguard his own privacy as well as that of his family. Nobody can publish what he doesn't want to share.
A man has got every right to control the amount of information he wants to share with the public. He has got a right to guard zealously the most intimate moments of his life. A man, whether a known criminal or a public figure, has got a right to protect his private life from being invaded upon subject to the laws and morals of the society.
In State of Maharashtra v Madhulkar Narain, the Apex Court held that the right to privacy is available to even a woman of easy virtues. The Court observed that a woman has got every right to guard her privacy.
In People's Union for Civil Liberties v Union of India, the Supreme Court has held that tapping of telephones is a direct infringement of a man's right to privacy.
Further, in Mr. X v Hospital Z, the Apex Court observed that the right to privacy should not be extended in such a manner that it might infringe some other person's right to life. The Court observed that though the right to privacy is a fundamental right, it is not absolute and unrestricted. Being a part of Article 21, the right to privacy is subject to the 'procedure established by law' clause of the same. The right is subject to restrictions imposed for the prevention of crime, protection of health and life of others or the protection of rights and freedoms or morals of others.

Age of Consent

The proposed sex bill increases the age of consent for sex from 16 to 18 years. It further removes the discrimination on the ground of sex thereby protecting the sexual abuse of both young boys and girls. While it may be attempting to save innumerable children from sexual abuse, it also makes it illegal for teenagers to have consensual sex. What is required is not that a strict age limit is put, but that there should be some consideration about the age of parties involved.
In the present era, age of puberty has come down. In such circumstances, what is required is not to make a law that makes it illegal for teenagers to have a relationship otherwise they will be further harassed by the social police. What needs to be done is to narrowdown the age difference between the parties so as to prevent sexual abuse of children by adults.
And often, children are abused at the hands of their own guardians and relatives and are not in a position of reporting the same. It is required that the law punishes the guardians and primary caretakers at the first complaint of such children.
In order to prevent the sexual abuse of children, the need is of educating the parents about sexual abuse. It is further required that child helplines are made available at all times to address such issues. Bodies at different levels of governance should also work fulltime to takeup these cases. Further, it is hightime that society is educated about ills of child marriage and the restraining law is implemented in reality.

Insanity and Criminal Liability

The law of crimes provides that actus non facit reum nisi mens sit rea, that is, an act is not a crime if it is done without an intention to cause harm. A guilty mind or a guilty intention forms the basis of criminal liability. A person who is not sane does not know what he is doing. An act committed by him during the course of his lunacy cannot be treated at par with a pre-meditated crime, as he lacks intention. Intent to commit crime is an essential element of crime as well as an important stage of crime and a person having delusions or having irrational thoughts cannot be said to be capable of forming an intent to commit a crime. Though insanity has not been defined in law four types of people are recognized as insane:

 (1) an idiot – an idiot is one who from birth had defective mental capacity. This infirmity in him is perpetual without lucid intervals;

(2) one made so by illness – by illness, a person is made non compos mentis. He is therefore excused in case of criminal liability, which he acts under the influence of this disorder;

 (3) a lunatic or a madman – lunatics are those who become insane and whose incapacity might be or was temporary or intermittent. A lunatic is afflicted by mental disorder only at certain period and vicissitudes, having intervals of reason; and

(4) one who is drunk – this is covered under IPC, s. 85.

The Indian Penal Code, 1860, does not consider an act committed by a lunatic as a crime if it is committed during the period of lunacy. The same is applicable in cases of forced intoxication.

Section 84. Act of a person of unsound mind.--Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

                McNaughton’s rule states that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.

The burden of proof lies on the party claiming the defense of lunacy; that he was not in fit mental capacity at the time of committing the crime.

The accused is protected not only when, on the account of insanity, he was incapable of knowing the nature of the act, but also when he did not know either the act was wrong or it was contrary to the law. He is however, not protected if he knew that what he was doing was wrong, even if he did not know that it was contrary to the nature of the law or vice versa.

Section 85. Act of a person incapable of judgment by reason of intoxication caused against his will.--Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law: provided that the thing which intoxicated him was administered to him without his knowledge or against his will.

Section 86. Offence requiring a particular intent or knowledge committed by one who is intoxicated.--In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.

                Under the provisions of the Code, an intoxicated person is treated in the same way a lunatic is treated, provided that such intoxication has not been delivered voluntarily. However, such a defense cannot be succeeded in cases of voluntary intoxication.

                Thus, in cases of where insanity has been pleaded as a defense and successfully proved, the person is absolved of criminal liability.

Nature and sources of law

Law maybe defined as a set of rules governing human conduct. It has been regarded as a divinely ordained rule or tradition of old customs or a code or system of rules imposed upon man by the society. Austin defined law as a command of sovereign backed by sanction while Savigny defined it in terms of popular consciousness. Justice Holmes defined it as a judicial process. But neither of the definition is complete because law is not dependent upon a supreme authority to proclaim it to get its authority as Austin proclaimed, customary law is well established. Similarly, customs alone do not originate law, it is dynamic in nature. Further, law is not dependent upon courts to declare its validity; it can exist without that as well.

Austin separated law as ‘it is’ from law as ‘it ought to be’. He separated it from morality. However, law cannot be completely separated from morality. It cannot be devoid of the popular consciousness. The natural law school, having sages and priests as its principal exponents, defines law as a Divine command and it consists entirely of positive morality.

However, law is a combination of positive morality, it needs to be accepted by the popular notion of the society, and it needs some sanction and should be recognized in the court of law as not being against public policy. It is a dynamic body that adapts itself according to the needs of society while not changing so fast so as to make life difficult. Neither should it be so static that it stifles life.

The Sociological school studies law in terms of its ends or functions. The purpose of law is to bring about social order. Law seeks to bring harmony and order in the society and is a means to an end and not an end in itself.

Thus, law is a body of rules guiding the human conduct in a society. Its purpose is to bring about social order. Law is not only based on the preconceived notions of good but is also dynamic enough to adapt according to the needs of the society.

Sources of law

                The term ‘source’ means the place or point from which something springs out or originates. The source of law maybe defined as the historical fact out of which the rules of human conduct originate and acquire obligatory characteristics. Three main sources of law have been universally recognized and they are; custom, legislation and judicial precedent.

(1)    Custom: customs are an important source of law with various personal laws being largely dependent upon the same. The Historical School of Law considers customs as the true source of law. However, to gain validity as a law, customs need to fulfill certain conditions such as:

(a)    Antiquity

(b)   Reasonableness

(c)    Exercised as of Right

(d)   Not opposed to statutory law

(e)   Not immoral

(f)     Not by analogy

(2)    Legislation: legislation or law making process is the formal process of creating new legal norm, by a formal and express declaration by some authority which is recognized by the courts of law as adequate for the purpose. According to Sir Henry Maine, legislation is the last agency of social reform. Legislation maybe supreme or subordinate depending upon the body laying down the rules.

(3)    Judicial precedent: judicial precedents are the former judgements of the superior courts that are binding upon the subordinate judiciary in subsequent cases based on the similar act or circumstance.