Absolute Liability Applied: Bichhri and After

In one line

Absolute liability was stated in 1986 and given its content in 1996, when the Supreme Court used it to make a polluter pay for restoring an aquifer it had destroyed.

Bichhri

Facts. Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446, concerned chemical units at Bichhri village in Udaipur district which manufactured H acid, an intermediate used in dyes, without any clearance and without treating their effluent. Untreated toxic effluent and sludge were dumped in the open. The soil, the aquifer and the well water of the village were poisoned, and remained so years after the units had been closed.

Held. The Court applied the absolute liability rule. Once the activity carried on is hazardous or inherently dangerous, the person carrying it on is liable to make good the loss caused to any other person by that activity irrespective of whether he took reasonable care, because the rule is premised on the very nature of the activity. The polluting industries were absolutely liable to compensate the villagers of the affected area, the soil and the underground water, and were bound to take all necessary measures to remove the sludge and other pollutants lying in the affected areas. The Court further held that the power of the Central Government under section 3 of the Environment (Protection) Act 1986 is wide enough to include the power to prohibit an activity, to close an industry, to direct that remedial measures be carried out and to impose the cost of those measures on the offending industry.

Three things the case added to the Oleum rule.

It applied the rule to chronic pollution rather than to an accident. The Oleum rule speaks of harm resulting from an accident in the operation of a hazardous activity. Bichhri concerned deliberate discharge over years, and the Court applied the same rule to it, which widened the doctrine considerably.

It extended the liability to the environment itself. The industries were liable to compensate not only the villagers but the soil and the underground water, and were bound to remove the pollutants. That is liability for damage to a thing nobody owns.

It located a statutory power to enforce it. By holding that section 3 of the Act of 1986 carries the power to direct remedial measures and recover their cost, the Court gave the executive a route that does not require a suit at all.

The link to polluter pays

Six months after Bichhri, in the Vellore case, the Court took the step that completed the doctrine: the polluter pays principle, as interpreted by it, means that absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation, and remediation of the damaged environment is part of the process of sustainable development.