The Doctrines the Courts Built

In one line

Six doctrines, none of them in any statute, all of them binding law by Article 141, and a student who can name the case behind each has the whole of MU's doctrines question.

One: absolute liability

The case. M.C. Mehta v. Union of India (the Oleum Gas Leak case), AIR 1987 SC 1086. Oleum gas escaped from a caustic chlorine plant in a densely populated part of Delhi on 4 December 1985, affecting workmen and members of the public; an advocate practising in the Tis Hazari courts died. A second, smaller leak followed two days later.

The rule. The Court refused to follow Rylands v. Fletcher with its exceptions and laid down a new rule of its own. An enterprise engaged in a hazardous or inherently dangerous industry owes an absolute and non-delegable duty to the community to ensure that no harm results. Where harm does result, the enterprise is strictly and absolutely liable to compensate all those affected, with no defence that it took all reasonable care. The liability is not subject to any of the exceptions that operate against the tortious principle of strict liability. And the measure of compensation must be correlated to the magnitude and capacity of the enterprise, because it must deter: the larger and more prosperous the enterprise, the greater the compensation.

Its constitutional footing. It was laid down in a petition under Article 32, in a case about the right to life, and it is applied through the writ jurisdiction rather than in a suit.

Applied in. Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446, the Bichhri case, where the polluting industries were held absolutely liable to compensate the villagers, the soil and the underground water, and bound to remove the sludge and other pollutants.

Two: polluter pays

The case. Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715.

The rule. As the Court interpreted it, polluter pays means that absolute liability for harm to the environment extends not only to compensating the victims of pollution but also to the cost of restoring the environmental degradation.

Read that carefully, because it is the point students miss. The principle is not merely that the polluter pays damages. It is that the polluter pays for putting the environment back. Compensation goes to people; restoration goes to the place. The Bichhri directions, requiring both compensation and the removal of sludge, are the pattern.

Its constitutional footing. Article 21, because restoration is what makes the right to a wholesome environment worth anything after the harm, and Article 48A's word "improve".

Three: the precautionary principle

The cases. Vellore, and then A.P. Pollution Control Board v. Prof. M.V. Nayudu, AIR 1999 SC 812.