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Full Case Details
This writ petition under Article 32 of the Constitution has come
before us on a reference made by a Bench of three Judges. The reference was made
because cer- tain questions of seminal importance and high constitutional significance
were raised in the course of arguments when the writ petition was originally heard.
The facts giving rise to the writ petition and the subsequent events have been set out
in some detail in the Judgment given by the Bench of three Judges on 17th February
1986, and it is therefore not necessary to reiterate the same. Suffice it to state that the
Bench of three Judges permitted Shriram Foods and Fertiliser Industries (hereinaf- ter
referred to as Shriram) to restart its power plant as also plants for manufacture of
caustic chlorine including its by-products and recovery plants like soap, glycerine and
technical hard oil, subject to the conditions set out in the Judgment. That would have
ordinarily put an end to the main controversy raised in the writ petition which was
filed in order to obtain a direction for closure of the various units of Shriram on the
ground that they were hazardous to the community and the only point in dispute
which would have survived would have been whether the units of Shriram should be
directed to be removed from the place where they are presently situate and relocated
in another place where there would not be much human habitation so that there would
not be any real danger to the health and safety of the people. But while the writ
petition was pending there was escape of oleum gas from one of the units of Shriram
on 4th and 6th December, 1985 and applications were filed by the Delhi Legal Aid &
Advice Board and the Delhi Bar Association for award of compensation to the
persons who had suffered harm on account of escape of oleum gas. These applications
for compensation raised a number of issues of great constitu- tional importance and
the Bench of three Judges therefore formulated the issues and asked the petitioner and
those supporting him as also Shriram to file their respective written submissions so
that the Court could take up the hearing of these applications for compensation. When
these applications for compensation came up for hearing it was felt that since the
issues raised involved substantial questions of law relating to the interpretation of
Articles 21 and 32 of the Constitution, the case should be referred to a larger Bench of
five Judges and this is how the case has now come before us.
Mr. Diwan, learned counsel appearing on behalf of Shri- ram raised a preliminary
objection that the 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 petition. Mr. Diwan conceded that the
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escape of oleum gas took place subsequent to the filing of the writ petition but his
argument was that the petitioner could have applied for amendment of the writ
petition so as to include a claim for compensation for the victims of oleum gas but no
such application for amendment was made and hence on the writ petition as it stood,
these constitutional issues did not arise for consideration. We do not think this
preliminary objection raised by Mr. Diwan is sustainable. It is undoubt- edly true that
the petitioner could have applied for amend- ment of the writ petition so as to include
a claim for compensation but merely because he did not do so, the applications for
compensation made by the Delhi Legal Aid & Advice Board and the Delhi Bar
Association cannot be thrown out. These applications for compensation are for
enforcement of the fundamental right to life en- shrined in Article 21 of the
Constitution and while dealing with such applications, we cannot adopt a
hypertechnical approach which would defeat the ends of justice. This Court has on
numerous occasions pointed out that where there is a violation of a fundamental or
other legal right of a person or class of persons who by reason of poverty or disability
or socially or economically disadvantaged position cannot approach a Court of law for
justice, it would be open to any public spirited individual or social action group to
bring an action for vindication of the fundamental or other legal right of such
individual or class of individuals and this can be done not only by filing a regular writ
petition but also by addressing a letter to the Court. If this Court is prepared to accept
a letter complaining of violation of the fundamental right of an individual or a class of
individuals who cannot approach the Court for justice, there is no reason why these
applications for compensation which have been made for enforcement of the
fundamental right of the persons affected by the oleum gas leak under Article 21
should not be entertained. The Court while dealing with an application for
enforcement of a fundamental right must look at the substance and not the form. We
cannot therefore sustain the preliminary objection raised by Mr. Diwan. The first
question which requires to be considered is as to what is the scope and ambit of the
jurisdiction of this Court under Article 32 since the applications for compensa- tion
made by the Delhi Legal Aid and Advice Board and the Delhi Bar Association are
applications sought to be main- tained under that Article. We have already had
occasion to consider the ambit and coverage of Article 32 in the Bandhua Mukti
Morcha v. Union of India & Ors., [1984] 2 SCR 67 and we wholly endorse what has
been stated by one of us namely, Bhagwati, J. as he then was in his judgment in that
case in regard to the true scope and ambit of that Article. It may now be taken as well
settled that Article 32 does not merely confer power on this Court to issue a direction,
order or writ for enforcement of the fundamental rights but it also lays a constitutional
obligation on this Court to protect the fundamental rights of the people and for that
purpose this Court has all incidental and ancillary powers including the power to
forge new remedies and fashion new strategies designed to’ enforce the fundamental
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rights. It is in reali- sation of this constitutional obligation that this Court has in the
past innovated new methods and strategies for the purpose of securing enforcement of
the fundamental rights, particularly in the case of the poor and the disadvantaged who
are denied their basic human rights and to whom freedom and liberty have no
meaning.
We are also of the view that this Court under Article 32(1) is free to devise any
procedure appropriate for the particular purpose of the proceeding, namely,
enforcement of a funda- mental right and under Article 32(2) the Court has the
implicit power to issue whatever direction, order or writ is necessary in a given case,
including all incidental or ancillary power necessary to secure enforcement of the
fundamental right. The power of the Court is not only in- junctive in ambit, that is,
preventing the infringement of a fundamental right, but it is also remedial in scope
and provides relief against a breach of the fundamental right already committed vide
Bandhua Mukti Morcha’s case (supra). If the Court were powerless to issue any
direction, order or writ in cases where a fundamental right has already been violated,
Article 32 would be robbed of all its efficacy, because then the situation would be that
if a fundamental right is threatened to be violated, the Court can injunct such violation
but if the violator is quick enough to take action infringing the fundamental right, he
would escape from the net of Article 32. That would, to a large extent, emasculate the
fundamental right guaranteed under Article 32 and render it impotent and futile. We
must, therefore, hold that Article 32 is not powerless to assist a person when he finds
that his fundamental right has been violated. He can in that event seek remedial
assistance under Article 32. The power of the Court to grant such remedial relief may
include the power to award compensation in appropriate cases. We are deliberately
using the words “in appropriate cases” because we must make it clear that it is not in
every case where there is a breach of a fundamental right committed by the violator
that compensation would be awarded by the Court in a petition under Article 32. The
infringement of the funda- mental right must be gross and patent, that is, incontrovertible and ex facie glaring and either such infringement should be on a large scale
affecting the fundamental rights of a large number of persons, or it should appear
unjust or unduly harsh or oppressive on account of theft poverty or disability or
socially or economically, disadvantaged posi- tion to require the person or persons
affected by such infringement to initiate and pursue action in the civil courts.
Ordinarily, of course, a petition under Article 32 should not be used as a substitute for
enforcement of the right to claim compensation for infringement of a fundamen- tal
right through the ordinary process of civil court. It is only in exceptional cases of the
nature indicated by us above, that compensation may be awarded in a petition under
Article 32…
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We must also deal with one other question which was seriously debated before us and
that question is as to what is the measure of liability of an enterprise which is engaged in an hazardous or inherently dangerous industry, if by reason of an accident
occurring in such industry, persons die or are injured. Does the rule in Rylands v.
Fletcher apply or is there any other principle on which the liability can be determined?
The rule in Rylands v. Fletcher was evolved in the year 1866 and it provides that a
person who for his own purposes being on to his land and collects and keeps there
anything likely to do mischief if it escapes must keep it at his peril and, if he falls to
do so, is prima facie liable for the damage which is the natural consequence of its
escape. The liability under this rule is strict and it is no defence that the thing escaped
without that person’s wilful act, default or neglect or even that he had no knowledge
of its existence. This rule laid down a principle of liability that if a person who brings
on to his land and collects and keeps there anything likely to do harm and such thing
escapes and does damage to another, he is liable to compensate for the damage
caused. Of course, this rule applies only to non-natural user of the land and it does not
apply to things naturally on the land or where the escape is due to an act of God and
an act of a stranger or the default of the person injured or where the thing which
escapes is present by the consent of the person injured or in certain cases where there
is statutory authority. Vide Halsbury Laws of England, Vol. 45 para 1305.
Considerable case law has developed in England as to what is natural and what is
non-natural use of land and what are precisely the circumstances in which this rule
may be displaced. But it is not necessary for us to consider these decisions laying
down the parameters of this rule because in a modern industrial society with highly
developed scientific knowledge and technology where hazardous or inherently
dangerous indus- tries are necessary to carry out part of the developmental
programme. This rule evolved in the 19th Century at a time when all these
developments of science and technology had not taken place cannot afford any
guidance in evolving any standard of liability consistent with the constitutional norms
and the needs of the present-day economy and social structure. We need not feel
inhibited by this rule which was evolved in this context of a totally different kind of
economy. Law has to grow in order to satisfy the needs of the fast-changing society
and keep abreast with the economic developments taking place in the country. As new
situations arise the law has to be evolved in order to meet the chal- lenge of such new
situations. Law cannot afford to remain static. We have to evolve new principles and
lay down new norms Which would adequately deal with the new problems which
arise in a highly industrialised economy. We cannot allow our judicial thinking to be
constricted by reference to the law as it prevails in England or for the matter of that in
any other foreign country. We no longer need the crutches of a foreign legal order.
We are certainly prepared to receive light from whatever source it comes but we have
to build up our own jurisprudence and we cannot countenance an argument that
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merely because the new law does not recog- nise the rule of strict and absolute
liability in cases of hazardous or dangerous liability or the rule as laid down in
Rylands v. Fletcher as is developed in England recognises certain limitations and
responsibilities. We in India cannot hold our hands back and I venture to evolve a
new. principle of liability which English courts have not done. We have to develop
our own law and if we find that it is necessary to construct a new principle of liability
to deal with an unusual situation which has arisen and which is likely to arise in future
on account of hazardous or inherently dan- gerous industries which are concommitant
to an industrial economy, there is no reason why we should hesitate to evolve such
principle of liability merely because it has not been so done in England. We are of the
view that an enterprise which 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 in the surrounding areas owes an absolute and
nondelegable 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. The enterprise 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 results on account of such
activity, the enterprise must be absolutely liable to compensate for such harm and it
should be no answer to the enterprise to say that it had taken all reasonable care and
that the harm occurred without any negligence on its part. Since the persons harmed
on account of the hazardous or inherently dangerous activity carried on by the
enterprise would not be in a position to isolate the process of operation from the
hazardous prepara- tion of substance or any other related element that caused the
harm must be held strictly liable for causing such harm as a part of the social cost for
carrying on the hazardous or inherently dangerous activity. If the enterprise is permitted to carry on a hazardous or inherently dangerous activi- ty for its profit, the law
must presume that such permission is conditional on the enterprise absorbing the cost
of any accident arising on account of such hazardous or inherently dangerous activity
as an appropriate item of its over-heads. Such hazardous or inherently dangerous
activity for private profit can be tolerated only on condition that the enter- prise
engaged in such hazardous or inherently dangerous activity indemnifies all those who
suffer on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not. This principle is also
sustainable on the ground that the enterprise alone has the resource to discover and
guard- against hazards or dangers and to provide warning against potential hazards.
We would therefore hold that where an enterprise is engaged in a hazardous or
inherently dangerous activity and harm results to anyone on account of an acci- dent
in the operation of such hazardous or inherently dan- gerous activity resulting, for
example, in escape of toxic gas the enterprise is strictly and absolutely liable to
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compensate all those who are affected by the accident and such liability is not subject
to any of the exceptions which operate vis-a-vis the tortious principle of strict liability
under the rule in Rylands v. Fletcher (supra). We would also like to point out that the
measure of compensation in the kind of cases referred to in the preced- ing paragraph
must be co-related to the magnitude and capac- ity of the enterprise because such
compensation must have a deferent effect. The larger and more prosperous the enterprise, the greater must be the amount of compensation pay- able 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.
