Absolute Responsibility For Environmental Legislation Essay

The ideals of the socialist Constitution as ours include a duty upon their state to protect its people from all injury. In this respect, the best standard of protection is in the form of fundamental rights directed at people under Part III of the Constitution, whereby a violation of some of them allows any citizen to approach the Supreme Court directly. Furthermore to these protection under the law, there's also certain Fundamental Tasks that citizens are anticipated to check out. Further, the manufacturers of our Constitution foresaw certain other tasks which could gain importance in the future, and enshrined these partly IV of the Constitution under the Directive Principles of State Policy for any future legislations associated with the same. Inside our current times of fast industrialization and indiscriminate use of our natural resources, it has become vital to check out the path of ecological development in order to preserve our abundant resources for generations to come. In this respect, the Constitution has provided within its framework, certain provisions that deal with the Environment and its protection. Article 48A, under the Directive Concepts of State Policy, is one such provision. It declares that "their state shall endeavour to safeguard and increase the environment also to protect the forests and wildlife of the country". Further, Article 51A packages out the essential obligations of the citizens, sub-section (g) being - "to safeguard and improve the natural environment including forests, lakes, waterways and wild life and to have compassion for living creatures".

The judiciary has also played its role in providing progressive judgments regarding protection of the surroundings generally. They have delved into not only the mere legal aspects but also elaborate details requiring professional knowledge and awarding payment and so on (a good example could be the role of Tribunals and subsequently courts in settling inter-state normal water disputes). So much so that one critics of this electricity of the judiciary have dubbed the Supreme Court docket as "Lords of Green Bench" or even "Garbage Supervisors".

In days gone by all actions for environmental torts against companies and industries were governed by the concept of strict liability. However, with quick industrialization and increase in the utilization of dangerous materials, the necessity for even stricter norms arose.

The principle of strict responsibility was initially laid down by Blackburn J. in the 1868 House of Lords common sense of Rylands v. Fletcher. In cases like this, a mill owner hired some contractors to construct a reservoir on his land to provide drinking water for his mill. The contractors came after some old shafts and passages on the defendant's land, which communicated with the mines of the neighbour of the defendant, although no-one suspected this. The companies did not obstruct them up, and when the reservoir was filled water from it burst through the old shafts and flooded the plaintiff's mines. It was found as a fact that the defendant was not negligent, although contractors had been. However the House of Lords held the accused liable laying the foundation for the process of strict liability the following:

"The person who for his own purposes brings on his lands and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, of course, if he does not do so, is prima facie answerable for all the damage which is the natural result of its escape. He can reason himself by showing that the break free was owing to the plaintiff's default; or simply that the outcome was of vis major, or the work of god; but as nothing at all of this form exists here, it is needless to make inquiries what reason would be sufficient. "

The rule regarded 'No problem' or 'Strict Liability', i. e. , even if the accused was not negligent or rather, even if the accused did not intentionally cause the damage he could be held liable under the guideline.

Later on, however, it became necessary that establishments and corporations did not escape responsibility by professing to come within the exceptions of the Rylands guideline. This gave surge to the idea of absolute liability, wherein the defendant has no defence open to him to flee liability for open public nuisance. The 'polluter pays off' principle is essentially an expansion of the guideline of absolute liability making the polluter liable to pay the expense of restoration of the environment. It has found statutory acknowledgment in many common laws countries. This principle in addition has been acknowledged by the Supreme Judge of India in the Oleum Gas Leak case. This newspaper traces the introduction of the principle of absolute responsibility for environmental harm, beginning with the Rylands theory.

In the span of this newspaper, the researcher shall endeavour to answer the following questions :

Research Questions:

What is the explanation behind the 'polluter pays off' theory providing for overall liability?

What has been the Indian judicial development in regards to to absolute liability?

How far has the Indian Legislature adopted this judicial craze and the reasons for the same?

What are the challenges experienced by the polluter pays principle?

Part - B : Exceptions to the Guideline in Rylands v. Fletcher and Total liability

Liability under the Rylands rule is stringent in the sense which it relieves the claimant of the burden of showing mistake; however, it is not absolute since there are a variety of exceptions to the guideline of strict responsibility. The following exceptions to the guideline have been identified by Rylands v. Fletcher.

Default of the claimant: In the event the break free of the dangerous good was due to plaintiff's own problem or negligence. This is held regarding Eastern and Southern African Telegraph Co. Ltd. v. Capetown Tramway Co 1902

Act of God: Vis Major or Work of God is a good defence within an action under the Rule of Strict Liability. Within the 1875 circumstance of Nichols v. Marsland, the defendant had some artificial lakes on his land in the building and maintenance which there had been no negligence. Owing to unusual rainfall, so great that it might not need been reasonably expected, the reservoirs burst taking away four country bridges. The judge of appeals kept that an act of God is a defence in situations of reservoir failures.

Act of third party: In cases where the incorrect done has been by a person who is a stranger and the defendant does not have any control over him.

Consent of the claimant: Instances where the plaintiff has given his consent to build up the hazardous part of the defendant's land for the purpose of common benefit.

Statutory Expert: Any work done under the specialist of any statute. This exception is not suitable when you can find negligence.

Here comes the differentiation between rigorous and absolute responsibility. Absolute liability is a process that has done away with the exceptions provided with under the Rylands rule. Here, by virtue of finished. in question being so inherently dangerous that an escape would cause widespread harm, the principle absolute liability has been introduced in many common law countries including India.

The theory of strict responsibility further evolved in the case of Cambridge Drinking water Company v. Eastern Counties Leather PLC in which a rule associated with foreseeability of damage was included in the realm of strict responsibility. i. e. a person wouldn't normally be strictly liable for any become long as it might not be fairly foreseen that the damage could have happened.

SECOND CASE?

Part - 3 : Overall Liability and the polluter gives principle:

The Rylands concept has prompted many common legislations jurisdictions to enact statutes providing for definite liability in instances of normal water leakage and impoundment leading to public nuisance. The basis of such liability is 'no fault' liability. For example, one statute in the express of Wyoming, USA providing for liability of owners of reservoirs reads:

"Nothing in this take action shall be construed to relieve an owner or owners of any reservoir, dam or diversion system of any legal obligations, responsibilities or liabilities event to their possession or operation of or any damages resulting from the leakage or overflow of drinking water or for floods caused by the failure or rupture of the fill up or composition for such works".

The latter area of the provision establishes the actual fact that the owners would be absolutely responsible for any damage brought on by any leakage of these respective reservoirs. Lots of the statutory principles do not acknowledge the exceptions to the rule laid down in Rylands. Such a concept of liability provides for 'liability without problem' or complete liability.

One of the prominent examples of definite responsibility is the Broad Environmental Response, Reimbursement and Liability Action in the U. S. A including clean up provisions. The other legislation includes the Environmental Cleanup Responsibility Take action of the State of New Jersey of america.

The latter statute imposes a liability on the landowner if his land is found to be a cause of environmental pollution, whether he was at fault

In Ontario, Canada, environmentally friendly Enforcement Statute Law Amendment Function, 2005 looks for to impose total responsibility for violation of environmental laws. The condition of Utah, in the U. S. A also offers the Hazardous Substances Mitigation Act which provides for absolute liability for release of dangerous materials. The liability includes payment of exploration and abatement costs. Some areas in america also impose absolute liability for discharge of pollution into the waters of that state. Such liability would also stretch to oil spills which have far reaching environmental implications.

These statutory guidelines are regular with the normal guideline among legal scholars which asserts that the polluter should keep immediate responsibility for the expense of the pollution she imposes on the rest of contemporary society -- the "polluter pays off" concept. This also means that the polluter should take into internalize his liability for environmental injury in his cost profit analysis before setting up a device that could cause harm to the environment. It's important to draw a balance between the profit and the expenses incurred in the performing of such a unit.

The above proposition may often be seen as a move of the 'polluter gives' principle in one of absolute liability to that of a 'license price' payable to cause harm to the environment. Inside the Indian framework, it becomes important that the welfare of the rural people is given maximum importance. Such welfare cannot be compromised with by simply permitting large multinational organizations setup polluting industrial units for only rate. Hence, the suitability of such a move in the Indian circumstance, given the expanding character of the generally agrarian Indian market is doubtful. The Indian judiciary rightly feels in the precautionary principle with absolute responsibility imposed on the polluter in case of a breach.

Absolute Criminal Liability for harm to the surroundings:

The basis of legal responsibility for environmental injury is the creating of nuisance to the general public, which is also conceived in India under Section 268 of the Indian Penal Code. Section 269 of the Code also provides legal responsibility for a negligent work that threatens the get spread around of infections or disease. Section X B of the Code of Criminal Procedure, 1973 deals with public nuisance. Additionally, Section 144 offers a procedure to cope with general population nuisance. By definition, 'public nuisance' includes harm to the environment. However, none of these criminal statutes provide for absolute responsibility.

In an absolute liability offence, it is not any defence an individual can be "morally innocent in every sense". "Yet he is branded as a malefactor and punished therefore. " When this happens, an individual can be convicted associated with an offence on facts basically that the prohibited action was committed, with no mental aspect or mens rea being required.

One major little bit of legislation that provides for strict unlawful liability in america is the Pennsylvania Stable Waste Management Action that regulates the travelling, storage and disposal of hazardous waste. There are other statutes that provide that the polluter may be liable without exhibiting of objective.

For example, a violation of section 691. 602 of the Clean Streams Law does not require a showing of purpose. However, in the case of Kaites v. Team of Environmental Resources the court failed to hold a person liable without some showing of culpable conduct. Even if there is absolute liability for a violation of the Action, such a liability cannot be imposed without some showing of neglect. The Fish and Game code of the united states which criminalizes the launch of any material hazardous to the life span of fish in water expresses that it is not essential to show that the violation has actually caused the death of, or harm to, any particular seafood. It imposes demanding criminal liability irrespective of a voluntary action if the accused allows such a damaging substance to type in the water. But in the truth of Commonwealth v. CSX Transport Inc, two trains were vacationing on adjacent songs when the trains derailed credited to heavy rainfall and flooding. This led to corn syrup within one of the trains getting spilled into a nearby river killing roughly 10, 000 fish. The defendants were priced for allowing a substance, deleterious to seafood, to be spilled into the waters of the commonwealth.

The Courts have never been too kind on statutes which impose absolute criminal liability on individuals regardless of mens rea or goal to commit a offense, which is a fundamental theory of criminal law. Hence, the polluter will pay principle of definite liability, which provides for civil treatment has certainly been the most viable principle of imposing liability for environmental harm.

Absolute Responsibility FOR ENVIRONMENTAL HARM in India:

The Judicial Trend

The first instance of the basic principle absolute liability was considered by an Indian Court docket is that of Madras Railway Co. v. Zamindar where in fact the water accumulated in a fish-pond for agricultural purposes escaped and induced harm to the railway monitor and bridges. However, this mechanism to store rainwater was used throughout the united states and since age groups. The collection of water in such a way was a necessity and an all natural use of the land. Looking, then, at the substantial profit conferred on the public by these tanks, due to the fact their existence is an definite and positive necessity, for without them the land would be wilderness, and the country a desert, the use of this rule was constrained and the accused was not organised liable.

However, in the landmark case of M. C. Mehta v. Union of India (Oluem gas leak circumstance), the rule of absolute responsibility for environmental damage was first reviewed comprehensive. The Supreme Courtroom promulgated the basic principle of absolute liability moving one step prior to the theory laid down in Rylands v. Fletcher which included exceptions to the guideline. Imposition of rigid liability rules could have allowed the firms to travel free with no liability towards afflicted people.

In this case, oleum gas from a fertilizer flower of Sriram Foods and Fertilizers leaked and caused harm to several people. The action was brought via a writ petition under Artwork. 32 of the Indian Constitution via general public interest litigation as the Courtroom thought these applications for compensation increased certain important issues and those issues should be resolved by way of a constitutional bench. The first concern in question was the admissiblity of the matter under Article 32 of the Constitution for violation of Article 21. In view of the commercial insurance plan, the writ petition contrary to the private corporation was held maintainable. The company sought to seek sabotage as a defence to escape liability. However, the Supreme Court docket setting up the concept of absolute liability lay out that if an venture engages in dangerous substances, it must be performed absolutely responsible to guarantee the safety of the normal public. The concept of absolute responsibility is operative without any exceptions. It generally does not admit of the defences of affordable and due care, unlike strict responsibility. They must take all steps to avoid any car accident. If, even after all precautions, accident happens, the company still should be produced absolutely responsible for the problems.

The court acquired at heart that it was within a period of one year a second case of large range leakage of noxious gas in India took place, as simply a year back the Bhopal Gas Tragedy possessed occurred where more than 3000 folks had satisfied tragic and untimely death and lakhs of others were put through diseases of serious kind. The Supreme Court docket also acknowledged the social obligation of the company to pay the sufferers with respect to the magnitude and capacity of the business in order to have a deterrent effect. This is also called the 'deep pocket' theory.

'The polluter pays off theory has been performed to be a sound principle regarding Indian Council for Enviro-Legal Action vs. Union of India (The Bichhri town Case ). The issues were two-fold in the case: (1) Should the Corporation be held responsible to meet the expense of the remedial action to remove and store the sludge in safe and proper manner? (2) Should they be made responsible for losing and suffering triggered to the village where the industrial complex was located?

The Supreme Court docket observed:

"We could of the opinion that any process advanced in this behalf should be simple, functional and suitable for the conditions obtaining in this country

Once the experience carried on is unsafe or inherently dangerous, the person taking on such activity is likely to make good losing induced to any other person by his activity irrespective of the fact whether he got reasonable good care while transporting on his activity. The rule is premised after the very characteristics of the activity carried on. "

Consequently, it happened that the company producing H acid which polluted the local water bodies would be absolutely responsible for any harm brought on to the environment and the villagers, including the price tag on environmental degradation upholding the Rylands theory. Further, in Vellore Citizens' Welfare Discussion board v. Union of India and Ors the precautionary rules and polluter pays off principle were kept to participate the environmental legislations of the united states. It was organised that remediation of the damaged environment is area of the process of lasting development.

In the Gujarat High Court wisdom of in Pravinbhai Jashbhai Patel v. Express of Gujarat and Ors. , the typical of 1% of turnover being paid was implemented for closure of polluting products and repayment of payment by such devices for polluting river and land under the 'polluter pays' principle. The foundation of the decision in that case was that the polluting commercial units were not getting together with the Gujarat Pollution Control Mother board norms and the ongoing violation of regulations by industrial products had become a habit.

Cases of definite liability prolong not only to degradation of the environment, but also the violation of regulations that aims to protect the surroundings. Hence, the proportion in the case of Deepak Nitrite Ltd. v. Status of Gujarat and Ors a 'mere violation of regulations in not observing the norms would result in degradation of environment would not be correct' is evidently restricted to the facts of that circumstance. In the said case the actual fact that the professional units had not conformed to the standards approved by the pollution control board had not been in dispute but there was no discovering that the said circumstances had caused harm to environment. The decision also can't be said to have laid down a proposition that in absence of real degradation of environment by the offending activities, the payment for repair on application of the polluter pays off principle cannot be ordered.

The above position was taken in the truth of Research Groundwork for Research Technology and Natural Resources Plan v. Union of India. In the year 1997, considering the alarming situation created by dumping of unsafe waste, its generation and serious and irreversible damage consequently thereof to the environment, nature, and also having respect to the magnitude of the problem because of this of inability of the authorities to appreciate the gravity of situation and the need for prompt methods being taken up to prevent serious and adverse consequences, a higher Powered Committee (HPC) was constituted by this Court with Prof. M. G. K. Menon as its Chairman, in terms of order dated 30th Oct, 1997. The Committee made up of experts from different disciplines and domains and was required to examine all matters in depth relating to hazardous waste material. The survey of the committee mentioned the existence of Hazardous misuse petrol in 133 containers lying down at the Nhava Sheva Interface. An Illegal import of waste engine oil in 133 storage containers in garb of lubricating oil by importers was going on. This import was not only in violation of the surroundings Protection Function, 1986, but also of the Hazardous Waste Management Guidelines, 1988. The judge also looked into The Basel Convention on the Control of Trans boundary Moves of Hazardous Wastes and their Removal that was followed by the convention of the Plenipotentiaries. The 15 importers were purchased never to re-export their consignment. Instead, these were held absolutely liable to pay the price of devastation of the 133 containers of waste oil by incineration, though no harm had been caused to the surroundings.

The basic principle of absolute responsibility has also been long by the judiciary to circumstances of environmental harm caused prior to the enactment of statutes. For instance, Kerala High Court docket judgment of Character Lovers Activity v. Talk about of Kerala and Ors dealt with profession of forest land prior to 1977. Here, the encroachers of forest areas using forest land for non forest purposes were performed liable to pay consequent to the problem of name deed in his favour a reasonable amount of compensation for injury brought on by him to general public. Such a settlement was payable by him on regularization of his profession of forest land for land occupied preceding to 1977.

The Rajasthan High Judge, in the case of Indian Asthama Care Population and Anr. v. Condition of Rajasthan and Ors regarded the concept of absolute responsibility of manufacturers of Gutkha and Skillet masala for plastic material pollution triggered by used packets of Gutkha. With that said, in the case of Intellectual Website, Tirupathi v. Point out of an. P. and Ors. , it was stated that simply asserting an intent for development will not be enough to sanction the destruction of local ecological resources. The Courtroom should follow a basic principle of ecological development and discover a balance between your developmental needs and the environmental degradation caused by it.

The Legislative Trend:

It has been accepted as a fundamental objective of federal insurance policy to abate air pollution. A reference to Article 7 of the draft approved by the working group of the International Legislation Commission payment in 1996 on Avoidance of Trans-boundary Damage from Hazardous Activities to includes the need for the State to adopt necessary 'legislative, administrative and other activities' to put into practice the work of reduction of environmental damage. Jagannatha Rao, J. within a. P. Air pollution Control Board's circumstance, while emphasizing the precautionary as well as Polluter Gives Principle strongly stressed the necessity for appropriate amendments in the environmental statutes, guidelines and notifications watching thus:

It seems to us from what has been stated earlier that things aren't quite adequate and there can be an immediate need to make appropriate amendments so as to ensure that at all times, the appellate government bodies or tribunals consist of Judicial and also technical personnel amply trained in environmental laws and regulations. Such defects in the constitution of these bodies can simply undermine the reason for those legislations.

Environmental concerns have been located at same pedestal as individual protection under the law concerns, both being followed to Article 21 of the Constitution of India. There exists hardly any legislation in India which provide for absolute liability, regardless of the exceptions to the Rylands rule. One particular example is Section 92A of the Motor Vehicles Take action, 1938 also recognizes this concept of 'responsibility without problem'. However, as it pertains to absolute responsibility for environmental damage in India, the legislature has been largely silent.

The Bhopal Gas Tragedy relating to the Union Carbide Company and the Oleum gas leak case including Sriram foods has prompted the legislature to enact the Public Liability Insurance Take action, 1991 facilitating complete liability in case there is widespread injury to the public and public nuisance, including injury to the environment due to hazardous substances. Under the Open public Liability Insurance Act, 1991, everyone owning or having the control over the handling of unsafe substances (that is, developing, processing, treating, presentation, storing, transporting, transforming, selling or transferring hazardous throw away) must take out insurance policies, to provide relief to anybody in case of death, damage, or damage to property that has resulted from a major accident. Importantly, this Action imposes a 'no fault' liability after the owner of the hazardous substances, and the claimant shall not be required to plead and set up that the death, injury or damage was due to any wrongful function, neglect or problem of any person. This is the statutory appearance of the overall liability basic principle.

Another legislation providing for absolute liability is The Country wide Environment Tribunal Take action, 1995 which gives for strict responsibility for problems arising out of any automobile accident occurring while controlling any hazardous material and then for the establishment of your National Environment Tribunal for effective and expeditious disposal of cases due to such injuries, with a view to providing relief and settlement for damage to people, property and the surroundings and for issues linked therewith or incidental thereto. This legislation was enacted in response to the decisions which were considered at the US Meeting on Environment and Development kept at Rio de Janeiro in June, 1992, in which India participated, contacting upon the Areas to develop nationwide laws regarding liability and compensation for the victims of pollution and other environmental problems. It had been considered expedient to put into practice the decisions of the aforesaid Convention so far as they relate with the safety of environment and repayment of reimbursement for damage to folks, property and the environment while handling unsafe substances.

No general environmental legislation relevant to 'unsafe products' has been implemented in India. There are a few specific regulations suitable to certain products that are unsafe. For instance, the guidelines for the Produce, Use, Transfer, Export and Safe-keeping of Hazardous Micro-Organisms and Genetically Engineered Microorganisms or Skin cells, 1989, also require that anybody who imports, exports, transports, makes or markets any harmful micro-organisms or genetically made organisms and substances or cells, or products including such microorganisms, must first get yourself a prior acceptance from the Genetic Executive Approval Committee. Rule 9 of all these Rules provides that deliberate or unintentional release of micro microorganisms will never be allowed without previous endorsement. Though these rules do not expressly lay out an absolute liability basic principle, they hint towards the responsibility of the person having triggered such a release even without his fault.

The Harmful Wastes (Management and Handling) Rules, 1989 were released in 1989 and amendments effected in January 2000 and in the year 2003. Guideline 16 provides for responsibility of occupier, transporter and operator of a center. It reads:

The occupier, transporter and operator of any facility will be liable for damages caused to the environment resulting anticipated to improper handling and disposal of hazardous throw away listed in Routine 1, 2 and 3;

The occupier and operator of an center shall also be liable to reinstate or bring back damaged or ruined elements of the environment at his cost, faltering that your occupier or the operator of an facility, as the truth may be, shall be liable to pay the entire cost of remediation or repair and pay in advance an amount add up to the cost believed by the state of hawaii Pollution Control Plank or Committee

It provides for liability for improper handling and removal of unsafe wastes, which include the expense of restoration of the environment. As the above rule is consonance with the rule of 'polluter gives', the responsibility imposed is problem based liability and not absolute responsibility for handling dangerous materials.

The Rules for the Production, Storage and Import of Hazardous Chemicals, 1989, deal with this is of 'unsafe chemicals' and the many activities included in the rules. The responsibilities of the various government bodies and well as those of the occupier of any site interacting with the given harmful chemicals are laid out in the guidelines. Beneath the Batteries (Management and Handling) Rules, 2001, the manufacturer, importer, assembler and reconditioning of batteries used in the automotive, professional and power sectors, must ensure that used batteries are gathered, that collection centres are set up, etc. However, no responsibility process has been lad down in these guidelines.

The reason behind lack to legislative sanction to the principle of absolute responsibility or 'no mistake' liability is largely because of the developing mother nature of the Indian current economic climate. Industrial and Research activity which involves use of harmful material continues to be considered vital for the development of the Indian current economic climate. It really is but understandable that in such a situation, the legislature would avoid imposing a no fault liability even on private corporations carrying out functions which are considered to be essential functions of the state.

Challenges imposed by the 'polluter pays' concept:

A liability program based on the polluter gives principle should be also ensure that the polluter has the ability to compensate population for the pollution caused by him. Financial constraints cause a great task to the polluter compensates principle. Further where there is more than one get together against whom possible says can be laid, financial disparity between the two can cause problems. It would be expected that the get together with the 'deep pocket' would be asked to pay the major cost of repair of the environment as the one with the relatively 'clear pocket' will rarely find promises against him. This might cause two problems; the main one with the bare pocket would be undeterred, as the one with the deep pocket would be over deterred having to bear the price of both the functions and with minimal chances of recovering costs from other potentially liable celebrations. An over deterrence to such big companies might hamper monetary development in the united states. The Public Liability Insurance Work, 1991 has been an attempt to counter the clear pocket syndrome.

Secondly, the theory alone does not supply the polluter with an incentive to activate in environmentally friendly practices or start damage control measures for harm brought on to the environment so long as he pays for the air pollution induced by him. This theory has been reviewed by Justice Kuldip Singh of the Supreme Court in the Vellore Individuals' Welfare Discussion board Case. This defeats the precautionary principle which is a obligation to foresee and examine environmental hazards, to alert potential victims of such dangers and to react in ways that prevent or mitigate such dangers.

CONCLUSION

Starting from the Rylands concept in the 20th century, the rule of absolute responsibility has shown a shift from the basic principle of fault structured liability to one of no mistake. As growth in technology and technology and quick industrialization occurs, the necessity to shift towards a complete no fault liability regime increases to guarantee the protection of the surroundings and the folks who suffer because of this of pollution scheduled to dangerous materials. That is clearly noticeable from the pending recommendation to convert the responsibility for Space Particles in Outer Space from one of fault based mostly liability to 1 of utter.

A review of the development of absolute liability laws and regulations in the USA and Canada vis- -vis India demonstrates the introduction of environment protection laws is directly related to the amount of industrialization and commercial development in the united states. While the Indian judiciary has made attempts to have a cue from international conventions like the Basel Convention to impose absolute liability on use of dangerous materials, the legislative trend on the same concern has been dismal. One major reason for this may be the simple fact that India is still a developing country and rigid responsibility norms would deter big businesses from establishing devices in India. Hence, the precautionary basic principle becomes important in this context. While the USA considers the polluter pays principle become a virtual license payment being paid by big organizations to cause pollution, the Indian judiciary has read the polluter pays theory in tranquility with the precautionary basic principle to prevent environmental harm rather than repair of the harmed environment. The writer has the pursuing recommendations to make:

There is a need for a new legislation interacting with use of Hazardous Wastes relative to the Basel Convention on the Control of Trans boundary Moves of Hazardous Wastes and their Disposal

There is a dire dependence on an environmental legislation that will penalize companies for breach of environmental polices, in anticipation of environmental damage. Such penal provisions should be predicated on the theory of absolute liability to ensure that the defence of no actual damage is not desired by the polluting companies.

Corporations that not adhere to the provisions of the general public Liability Insurance Function, 1991 should be produced absolutely responsible for non conformity of the same.

While the Indian market could yet be unprepared to truly have a full fledged utter liability routine for use of hazardous material, a possible alternative to the same would be to have statutory sanction for the precautionary process with a stringent liability regime in case of any breach.

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