Environment Protection And Liability: The Offence Concerning Legalized Nuisance And Injustice

The United Nations Conference on Environment and Development held in Rio de Janerio in 1992 and world Summit on Sustainable Development at Johannesburg in 2002 have drawn the attention of people around the globe to the deteriorating condition of our environment. No citizen of the earth can afford to be ignorant of environment issues. Environmental management has captured the attention of health care managers. Managing environmental hazards have become very important[v]. To begin with the environmental protection and liability, it will be justified to refer to the legality and its determining authority finding the paradigmatic shift in the system of the German liability system with reference to the Environmental Liability Act (Gesetzuber die Umfelthalftung), describes that the premises for overcoming the previous regulatory system were dictated by an environmental tragedy in neighbouring Switzerland, namely the environmental disaster involving the Rhine River following a fire at chemical plant in Schweizer Halle^[1].

On the night of December 2, 1984, chemical, methyl isocyanate (MIC) spilt out from Union Carbide India Ltd’s (UCIL’s) pesticide factory turned the city of Bhopal into a colossal gas chamber. It was India's first major industrial disaster. At least 30 tonnes of methyl isocyanate gas killed more than 15,000 people and affected over 600,000 workers. Bhopal gas tragedy is known as world's worst industrial disaster^[2].

Cassels points out that the internationalisation of both business and environmental degradation is increasingly teaching the developed world the provision of aid to poorer countries – in order to better manage the risks and effects of industrial development – may no longer be a matter of charity, but an imperative motivated by self-interest.

Question is if there is an ignorance or non-adherence to cover legally the criteria of liabilities while taking undue advantage of the natural resources’ property rights – then how cannot the matter of liability be ignored as a compliance to provide due protection to environment and ecology? In what way do the enforcement agencies to penalise the polluters or law-breakers skip the actual compliance with regard to the environmental regulations?

The subject line of the paper indeed refers to specifically highlight the “legalized nuisance” and “punitive measures” concerning their prevention and prohibition; but if we refer to the aforementioned two questions concerning the enforcement and non-compliance of the compliance, we will find the root cause of the legalized nuisance, since the regulatory authorities if are meant to charge fine viz-a-viz any breach of law, they then set their conformity to check the surface level crime with a sort of penalty, besides showing to the authority of the governance their collection of revenue with regard to variety of impeachments. So there and then the regulatory authorities attempt to wind up their monthly or early gazetted reports’^[3] submission from the point of revenue collection. The question of liability remains stuck both from the point of the law-breaker and law-regulator. Non-compliance is then not an ignorance; it is a habitual pattern in all sorts of exploitative activities relating to get away with the seriousness towards environmental protection and conservation. The reduction or removal of nuisance then is excused on grounds of “standard simplifying assumptions”⁴ and on ^“the expected penalty from non-compliance.”^[4]

All gazetted reports submitted from the point of governance regulation no doubt contribute to check indiscipline, but mostly carry within them a gap, if scrutinised deeply, that is the random discipline act of controlling the negligence, ignorance, or evasion of common law -breakers. Has there been any effort to find the rule of transparency in the administration law? Do the civilians’ right of action determine their enabling capacity to find any discrepancy in the transparency of the right to information? When so much of upline and downline channelising of legitimacy to transparency intervene, naturally the understanding for liability is not then a measure, it is in itself “a liability of liabilities.” Therefore, in this context – “the risk that its officials will pursue their own interests rather than those of the government as articulated in law or policy.” ^[5]

Besides the aforementioned loophole in the administration of laws, there is another significant critical error that has been in this paper a matter of concern. The question is - in what way punitive measures are irresponsibly in practice and how often they are reduced to illegal disposition of crimes relating to environment, and the liability of the offence or nuisance then further is passed on to the redressal-portals so to manifest the pattern of transparency as a part of governing with laws or as to say that “it does not measure actual levels of corruption or actual lack of transparency, instead focusing on perception of corruption, and uses paternalistic definitions of corruption in its measurements that tend to ignore cultural differences unique to each country.”⁷ Another writer perceives the same from another way of perceptual defence, he writes that – “justifications of transparency in different legal systems is to address what criteria will be used to exercise that discretion. Few bureaucracies or governments are likely to publicly adopt criteria that would seem self-serving in the eyes of its subjects or clients. Thus, transparency can be seen as a way of supporting governmental legitimacy”8

The accountability of legitimacy and transparency in legal perspective always falls on the fact how far has the binary between common nuisance and public nuisance been grounded in context of IPC section 268 in context of offence? Common nuisance is a matter of overlooking inconvenience of somebody for one’s sake of convenience; while public nuisance is causing discomfort, disablement, and disregard to the regulatory laws which not only from common nuisance point of view hamper other individuals’ right to survive within a certain frame of right to live peacefully, but also causing annoying damage to the source target in tangible manner as well as intangible manner, that is hampering public right of the source as well as the human resource in general. Professor S.N.Mishra in his book entitled “Code of Criminal Procedure “(2001) quotes from the principal case which refers to Attorney General v. Tod Heatley (1897), he writes that incases of public nuisance the grievance lies in the inconvenience infact caused and not in the intent of knowledge of the person responsible as occupier of the premises on which the nuisance is created or of the owner if the premises are, infact unoccupied.

Understanding Nuisance – Legal or Illegal through a story -The Man -Eater of Malgudi Days

To explain this in a very simple way an anecdote from the book titled “The Man-Eater of Malgudi” (1961) by R.K.Narayan. There were two major characters – Natraj, the printing press owner who rented his upper storey attic kind of room to a person Vasu, who as a tenant without information did the trading of dead animal skins. Slowly the disclosure of the reality came to surface that the tenant as a taxidermist, quite qualified in the business of tannery and its trading, and in disguise involved in poaching too. The matter got serious first when unsanitary conditions around the printing press spread foul smell, secondly when the owner Natraj requested Vasu, latter ignored, but continued the same. The inhabitants around that press felt it as a public nuisance and Vasu whom such work was nothing more than a pleasure, finally taken to task by the owner. So, in this first part of the narration of the story – Vasu sued Natraj. Although Natraj had his lawyer, but as far as he could get Natraj saved from the charge of eviction filed by Vasu. Interesting is Vasu’s lawyer grounded the eviction as nuisance from the owner’s side, not letting the tenant be at peace. Law of tenancy became the issue of transparency, rather the cause of environmental protection through law. Secondly the environmental law in actual sense a mere a common nuisance which any tom, dick and harry evade or forcefully let not others to think about it unless any such petition is filed. Subsequently Vasu the taxidermist got relief from the court, while the inhabitants could not ensure the lawyer of Natraj with any actual evidence. The matter was sorted both from the point of view civil and criminal legality – as the owner of the press did not want the case to be prolonged or to be in the clutches of law. The printing-press owner’s reason for skipping the clutches of law basically to evade the collateral that could be sought by locals living around the press, that was actually his unawareness causing; secondly, he had vicarious liability as joint tort-feasors in the sense of his contributory negligence. And the truth was the respondent Natraj, the printing press owner to save himself from eviction was neither aiding it or abetting it, yet facilitating unconsciously malicious defendant Vasu, the taxidermist to carry on his illegal designs. The case before magistrate if in prosecution by the government prosecutor (had the complaint of public or inhabitants against the nuisance been in the process of trial, then the liability of Principal for the wrongful acts of his agent/s could be an assumption against the joint tort-feasors because the government prosecutor as plaintiff would have prosecuted tort-feasors not only to compensate the legal damage done due to foul smell in neighbouring area, causing infection to health, spreading unhygienic conditions, but also the master would have been impleaded for promoting or cooperating in illegal environmental activities. The punitive measures regarding this tortious act in context of impeaching civil liberties both of humans and animals would have borne majorly by the innocent Natraj against the felicitation of commission of a tort by another criminal taxidermist Vasu.

This part of the story on careful investigation brings forth some facts about law versus nuisance caused by the tenant doing legal damage to the property and humans, which was an injustice to habitation area and inhabitants’ convenience -

1. According to the chapter XIV of the IPC 1860, consisting of section 268 to section 294 – A that a legalised nuisance when concerning to environmental exploitation affects public, then it is public nuisance.
2. According to the Code of Criminal Procedure 1973 (Section 133 to Section 143) - a private nuisance even if it is in some owner’s campus done by any individual or tenant is to be a public nuisance, there should be a magistrate intervention to remove that public nuisance.
3. The disposal of any substance and the conduct of any trade or keeping any goods that is injurious to health or physical comfort of the community, it should be prohibited.^[6]

The perceptual defence that the lawyer of Vasu, the taxidermist creates is to be also considered here to understand the loophole both in the law and nuisance that failed to execute punitive measures exactly as in anticipation, instead on the basis of presumptions.

To cite the reference of the law with regard to defiance by the character Vasu who demonise his owner’s efforts rather his own, that completely change the scenario of environment liability on the owner, instead of the actual doer of the legalised nuisance. –that is

Section 44. Dealings in trophy and animal articles without licence prohibited.[7]

¹(1) Subject to the provisions of Chapter VA, no person shall, except under and in accordance with, a licence granted under sub-section (4)]--

(a) commence or carry on the business as--

(i) a manufacturer of or dealer In, any animal article; or

(ii) a taxidermist; or

(iii) a dealer in trophy or uncured trophy; or

(iv) a dealer in captive animals; or (v) a dealer in meat; orb) cook or serve meat in any eating-house: (c) derive, collect, or prepare or deal in snake venom

Section 48. Purchase of animals, etc., by licensee^[8]

No licensee under this Chapter shall--

(a) keep in his control, custody or possession--

(i) any animal, animal article, trophy or uncured trophy in respect of which a declaration under the provisions of sub-section (2) of section 44 has to be made but has not been made;

(ii) any animal or animal article, trophy, uncured trophy, or meat which has not been lawfully acquired under the provisions of this Act or any rule or order made thereunder;

(b) (i) capture any wild animal, or

(ii) acquire, receive keep in his control, custody, or possession, or sell, offer for sale or transport, any captive animal specified in Schedule I or Part II of Schedule II or any animal article trophy, uncured trophy or meat derived therefrom or serve such meat, or put under a process of taxidermy or make animal article containing part or whole of such animal,

except in accordance with such rules as may be made tinder this Act;

• Provided that where the acquisition or, possession, control or custody of such animal or animal article, trophy or uncured trophy entails the transfer or transport from one State to another, no such transfer or transport shall be affected except with the previous permission in writing of the Director or any other officer authorised by him in this behalf:
• Provided further that no such permission under the foregoing proviso shall be granted unless the Director or the officer authorised by him is satisfied that the animal or article aforesaid has been lawfully acquired.

Evasion of the Environmental Law and Liability

• Did Vasu purchase licence to buy dead skin of animals or to buy living animals?
• Did Vasu have permission of the magistrate/chief wild life warden to continue with such sort of trading in residential area?
• Did Vasu have any such bond agreement with the owner of the house to continue such illegal activities or nuisance?

Most important is as a petitioner Vasu and his defence counsel lawyer very intelligently first file a suit against the owner of the house in case of violation of tenancy act, asking him without any show cause-notice to leave the premises.

The second part of the novel titled “Man-Eater of Malgudi” adds to another sort of crisis in terms of evasion of environmental protection, environmental law, and legislations regarding human resource and animal protection from the point of administration of the respective region, owner of the house and by the dealer cum tenant who resorted to such kind of boldness and defiance in public and private space. The author of the novel R.K.Narayan through the plot of the story in the novel intends to showcase the defaulters on account of the negligence or deliberate abatement of the facts which is generally accounted to their being as quid pro quo, rather as defacto. So, it is necessary to understand what actually author wants to bring forth in context of failing to the exercise of the anticipated measures that are referred in the The Wild Life (Protection) Act, 1972^[9]

Section 38Z. Powers and functions of the Wildlife Crime Control Bureau^[10][38Z. Powers and functions of the Wildlife Crime Control Bureau^[11]-- (1) Subject to the provisions of this Act, the Wildlife Crime Control Bureau shall take measures with respect to--

(i) collect and collate intelligence related to organized wildlife crime activities and to disseminate the same to State and other enforcement agencies for immediate action, so as to apprehend the criminals and to establish a centralised wildlife crime data bank;

(ii) co-ordination of actions by various officers, State Governments and other authorities in connection with the enforcement of the provisions of this Act, either directly or through regional and border units set up by the Bureau;

(iii) implementation of obligations under the various international Conventions and protocols that are in force at present or which may be ratified or acceded to by India in future;

(iv) assistance to concerned authorities in foreign countries and concerned international organisations to facilitate co-ordination and universal action for wildlife crime control;

(v) develop infrastructure and capacity building for scientific and professional investigation into wildlife crimes and assist State Governments to ensure success in prosecutions related to wildlife crimes;

(vi) advice the Government of India on issues relating to wildlife crimes having national and international ramifications, and suggest changes required in relevant policy and laws from time to time.

(2) The Wildlife Crime Control Bureau shall exercise--

(i) such powers as may be delegated to it under sub-section (1) of section 5, sub-sections (1) and (8) of section 50 and section 55 of this Act; and

(ii) such other powers as may be prescribed.

“The crisis, however, comes to a head when the pitiless taxidermist threatens to kill Kumar, a temple elephant who is to be taken in a festival procession organized to celebrate the poet’s completion of his religious epic on God Krishna. Nataraj is very fond of the elephant, Kumar. He becomes naturally upset the moment he learns from Rangi that Vasu intends shooting it on the night of the proposed procession. Nataraj immediately posts the wicked intentions of Vasu to his friend, the poet, the lawyer, and other important people of the town. The matter is reported to the police authorities but they express their inability to take any action against him until the crime has been actually committed.

The very thought of the temple-elephant, Kumar’s murder, drives Nataraj crazy. Even while compelled to stay in his house owing to the agitated condition of his mind, he constantly thinks of the danger awaiting Kumar. As the procession passes in front of the printing press, his heart begins to beat pit a pat with fear. He is afraid of hearing the fateful gun shots and cries of panic-stricken people. He is surprised when the procession passes away without any untoward incident.”[vi]

To understand the precept of the calculations of presumptions and evaluation of assumptions the same legal logic is theorised in these words:

The problems of causation factors -

An attempt is made to overcome the problem of verifying the causal link through the normative technique of presumptions and reversion of the burden of proof: the element of causation is presumed as verified now in which prima facie a particular facility of the defendant is "inherently suited" to cause the damage. So, this eases the claimant's evidentiary burden by shifting to the defendant the task of showing an absence of causation.

The defendant position -

The question of presumptive causation is prevented to arise in the case that defendant demonstrates that his facility was properly operated; that means that facility fulfilled all “special operational duties” and no disruption of operations occurred.

“Special operational duties” means the compliance with all the regulatory duties aimed at the prevention of pollution. Another legal instrument for defendant is the concurrence of another circumstance (Umstand) appears to be the “inherently suited” cause of the damage, in case of single or multiple facilities inherently suited to cause the claimant's damage.

These are of course the procedural way through which the defendant rebuts the reversion of the burden of proof, but this does not preclude the normal way of proceeding by which onus probandi, burden of proof, belongs to the claimant who, then, can demonstrate the liability by demonstrating the nexus of causality.

Environmental Law and Liability

Referring to the Environmental Law and Preservation of the natural resources as property, the constitutional doctrine of proportionality to the matters concerning environment as a part of the judicial review in contradiction to the merit review needs to be applied, because balancing of intergenerational equities regarding sustainable development entails policy choice, well organized principles, legislative policy underlying the law (if any) that governs the field and utilization of the environment[vii]. To investigate and understand barring exceptions, the MOEF (The Ministry of Environment Forests and the Climate Change) must cover up constraint factors as an agency of question and questioning biases and restraints, unless once that is completely found fair and fully informed about the eco-restoration guidelines, the “margin of appreciation” in favour of the defendant or the decision-maker cannot go for relevant considerations[viii]. It is necessary to illustrate a few of the Bills or Acts or Laws for forming a background for the research paper in order to know about the protection and improvement of the Human Environment, which are as follows –

1. Article 51 – A of the Constitution of India 1950 imposes as one of the fundamental duties on every citizen - to protect and improve natural environment and have compassion for living creatures.
2. The Environment (Protection) Act 1986, with effect from 19-11-1986, as per its Section (3) empowers central government to order constitution of an authority to protect environment.
3. The National Environmental Tribunal Act, 1992 that was passed after the United Nations Conference on Environment and Development, held at Rio de Janerio, got set up National Environment Tribunal for effective and expeditious disposal of cases concerning environment.
4. The National Tribunal Act 1995 (Act No. 27 of 1995) – in its preamble states – An Act to provide for strict liability for damages arising out of any accident occurring while handling any hazardous substance and for the establishment of a National Environment Tribunal for effective and expeditious disposal of cases arising from such accident, with a view to giving relief and compensation for damages to persons, property and the environment and for matter connected therewith or incidental thereto.[ix]

Keeping in view the new concept of eco-system services that was introduced by Mr. Gretchen Dailey who emphasized “the need for policy makers to develop institutional frameworks to protect and sustain the earth’s life support system”[x], the government of India provides services through its Ministry of Environment, Forest and Climate Change (MoEFCC), which also serves as the nodal agency in the country for the United Nations Environment Programme (UNEP), South Asia Co-operative Environment Programme (SACEP), International Centre for Integrated Mountain Development (ICIMOD) and for the follow-up of the United Nations Conference on Environment and Development (UNCED). The Ministry is also entrusted with issues relating to multilateral bodies such as the Commission on Sustainable Development (CSD), Global Environment Facility (GEF) and of regional bodies like Economic and Social Council for Asia and Pacific (ESCAP) and South Asian Association for Regional Co-operation (SAARC) on matters pertaining to the environment[xi].

5. The Ministry regulates the protection of the following living components through the below given respective Acts, which are -

§ The Water (Prevention and Control of Pollution) Act 1974 and The Air (Prevention and Control of Pollution) Act 1981 - Prevention and control of pollution

§ Indian Penal Code 1860 and Environment Protection and Code of Criminal Procedure 1973, 1979 and Environment Protection, Indian Forest Act, 1927, Forest Conservation Act 1980 - Afforestation and regeneration of degraded areas

§ The National Green Tribunal Act 2010, The Scheduled Tribes and Other Tradition al Forest Dwellers (Recognition of Forest Rights) Act, 2007 - Protection of the environment

§ Act 53 of 1972 The Wild Life (Protection) Act, The Wild Life Conservation Strategy 2002 - Ensuring the welfare of animals

§ As part of the United Nations Convention on Biological Diversity signed at Rio de Janerio 5^th June 1992, Section 3 of the Biology Diversity Act 2002 - Conservation and survey of flora, fauna, forests, and wildlife

In order to delve deep into the environmental poverty, crisis, extortion, and hazards there are over two hundred central and state enactments, which no doubt seem to be a threshold to deal with environmental justice and injustice, yet these enactments get effective when pursued in court to put on trial the defendant in order to either extract the civil wrong or when the vicarious liability happens to come at surface due to the occurrence of the claimant’s damage. The researcher aims to bring in light the presumptive causation that are taken to task, to hearing, to file a petition only after the destruction is caused to the environmental concern mostly on account of reluctance to follow the principal object of law. Before the research paper follow up more into the elements of environmental liability through cases and facts, there is an obligatory need to review in brief the other environmental legislations -

6. Some of the other environmental legislations are as under –

· The Public Liability Insurance Act, 1991^[12] – makes it obligatory for every such owner to take out an insurance policy covering potential liability from the accident involving a hazardous substance, resulting in continuous, intermittent, or repeated exposure leading to death or injury to any person or damage to property or the environment, excluding occurrence of accidents by war or radioactivity[xii].

· The Mines and Minerals (Regulation and Development) Act, 1957^[13] - This Act intended to promote the scope for mines and minerals development. Realising the devastating environmental impact on mining activity across the country, the Indian Parliament amended the Act in 1986. At present this Act provides measures for greater environmental sensitivity while carrying out mining operations. Under Section 4 – A of the Act, the Central Government is empowered to terminate the mining licence or lease if it causes substantial damage to the natural environment. Further, Section 13 and 15 give power to the Central and States Governments to lay down rules for restoration of vegetation damaged on account of mining operation in the affected areas.[xiii].

· The Insecticides Act, 1968^[14] - This Act came into effect after the report received from Kerala and Madras Food-Poisoning Cases Inquiry Commission, it provided a foundation for making the Insecticides Act. The said commission inquired into several deaths due to insecticides contaminated food. The tragic incident happened in April and May 1958. Then after the Central Insecticide Board was set up to render advice to the Central and State Governments regarding the working of the Act. This act has got it mandatory to register the insecticides after examining their formulas and verifying claims made in respect of safety and efficacy of the insecticide in question. Through the system of licensing the process of manufacturing and distribution of the insecticides is regulated.

The relevant Insecticides Rules, 1971 relates to packaging, licence, label and transport of Insecticides, besides with worker’s safety while manufacturing and handling of insecticides by providing protective clothing, respiratory devices and medical facilities[xiv].

· The Factories Act, 1948^[15] – Though the Factories Act was enacted in 1948, but in view of the Bhopal Gas Tragedy case the Parliament incorporated amendment into the principal Act in 1987 by virtue of the said Amendment the special provisions on hazardous industrial activities have been inserted in the present Act (as amended) gives power to the states to appoint site appraisal Committees for the purpose of recommending initial location of factories using hazardous processes. Section 7A deals with the general rules of the occupier of the factory As per Section 6 regarding Approval, licensing and registration of factories - A factory shall not be deemed to be extended within the meaning of this section by reason only of the replacement of any plant or machinery, or within such limits as may be prescribed, of the addition of any plant or machinery ¹¹ [if such replacement or addition does not reduce the minimum clear space required for safe working around the plant or machinery or adversely affect the environmental conditions from the evolution or emission of steam, heat or dust or fumes injurious to health.]^[16] The Amendment Act, 1987 has widened the term “occupier”. Now every senior level manager is regarded as an occupier of the factory

and such person is liable for the non-compliance of the provisions of the Factories Act, 1948. It would also invite punitive action if any of the provisions of the Factories Act is being violated. Section 11 to 20 deal with provision of environmental sanitation that protect the worker from hazardous environment. Cleanliness of the working place, privy, benches, stairs, wall etc. are explained (Sec. 11). Disposal of wastes and effluents should be without any risk (sec. 12).13

· The Disaster Management Act, 2005 - The Act extends to the whole of India. The Act provides effective management of disasters and for matters connected there with or incidental thereto."^[17] The focus of this act is to provide the people who are affected with disasters, their life back and helping them. The Section 44–45 of the Act provides for constituting a National Disaster Task Force "for the purpose of specialist response to a threatening disaster situation or disaster" under a Director General to be appointed by the Central Government. In September 2014 Kashmir-floods NDRF along with the armed forces played a vital role in rescuing the locals and tourists.^[18] On January 23, 2022 commemorating Netaji Subhash Chandra Bose 125th anniversary, National Disaster Response Force (NDRF), 8th battalion awarded for Subhash Chandra Bose Aapda Prabhandan Puruskar.[xv] Section 42 of the Act calls for establishing a National Institute of Management... Section 46-50, mandates funds for Disaster Mitigation at various levels. The Act provides for civil and criminal liabilities for those who violate the provision of the Act.[xvi]

· The Atomic Energy Act, 1962^[19] – Notably, the regulation pertaining to nuclear energy and radioactive substances is governed by the Atomic Energy Act, 1962 and the Radiation Protection Rules, 1971. Under the said Act Central Government is under legal duty to lay down the norms to prevent radiation hazards, guarantee safety of workers/public handling/dealing with the radioactive substance and ensure the safe and proper disposal of radioactive wastes. Further, the Central Government is also empowered to frame safety rules pertaining to manufacture, transport, production, and supply of the radioactive substances^[20]. Under the Act the Central Government is given unfettered power to withhold any information and secrecy from public regarding the location, quality, quantity, processing, acquisition, and disposal of the radioactive substances, including any information about the nuclear research.

Environmental Justice – Punitive Measures in Public and Private Space

1. Sustainable Development in hazardous situations

Environmental justice as a fair distribution of environmental benefits and burdens and environmental justice as a fair process for making decisions that impact the distribution of environmental benefits and burdens….The Shocco incident, for example, involved unfairness in the distribution of environmental benefits and burdens because residents were exposed to the health risk associated with living near the PCB site and unfairness in the process that impacted this distribution because the residents had little input into the state’s decision-making concerning placement of the waste site[xvii].

In case of environmental justice, the claims are made on grounds of being affected by serious physical deformity issues happened either due to spread and percolation of chemicals via establishing industries or factories or due to individuals exposed to toxic chemicals in the drinking water, suffer with diseases and illness. Such environmental destruction not only makes land infertile and sterile, but also it pollutes the surrounding ecology with its contaminated effects. To illustrate this, it is apt to relate environmental contamination with the system of legislation that is referred to get –Types of Claims Included in Environmental Justice[xviii]

Environmental justice claims can cover many different issues, such as:

• Toxic waste facilities near minority communities
• Zoning laws that are unfavourable to a minority community
• Air and water pollution by manufacturing and industrial facilities
• Exposure to toxic chemicals
• Exposure to unacceptable levels of traffic caused air pollution

There is also another way to understand the claim coverage in the matters of water contamination or soil pollution[xix] –The coverage lays certain conditions that the settler or the resident should be an inhabitant of that place or location for a certain period, if intends to pursue a claim for healthcare benefits or any other sort of compensation to rebuild the loss incurred on account of any disability occurred. In case of “presumed disabilities” the sufferer is entitled for environmental justice in the form of compensation, but a certain procedure is there to proceed with filing of claim-cover as well as for producing evidences for the same. To illustrate the same with an example that the Evidentiary basis stated in the Code of Federal Regulations of U.S.A. concerning the pensions, bonuses, or veterans’ relief, registers their presumptive compensation claims medically[xx] requires duly authentication of the presumptive service in connection to medical coverage of claim. In cases of arising presumption as to the occurrence of accident in due course of existing as labourer, or worker or on account of the owner’s carelessness towards his or liability and leading to breach of law with regard to occupational hazards, safety and healthcare the following measures have been referred for legal investigation, medical attention and employee’s protection in the chapter VIII and XII of the India Code related to the Code on Social Security year 2020.

Section 37. References to medical board^[21].

(1) Any question referring to the medical conditions and circumstances in the following way:

(a) whether the relevant accident has resulted in permanent disablement; or

(b) whether the extent of loss of earning capacity can be assessed provisionally or finally; or

(c) whether the assessment of the proportion of the loss of earning capacity is provisional or final; or

(d) in the case of provisional assessment, as to the period for which such assessment shall hold good, shall be determined by a medical board constituted in accordance with the provisions of the regulations (hereinafter referred to as medical board) and any such question shall hereafter be referred to as the “disablement question”

(2) The case of any Insured Person for permanent disablement benefit shall be referred by the Corporation to a medical board for determination of the disablement in question and if, on that or any subsequent reference, the extent of loss of earning capacity of the Insured Person is provisionally assessed, it shall again be so referred to the medical board not later than the end of the period considered by the provisional assessment.

(3) Any decision under this Chapter of a medical board may be reviewed at any time by the medical board if it is satisfied by fresh evidence that the decision was given in consequence of the non-disclosure or misrepresentation by the employee or any other person of a material fact whether the non-disclosure or misrepresentation was or was not fraudulent.

(4) Any assessment of the extent of the disablement resulting from the relevant employment injury may also be reviewed by a medical board if it is satisfied that since the making of the assessment there has been a substantial and unforeseen aggravation of the results of the relevant injury:

Provided that an assessment shall not be reviewed under this sub-section unless the medical board is of the opinion, having regard to the period considered by the assessment and the probable duration of the aggravation aforesaid, that substantial injustice will be done by not reviewing it.

Section 39. Medical benefit.

(1) An Insured Person or (where such medical benefit is extended to his family) a member of his family whose condition requires medical treatment and attendance shall be entitled to receive medical benefit.

(2) Such medical benefit may be given either in the form of out-patient treatment and attendance in a hospital or dispensary, clinic or other institution or by visits to the home of the Insured Person or treatment as in-patient in a hospital or other institution.

(3) The qualification of an Insured Person and (where such medical benefit is extended to his family) his family, to claim medical benefit and the conditions subject to which such benefit may be given, the scale and period thereof shall be such as may be prescribed by the Central Government.

• Provided that a person in respect of whom contribution ceases to be payable under this Chapter may be allowed medical benefit for such period and of such nature as may be provided by the regulations:
• Provided further that an Insured Person who has attained the age of superannuation, a person who retires under a Voluntary Retirement Scheme or takes premature retirement, and his spouse shall be eligible to receive medical benefits subject to payment of contribution and such other conditions as may be specified in the regulations:
• Provided also that an Insured Person who ceases to be in insurable employment on account of permanent disablement caused due to employment injury shall continue to receive medical benefits, subject to payment of contribution and other conditions as may be prescribed by the Central Government:
• Provided also that the conditions for grant of medical benefits to the Insured Person during employment injury shall be as specified in the regulations.

Section 40. Provision of medical treatment by State Government or by Corporation^[22].

(4) (a) The Corporation may establish medical education institutions, including colleges, dental colleges, nursing colleges and the training institutes for its officers and staff with a view to improve the quality of their services.

(b) The medical education institutions referred to in clause (a) shall require its students to furnish a bond for serving the Corporation for such time and in such manner, as may be specified in the regulations.

(5) The medical education institutions and training institutes referred to in sub-section (4) may be run by the Corporation itself or on the request of the Corporation, by the Central Government, any State Government, Public Sector Undertaking of the Central Government or the State Government or any other body notified by the Central Government.

Explanation.-For the purposes of this sub-section, the expression other body means any such organisation of persons which the Central Government considers capable to run colleges and training institutions referred to in sub-section (4).

(6) The Corporation may, in order to take preventive and curative measures for welfare of the Insured Persons, carry out such occupational and epidemiological surveys and studies for assessment of health and working conditions of Insured Persons in such manner as may be specified in the regulations.

The factual basis may be established by medical evidence, competent lay evidence, or both. Medical evidence should set forth the physical findings and symptomatology elicited by examination within the applicable period. Lay evidence should describe the material and relevant facts as to the veteran's disability observed within such period, not merely conclusions based upon opinion. The chronicity and continuity factors outlined in § 3.303(b) will be considered. The diseases listed in § 3.309(a) will be accepted as chronic, even though diagnosed as acute because of insidious inception and chronic development, except:

(1) Where they result from intercurrent causes, for example, cerebral haemorrhage due to injury, or active nephritis or acute endocarditis due to intercurrent infection (with or without identification of the pathogenic micro-organism); or

(2) where a disease is the result of drug ingestion or a complication of some other condition not related to service. Thus, leukaemia will be accepted as a chronic disease whether diagnosed as acute or chronic. Unless the clinical picture is clear otherwise, consideration will be given as to whether an acute condition is an exacerbation of a chronic disease[xxi].

With the aforesaid references taken as sample for either seeking claim or registering claim in context of environmental justice very much relate to environmental impacts of human activities, that also include other variables concerning with existential anguish struggling against red-tape nepotism, racism, colour discrimination, casteism, bonded labour, migrants’ abuse, refugees’ maltreatment, atrocious victimization of the prisoners of war etc. These are not just matters of human relationship with other human, but these are also subjected to the concerns of marginalisation, mental health, labour rights, sustainability, and co-existence. To illustrate one of these human-based socio-economic inequalities in terms of legalized nuisance, a reference of a case is cited below to explain how one pretext legally links with the other context of disablement and deprivation.[xxii]

The pneumoconiosis policy 2019 is the result of the long struggle of mine workers and part of a solution that ensures the ex gratia amount and pension schemes reaches the silicosis affected communities. Apart from it, there are state and central acts in place. Many orders were notified by the bureaucratic system and international treaties were signed to ensure the labour rights of mine workers but negligible change has happened. Upper caste bureaucracy has the responsibility as well as the required power to ensure the implementation of silicosis policy which not only involves monetary relief to silicosis patients and their family, but also guarantees the prevention of deadly disease of silicosis. The DGMS (Directorate General Of Mines Safety) Ministry of Labour and Employment, Government of India, which is the central government authority to ensure occupational health safety of mine workers, does not have the required data on the mine workers due to the lack of coordination between them and DMG (Department of Mines and Geology), Rajasthan.

Mining is a state subject and workers’ safety is a central government subject under DGMS and this has led to a lack of coordination and passing of the buck which in turn proves to be harmful for the occupational health rights of mineworkers. The civil societies and labour unions in Rajasthan are mainly working for the social security of mine workers while hundreds of mine workers are dying because of the irresponsible mining activities undertaken by the owners in cahoots with the state government.

The author Ingrid Eckerman in her book “The Bhopal Saga” explains that in 1984, 40 workers had to be hospitalized because of a chlorine leakage from a textile mill in Kerala. In Gujarat in 1987, 5,000 persons were injured because of a gas leakage. In an explosion in a ship in Maharashtra in 1991, 100 persons were killed. During 1994, around 50 chemical and/or fire accidents were voluntarily reported from within Madhya Pradesh to the Disaster Management Institute in Bhopal (personal correspondence). Industrial disasters also happen in the industrialised part of the world. In the USA, during 1985 more than 16,000 persons were evacuated, 31 were injured and 30 killed in 9 chemicals accidents. In Union Carbide’s factories in USA and Europe, more than 700 have died, several hundred have been injured and 17,000 have been evacuated because of accidents. After installing a new safety system at the MIC-plant at Institute, West Virginia, 135 people were injured by toxic gases in 1985. Wells and vegetables have been contaminated and ruined by Union Carbide pesticides.

To understand the fact and issues in terms of legal syllogism that is actually in purview of strict liability, but in long judicial process of trial and jurisdiction procedural patterns, the same exercise gets impugned into multifaceted tangible and intangible evidentiary crisis. Professor Salvatore Tolone Azzariti alleges that:

“Furthermore, to confirm that the question of causation is the most important issue in this field, residing at the heart of the liability system, especially environmental liability but, in general, for the protection of all those goods that we define as incommensurable and irreproducible, a constant examination of German case law is worthwhile - Art. 2050. Whoever causes damage to others in the performance of a dangerous activity, by its nature or by the nature of the means used, is obliged to pay compensation if he does not prove that he has taken all appropriate measures to avoid the damage”.

The pharmaceutical industries are no better. In Seveso, in Italy in 1976, 1,000 persons were evacuated and 100,000 cattle died. During 1986, massive amounts of toxic chemicals, including 66,000 pounds of pesticides, were accidentally released into the river Rhine by Sandoz, Hoechst, Bayer and Ciba-Geigy. In 1997 during the building of railway tunnels in Sweden and Norway, the use of the tightening compound Rhoca-Gil, manufactured by Rhône-Poulenc, led to the leakage of acrylic amid into the groundwater. The catastrophe has become the symbol of negligence to human beings from transnational corporations. It has thus served as an alarm clock. All the same, industrial disasters still happen, in India as well as in the industrialised part of the world. Although they are far from the size of Bhopal, they are so numerous so that chemical hazards could well be considered as a public health problem. The companies usually dispute their own roll to the accidents, and deny the health effects of the accidents. The companies have also been reluctant to compensate the victims economically[xxiii].

· There are some similarities between the accidents:

· The catastrophes affect countries outside those where the transnational companies are

· seated. Production is often established in countries where regulations are less stringent.

· Trade unions and occupational health care seem to have been poorly developed, having

· little influence on the work environment.

· It appears the catastrophes could have been predicted and prevented.

· The companies have disputed their own role in the accidents and denied the health effects

· of the accidents.

· The companies have been reluctant to compensate the victims economically.

2. Health Hazards to Healthcare

The Factories Act, 1948 (Amended on 1987) – This Act does not have provision for some important places of work like hospitals, fire stations, and other where serious health and safety risks may exist.

The process of automation and the industrial revolution heralded by microelectronics which has resulted in computer-based production methods, increasing use of robots, lasers, and new welding technologies have totally transformed the workplace. Consequent upon this change, the role of labour inspection has also changed and needs reorientation. Inspectors need additional skills and expertise and a new approach when assessing and evaluating workplace hazards. This has not happened in India. The increasing complexity of workplace and transfer of technologies due to a burst in economic activities requires that inspectors should possess reasonable amount of knowledge of occupational safety and health. Many new chemicals and processes which could be hazardous like garment manufacturing, and colouring, ergonomic problems, should be included in notifiable diseases.

It is more logical to notify the hazards exposure rather than diseases. From same exposure one can have many diseases or health effects. There is a difficulty of making diagnosis of occupational diseases because of non-availability of skilled manpower and laboratories in the country[xxiv].

According to Professor and advocate C. P. Gupta, the burden of constitutional mandate of welfare state is to provide growth, employment, and opportunity to burgeoning population has had environment concerns a back seat or cursory glance for academic purposes. Though an assortment of legal corpus had been available to ward off any corrosive effect on environment but the same had been, seems, bypassed by unchecked industrialization and urbanization. A desired equilibrium over environmental issues and sustainable development could never develop. As things deteriorated and situation became alarming, the protagonist for the cause argued the explicit constitutional mandate enshrined in article 51-A^[23] and 48-A ^[24] have been rendered mere mute spectators. Whilst the protagonist for the cause of welfare state has argued that environmental concerns and protection to natural resources is mere bogey to keep the masses hungry and unfed. The concept has become battleground between claimants to cause of protection and material development.

The Environmental Law Justice concerns about prevention, protection and preservation and environmental injustice and ecological hazards are the areas of legal dispute. For example, the distance between facility and injured party, when the known technical (let us say, medical) rules do not allow a causal link to be established. Another is the concept of 'properly operated', which also falls within the scope of technical assessment, i.e., whether - at the limit - the requirement of technical operational adequacy has been met.

The possible development should be responsible for internal prevention.

The two areas regarding only unforeseeable circumstances and force majeure are: exercise and prevention.

Dr Jayshree Singh. Associate Professor, Head, Department of English, Faculty of Social Science and Humanities, Bhupal Nobles’ University, Udaipur, India.

Dr Salvatore Tolone Azzariti, Distinguished Professor of Private Law, University of Oxford, United Kingdom; Director of Excellence of Private Law, Woxsen University, Telangana, India.

Views are personal.