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article 21 final part

Supreme Court of India

In Re: Noise Pollution û ... vs on 18 July, 2005


The Supreme Court in Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare Assn., (2000) 7 SCC 282 held that the Court may issue directions in respect of controlling noise pollution even if such noise was a direct result of and was connected with religious activities. It was further held:-


"Undisputedly, no religion prescribes that prayers should be performed by disturbing the peace of others nor does it preach that they should be through voice amplifiers or beating of drums. In our view, in a civilized society in the name of religion, activities which disturb old or infirm persons, students or children having their sleep in the early hours or during daytime or other persons carrying on other activities cannot be permitted. It should not be forgotten that young babies in the neighbourhood are also entitled to enjoy their natural right of sleeping in a peaceful atmosphere. A student preparing for his examination is entitled to concentrate on his studies without their being any unnecessary disturbance by the neighbours. Similarly, the old and the infirm are entitled to enjoy reasonable quietness during their leisure hours without there being any nuisance of noise pollution. Aged, sick, people afflicted with psychic disturbances as well as children up to 6 years of age are considered to be very sensible (sic sensitive) to noise. Their rights are also required to be honoured.


"Under the Environment (Protection) Act, 1986, rules for noise-pollution level are framed which prescribe permissible limits of noise in residential, commercial, industrial areas or silence zone. The question is  whether the appellant can be permitted to violate the said provisions and add to the noise pollution. In our view, to claim such a right itself would be unjustifiable. In these days, the problem of noise pollution has become more serious with the increasing trend towards industrialisation, urbanization and modernisation and is having many evil effects including danger to health. It may cause interruption of sleep, affect communication, loss of efficiency, hearing loss or deafness, high blood pressure, depression, irritability, fatigue, gastrointestinal problems, allergy, distraction, mental stress and annoyance etc. This also affects animals alike. The extent of damage depends upon the duration and the intensity of noise. Sometimes it leads to serious law and order problem. Further, in an organized society, rights are related with duties towards others including neighbours...


..because of urbanization or industrialization the noise pollution may in some area of a city/town might be exceeding permissible limits prescribed under the Rules, but that would not be a ground for permitting others to increase the same by beating of drums or by use of voice amplifiers, loudspeakers or by such other musical instruments and, therefore, rules prescribing reasonable restrictions including the Rules for the use of loudspeakers and voice amplifiers framed under the Madras Town Nuisances Act, 1889 and also the Noise Pollution (Regulation and Control) Rules, 2000 are required to be enforced."


In Charan Lal Sahu v. Union of India (AIR 1990 SC 1480) the Supreme Court reiterated the need to create separate tribunals and asserted the need to appoint a body of experts to advice the Government on environmental issues.


In M.C. Mehta v. Union of India (2004) 1 SCC 571 this Court has emphasized the need for creating environmental awareness amongst students through education.


We have referred to a few, not all available judgments. Suffice it to observe that Indian Judicial opinion has been uniform in recognizing right to live in freedom from noise pollution as a fundamental right protected by Article 21 of the Constitution and noise pollution beyond permissible limits as an in-road on that right. We agree with and record our approval of the view taken and the opinion expressed by the several High Courts in the decisions referred to hereinabove.



Supreme Court of India

State Of Bihar vs Lal Krishna Advani & Ors on 16 September, 2003

It is thus amply clear that one is entitled to have and preserve, one's reputation and one also has a right to protect it. In case any authority, in discharge of its duties fastened upon it under the law, traverses into the realm of personal reputation adversely affecting him, must provide a chance to him to have his say in the matter. In such circumstances right of an individual to have the safeguard of principles of natural justice before being adversely commented upon by a Commission of Inquiry is statutorily recognised and violation of the same will have to bear the scrutiny of judicial review.


Supreme Court of India

Common Cause (A Regd. Society) vs Union Of India on 9 March, 2018

On 8th March, 2018 the Supreme Court delivered two concurring opinions:


Majority opinion authored by CJI Dipak Misra on behalf of himself and Justice AM Khanwilkar

Concurring opinion authored by Justice DY Chandrachud


In 2002, Common Cause, a registered society had written to the Ministries of Law & Justice, Health & Family Welfare, and Company Affairs, also addressing the State Governments, on the issue of the right to die with dignity.



In 2005, Common Cause approached the Supreme Court under Article 32, praying for the declaration that the right to die with dignity is a fundamental right under Article 21. It also prayed the Court to issue directions to the Union Government to allow terminally ill patients to execute 'living wills' for appropriate action in the event that they are admitted to hospitals. As an alternative, Common Cause sought guidelines from the Court on this issue, and the appointment of an expert committee comprising lawyers, doctors, and social scientists to determine the aspect of executing living wills.



Common Cause argued that terminally ill persons or those suffering from chronic diseases must not be subjected to cruel treatments. Denying them the right to die in a dignified manner extends their suffering. It prayed the Court to secure the right to die with dignity by allowing such persons to make an informed choice through a living will.



On 25th February 2014, a 3 Judge Bench of the Supreme Court comprising the then Chief Justice P. Sathasiavn, Justice Ranjan Gogoi and Justice Shiva Kirti Singh had referred the matter to a larger bench, to settle the issue in light of inconsistent opinions in Aruna Ramchandra Shanbaug vs Union Of India & Ors (2011) and Gian Kaur vs State of Punjab (1996).



On 9th March 2018, a 5 Judge Bench comprising Chief Justice Dipak Misra and Justices A K Sikri, A. M. Khanvilkar, D Y Chandrachud and Ashok Bhushan held that the right to die with dignity is a fundamental right. An individual's right to execute advance medical directives is an assertion of the right to bodily integrity and self-determination and does not depend on any recognition or legislation by a State.


a) Only adult persons, above the age of eighteen years and of sound mind at the time at which the advance directive is executed should be deemed to be competent. This should include persons suffering from mental disabilities provided they are of sound mind at the time of executing an advance directive.

b) Only written advance directives that have been executed properly with the notarised signature of the person executing the advance directive, in the presence of two adult witnesses shall be valid and enforceable in the eyes of the law. The form should require a reaffirmation that the person executing such directive has made an informed decision. Only those advance directives relating to the withdrawal or withholding of life­ sustaining treatment should be granted legal validity. The determination that the executor of the advance directive is no longer capable of making the decision should be made in accordance with relevant medical professional regulations or standard treatment guidelines, as also the determination that the executor's life would terminate in the absence of life­ sustaining treatment. The constitution of a panel of experts may also be considered to make this determination. The use of expert committees or ethics committees in other jurisdictions is discussed at Para 28 of these written submissions.


c) Primary responsibility for ensuring compliance with the advance directive should be on the medical institution where the person is receiving such treatment.


d) If a hospital refuses to recognise the validity of an advance directive, the relatives or next friend may approach the jurisdictional High Court seeking a writ of mandamus against the concerned hospital to execute the directive. The High Court may examine whether the directive has been properly executed, whether it is still valid (Le, whether or not circumstances have fundamentally changed since its execution, making it invalid) and/or applicable to the particular circumstances or treatment.


e) No hospital or doctor should be made liable in civil or criminal proceedings for having obeyed a validly executed advance directive.


f) Doctors citing conscientious objection to the enforcement of advance directives on the grounds of religion should be permitted not to enforce it, taking into account their fundamental right under Article 25 of the Constitution. However, the hospital will still remain under this obligation.


94. The right to self­determination and bodily integrity has been recognised by this Court as noted above. The right to execute an advance medical directive is nothing but a step towards protection of aforesaid right by an individual, in event he becomes incompetent to take an informed decision, in particular stage of life. It has to be recognised by all including the States that a person has right to execute an advance medical directive to be utilised to know his decision regarding manner and extent of medical treatment given to his body, in case he is incapacitated to take an informed decision. Such right by an individual does not depend on any recognition or legislation by a State and we are of the considered opinion that such rights can be exercised by an individual in recognition and in affirmation of his right of bodily integrity and self­determination which are duly protected under Article 21 of the Constitution. The procedure and manner of such expression of such right is a question which needs to be addressed to protect the vulnerable, infirm and old from any misuse. It is the duty of the State to protect its subjects specially those who are infirm, old and needs medical care. The duty of doctor to extend medical care to the patients, who comes to them in no manner diminishes in any manner by recognition of concept that an individual is entitled to execute an advance medical directive. The physicians and medical practitioners treating a person, who is incompetent to express an informed decision has to act in a manner so as to give effect to the express wishes of an individual.


95. The concept of advance medical directive has gained ground throughout the world. Different countries have framed necessary legislation in this regard. Reference of few of such legislations shall give idea of such statutory scheme formulated by different countries to achieve the object. The Republic of Singapore has passed an enactment namely ADVANCE MEDICAL DIRECTIVE ACT (Act 16 of 1996). Section 3 of the Act, sub­section (1) empowers a person who is not mentally disordered and attained the age of 21 years to make an advance directive in the prescribed form.


Other provisions of Statute deals with duty of witness, registration of directives, objections, revocation of directive, panel of specialists, certification of terminal illness, duty of medical practitioner and other related provisions. The Belgian Act on Euthanasia, 2002 also contains provisions regarding advance directive in Section 4. Swiss Civil Code 1907 in Articles 362 and 365 provides for advance care directive, its execution and termination. Mental Capacity Act, 2005 (England) also contemplates for an advance directive. The Statute further provides that an advance directive is applicable in life sustaining treatment only. When the decision taken in writing, signed by the patient or by another person in patient's presence on his direction. Pennsylvania Act 169 of 2006 also contains provisions with regard to execution of advance medical directive and other related provisions, its revocation etc.


In our country, there is yet no legislation pertaining to advance medical directive. It is, however, relevant to note that Ministry of Health and Family Welfare vide its order dated 06.05.2016 uploaded the Law Commission's 241st report and solicited opinions, comments on the same. An explanatory note has also been uploaded by the Ministry of Health and Family Welfare where in paragraph 6 following was stated:


“ Living Will has been defined as “A document in which person states his/her desire to have or not to have extraordinary life prolonging measures used when recovery is not possible from his/her terminal condition”.


However, as per para 11 of the said Bill the advance medical directive (living will) or medical power of attorney executed by the person shall be void and of no effect and shall not be binding on any medical practitioner.” Although in Clause 11 of the draft bill, it was contemplated that advance medical directives are not binding on medical practitioner but the process of legislation had not reached at any final stage. The directions and safeguards which have been enumerated by Hon'ble Chief Justice in his judgment shall be sufficient to safeguard the interests of patients, doctors and society till the appropriate legislation is framed and enforced.


We thus conclude that a person with competent medical facility is entitled to execute an advance medical directive subject to various safeguards as noted above.


M. CONCLUSIONS:


From the above discussions, we arrive on following conclusions:­


(i) The Constitution Bench in Gian Kaur's case held that the “right to life: including right to live with human dignity” would mean the existence of such right up to the end of natural life, which also includes the right to a dignified life upto the point of death including a dignified procedure of death. The above right was held to be part of fundamental right enshrined under Article 21 of the Constitution which we also reiterate.


(ii) We agree with the observation made in the reference order of the three­Judge Bench to the effect that the Constitution Bench in Gian Kaur's case did not express any binding view on the subject of euthanasia. We hold that no binding view was expressed by the Constitution Bench on the subject of Euthanasia.


(iii) The Constitution Bench, however, noted a distinction between cases in which physician decides not to provide or continue to provide for treatment and care, which could or might prolong his life and those in which he decides to administer a lethal drug even though with object of relieving the patient from pain and suffering. The later was held not to be covered under any right flowing from Article 21.


(iv) Thus, the law of the land as existing today is that no one is permitted to cause death of another person including a physician by administering any lethal drug even if the objective is to relieve the patient from pain and suffering.


(v) An adult human being of conscious mind is fully entitled to refuse medical treatment or to decide not to take medical treatment and may decide to embrace the death in natural way.


(vi) Euthanasia as the meaning of words suggest is an act which leads to a good death. Some positive act is necessary to characterise the action as Euthanasia. Euthanasia is also commonly called “assisted suicide” due to the above reasons.


(vii) We are thus of the opinion that the right not to take a life saving treatment by a person, who is competent to take an informed decision is not covered by the concept of euthanasia as it is commonly understood but a decision to withdraw life saving treatment by a patient who is competent to take decision as well as with regard to a patient who is not competent to take decision can be termed as passive euthanasia, which is lawful and legally permissible in this country.


(viii) The right of patient who is incompetent to express his view cannot be outside of fold of Article 21 of the Constitution of India.


(ix) We also are of the opinion that in cases of incompetent patients who are unable to take an informed decision, “the best interests principle” be applied and such decision be taken by specified competent medical experts and be implemented after providing a cooling period to enable aggrieved person to approach the court of law.


(x) An advance medical directive is an individual’s advance exercise of his autonomy on the subject of extent of medical intervention that he wishes to allow upon his own body at a future date, when he may not be in a position to specify his wishes. The purpose and object of advance medical directive is to express the choice of a person regarding medical treatment in an event when he looses capacity to take a decision. The right to execute an advance medical directive is nothing but a step towards protection of aforesaid right by an individual.


(xi) Right of execution of an advance medical directive by an individual does not depend on any recognition or legislation by a State and we are of the considered opinion that such rights can be exercised by an individual in recognition and in affirmation of his right of bodily integrity and self­determination.


In view of our conclusions as noted above the writ petition is allowed in the following manner:


(a) The right to die with dignity as fundamental right has already been declared by the Constitution Bench judgment of this Court in Gian Kaur case (supra) which we reiterate.


(b) We declare that an adult human being having mental capacity to take an informed decision has right to refuse medical treatment including withdrawal from life saving devices.


(c) A person of competent mental faculty is entitled to execute an advance medical directive in accordance with safeguards as referred to above.



) The Supreme Court of India, in the case of M.C. Mehta v. Union of India [(1998) 6 SCC 63] had directed that the vehicles which are more than 15 years old should not be permitted to ply on the roads of Delhi. This was aimed at preventing and controlling alarming air pollution levels in Delhi. Likewise, the terrain from Manali to Rohtang Pass and onwards is a very difficult high altitude terrain and the old vehicles are bound to cause more pollution there. This area, is at a high altitude, eco-sensitive and pollution- prone one, thus, there has to be more stringent standards and restrictions in that area.


In the case of Vineet Narain v. Union of India (1998) 1 SCC 226), the Court held as under:


There are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders of this Court as provided in Article 144 of the Constitution. In a catena of decisions of this Court, this power has been recognised and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role. It is in the discharge of this duty that the IRC was constituted by the Government of India with a view to obtain its recommendations after an in- depth study of the problem in order to implement them by suitable executive directions till proper legislation is enacted. The report of the IRC has been given to the Government of India but because of certain difficulties in the present context, no further action by the executive has been possible. The study having been made by a Committee considered by the Government of India itself as an expert body, it is safe to act on the recommendations of the IRC to formulate the directions of this Court, to the extent they are of assistance. In the remaining area, on the basis of the study of the IRC and its recommendations, suitable directions can be formulated to fill the entire vacuum. This is the exercise we propose to perform in the present case since this exercise can no longer be delayed. It is essential and indeed the constitutional obligation of this Court under the aforesaid provisions to issue the necessary directions in this behalf. We now consider formulation of the needed directions in the performance of this obligation. The directions issued herein for strict compliance are to operate till such time as they are replaced by suitable legislation in this behalf.



Supreme Court of India

M.C. Mehta vs Union Of India & Others on 22 September, 1987

Millions of our people bathe in the Ganga drink its water under an abiding faith and belief to purify themselves and to achieve moksha release from the cycle of birth and death. It is tragic that the Ganga, which has since time immemorial, purified the people is being polluted by man in numerous ways, by dumping of garbage, throwing carcass of dead animals and discharge of effluents. Scientific investigations and survey reports have shown that the Ganga which serves one-third of the India's population is polluted by the discharge of municipal sewage and the industrial effluents in the river. The pollution of the river Ganga is affecting the life, health, and ecology of the Indo-Gangetic Plain. The Government as well as Parliament both have taken a number of steps to control the water pollution, but nothing substantial has been achieved. I need not refer to those steps as my learned brother has referred to them in detail. No law or authority can succeed in removing the pollution unless the people cooperate. To my mind, it is the sacred duty of all those who reside or carry on business around the river Ganga to ensure the purity of Ganga. Tanneries at Jajmau area near Kanpur have been polluting the Ganga in a big way. This Court issued notices to them but in spite of notice many industrialists have not bothered either to respond to the notice or to take elementary steps for the treatment of industrial effluent before discharging the same into the river. We are therefore issuing the directions for the closure of those tanneries which have failed to take minimum steps required for the primary treatment of industrial effluent. We are conscious that closure of tanneries may bring unemployment, loss of revenue, but life, health and ecology have greater importance to the people.


Supreme Court of India

M.C. Mehta vs Union Of India & Ors on 30 December, 1996

95. When industrial units are relocated, it would be appropriate to modernise technology equipment and buildings. Most of the units will need very substantial financial assistance. The value of the present sites and their future use have to be determined. It would not be desirable to promote residential colonies and commercial establishments in such vacated areas as they may in turn add to the problems of water supply and atmospheric quality by excessive use of energy. Major changes of this nature would need a clear development planning strategy and resources, and will also take several years for implementation.

96. There is urgent need for quicker measures which could lead to better environment, especially in the Taj Mahal. For this purpose, it is necessary to effect overall reduction in coal/coke consumption by industries and others in Agra and in Taj Trapezium Zone generally. The present level of consumption of 129 metric tonne per day by industry can be substantially reduced by new technology and by use of LPG and HSD of low sulphur. Stricter standards for emissions may be evolved when such technological and fuel changes are effected. Support for development of modifications in design and operation and demonstration should be provided. Some assistance to industries for adoption of these may be considered after careful examination of the costs and benefits to the industry and to society. All those industries not responding for action for feasible changes and contributing disproportionately to atmospheric pollution have to face action."


This Court in Vellore Citizens Welfare Forum vs. Union of India & Ors., JT 1996 (7) sc 375, has defined "the precautionary principle" and the "polluter pays principle" as under:-


"11. ....... We are, however, of the view that "the precautionary principle" and "The polluter Pays" principle are essential features of "Sustainable Development". The "Precautionary Principle" -- in the context of the municipal law - means:

(i) Environmental measures - by the State Government and the statutory authorities - must anticipate, prevent and attack the causes of environmental degradation.

(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

(iii) The "Onus of proof" is on

the actor or the

developer/industrialist to show that his action is environmentally benign.

12. "The Polluter Pays" principle has been held to be a sound principle by this court in Indian Council for Enviro-Legal Action vs. Union of India J.T. 1996 (2) 196. The Court observed "We are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country". The Court ruled that "Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on." Consequently the polluting industries are "absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas". The "Polluter Pays" principle as interpreted by this court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of "Sustainable Development" and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.

13. The precautionary principle and the polluter pays principle have been accepted as part of the law of the land. Article 21 of the Constitution of India guarantees protection of life and personal liberty. Articles 47, 48 A and 51A(g) of the Constitution are as under:-

"47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health. - The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health among its primary duties and in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. 48A. Protection and improvement of environment and safeguarding of forest and wild life. - The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.

51A(g). To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.

Apart from the constitutional mandate to protect and improve the environment there are plenty of post independence legislations on the subject but more relevant enactments for our purpose are: The Water (prevention and Control of pollution) Act, 1974 (the Water Act), the Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) and the Environment protection Act, 1986 (the Environment Act). The Water Act provides for the constitution of the Central Pollution Control board by the Central Government and the constitution of the State Pollution Control Board by the Central Government and the constitution of the State Pollution Control Boards by various State governments in the country. The Boards function under the control of the Governments concerned. The Water Act prohibits the use of streams and wells for disposal of polluting matters. Also provides for restrictions on outlets and discharge of effluents without obtaining consent from the Board. prosecution and penalties have been provided which include sentence of imprisonment. The Air Act provides that the Central Pollution Control board and the State Pollution Control boards constituted under the Water Act shall also perform the powers and functions under the Air Act. The main function of the Boards, under the air Act, is to improve the quality of the air and to prevent, control and abate air pollution in the country. We shall deal with the Environment Act in the later part of this judgment.

14. In view of the above mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principal and the polluter pays principle are part of the environmental law of the country."


Supreme Court of India

M.C. Mehta And Anr vs Union Of India & Ors on 20 December, 1986

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 en- gaged 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 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 permit- ted to carry on an 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 activ- ity 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 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 deterent effect. The larger and more prosperous the enter- prise, 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.

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