Section 268 of Indian Penal Code, which has provisions relating to offences affecting the public health, safety,

convenience, decency and morals under Chapter XIV, defined public nuisance imposed penal liability. It says that "a
person is guilty of public nuisance who does any act or is guilty of an illegal omission which causes any common
injury, danger or annoyance to the people in general who dwell or occupy property in the vicinity or must necessarily
cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A
common nuisance is not excused on the ground that it causes some convenience or advantage".

The High Courts and the Supreme Court of India imposed a duty on individuals and the state to protect the
environment holding that the right to life under Article 21 includes right to live in an unpolluted environment also. (T.
Damoder Rao v. Special Officer, Municipal Corporation of Hyderabad, AIR 1987 AP 171, per P. A. Choudary, J)

A law, which is not in consonance with the fast-developed technological hazards, cannot deal with dangerous
consequences of accidents with abnormal and extraordinary prepositions. The law needs to undergo a process of
reform and rethinking to race with fast changing technological applications in multinational industrial activities. The
judges rightly imposed an absolute and non-delegable duty to ensure that no harm results to any one, on an
enterprise engaged in Hazardous or Inherently Dangerous Activity (HOIDA) posing a potential threat to the health
and safety of the persons working in the factory and residing in the surrounding areas.

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. Because it is not possible to isolate the process of operation from the hazardous preparation of
substance or any other related element that caused the harm, it is reasonable and justified to impose strict liability to pay the
social cost of the tragedy.

Duty of the State

However, it is also the duty of the state to provide for effective remedies against the environmental hazards. The Public
Liabilities Insurance Act, 1991 is a step towards fulfilling such an obligation to some extent. This law enables the District
Collector to determine immediate relief up to a maximum of Rs 37,500. For larger compensation, the affected person has to
seek remedies under other laws or common law developed by the courts. There is another piece of legislation with
ambitious plans. The National Environmental Tribunal Act, 1995 creates tribunals to enforce the absolute liability principle.

The Direction of Supreme Court

The Supreme Court directed all hospitals with 50 beds and above to install incinerators or any other effective alternate
methods under their administrative control, in 1994 in a public interest writ petition filed Dr. B. L. Wadhera against dumping
of Hospital waste from Safdarjang Hospital in the Capital city. The Apex Court also imposed a dead line i.e., 30 th November
1996 for incorporating scientific methods of disposing hazardous medical waste. It also directed that a prior approval from
Central Pollution Control Board should be obtained after conforming to the settled standards and also that the CPCB should
regularly inspect different hospitals and monitor the garbage disposal processes.

Remedial Relief

Section 8 of Environment (Protection) Act, 1986 imposes a liability to comply with procedural safeguards in disposal
of bio-medical waste. The Supreme Court held that it had power to award compensation. It has implicit power issue
whatever direction, order or writ to enforce the fundamental right. "The power of the Court is not only injunctive in
ambit, that is, preventing infringement of a fundamental right also provides remedial relief against breach of the
fundamental right already committed. (Bandhu Mukthi Morchas case, AIR 1984 SC 802). However, Section 15
provides for imposing a penalty of Rs. One lakh and an imprisonment up to five years or both for any violation of the
provisions. It also provides for higher penalty in case of continuous violation. But the Environment (Protection) Act,
1986, surprisingly did not provide any measure or liability to pay compensation to the victims of the violations of the
provisions.

It is the ethical and social responsibility of health care professionals to control the process of disposal of dangerous
wastes of hospital. It is the duty of state, legislators, hospitals and the general public to make sure that
environmentally acceptable waste disposal is introduced and implemented effectively. It should be the concern all
human beings that there shall be no dumping of pathological waste in the street or front or back yards of hospitals
and no floating of bloated infant bodies or amputated legs or wastes from autopsy in the streams amidst dwelling
colonies. Though it is the moral duty of medical professionals to see that hazardous wastes are systematically
processed and disposed, it is the duty of state to introduce effective legal machinery, redress mechanism and quick
process of securing the relief.

The state realized the need to develop and codify the principle of strict civil liability in respect of all accidents in
hazardous industries and to create a forum to dispose of cases arising from industrial accidents and disasters
providing compensation. The National Environment Tribunal Act, 1995 fulfilled that aim. However, the Tribunal is yet
to be constituted. This Act and Public Liability Insurance Act remained non-starters