Sunday, December 4, 2011

Bhopal gas leak case revisited – was a catastrophe waiting to happen-part-I

Bhopal gas leak case revisited  – ‘was a catastrophe waiting to happen’  -Part-I

“There will be two eventualities in this world one is environmental destruction and other is war on Iran” Fidel Castro in a public address after recovering from illness.  

India happened to witness world dangerous environmental catastrophe,which shaken entire world ,on intervening night to 2 /3 rd December 1984 ,40 tonnes of deadly chemical methyl isocyanate[MCI] stored in pesticide factory was released into atmosphere resulting instant  death of thousands of people and several thousands of people injured or became chronically ill or died after prolong illness.The entire world condemned this criminal negligence of pesticide factory.

The official immediate death toll was 2,259 and the government of Madhya Pradesh has confirmed a total of 3,787 deaths related to the gas release.Others estimate 3,000 died within weeks and another 8,000 have since died from gas-related diseases,even after 27 yrs of disaster ,the victims are waiting for compensation and rehabilitation from the government.Ironically only 8 officials were convicted[merely two years,after Supreme court reduced charge to two years in 1996 ],but senior management official of the DOW like Anderson ,neither extradited or punished. 

Union Carbide[UCIL] paid $470m (£282m) in compensation to the Indian government after out of court settlement and same was upheld by Supreme Court of India,company also agreed for fund &group medical insurance ,estimated $17 million to treat 10,000 people, who may later develop symptoms. 
later DOW bought UCIL in 1999,contended that compensation issue is resolved and no claims will be entertained.

Environmental legislation in India:  

India is one of few countries,which has constitutional safe guards for the protection of environment.The directive principles of State policy and Fundamental Duties have specific provisions for the protection of environment.Most pollution cases fall under categories of nuisance, negligence and  principle of strict liability. 

The 42nd  Amendment to the Indian Constitution in 1976 introduced principles of environmental protection in the Constitution through Articles 48A and 51A(g).

After the Stockholm conference ,the Air Act and Environment act was enacted ,under Article 253 of the Constitution,the parliament can make laws to fulfill the  obligation under international conventions.

There are about 200 acts and statues in the field of environmental protection, still India is lagging behind in protecting the environment and our law makers never consider pollution and environment as an important national issue. 
The Panchayats, Municipalities and Municipal Corporations are duty bound to protect ecology and environment,any negligence on their part is punishable offence. 

Some of Leading cases  in Environmental Jurisprudence in India 
  • The public right to decent living was recognised in Municipal Council, Ratlam Vs. Vardhichand, AIR 1980 ,a land mark in environmental jurisprudence, Justice Krishna Iyer justified magistrate action under Section 133 CrPC to remove public nuisance.

  • In Rural Litigation and Entitlement Kendra, Dehradun, AIR 1985 SC 652,lime-stone quarries pose danger to ecology ,environment and public health.

  • In Shriram Foods and Fertilizer Industries and another, AIR 1987 SC 965, leak of olium gas lead to death of several people including Advocate,Supreme Court awarded compensation.

  • M.C. Mehta Vs. Union of India, AIR 1988 SC 1115,leading environmental lawyer filed PIL to clean up the river Ganga,which got polluted due to untreated sewerage water.

  • Vellore Citizens Welfare Forum, AIR 1996 SC 2715 ,one of the landmark judgement under environmental jurisprudence recognizing ‘Sustainable Development.

  • M.C. Mehta Vs. Union of India, AIR 1999 SC 291-for use of CNG and phasing out old vehicles.

  • M.C. Mehta Vs.Union of India, AIR 1999 SC 734 -for shifting of tanneries and protect Taj Mahal.

  •  AIR 2000 SC 3510, for the protection of  Yamuna river,Delhi.
  • M.C. Mehta Vs. Kamal Nath, AIR 2002 SC 1515; damages from Span Hotels Private Ltd. for ecological damage of  Beas river.

  • In Murli S. Deora vs Union Of India And Ors ,AIR 2002 SC 40-banning smoking in public places.

The Principle Judicial Remedies under Indian Law 

The remedies includes Damages, Injunction under section 94,95-order 39 of CPC,perpetual injunction under section 37-42 of Specific Relief Act,Nuisance under Indian Penal Code 1860 Section 268 ,and proceeding before magistrate to remove nuisance under section 133-144 of Criminal procedure Code,1973,civil action under section 91 of civil procedure code ,1908 in civil court.The principle of absolute liability was developed by the court in the post-Bhopal period and later adopted by legislation.

Public Liability Insurance Act (PLIA), 1991 [1992] The Central Government has been  authorized to establish the Environmental Relief Fund, for  the purpose of making relief payments.

National Environment Tribunal Act,1995 was enacted to  provide 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 accidents 

The institutional frame work includes  
  • Ministry of Environment and Forests (MOEF), 
  • the Central Pollution Control Board (CPCB), 
  • State Departments of Environment, 
  • State Pollution Control Boards (SPCBs) 
  • Municipal Corporations.

The National Environment Appellate Authority Act, 1997 : establishment for appellate authority under Environment (Protection) Act, 1986 for operation of industry.

Special Act for Bhopal case : 

The special act was enacted by the parliament called Bhopal Gas Leak Disaster[processing of claims]act in March 1985  to claim compensation behalf of victims from DOW. 
The Bhopal act conferred the exclusive right on the Indian Government acting as parens patriae  is Latin term  for "parent of the nation".[In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection,the Hart-Scott-Rodino Antitrust Improvement Act of 1976 (15 USC 15(c)), through Section 4C of the Clayton Act, permits state attorneys general to bring parens patriae suits on behalf of those injured by violations of the Sherman Antitrust Act.] to represent all claimants both inside and outside India and directed the government to register and process the claims. The Constitutional validity was challenged in the Supreme Court and constitutional validity was up held by the apex court, which gave right to government of India to represent claimants in India and outside India.

Basic Principles of Environmental Law :

Strict liability is liability for which mens rea (Latin for "guilty mind") does not have to be proven in relation to one or more elements comprising the actus reus (Latin for "guilty act") although intention, recklessness or knowledge may be required in relation to other elements of the offence. Strict liability laws were created in the 19th century to improve working and safety standards in factories. Needing to prove mens reas on the part of the factory owners was very difficult and resulted in very few prosecutions.
Justice Ahmedhi maintained that there is no concept of strict liability in India ,reacting to criticism for diluting the charge under culpable homicide not  amounting.

Rylands v Fletcher [1868] UKHL 1 is a landmark English tort law ,often cited by courts in environmental cases.It applied the doctrine of strict liability for inherently dangerous activities (on appeal by Rylands, the House of Lords confirmed the previous judgment but restricted the rule to a non-natural use of the land}

Polluter pays principle:Polluter pays Principle is also known as extended polluter responsibility (EPR).This is a concept that was probably first described by the Swedish government in 1975 and same mentioned in Principle 16 of the Rio Declaration on Environment and Development.
Some eco-taxes underpinned by the polluter pays principle include:Gas Guzzler Tax, in USA[Corporate Average Fuel Economy (CAFE)- a "polluter pays"]. 

The U.S. Superfund law requires polluters to pay for cleanup of hazardous waste sites, when the polluters can be identified.

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