“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.
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.
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.
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.
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.
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 :
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  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}
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.