Documente Academic
Documente Profesional
Documente Cultură
Saumya Umashankar
I.
INTRODUCTION
Gas Leak disaster marking the milestone for the third phase
and judicial activism extending over two decades marking the
fourth phase. The paper narrates the progression of
environment policy and law in India in each of these phases
and the dominant influences in each phase peoples
movements, environmental disasters, international covenants
and judicial interventions.
II.
III.
The Water (Prevention and Control of Pollution) Act, 1974, retrieved from
http://indiacode.nic.in/fullact1.asp?tfnm=197406 on April 20, 2014.
http://indiacode.nic.in/coiweb/amend/amend42.htm
next few days, the death count arose sharply reaching 4000. It
was estimated that over 500,000 people had been exposed to
the gas with the health of over 35,000 people being affected in
the medium and long-term [12]. The incident completely
changed the course of public response to environmental
issues.
The public clamour from the Bhopal Gas tragedy forced
policy action from Government. The Environment
(Protection) Act, 19868, was passed by Parliament with
extraordinary rapidity with the time duration between the
introduction of the Bill in Parliament to its passage by both
Houses of Parliament and its assent by the President spanning
just 16 days9. This Act invoked the provisions of the
Constitution, enabling Parliament to legislate for
implementing a decision taken at an international conference
with reference to the deliberations at the UN Conference in
Stockholm, thereby resolving the intricate issue of legislative
jurisdiction. The statement of objects and reasons of the Act
expressed concern about decline in environmental quality,
increasing pollution, loss of vegetative cover and biological
diversity, excessive concentration of harmful chemicals in
ambient atmosphere, growing risks of environmental
accidents and threats of life systems [8]. The Act defined
environment comprehensively to include water, air and land
and the inter-relationship which exists along and between
water, air, land and human beings, other living creatures,
plants, micro-organisms and property. The Environment
(Protection) Act gave extensive powers to the Central
Government, arrogating to it the power to set environmental
standards, granting environmental clearances for all kinds of
industries and activities, laying down safeguards for
prevention of accidents and notifying enforcement authorities.
The States role in environment policy was greatly
diminished, though the State Pollution Control Boards
continued to remain the notified enforcement authorities by
virtue of subordinate legislation under the Act. The
Environment (Protection) Act, along with the Water Act and
the Air Act, constituted the triad of laws that regulated
environmental pollution and abatement measures.
Two other legislations emerged from the ashes of the
Bhopal Gas tragedy the Bhopal Gas Leak Disaster
(Processing of Claims) Act, 198510, and the Public Liability
Insurance Act, 199111. The first legislation empowered the
Central Government as the sole representative of all victims in
all legal matters with the Union Carbide on compensation to
victims [8]. The compensation claims were first filed in the
8
The Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, from
http://indiacode.nic.in/fullact1.asp?tfnm=198521 on July 5, 2014.
11
The Air (Prevention and Control of Pollution) Act, 1981 retrieved from
http://envfor.nic.in/legis/air/air1.html on April 20, 2014.
U.S Federal Court which ruled that India and not U.S was the
appropriate forum for pursuit of compensation litigation. In
May 1986, Judge Keenan directed Union Carbide to offer an
interim relief of $5-10 million as a matter of fundamental
human decency [13]. The Bhopal District Court on
December 17, 1987 awarded an interim compensation of Rs
3.5 billion. On appeal, the Madhya Pradesh High Court
reduced the interim compensation to Rs 2.5 billion. The
Supreme Court gave a full and final compensation of U.S
$470 million (Rs 705 million at the prevailing exchange rates)
of all claims, rights and liabilities as just, equitable and
reasonable settlement[13]. The judgment drew adverse
comparison with the Exxon Valdez oil spill where Exxon
offered a voluntary settlement of $300 million and spent over
$2 billion in clean-up efforts in removing the oil from the
water and adjacent shores12. Learning from the experience of
continuously stalling release of immediate compensatory
relief to victims of a disaster through litigation, the Public
Liability Insurance Act, enacted in 1991, aimed to provide
for mandatory public liability insurance for installations
handling hazardous substances to provide minimum relief to
victims [8]. The liability was no fault, not requiring
negligence or wrongful action to be proved and did not
indemnify the installation from punitive claims for damages.
The National Forest Policy of 1988 stressed environmental
stability and maintenance of ecological balance. It differed
from the earlier policies by placing economic benefits of
forests and subordinate to its environmental value [4]. The
customary rights of local populace to minor forest produce
were recognised. The policy protected the first claim of local
communities to fuel wood, fodder and other produce of
forests. It promoted the organisation of local inhabitants of
forests for protection, development and management of
forests. The Policy of 1988 brought in a community approach
to forestry rights.
IV.
THE ERA OF
ENVIRONMENT.
JUDICIAL
ACTIVISM
Tool
for
IN
defining
12
Judgement of the United States Court of Appeals for the Ninth Circuit in re:
Exxon Valdez, Grant Baker et al v. Joseph Hazelwood and Exxon
Corporation, Exxon Shipping Company (2001) retrieved from
http://www.admiraltylawguide.com/circt/9thvaldez.pdf on July 5, 2014.
13
ADM Jabalpur v/s Shiv Kant Shukla (AIR 1976 SC 1207) retrieved from
http://indiankanoon.org/doc/1735815/ on July 16, 2014
16
Judgment in M.C Mehta v/s Union of India (AIR 1988 1 SCC 471) retrieved
from http://www.indiankanoon.org/doc/1208005/ on June 21, 2014.
18
Judgment in M.C Mehta v/s Union of India (AIR 1988 SC 1037) retrieved
from http://indiankanoon.org/doc/59060/ on June 21, 2014.
19
Pg. 8 of judgment in Subhash Kumar v/s State of Bihar (AIR 1991 SC 420)
retrieved from http://indiankanoon.org/doc/1646284/ on June 22, 2014.
21
Judgment of Supreme Court in M.C. Mehta v/s Union of India, November
22, 1991, Centre for Environment Education, retrieved from
http://www.greenteacher.org/images/File/Supreme%20Court%20EE/22_11_1
991.pdf on June 28, 2014.
22
Para 24 and para 35 of judgment in M.C. Mehta v/s Kamal Nath (1997 1
SCC 388) retrieved from website of International Environmental Law
Research Centre (IELRC) http://www.ielrc.org/content/e9615.pdf on June 29,
2014.
24
Pg. 45 of judgment in M.C. Mehta v/s Union of India (AIR 1997 SC 734)
retrieved from http://judis.nic.in/supremecourt/imgs1.aspx?filename=14555
on June 29, 2014.
25
Pg. 8 of judgment in Essar Oil Ltd. v/s Halar Utkarsh Samiti (AIR 2004 SC
1834) retrieved from http://indiankanoon.org/doc/1319748/ on June 28, 2014.
26
Pg. 2 of judgment dated January 7, 1998, in M.C Mehta v/s Union of India
(Delhi Vehicular Pollution case) retrieved from
http://judis.nic.in/supremecourt/imgs1.aspx?filename=13535 on June 21,
2014.
Pg. 3 of judgment dated April 5, 2002 in M.C Mehta v/s Union of India
(Delhi Vehicular Pollution case) retrieved from
http://judis.nic.in/supremecourt/imgs1.aspx?filename=20592 on June 21,
2014.
29
Order dated October 29, 2002, in T.N Godavarman Thirumulpad v/s Union
of India retrieved from
http://judis.nic.in/supremecourt/imgs1.aspx?filename=41309 on July 12,
2014.
33
Order dated March 28, 2008, in T.N Godavarman Thirumulpad v/s Union of
India retrieved from
http://cecindia.org/sc_documents/(15)I.A.nos.826,in,566,955,in566,958,985,1
001-1001A,1013-1014,1016018,1019,1046,1047%20etc.%20%20W.P.(c)no.202%201995%2028.03.2008
.pdf on July 12, 2014.
34
V.
[1]
[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
REFERENCES
10
Encycl%20of%20Social%20Movements%204-7-08.pdf accessed
on April 18, 2014.
[11]
[12]
[13]
[14]
[15]
[`16]
11