The chemistry of living death
An indifferent legislature and an impotent administration has forced the onus of defining the cost of lives and damages to the environment caused by industrial "development" onto the courts.
THE justice meted out by the Indian courts to the victims of the Bhopal disaster is a tale of an opportunity squandered to legally establish liabilities for damages and define a just compensation for the virtual genocide of human life and environment.
Since Bhopal, 22 industrial disaster that cost between 25 to 200 lives have been listed by the Crisis Management Group of the Union ministry of environment and forests. But not a single verdict on how to evaluate damages to people and environment has been forthcoming from the hallowed halls.
The Bhopal experience has radically altered the notion of occupational hazards confined to a work place and has spilled over to include the communities living around an industrial unit.
While there are industrial and insurance laws to compensate damages caused to an individual worker, there are no laws to evaluate damages caused to the community and environment and to establish clear liability for those damages.
"The failure on the part of the government to respond to the emerging trend by enacting appropriate laws has made judicial interventions to lay down basic principles in these matters so crucial," says Justice P N Bhagwati, former Supreme Court judge. Popular expectations from courts acting on Bhopal soared high only to fall flat due the regressive attitude of the courts.
"Not many suits have been filed in mass disaster cases. There are even fewer petitions for compensation as these are mostly settled out of the court. The cases are mostly filed to make industry responsible for implementing pollution control measures," says environment lawyer M C Mehta. The urgency for relief and the maneuvering of the managements to lower compensation costs have resulted in an increasing incidence of out-of-court settlements The differing judicial attitudes on the 2 major cases, the Bhopal gas leak and the Shriram oleum gas leak in Delhi-based Shriram Food and fertiliser Ltd, has only harmed the cause. "The judgement on Bhopal was regressive as it had not only failed to establish principles on these crucial issues but also undermined the finest decisions of the Supreme Court laying down the principle of strict liability in environmental cases in the Shriram case to hold an enterprise wholly liable for the damages even without the need to prove it guilty," maintains labour lawyer Colin Gonsalves of Bombay.
Significantly, in the oleum gas leak which occurred in 1987, the Supreme Court had stated the principle of strict liability. But in the third and final Bhopal judgement of 1990, Justice Ranganath Mishra interpreted this only as an observation and not legally binding. This allowed the Union Carbide to get away with a measly compensation of US $470 million out-of-court settlement.
Large-scale industrial disasters have underscored the need to broaden the objective of compensation. Expounding on the emergent scenario, Bhagwati says, "The magnitude of the compensation should deter the polluter from ignoring risks and seek commensurable insurance." Bhagwati's own ruling in the Shriram case had stated that the measure of compensation must be related to the magnitude and capacity of the enterprise as the compensation must have deterrent effect.
Lost in these warring legal perceptions is the need to develop more rational legal parameters to evaluate damages. Laments Bhagwati, "Compensation continues to be an instrument to enable recovery of the victim, but not to deter the polluter from ignoring risks and seek commensurable insurance."
Instead, industrial accidents and occupational diseases continue to be tried within the conventional framework of industrial laws in which criteria for settling compensation are very narrow and limited to income foregone, age, degree of injury of an individual and event of death. It is paid only to those who have suffered readily proven damages and not to those who are unable to prove long-term disabilities or damages evident only after some years. Nor is any compensation paid to cover the damages caused to the environment.
Ad hoc calculations are done based on relief available under different government funds and insurance schemes for accidents, to arrive at an arbitrary figure to fix the value of compensation. Comments Rajiv Dhawan, a Supreme Court lawyer, "The technique belongs to the my baap (father mother) culture which is based on the principle of doling out state welfare instead of entitlements."
Yet the conservative, insensitive to some, judgement did not deter the progressive black robes taking an increasingly vocal role to enforce environmental laws. "Without the courts the cause of environment would have been lost. The judiciary has been very responsive to the demand from the environment groups seeking legal remedies for environmental problems," says Bhagwati.
Significantly, almost all environmental cases are filed in the Supreme Court or various High Courts across the country. "Litigants prefer to file cases in the higher courts as the authority of the lower courts have eroded," laments R Venkataramani, Supreme Court lawyer. According to A J Rego of the National Safety Council in Bombay, "Courts have interpreted the Constitutional mandate to provide wide ranging relief, many of them not even contemplated under the laws."
The right to wholesome environment has been incorporated into a fundamental right to life under Article 21 of the Constitution. Court verdicts have repeatedly evoked Article 48A on the state's responsibility to protect and improve the environment and the Article 51 under which the citizen has a duty to protect the environment. The Bhopal disaster did spawn a spate of legal reforms in India: the Environment Protection Act was passed in 1986, the Water pollution Act of 1972 and the Air pollution control Act of 1981 were amended to protect environment and the Factories Act of 1948 was amended to hold the industry responsible for the safety of workers and the people around the industrial areas.
The judiciary has been scathing in its criticism for the ineffectual administration. Justice E S Venkataramaiah lashed out in his ruling on the Ganga pollution case of 1988, "It is unfortunate that although Parliament and the state legislatures have enacted the laws imposing duties on Central and state boards and municipalities for prevention and control of pollution of water, many of these powers have remained on paper."
There has been a spate of litigation on environmental pollution and ecological destruction over the past few years. More than 4,000 cases of prosecution are pending in different courts of India related to air and water pollution, rights over natural resources, the environmental impact of development and right to information on the state of the environment (See box: Pollution's hidden agenda). Suits are being filed under broader Constitutional provisions in the absence of adequate laws. The courts are entertaining writ petitions claiming a fundamental right to clean air and water.
The judiciary has even struck down restrictive laws to gain legitimate entry into matters environment. For instance, under section 58 of the Water Act, civil courts were barred from entertaining any suit related to water pollution because only pollution control boards were empowered by the law to issue injunctions on these matters. This was struck down very innovatively in the Sreenivas distilleries vs S R Thyagrajan case in 1986, which upheld, "Since the law enforcing authority had failed to take action against the distillery for polluting water, the Water Act could not bar an individual from moving the court for relief."
The most significant judicial contribution has been to allow environment take precedence over legalities and economic considerations. Unperturbed by the difficult trade off between industrial development and environment, Justice Bhagwati had ruled in the Dehradun mining case in 1986, "Closure of mines may cause hardship to the owners, but it is a price that has to be paid for protecting the right of people to live in a healthy environment."
The courts have been very clear about their concern for environment by stating broad principles. In the Ganga pollution case of September 1987 in which the tanneries in Kanpur were sued for not treating their effluents, Justice E S Venkataramaiah had ruled, "As industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to exist."
The light of day
The reluctance of the judiciary to interfere into policy issues has been so great that the courts are usually in hurry to pass the buck to the executive. Most cases are dismissed at the admission stage itself on a plea that these concern "policy" in which the court cannot interfere. For instance, a large number of cases filed in various courts on behalf of the people affected by the Sardar Sarovar project are yet to see the light of the day.
Defending the court's attitude, justice Ranganath Mishra says, "This is a field of approximation, conjecture and possibilities. The technical assessment of environmental impact of development projects is not always exhaustive enough to aid in definite judgement." The environmental cases have to draw heavily upon the technical and scientific investigation. "If a rigorous technical back up is not available, the offenders will try to confuse the issues by questioning the parameters of defining safe environment," says Mehta. Therefore, Bhopals may happen and by the time the courts receive the necessary technical information and takes action on them, it might be too late for too many people.