By Sanjay Raman Sinha
The Supreme Court recently dismissed the central government’s plea seeking additional compensation for the 1984 Bhopal gas tragedy victims. In the same vein, it also castigated the government for failing in its responsibility to provide insurance for children to protect them from any post-tragedy health fallouts. The Court also refused to reopen the case to ensure greater compensation for claimants. It said that the move to impose greater liability on Union Carbide Corporation is not recommended as it would open a Pandora’s box and would not be amenable to the interests of the claimants.
Rachna Dhingra, president, Bhopal Group for Information and Action, an action group fighting for the rights of the affected, said: “The centre has not discharged its responsibility, this time too. It has failed to place before the courts relevant data regarding gas victims. The ICMR study says that the second-generation is also affected by the after-effects of the gas leak. The report also tells that even after five years of the incident, many pregnant women suffered miscarriages. The centre sadly failed to insure around one lakh children as directed by the apex court.”
Justice Sudhir Aggarwal, former Allahabad High Court judge and a judicial member of NGT, gave a backgrounder to the case. He said: “The Bhopal Gas Leak Disaster (Processing of Claims) Act was passed by the government and the government took up the case to provide adequate compensation to the victims. The proceedings were initiated under this Act and there was a settlement with Union Carbide in which a compensation amount of 470 million dollars was fixed in total. This amount was sufficient for the facts of devastation presented in front of the Court. But, claims were continuously filed and the damage claims were updated for future claims as well. A large number of claims were made and they were not properly addressed. After 22-23 years, around the year 2011, the government decided to file a curative petition in the Supreme Court to state that the compensation amount decided at that time was less and more compensation should be granted. This has been rejected by the Supreme Court in the current hearing, stating that the settlement cannot be reopened after so many years.”
In this case, the settlement policy as well as the amount is in question. In February 1985, the Indian government filed a case in a US district court for a claim of $3.3 billon against Union Carbide Corporation. But, by 1986, all these litigations in the court were transferred to India on the grounds to provide a more convenient forum for the trial to proceed. In March 1985, the Bhopal Gas Leak Disaster (Processing of Claims) Act was passed which made the central government the sole representative of all the victims. This was done not only to protect the interests of claimants, but also to promote speedy trial. Now, as the government’s demand for extra compensation has been struck down, the focus has again swung back on the responsibility of the government, as the sole representative of victims, and its failure to provide insurance to children. The verdict has also raised the broader issues of environmental degradation and efficacy of environmental laws.
Justice Aggarwal explained: “In the case of the environment, there was no codified law before 1974. There were some provisions in the IPC, but no composite set of laws. When in 1972, the Stockholm Resolution was held, the awareness regarding the protection of environment was raised at the international level. After the Stockholm Resolution, the Water Prevention Act was enacted in 1972, the Air Pollution Act was enacted in 1981, and the Environment Protection Act was enacted in 1986. These are the three Acts that we have today.
“It is also true that in matters of environment, the laws that arise from the decisions of the Supreme Court and High Courts are more than the codified laws made by the government. In fact, the first initiative in the matter of environment was taken by the Supreme Court through a PIL and it expanded the explanation of Article 21 to include the right to life, the right to clean atmosphere, the right to clean air, etc. After the Constitution Amendment in 1975, environment was added to the Directive Principles and also the Fundamental Duties.
“The reality is that there is no dearth of law, we have sufficient laws and we can implement it in the state as per the need. The problem is different; the problem is that the environment is not anyone’s personal property, so no one is very conscientious about it.”
One way to ensure strict compliance of environmental laws is to impose penalty. The NGT is empowered to do this. However, collecting the fine amount from the states may be a difficult task. State pollution control boards have been struggling to collect the fine amount till now.
Justice Aggarwal said: “As far as the NGT is concerned, it has passed many orders in different areas and heavy compensation is being imposed. Solid waste treatment and sewage treatment matters are serious concerns in India. A total compensation of more than Rs one lakh crore has been imposed on different governments.”
Today, mindless and unplanned development has ravaged the environment beyond repair in many parts of the country. In Uttarakhand, the devastation has destroyed the topography of the state and debate rages over development versus environment.
Kalyan Singh Rawat, environmentalist and Padma Shri awardee, said: “Development should be eco-friendly, keeping in mind the safety of the environment and laws made for it and these laws should be re-assessed from time to time to ascertain if a particular law is effective, or there is a need to make changes in it. The laws which were made earlier cannot always be effective as the environment is changing rapidly. So, we have to make a balance between development and saving of the environment with the help of re-assessment of laws.”
Before launching a project, it is essential to assess its environmental impact. Environmental Impact Assessment (EIA) is key to ensure environmental sanctity. This entails evaluating the likely environmental impacts of a proposed project, taking into account its environmental impacts. Strict adherence to EIA report can minimize environmental damages.
Dr Swati Jindal Garg, advocate-on-record at the Supreme Court, said: “Environmental impact assessment is very important, but along with it, we also have to keep a check that the assessment is done the right way without influence. Whenever we do any type of assessment of an industry which will have a negative impact on the environment, we have to see that we are not swayed by things such as generation of more employment from such an industry or more development and compromise on environment.”
The Bhopal gas tragedy has put forth the model of out-of-court settlement as well. Settlement via contract has its positive points. Justice Aggarwal explained: “Out-of-court settlement is mainly required only when there are huge devastating type of matters like the Bhopal gas case. In cases where an industry is very powerful and resourceful, the government should be involved.
“In my opinion, the involvement of judicial bodies is very important in matters related to environmental loss. Like in NGT, many cases were there under Public Liability Insurance Act, where there were deaths and injuries caused by accidents or explosions. There was the matter of the Indian Oil Corporation in Assam. In such cases, the NGT, through its orders, provided for a reasonable and fair compensation to the victims and such orders were followed in most of the places. So, out-of-court settlements in such matters will be completely wrong and unfair to the victims.”
Today as development gains priority over environmental sanctity, danger of devastation looms at every corner. The matrix of environmental laws is strong and sufficient enough. A sense of social responsibility at the individual level and a strong political will is needed to make environmental projects safe.