Will inadequate environmental legislation and judicial slumber allow future Union Carbides to get away with murder?
“An onerous obligation…….. We owe to posterity………clean air, clean water, greenery and
open space. They ought to be elevated to the status of birth right of every citizen.” Justice Frankfurter 1. Introduction Today, there is worldwide consciousness of environmental protection although it is of a recent origin. According to the legal definition, “Environment” includes water , air and land and the inter relationship that exists among and between water, air and land, and human beings, other living creatures, plants, micro- organisms and property. People have realized that in order to save themselves, there is a need to protect our environment. There is development because of industrialization which ultimately leads to degradation of environment. Sustainable development is essential to protect the environment from pollution. In India, the Supreme Court and the High Courts are upholding the doctrine of „Sustainable Development‟. Environmental rights may be constitutionalised either explicitly by constitutional amendments or implicitly by interpreting existing constitutional language to include environmental protection. In India, courts have interpreted existing constitutional provisions and included environmental protection under Article 21 and have intervened by way of writs, orders and directions in appropriate cases to enforce the constitutional right of people to a healthy environment. The
The Term Paper on The Importance and Criticality of Water for the Existence
1. Introduction Overview The importance and criticality of water for the existence, continuity, safety and comfort of human existence has remained acknowledged since the beginning of human life. Different generations and civilizations have tried in various ways to harness it for diverse purposes, for sustenance, transportation, human safety, irrigation, power generation, and industry. While ...
Supreme Court is aware of the need to develop environmental laws. The three quotations mentioned hereinunder from various judgments of the Supreme Court of India encapsulate the environmental problems and activities in India. “Article 21 protects the right to life as a fundamental right. Enjoyment of life and its attainment including the right to live with human dignity encompasses within its ambit ,the protection and preservation of environment ,ecological balance free from pollution of air and water ,sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Environmental, ecological, air, water pollution etc. should be regarded as amounting to violations of Article 21.”1 “This litigation should not be treated as the usual adversarial litigation. Petitioners are acting in and of a purpose high on the national agenda. Petitioner‟s concern for the environment, ecology and the wild life should be shared by the government. No oblique motives are even suggested to the petitioner‟s motivation in this litigation. It is of utmost importance that the law sought to be effectuated through these notifications should be enforced strictly.”2 “If the mere enactment of the laws relating to the protection of environment was to ensure a clean and pollution free environment, then India would perhaps be the least polluted country in the world. But, this is not so. There are stated to be over 200 Central and State statutes, which have at least some concern with environmental protection, either directly or indirectly. The
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Virendra Gaur v. State of Haryana (1995) 2 SCC 577 Tarun Bharat Sangh v. Union of India (1992) 2 SCC 448
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plethora of such enactments has, unfortunately, not resulted in preventing environmental degradation which on the contrary has increased over the years.”3 The very first notable environment case as a PIL in Supreme Court was Doon Valley case. Doon valley is near the foot-hills of Himalayas. On the hills are rock formations of limestones of very high quality essential for several Indian industries. A number of limestone quarries were being worked that resulted in pollution in the form of dust and debris which because of the peculiar wind currents and conditions got trapped in the Doon valley and created choking smog in Dehradun. A group of citizens complained about their right to life under Article 21. Thus, the Supreme Court gave orders to close most of the quarries and imposed stringent conditions on others so as not to pollute the environment.4 2. Legislations for protecting Environment The principal environmental statutes that have evolved till now are: The Wildlife Protection Act, 1972 – According to this Act “wildlife” includes any animal, bees, butterflies, crustacea, fish and moths; and aquatic or land vegetation which forms part of any habitat. Hunting of wild animals sis prohibited under this Act. There are prohibitions on picking, uprooting, etc on specific plants. Under this Act, power has been given to the Central Government to declare any area as sanctuaries and national parks.
The Term Paper on Environment Pollution 3
... is saves our environment. Recycling reduces pollution such as air pollution, water pollution, and land pollution. The maximum environmental benefit is gained ... These can reduce the rubbish and led to environmental protection. 5.3) Reduce Reduce is to make something ... act responsibly when they do things that impact the natural world. In this assignment, we will focus on the environmental pollution. ...
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Indian Council of Enviro Legal Action v. Union of India (1996) 5 SCC 281 Rural Litigation and Entitlement Kendra v. State of U.P (1985) 2 SCC 431
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The Forest Conservation Act, 1980 – This Act provides for the conservation of forests. If any project falls within the ambit of forestland then prior permission is required from relevant forest officers under this Act. The Environmental Protection Act, 1986 – After the incident of Bhopal tragedy, Environment (Protection) Act came into existence to identify the environmental issues. It is an umbrella legislation. This Act was enacted with the objective to provide for the protection and improvement of the environment. Under this Act, the Central Government is empowered to take necessary measures to protect the environment. Industries, etc are not allowed to emit or discharge environmental pollutants in excess of the standards. Water (Prevention and Control of Pollution) Act, 1974 – The objective of this Act is to prevent and control water pollution. It also provides for maintenance and restoration of water. This Act prohibits use of stream or well for disposal of polluting matter, etc. Air (Prevention and Control of Pollution) Act, 1981 – The objective of this Act is to preserve the quality of air and control air pollution. This Act provides that person operating industries shall not discharge the emission of any air pollutant in excess of standards laid down by State Government. Some of the principles which have evolved as a part of Indian law: 1. Every citizen and non-citizen has a fundamental right to life under Article 21 which also includes the right to a wholesome environment.
The Essay on Supreme Court Act Rights President
US Government Study Guide #4 Exam #3 - 3 Dec 03 1. There are 94 district courts with over 500 federal district judges. There are 13 federal appellate courts. 2. The president selects nominees for judicial positions. He is usually advised by the Senate, who must consent to the president's appointment. Approximately 90% of all judicial appointments come from within the president's party. Because the ...
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2. All Governmental agencies specially involved in developmental activities must have regard to sustainable development. 3. The „polluter pays‟ principle is part of basic Indian environmental law and the polluter must bear both the clean up costs and compensation to victims of pollution. 4. The „precautionary principle‟ is now a part of the Indian environmental law. 5. Stringent action must be taken against contumacious defaulters who carry on activity profit – industrial or developmental, without regard to environmental laws. In spite of the legal and statutory framework, environmental protection laws are not being enforced properly due to rapid development of industries, creation of jobs, encouragement of small and medium scale industries and corruption at all levels for enforcement of laws.
3. Union Carbide Case Bhopal Gas Leak Tragedy is the most important trigger for the evolution of environment jurisprudence in India. It involved two disasters, one being huge loss of life and secondly the absence of proper legal framework for providing relief to the persons who were affected by the same. The Supreme Court evolved the doctrine of „absolute liability‟ in this particular case. 5The Bhopal disaster is undoubtedly the worst incident in industrial history .On 3rd December, 1984, forty tons of highly toxic methyl isocyanine which were stored in Union Carbide‟s chemical plant escaped into the atmosphere that killed over 3500 people who lived there. There was
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M.C. Mehta v. Union of India, (1987) 1 SCC 395
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enormous disparity in the actual death toll and the official estimate. Many people were injured seriously and permanently. The people who are alive continue to suffer the after – effects of the poisoning till date. “There were three tragedies at Bhopal – the gas leak, the reaction to it by the Indian government, and the consequent inability to get relief to the genuine victims.”
The Essay on Case Law and the Doctrine of Precedent
In this essay I will be discussing several points of interest that will help me answer the given question. My first point is on the Hierarchy of the courts. In this point I will explain the different ‘levels’ there are in the English system. My second point is Stare Decisis and what it is. This point is made up of several questions that I will answer; why have binding precedent? What ...
In order to deal with the claims arising out of the disaster, the Indian Parliament enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act in March, 1985, known as the Bhopal Act. This Act conferred an exclusive right on the Indian Government to represent all claimants both within and outside India, and directed the Government to organize a plan for the registration and processing of the victim‟s claims. For the recovery of compensation to the victims of the disaster, legal proceedings were initiated by Union of India against Union Carbide Corporation in the New York Southern District Court. The compensation was claimed on the following seven counts: a) Multinational Enterprise Liability; b) Absolute Liability; c) Strict Liability; d) Negligence; e) Breach of Warranty; f) Misrepresentation; and g) Punitive Damages. The New York Court, however, declined to try the Bhopal case as it was not the appropriate forum to seek justice for the gas victims. The Union of India filed a suit in Bhopal District Court for damages. It was brought in appeal to the High Court wherein they were awarded interim damages of Rs 250 crores (US$ 192 million) on the basis of “more than a prima facie case having been made out” against the defendants. After that the Bhopal case reached the Indian Supreme Court. The Supreme Court persuaded the Indian Government and Carbide to accept its suggestions for an overall settlement of the claims arising out of the Bhopal Disaster. As a full and final settlement of all past, present and future claims arising from the Bhopal Disaster, Carbide agreed to pay
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US$470 million to the Indian Government. In addition to this, the Supreme Court exercised its extraordinary jurisdiction and terminated all the civil, criminal and contempt of court proceedings that had arisen out of Bhopal tragedy and were pending in subordinate Indian courts. The public protested against the unjust settlement made by the Supreme Court. Many writ petitions were filed against the settlement by the Bhopal group activists. In response to that, the Supreme Court of India while upholding the settlement amount, withdrew the criminal immunity granted to UCC and all other accused in Bhopal Disaster case. Hence, a criminal case was filed before CJM, Bhopal and all the accused were present but the prime accused Warren Anderson remained absconded. Extradition order and letter Rogatory was issued by CJM but neither of them was executed by the Union of India. The Sessions Court of Bhopal framed charges against the accused who were the officials of UCIL under sections 304 Part-II, 326, 324 and 429 of IPC read with section 35 of IPC. The Supreme Court reduced charges against the accused from Section 304-Part-II of IPC to Section 304-A, i.e., from a charge of culpable homicide to a case of negligence.
The Research paper on The Tragedy Of The Commons Invading Our Environmental Rights Case Study Coral Reefs
Research in the Disciplines First Paper Final Draft Tragedy of the commons invading our environmental rights: Case study Coral Reefs In our world there are many resources, all of which people do not have a choice in sharing such as our air and our oceans. These resources are looked at as infinite, although this is not actually the case. Each time one person does something to pollute or use these ...
Subsequently, the trial against the accused proceeded before the court of the CJM, Bhopal. Finally, after lingering for 25 years, the court convicted all the eight accused. They were sentenced for two years imprisonment under section 304 a, 336, 337 and 338 read with section 35 of the IPC. A fine of Rs 1, 01,750 under different sections was also imposed on them. . The prime accused Warren Anderson was left secured. The court‟s verdict in Bhopal Gas Leak case was criticized as “too little and too late”. The accused were supposed to be convicted for „culpable homicide‟ but they were convicted for „death by negligence‟. The court disregarded the painful sufferings of the people who were waiting for justice. By the time, the judgment in this matter was delivered; one of the accused
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was already dead. The compensation which was awarded still hasn‟t reached the people in need. This clearly shows the lacunas of our criminal justice system. It is an apparent example of “Justice Delayed is Justice Denied”. It was said by Satinath Sarangi, an activist, “It sets a very sad precedent. The disaster has been treated like a traffic accident. It is a judicial disaster, and it is a betrayal [of Indian people] by the government”. “Justice must not only be done, but must be seen to be done.” The punishment given to the accused in this case is too meager in proportion to the death toll that arose out of the ghastly incident. In this case, then how can we say that justice was done to the victims and their kin when it cannot be seen to be done? The souls of the person who died in Bhopal disaster will not rest in peace till the guilty are punished. When an actor , Salman Khan, could be arrested for killing a blackbuck then how can we let go of the accused that were responsible for killing thousands of people. It illustrates that we care for the animals more than the human beings. This verdict gives us a clear idea that steps should be taken to make stringent environmental laws.
The Essay on Summary of Special Education Laws and Court Cases
Board of Education v. Rowley1982Individual plan & supportive services. A program of a special child is compared to the program of a none disabled for appropriateness. Abrahamson vs. Hershman1983If residential placement is required, school must provide it via district funds Dept of Ed. vs. Katherine D1984Home bound is not LRE [Least Restrictive Environment], receive medical services Irving ...
4. Present Scenario In India environmental pollution is widespread in India and the following are the areas of concern : Failure on part of the Government to formulate appropriate policies, programs and plans. There is a lack of stringent environmental laws to address the problem. There are many flaws in law making process. India stagnantly follows inadequate and obsolete environmental laws. The implementation of environmental laws is very poor.
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The reason behind these loopholes are inadequate infrastructural facilities, lack of ability to understand the environmental laws, lack of expertise in enforcement agencies, lack of coordination among enforcement authorities, jurisdictional conflicts and not to forget the political and bureaucratic interference in the activities of enforcement process. There are certain provisions of environmental protection laws which should be strictly followed. According to Rule 5 of the EPA, there are some restrictions on location of the industries and carrying on processes and operations in different areas. The Central Government will consider the following aspects: (i) Qualitative environment in the area ; (ii) Volume of environmental pollutants in the area; (iii)Quantum of restriction for emission or discharge of environment pollutant from an industry; (iv) Topographical picture of the area; (v) Climatic features of the area; (vi) Necessity for preservation of biological diversity of an area; (vii) Environmentally compatible land use;
(viii) Net adverse environmental impact likely to be caused by an industry; (ix) Consideration of proximity under any treaty, agreement or connection with any other country in consonance with the ancient, monuments and Archaeological sites and Remains Act, 1958; (x) Proximity to human habitation; and
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(xi) Relevant factors to be considered by the Central Government for the protection of the environment in an area. If such legislation existed prior to 1984, then it would have acted as deterrent for industries like Union Carbide. The accused in Bhopal disaster case wouldn‟t have been let off so easily with such inadequate punishment and damages as they have now been let off. The premises of industries, factories should more often accessible to the Government in order to prevent any kind of accidents therein. The safety measures taken by the industries to prevent accidents should be under Government supervision. Heavy penalty should be imposed on them if found at fault.
5. Judicial Activism Mr. M.C.Mehta, an environmental lawyer has played a great role in the development of environmental law. He was awarded the Magsasay award for his great contribution in developing environmental law and protecting the Indian environment. There are certain cases relating to environmental pollution in India and how they were dealt with by the judiciary. In a case, it was complained by the citizens of Vellore that there was enormous discharges of untreated effluents by leather tanneries and other industries in the state of Tamil Nadu. The untreated effluents polluted the agricultural fields, roadways, waterways, etc. The court directed the Government to implement „precautionary principle‟ and „polluter pays‟ principle.6
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Vellore Citizen Welfare Forum v. Union of India (1996) 5 SCC 647
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„Precautionary Principle‟ means the State Government and the statutory authorities must anticipate prevent and attack the causes of environmental degradation. „Polluter Pays Principle‟ is widely accepted as a means of paying for the cost of pollution and control. The Supreme Court held that as per the Polluter Pays principle “… once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised on the very nature of the activity carried on.” One of the notable cases where Supreme Court has passed orders to protect the environment is Taj Trapezium Case. The Supreme Court gave directions to clean up pollution in the Taj Trapezium which was adversely affecting the Taj Mahal.7 The polluter pays principle was applied here to protect the Taj from pollution. In oleum gas leak case, the petitioner had alleged that the infringement of right to life of several thousand people due to severe pollution and hazardous activity of Shriram Food and Fertiliser. The Supreme Court directed the company to take all necessary safety measures before reopening the plant. This case provided number of suggestions to the Central Government for controlling environmental pollution. In Municipal Council, Ratlam it has been clearly recognized that judiciary is competent enough to deal with the environmental issues. The judicial process can harmonize with the legislative process. It can be achieve firstly, by compensating victims for environmental damage and secondly, a lawsuit for environmental damage can set a precedent that provides an incentive to
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M.C.Mehta v. Union of India (1997) 2 SCC 353
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the companies to reduce their risk. Environmental damage can be brought under both civil and criminal legislation. Further, it can be also said that environmental damage that has been caused cannot be reimbursed in any manner. No doubt without the intervention of the court, the Indian environment would have degraded beyond measure and the resources available to the citizens would have been much more polluted. But there are certain limitations in the development of environmental law by judicial decisions and judicial affirmative action. It has been alleged that the decisions laid down in these cases depend too much on personal sensibilities of the judges who hear them and Court‟s action is not a long term solution. If necessary steps are not taken by the legislators and judiciary then environmental pollution can lead to global warming, rise in water level, shortage of food supply, etc. It has been quoted by Justice P.N. Bhagwati, “Right to liberty is meaningless if this is not supplemented or accompanied by right to enjoy the supporting system to life i.e. clean water, clean environment including oxygen requirement”. Along with the other fundamental rights, citizen‟s environmental rights should also be guaranteed. 6. Conclusion Although , the environmental laws are not enforced properly but it is not disregarded completely. These days, the environment activists do not permit to build anything at the cost of environment. Strict actions are taken against them if they don‟t adhere to the environment policies. This statement can be corroborated by stating certain recent examples. Lavasa, the India‟s first planned hill city, has been accused of violating green norms. It has not complied with the Environmental Impact Assessment, so construction of that place has been stopped till the matter
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is solved. Another example, Posco, the world‟s third largest steelmaker had to stop its work temporarily because it did not get environmental clearance. It is agreed that the judgment of Bhopal disaster has left an irreparable scar on the victims and their relatives but judiciary alone cannot be blamed for it. Due to political interference, it has taken a dreadful appearance. Just from one instance, it cannot be concluded that judiciary is incompetent to deal with the environmental issues. It should be also seen that judiciary has done incredible work in developing environmental laws in India. Certain steps should be taken to reduce the environmental pollution. The companies should be imposed “environmental liability” so that they are bound to pay for their activities which damage the environment. There should be laws to compel them to pay compensation for their activities. A step should be taken towards legislative system to obligate the companies to take account of environmental debt along with their financial debt. There should be a national legislation on environmental liability of the companies which would encourage them to produce less pollution. As a result, they would be more cautious while executing their activities which damage the environment. The guidelines given by the Supreme Court in the eminent cases should be strictly followed. Administrative bodies should be created for each Act so that the environmental laws are implemented properly. As there is a growing concern for environmental protection, judiciary is taking efforts in its own ways to protect it. It can be said that even though there are inadequate environmental legislations and lacunae in our judicial system, the future Union Carbides will not be able to get away so easily. No matter how long it takes, but justice will be done.
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References : 1. The Bar Council of India 18th All India Continuing Legal Education Workshop for Young Lawyers on Environmental Law and Litigation. 2. Chiranjeev Avinash, Environmental laws and Protection, 2008 , 1st Edn. 3. Chatterjee Beni Madhab, Environmental Laws, Implementation, Problems and Perspective, 2002, 1st Edn. 4. Baig M.A.A, Environmental Law and Justice, 1996, 1st Edn. 5. Chandra Ramesh and Aneja Ritu, Corporate Governance for Sustainable Environment, 2004, 1st Edn.
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