RAMASWAMY IYER IN THE HINDU
The Land Acquisition and Resettlement and Rehabilitation Bill 2011 seems to be driven by a desire to make acquisition for industrialisation and urbanisation easier.
One started reading the new Draft National Land Acquisition and Resettlement and Rehabilitation Bill 2011 with expectations of a great improvement over the 2007 Bills. There are indeed some very good features in the new Bill but, on the whole, one must regretfully report disappointment. Let us see how the Bill deals with some of the key issues involved.
(i) Acquisition of agricultural land: The Bill rules out the acquisition, not of all irrigated agricultural land, but of multi-cropped irrigated agricultural land. That limited exclusion seems rather half-hearted.
(ii) Avoiding or minimising displacement: A serious concern about the trauma of displacement does not seem to be the driving force behind the Bill. The principles of ‘no forced displacement’ and ‘free, informed prior consent’ are not mentioned. (Incidentally, the condition of consent by 80 per cent of the land-owners applies only to land-acquisition by the government for companies including PPP cases, and not to governmental acquisition for itself. It appears that there has been no dilution at all of ‘eminent domain’.) There are indeed a number of good provisions relating to displacement (SIA, review of SIA by an Expert Committee, consideration of ‘less displacing alternative’, public hearing, etc.), but the final decision is that of the bureaucracy. If a statutory clearance is needed for cutting a tree or for causing an environmental impact, should it not be required for displacing people? If the National Rehabilitation Commission mentioned in the 2007 Bill had been retained, a statutory displacement clearance by it could have been prescribed, but the present Bill envisages no such Commission.
(iii) Inadequacy of compensation: The present Bill increases the compensation amount significantly. This is welcome. Whether the earlier problems of delays and corruption in the payment process will disappear or diminish, remains to be seen.
(iv) The acquisition of land by the state for private companies: A view, held by many for a long time, is that there is no reason why the state should use its sovereign power to acquire land for private companies which are primarily in business for profit and not for conferring benefits on the public.
The 2007 Bills had sought to reduce the extent of land acquisition by the state for a company to 30 per cent , if the company purchases 70 per cent of the land needed by negotiation. The present Bill does away with the 70:30 formula, but provides for ‘partial’ acquisition by the state for a company if a company so requests. Presumably ‘partial’ acquisition could go up to near-full acquisition by the state. This seems a retrograde step.
(v) Private purchase: As for private negotiation, the Minister himself refers in his Foreword to the “asymmetry of power (and information) between those wanting to acquire the land and those whose lands are being acquired”, but the Bill provides no mechanism to reduce that asymmetry. It doubtless extends the R&R provisions to private negotiated purchases of land but provides no safeguard against unfair negotiation. (Even the extension of the R&R provisions to negotiated purchases — the legality of which may be challenged — applies only where a company buys 100 acres or more, and that threshold can be easily side-stepped in ways that need not be spelt out here.) One wishes that the Minister had strengthened the hands of the weaker party in the negotiation by providing — this is merely an illustration — that the compensation that the land-owners would have got under this Bill if the land had been acquired by the government (to be determined by the collector) would be the floor below which the price negotiated by the company with the land-owners shall not fall.
(vi) Change of land use: That safeguard might ensure a fair price, but there is also the question of transfer of agricultural land to non-agricultural use and the implications for food security. One possibility might be to say that all acquisition of land, including acquisitions for companies, must be only by the state; but that does not seem desirable and, in any case, it is not really an answer to the problem of land-transfer away from agriculture. Another possibility is that private purchases of agricultural land should be subject to state regulation from the point of view of land-use. That might be open to the objection of undue interference with a landowner’s right to sell his land. On the whole, the answer to the question of minimising transfers of agricultural land to non-agricultural use might lie in policies supportive of agriculture rather than in control or regulation over land transactions.
(vii) Definition of ‘public purpose‘: An issue that has persistently figured in the debate during the last decade or two is the need to narrow the definition of ‘public purpose’ and limit it to a few strictly governmental purposes (schools, dispensaries, etc). The present Bill moves in exactly the opposite direction. It defines ‘public purpose’ very broadly and leaves it to the bureaucracy to decide each case. Is it right to assume that any industry ipso facto serves a public purpose warranting the alienation of agricultural land? For instance, in the Singur episode land acquisition was for ‘industry’, i.e., Tatas‘ small car factory; was that ‘public purpose’? It can be so declared under the present Bill. Again, ‘infrastructure’ includes ‘tourism’, which would permit the acquisition of land for building hotels. It seems desirable to define ‘public purpose’ somewhat more stringently.
(viii) Coverage of ‘project-affected persons’: The Bill refers to loss of primary livelihoods but links it to the acquisition of land. The term ‘livelihoods’ is illustrated by a reference to the gathering of forest produce, hunting, fishing, etc; there is no reference to sellers of goods and services to the people in the project area, who will lose their livelihoods when the people whom they serve move away to resettlement areas. It is not clear whether they will be regarded as project-affected persons.
(ix) Social Impact Assessment: On Social Impact Assessment the present Bill is an improvement on the 2007 Bill, but the idea of SIA still falls short: it does not cover the disappearance of a whole way of life; the dispersal of close-knit communities; the loss of a centuries-old relationship with nature; the loss of roots; and so on. It is good that the SIA will be reviewed by an independent multi-disciplinary expert body, but it should first be prepared by a similar body. The Bill leaves the SIA to be prepared by the “appropriate government.”
(x) Rehabilitation package: The rehabilitation package is distinctly inferior to the packages already established in certain projects. The principle of ‘land for land’ has been abandoned. It figures only in the case of irrigation projects, and there the Bill envisages one acre per family instead of two acres as in the Sardar Sarovar Project. There are two points here. First, it is not clear why the Bill specifies irrigation projects; hydroelectric projects and flood control also have the same impacts as irrigation projects, and in any case many projects are ‘multi-purpose’ projects. Secondly, compensation and rehabilitation should have reference not to the nature of the project but to the nature of the impact. Whatever be the project, if an agricultural community is uprooted from its land and homestead, it has to be enabled to practise agriculture elsewhere, and not expected to become carpenters or weavers or traders.
(xi) Other matters: A number of officials and institutions are specified in the Bill, such as the Collector, Administrator of R&R, Commissioner of R&R, etc., but it is only in the R&R Committee that there is a significant non-official presence. The National Monitoring Committee is not ‘participatory’; apart from officials, it includes only a few experts. As indicated earlier, the idea of a National Rehabilitation Commission has been abandoned.
Incidentally, it is not clear why displacement by natural calamities should be brought within the purview of this Bill. There is a vital difference between unavoidable displacement caused by nature and deliberate displacement caused by human decisions.
Summing up, the Bill seems to be essentially driven by a desire to make land acquisition for industrialisation and urbanisation easier. It is clear that the Bill, which does contain many good features, nevertheless requires substantial improvement.
Ramaswamy R. Iyer IN THE HINDU
Putting water on the Concurrent List is not necessarily an act of centralisation, though it could lead to such a development. That danger is real and needs to be avoided.
The Union Ministry of Water Resources has for long been arguing for a shift of water to the Concurrent List without any serious expectation of its happening, but has now begun to pursue the idea more actively. The Ashok Chawla committee, which was primarily concerned with the question of rationalising the allocation of natural resources with a view to reducing the scope for corruption, was reported by the media to have recommended inter alia the shifting of water to the Concurrent List. There seems to be no such specific recommendation in the draft of the Committee’s report that one has seen, but the possibility is referred to in the text and there is an Annexe on the subject. These developments have revived the old debate.
Let us first be clear about the present constitutional position in relation to water. The general impression is that in India water is a State subject, but the position is not quite so simple. The primary entry in the Constitution relating to water is indeed Entry 17 in the State List, but it is explicitly made subject to the provisions of Entry 56 in the Union List which enables the Union to deal with inter-State rivers if Parliament legislates for the purpose. This means that if Parliament considers it “expedient in the public interest” that the “regulation and development” of an inter-State river, say the Ganga or Yamuna or Narmada, should be “under the control of the Union”, it can enact a law to that effect, and that law will give the Union legislative (and therefore executive) powers over that river. That enabling provision has not been used by Parliament. No law has been passed bringing any river under the control of the Union. Under Entry 56, Parliament did enact the River Boards Act 1956 providing for the establishment of River Boards for inter-State rivers, but no such board has been established under the Act. That Act is virtually a dead letter. The reasons are political, i.e., strong resistance by State governments to any enhancement of the role of the Central government.
Is the present constitutional division of legislative power relating to water between the Union and the States satisfactory? The Centre does not think so. None of the Commissions that has gone into the subject so far has recommended a change, largely because it seemed unrealistic. (The Sarkaria Commission thought that a change was unnecessary.)
The present writer had earlier argued against a move to shift water to the Concurrent List on two grounds. First, a move to put water into the Concurrent List at this stage will be generally regarded as a retrograde step that runs counter to the general trend towards decentralisation and enhanced federalism, and it will face serious political difficulty because there will be stout opposition from the States. Secondly, an entry in the Concurrent List will mean that both the Centre and the States can legislate on water, but the Centre can already do so in respect of inter-State rivers under Entry 56 but has not used that power. It seemed sensible to use that enabling provision, and also re-activate the River Boards Act, rather than pursue the difficult idea of a constitutional amendment to bring water on to the Concurrent List.
It will be seen that the above arguments against pursuing the idea of moving water to the Concurrent List are practical ones: the political difficulty of doing so, and the fact that the Centre can do certain things even without such a shift. That does not amount to a statement that there is no case for the shift. Let us ignore political and practical considerations, and ask: if the Constitution were being drafted for the first time now, where would one put water? The obvious and incontrovertible answer is: in the Concurrent List. There are several reasons for saying so.
First, it appears that to the Constitution-makers ‘water’ meant essentially river waters and irrigation. This is quite evident from the wording of the entries. In that context, it might have appeared appropriate to assign the primary role to the States, and provide a specific role for the Centre in relation to inter-State rivers. However, even from that limited perspective, a primary rather than a secondary or exceptional role for the Centre might well have been warranted: most of our important rivers are in fact inter-State, and inter-State (or inter-provincial) river water disputes were an old and vexed problem even at the time of drafting the Constitution.
Secondly, that limited perspective is in fact inadequate. Water as a subject is larger than rivers; ponds and lakes, springs, groundwater aquifers, glaciers, soil and atmospheric moisture, wetlands, and so on, are all forms of water and constitute a hydrological unity; and there is more to water than irrigation. If the environmental, ecological, social/human, and rights concerns relating to water had been as sharply present to the makers of the Constitution as they are to us, it seems very probable that the entries in the Constitution would have been different. (Incidentally, there are serious concerns now relating to groundwater — rapid depletion of aquifers in many parts of the country, the emergence of arsenic and fluoride in many States, etc. — and it is interesting that there is no explicit reference to groundwater or aquifers in the Constitution.)
Thirdly, the Constitution-makers could not have anticipated the sense of water scarcity and crisis that now looms large. It is clear that while action will be called for at the State and local levels, the perception of a crisis casts a great responsibility on the Centre: national initiatives will definitely be called for.
Fourthly, a new factor not foreseen even a few decades ago is climate change and its impact on water resources. This is a subject which is still under study and research, but it is clear that coordinated action will be called for not only at the national level but also at the regional and international levels. The Central government has necessarily to play a lead role in this regard.
The theoretical case for water being in the Concurrent List is thus unassailable. Of all the subjects that are or ought to be in the Concurrent List, water ranks higher than any other. The practical and political difficulties of shifting it there remain, but these would need to be overcome.
However, if those difficulties prove insuperable, then we have to settle for the second best course (a modest one) of greater use by the Centre of the legislative powers relating to inter-State rivers provided for in Entry 56 in the Union List, and re-activation of the dormant River Boards Act 1956. It would further have to be supplemented by recourse to the wide-ranging provisions of the Environment (Protection) Act 1986 (EPA). It is of course possible for Parliament to legislate on a State subject if a certain number of State assemblies pass resolutions to that effect: that was the route followed in the case of the Water (Control and Prevention of Pollution) Act 1974.
At present, the EPA is being extensively used by the Centre for water-related action. For instance, the Central Groundwater Authority was set up in 1998 by a notification under the EPA. More recently, when it was considered necessary to set up a National Ganga River Basin Authority this was done under the EPA, instead of following the right but difficult course of enacting legislation under Entry 56.
Finally, putting water into the Concurrent List is not necessarily an act of centralisation, though it could lead to such a development. That danger is real and needs to be avoided. Legislation and executive action must continue to be undertaken at the appropriate level (Central, State or local) in each case. The subsidiarity principle, i.e., the principle that decisions must be taken at the lowest appropriate level, will continue to be valid.
- Three Agreements Signed with World Bank for Cleaning Ganga and Conservation of Biodiversity (equalityindia.wordpress.com)
- Centre to announce new water policy : Salman Khurshid (hindu.com)
New Delhi, June 4 (IANS) Most people have read the definition of a “forest” at some point or another, but in India its legal definition is still evolving within the four walls of the environment ministry.
According to the ministry, work is on to come up with an “ecologically sound and socially desirable definition of forests and forestry”.
“We are still working on the definition of forest and will let you know once we finalise it,” Brij Mohan Singh Rathore, joint secretary on the Green India Mission in the environment ministry, told IANS.
Rathore, however, denied commenting on what is delaying the definition. According to the ministry’s official document, the Indian Forest Act, 1927, does not define the forest, and the legal extent of forests depends upon the process of notifications.As of now what is followed is based on the Supreme Court order which defines forest as given in the dictionary, say experts.
“The term forest doesn’t have any definition in India. It is defined on the basis of the 1996 Supreme Court order which says anything should be forest if it meets one of the two definitions – either the dictionary definition or land recorded as forest on any government record,” Shankar Gopalakrishnan from the Campaign for Survival and Dignity, an NGO working for forest dwellers, told IANS.
According to Gopalakrishnan, it is a vague definition and provides huge scope for misuse of power by the authorities. “The interesting part is that it gives space to the government to use draconian powers at its convenience and mark an area as forest or non-forest,” he added.
The ministry’s documents further said recent concerns about climate change also require greater clarity regarding definition of forests for the purpose of understanding opportunities and obligations under the global carbon sequestration regime.
“In this context, the ecologically sound and socially desirable definitions of forests and forestry require to be examined in the Indian context keeping international commitments and different orders of the apex court of the country into consideration,” it added.
The ministry some years ago had asked the NGOs to suggest some definition of forests but has rejected all the suggestions. “It’s in fact a funny situation and entangled between a couple of things. I think it is better to have satellite imagery and fix a bar on the dimension of a forest and then calculate land under forest and non-forest area in the country,” said Yogesh Gokhale, a fellow with the forestry and biodiversity division, the Energy Research Institute (TERI).
Even without a definition, the Prime Minister’s Council on Climate Change in February approved the country’s forestry mission – Green India Mission – to fight climate change.
The mission, one of the eight under the National Action Plan on Climate Change (NAPCC), projects an ambitious target of 10 million hectares of forest cover by 2020 at a cost of Rs.460 billion ($10 billion).
For the first time, this year India is also the global host of United Nations World Environment Day June 5 and the theme is ‘Forests: Nature at Your Service’, which celebrates the multitude of services – providing clean air, housing rich biodiversity, supplying water – performed by the world’s forests.
From Theory to Reality
I ENVIRONMENTAL JURISPRUDENCE:
Constitutional Courts are forums of principles. Development of constitutional law takes place when jurisprudential expansion of the contours of the rights enumerated in Part III of the Constitution and Part IV of the Constitution is undertaken. Jurisprudential development embodies evolving concepts like inter-generational equity in environmental laws, modern ultra-vires doctrine based on rule of law, the precautionary principle in environmental laws, the polluter pays principle in environmental laws and the bare minimum provision principle in resource allocation disputes (socio-economic rights). Since such jurisprudential expansion of law is an on-going process from time to time, we need to revisit constitutional values like welfare rights. That is the reason why we have selected the theme of this lecture to be “Reframing of Welfare Rights under the Indian Constitution”.
Environment is a national asset. It cannot be treated as an asset to be exploited by the Govt(s) for revenue purposes. It incorporates the principles – “Polluters Pay” and “Precautionary” principles. Its object is inter-generational. These come under the doctrine of “sustainable development” which ensures inter-generational equity (better quality of life for present and future generations). Between 1927 (when the Indian Forest Act came into force) and 1980 (when the Forest Conservation Act came into force), “forests” were treated as assets to be exploited for revenue. However, with the enactment of the Forest Conservation Act, 1980, “forests” are to be preserved. The object is to protect “nature” on whom our survival depends. Natural resources are brought into Article 21 by invoking the doctrine of Public Trust. Thus, “precautionary principle”, as an aspect of doctrine of sustainable development, is no more a political principle but a constitutional principle in our jurisprudence. This is what I call as “development of law”. The consequence of such an interpretation is that absence of legislation is no hurdle. It is important to note that when a right in the form of basic human value or where the concept is given recognition of a constitutional value, constitutional adjudication principles steps in which is much wider in its ambit as compared to norms under administrative laws. Lastly, I believe that “laws” constitute response to life. The doctrine of “sustainable development” is all about balancing of rights. Conflict arises – when principles intersect. Substitution of “environmental capital” by “man-made capital” is impermissible once environment is read into Article 21.
(iii) Problems in implementation of the above principles
(a) Multiple definitions of the words “sustainable development”. Difficulties in ascertaining the substantial meaning of the words “polluters pay principle”. When have they to be applied? In some cases, economic considerations may outweigh environment consideration and vice-versa. The Supreme Court of India may have the authority to give weightage to these considerations. However, the question is – should it? How to balance these principles which intersect?
(b) Are these “legal” or “political principles”? The Supreme Court has given legal recognition but problem is due to multiple definitions of “sustainable development”.
(c) In most countries (except India), they are not recognized as legal principles; though approach is present. According to WTO Appellate Tribunal, Courts should look at the above principles in the specific context. The reason seems to be that although enactments like the Forest Conservation Act, 1980, the Environment (Protection) Act, 1986 regulate human activities, these Acts give wide discretionary powers to the Authorities under the Act(s).
(d) The Threshold Test – when to apply the Precautionary Principle. Neither the Environment (Protection) Act, 1986 nor the Forest Conservation Act, 1980 provides for it. If so, whether a successful judicial review could be brought? The view in some of the countries is that these principles are to be kept in mind by the executive decision makers as the principles relating to environment should be the responsibility of the Executive and not the Courts and that judicial review should be left to extreme cases because the provisions of the Forest Conservation Act, 1980 and the Environment Protection Act, 1986 are symbolic or that these provisions be monitored through procedural requirement. In this connection, we must keep in mind the difference between judicial enforcement where the Court is the primary tool and the court’s supervisory role of administrative programmes.
(e) None of the Acts create criminal or administrative offences in relation to sustainable development. The duties in the two Acts are directory.
II NEED BASED JURISPRUDENCE:
Ideas which pretend to be universal are historical delusions. As times change our premises and assumptions about the context of the Fundamental Rights will change. What is made of currently accepted rights in each country and each generation by its courts is itself a function of time and place. Even the so called certainties of law change constantly. That is why it is said that debates bring about clarity.
In recent times, courts are called upon repeatedly to adjudicate in complaints over the failure of the State Governments and local authorities to meet the welfare needs of citizens. In such cases, the defendant tolls the bell of tight resources. Time has, therefore, come to examine the role of the courts in resolving fundamental tensions between the welfarist principles embodied in the Constitution and the legislations for the delivery of public services, on the one hand, and the policy of financial cost-cutting, on the other hand. Cases which come in PIL often question the relevance and appropriateness of rights-based adjudication in welfare needs context and the reluctance of Courts to intervene in the resolution of resource allocation disputes even where Fundamental Rights are engaged.
(ii) International Views
With economic and financial meltdown, a debate has ignited in US and UK in recent years over the extent to which the doctrinal fairy tale of the ultra vires and the judicial interpretation of statutes “in accordance with the intention of the Parliament” could provide a credible theoretical basis for the legitimacy of the jurisdiction of courts on an application for judicial review. Instead an alternate view is posited that the basis of the jurisdiction in administrative review lies in the need to vindicate the rule of law, by giving effect to Fundamental Rights embodied in the Constitution. The problem is that courts with ultra vires paradigm of review have set limits around their own powers to review in cases where issues of resource allocation are raised. In the process, courts have devised doctrine of non-justiciability of resource allocation.
(iii) Problem of enforceability
Therefore, the question is – to what extent courts should be prepared to apply a rights-based approach to the welfare needs disputes, even where the recognition and enforcement of the right in question would necessitate financial expenditure on the part of authorities? Are appeals for a broader rights approach of any relevance to claims where rights to medical services and educational services are at issue? In India, the personal income tax as % of GDP is only 2.2%. Should this aspect be taken into account by the Courts when resource allocation issues are raised as a defence before them and, if so, in which cases they should not be factored in?
Making of normative laws or judicial decisions without their capability of being enforced amounts to a futile exercise and this is the paramount reason for reframing of welfare rights as rights to “minimum provision” rather than right to equal access to public goods.
To what extent will courts be required to alter their approach to the resolution of Welfare Needs Disputes? The approach adopted by Courts so far to resource allocation disputes reflects their affinity with statutory – based paradigm of review. The two principal conceptions of judicial review are ultra vires and rights. These conceptions shape the response to welfare needs disputes. Broadly stated, the purpose of judicial review is the control of discretion in accordance with the rule of law. It is argued that since Courts have neither the competence nor the authority of an expert, they must exercise restraint, which is self-imposed. This is the doctrine of non-justiciability of resource allocation. The question is – how to enforce values embodied in Article 21 (example: every citizen is entitled to clean environment which is culled out by the Supreme Court of India) in the absence of statutory enactment? Ultimately, we must remember that judicial review is founded not only on a need to control abuse of power and protect individuals but also that its purpose is to promote individual rights. Ultimately, the Higher Courts in India are forums in which principles are formulated. While formulating principles, the “doctrine of reasonableness” has to be kept in mind. One must also evaluate the consequences of such formulations (including enforceability).
(iv) Discrimination in terms of Material Deprivation
Under Article 21 the State must not only refrain from taking life but also it must take steps to safeguard life. Lack of finance as a defence cannot be relied upon to preclude any statutory duty. To permit a local authority to avoid performing statutory duty on the ground that it prefers to spend in other ways is to downgrade a statutory duty to a discretionary power. Therefore, the doctrine of non-justiciability of resource allocation cannot apply to challenges founded on breach of statutory duty. This is one way of reframing of welfare rights. The other way is to understand the claims of wealth discrimination as claims of material deprivation, that is, as claims of inadequate rather than unequal provision of basic goods. This is because equality is not a free standing principle. It has to be seen in the context of the facts of each case which comes before the courts. Therefore, application of welfare rights in resource allocation disputes needs to be revisited. A welfare right is an affirmative constitutional right to particular social goods such as “education, healthcare, food security and the like”.
“The basic human needs must be taken not as window dressing but as a window into the decisions themselves.”
(v) Rights-based approach
The question is – how far should the courts be prepared to go, directly or indirectly, to adopt a principled “rights – based approach” in order to force authorities to meet the welfare needs of the claimants?
The answer lies in Protecting the Poor. Poverty is the violation of human rights. The basic touchstone of the jurisprudence of the Supreme Court should be that “all persons are entitled to a minimum, not necessarily equal, level of provision with respect to certain public goods”. The “judicial equality” be reawakened by sensitivity not to equal access but to a quite different sort of value or claim which might be called “minimum welfare”. The paradigm shift should be from “discrimination” to “deprivation”, that is, in non-satisfaction of basic needs as and when they occur without which right to life of dignity in Article 21 can never be achieved. Although discrimination and deprivation often go together, the two concepts differ as follows:
(i) The remedy for deprivation does not lie in “equalization” of circumstances which remedy is sought in the case of discrimination.
(ii) On “the minimum welfare” view a State’s duty to the poor is not to avoid unequal treatment but to provide basic human needs. These basic needs “must be taken not as a window dressing but as a window into the decisions themselves”.
(iii) The minimum welfare view if laced with wealth discrimination then it will cloud our understanding because a doctrine against wealth discrimination would be too broad. In that doctrine, there would be difficulty in distinguishing the needs of the poor from the claims of non-poor who may suffer wealth discrimination when compared to the rich. Further, discrimination against poor may generate false hopes. Thus, justiciable welfare rights should respond to claims of deprivation rather than discrimination. Welfare rights would be justiciable relatively when conceived as claims of minimum provision rather than as claims of wealth discrimination. This is what I mean by “reframing of welfare rights”.
In September 2000, the member States including India in the UNO unanimously adopted Millennium Declaration. We have eight enumerated goals including minimum level of medical assistance, potable drinking water, reduction of poverty through minimum wages and reduction in unemployment as well as through implementation of employment guarantee schemes, universal primary education, gender equality, empowerment of women, combating HIV/ AIDS and environment sustainability. The basis of these goals, if carefully analyzed, is based on the doctrine of discrimination in terms of material deprivation. This is where Reframing of Welfare Rights as a concept comes in.
Thus, by emphasizing “deprivation”, Courts do not issue normative declarations of welfare rights or injunctions to create new welfare programmes. Instead, the Court plays an interstitial role within an existing legislative scheme, invalidating those eligibility criteria which are unrelated to basic needs of the complainant. In attacking the ills of poverty, claims of wealth discrimination are better understood as claims of material deprivation – that is, claims of inadequate rather than unequal provision of certain basic goods. Thus, we need to articulate “welfare rights” in material deprivation, not unjust discrimination. This will provide an enduring insight and objective criterion on Protecting the Poor. This is what I mean by saying “reframing of welfare rights”.
“Go from village to village, do good to humanity and to the world at large. Go to hell yourself to buy salvation for others. ‘When death is so certain, it is better to die for a good cause.’”
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NEW DELHI: Why is there no provision for clean drinking water for citizens in public places like bus stands even though the government has allowed kiosks to come up and sell bottled water? Is right to clean drinking water not part of right to life guaranteed under Article 21 of the Constitution? These questions were raised in a PIL filed by NGO ‘Voice of India‘ which was on Monday entertained by a Supreme Court bench headed by Chief Justice S H Kapadia despite his known aversion to PILs. For the NGO, Dhanesh Iesdhan argued before the bench, which also comprised Justices K S Radhakrishnan and Swatanter Kumar, that if right to clean drinking water was a fundamental right then the governments and municipal bodies must take responsibility and supply it free to the citizens.
He said in those public places where there was provision for free drinking water, the quality of water and condition of storage tanks was so bad that it could be hardly termed safe for drinking purposes. The petitioner requested the SC to issue a direction to all authorities to supply water to every citizen in this country free of cost. The bench agreed with the demand of the petitioner and said: “We are fully conscious of the fact that even after 60 years a citizen of this country is not getting clean potable water.” But, it realised that it would be a gigantic task for the SC to monitor this PIL for implementation of free drinking water in all states and Union territories. “It is, however, not possible for this court to monitor and grant relief to the petitioner on all India basis,” it said.
The petitioner seeks relief essentially against municipal corporations in each state because supply of clean potable water is the function of municipal corporations and other local bodies. Even instances given in the annexures relate to different sectors/localities within the municipalities in different states,” it noted. “In the circumstances, we are of the view that the petitioner may move the concerned high court with regard to its grievances, particularly when such grievances are confined to municipal areas and to specific areas where citizens do not get clean potable water for drinking. We cannot monitor such local institutions under Article 32 of the Constitution,” the bench said.
Siddharth Varadarajan IN THE HINDU
The Nuclear Liability Bill needs to be amended to ensure adequate compensation in the event of an accident.
The bill must be amended to allow for a proper level of compensation, well beyond the Rs. 2,050 crore “maximum amount of liability”
It extinguishes claims for compensation for damage made more than 10 years after an incident. An unconscionable limit
The nuclear liability bill is currently being reviewed by the Parliamentary Standing Committee on Science & Technology, Environment & Forests. There are several clauses and concepts that need to be amended to ensure the legislation meets its intended purpose.
1. The “maximum amount of liability in respect of each nuclear incident” is fixed at 300 million Special Drawing Rights, approximately Rs 2,050 crore. This figure is too low and can’t possibly cover the kind of nuclear damage a major incident would cause to human life, property and the environment. Since the government wants to accede to the IAEA’s Convention on Supplementary Compensation (CSC), 300 million SDRs has been chosen as national cap so as to receive compensation from countries that are parties to the CSC beyond that. One assumes the government will have to provide compensation above whatever limited sums come from the CSC. Some explicit commitment to this effect, therefore, is essential.
It is worth noting that the CSC will only enter into force if a country with a major nuclear programme like Japan accedes. That is unlikely to happen soon. If every country in the world joins the CSC, a maximum of 300 million SDRs would be available. But since the CSC will never attract universal adherence, the best a member state can hope to receive is around 50 million SDR. Either way, these are not substantial sums. Thus, the Bill must be amended to allow for a proper level of compensation, well beyond the Rs. 2,050 crore “maximum amount of liability”. Since the CSC says the compensation amount a signatory specifies prohibits discrimination between national and cross-border victims of a nuclear accident, some national cap may be necessary. But legal language is needed to assure the people that the government will compensate them fully in the event of an accident.
2. Like the national cap, the liability of nuclear operators is also capped too low at Rs. 500 crore for each incident. The bill says the government shall be liable for nuclear damage exceeding that amount. Two amendments are needed to protect public interest. First, the law must clarify that the cap applies only to public sector operators. Second, the Rs. 500 crore cap is low even for a public sector operator. It creates a double social cost. The fact that the operator is not forced to internalise the cost of damages he may cause will lead to the under-provisioning of safety. And, to the extent to which the operator cap is a subsidy towards the true cost of nuclear power, this would lead to the over-optimal share of nuclear power in India’s energy mix. Depending on the extent to which society wishes to subsidise nuclear energy, the operator cap should be set at some point between Rs. 500 crore and Rs. 2,050 crore. The higher figure would be more in keeping with enlightened liability regimes in other countries.
Some argue that raising the operator limit will increase insurance costs. But nuclear plants around the world take out property insurance for sums several times higher than their accident liability and this does not affect the viability of nuclear power. Insurance premia, in any case, represent a very small fraction of the total cost of a nuclear plant worldwide.
3. The operator’s right of recourse against suppliers under 17(b) should be preserved and perhaps strengthened to include defective equipment and design flaws. India should leverage its mammoth imports to get the supplier to accept a measure of liability in the commercial contract itself. Moreover, the right of recourse must be for the total damage caused by the supplier’s negligence and not be limited to the operator’s liability cap.
Since 17(b) deviates from the right of recourse envisaged by the CSC, India may have to enter a reservation if it accedes to the convention. Alternatively, it can adopt the liability bill but stay outside the convention like South Korea, which faces no impediment in doing business with U.S. suppliers. Not signing the CSC will also preserve the right of Indian victims to approach the courts of the country to which a nuclear supplier belongs in the event of an accident involving their negligence.
4. The bill extinguishes claims for compensation for nuclear damage made more than ten years after an incident. This limit is unconscionable. There is no reason why Indian law should impose such a limit for injuries to humans, especially when the Vienna and Paris conventions on nuclear liability allow a 30 year claim period. In Bhopal, many illnesses are manifesting themselves years after the original incident, and affecting subsequent generations. Physical damage may also require more time to assess. Twenty-five years after the Bhopal disaster, there is still uncertainty about liability for plant remediation. Certainly no claim was brought against Carbide on the question of site clean up within 10 years.
5. It is unsettling that the bill leaves the assessment of damages and claims for a nuclear accident to an executive rather than judicial body. While there is no reason to assume judges will be more sympathetic to nuclear victims than bureaucrats, the prohibition of judicial oversight embodied in clauses 16 and 35 cannot be justified. These will have to be amended or deleted, especially in order to end the ambiguity about the victim’s right to file tort claims.
6. Ironically, nearly half the bill’s clauses deal with the service rules etc of the officers who will process compensation claims rather than victim rights. As far as the composition of Nuclear Damage Claims Commission, it is shocking that more attention is paid to the bureaucratic qualifications of commissioners rather than their knowledge or competence to assess damage claims. In line with the complete exclusion of the health ministry and health professionals from the drafting process, the bill envisages no role for health and environment experts. Amendments are needed to remedy this.
7. Clause 46 says the Act’s provisions “shall be in addition to, and not in derogation of, any other law for the time being in force” and that the operator will not be exempted “from any proceedings which might, apart from this act, be instituted against [him]”. According to officials, the stated intent of this clause is to preserve the victims’ right to file tort claims. It also raises the possibility of criminal liability in the event of negligence on the part of the operator or, presumably, the supplier. But Indian tort law is poorly developed. As for criminal prosecutions, nothing more needs to be said in the light of Bhopal. Thus, for this clause to have any meaning, it must be accompanied by clauses that would facilitate tort claims.
The law ministry should also be asked to clarify what the intent behind mentioning only the “operator” in this clause is. Is it to simplify the filing of victim claims by channelling fault-liability on to the operator leaving him to recover damages from suppliers via his right of recourse? If so, does this mean tort claims cannot be filed against anyone other than the operator? Given the unhappiness over the Bhopal settlement of $470 million – the Centre, in a sense, channelled the claims of victims through itself but sold them cheap — the Standing Committee must ensure the nuclear bill does not dilute the victims’ right to file tort claims against any party in the event of an accident.
BY AMAN HINGORANI IN THE HINDUSTAN TIMES
The law empowering the Indian government to represent Bhopal’s gas victims was unconstitutional. In effect, two guilty parties negotiated with each other.
Law Minister Veerappa Moily’s reported statement on introducing a bill in Parliament to help people claim compensation from companies for disasters like the 1984 Bhopal gas tragedy can only be met with incredulity. Twenty-five years ago, the government introduced the stand-alone Bhopal Gas Disaster (Processing of Claims) Act, 1985 to do just the opposite. By becoming the representative of the Bhopal victims, the government denied them their right to take the Union Carbide Corporation (UCC) and its subsidiary, Union Carbide India Limited (UCIL), to court for compensation. But could the government have represented the victims when it was as guilty and liable to the victims as UCC and UCIL?
We can’t ignore the fact that at the time of the disaster, various Indian investors, including Life Insurance Corporation of India (LIC), the Industrial Development Bank of India Limited (IDBI) and other public sector institutions, owned 49.1 per cent of UCIL. Further, by granting a licence to manufacture pesticides, the government made the collaboration agreement between UCC and UCIL subject to Indian laws, which include the Insecticide Act of 1968 that regulates the import, manufacture and use of insecticides with a view to safeguard human life from danger. Many central and state agencies, empowered under various acts like the Factories Act 1948, regulated at all times Carbide’s operations, which were approved by the government.
Despite the Canadian government asking UCC in 1972 to shut down its Bhopal operations for fear of damage to life and environment, the Indian government let the plant set up in the heart of the city. Further, authorities had permitted the area around the plant to be used for dumping of hazardous chemicals for years. Successive tests on soil, water and vegetables from the residential areas around the plant confirm their contamination by toxic heavy metals and chemical compounds.
It’s difficult to understand how the executive in India escaped its liability towards victims both as a joint tortfeasor (wrong-doer) with UCC and UCIL and for failing to discharge its constitutional obligations of providing pollution-free air and water to people. The novel way out was to enact the Bhopal Gas Disaster Act. It was challenged before the Supreme Court, which regrettably upheld it in 1990 on the ground that it was passed in exercise of the sovereign power of the State and in recognition of the right of the sovereign to act as parens patriae (parent of the nation). However both the Supreme Court premises in such a reasoning are fallacious. The full bench of the apex court, in the ‘Privy Purse’ case, held in 1971 that there is no such thing as ‘sovereign power of the State’ under the Constitution. It held that in India, the executive can’t exercise sovereignty over citizens, as legal sovereignty vests in the Constitution and political sovereignty lies with the people of the country. So the statement ‘India is a sovereign State’ implies that people (political sovereign) or the Constitution (legal sovereign) are sovereign — not that the State enjoys sovereign powers.
The Indian State, as a representative of sovereign people, may be sovereign in relation to other countries. But it can’t be sovereign qua its own people from whom it derives its ‘sovereignty’. Also, the doctrine of parens patriae has its roots in the common law concept of the ‘royal prerogative’ of the British Crown. It includes the right of the British Crown to take care of its subjects under disability, which the Indian State cannot surely claim.
The executive is as guilty as UCC and UCIL. Unsurprisingly, Parliament came to its rescue by enacting the aforesaid Act and the Supreme Court upheld it. As a result, one guilty party negotiated with another for the compensation due to victims who were precluded by law from even asserting their claim against the State or Union Carbide. The law empowering the government to represent the victims was unconstitutional. Had the Supreme Court not reviewed its earlier order and set aside the settlement that quashed criminal prosecutions, the recent two-year sentence awarded to the convicted Indian officials of UCIL wouldn’t have been there. We are yet to hear about criminal action being taken against State officials for their culpability in the entire affair.
And now, the government feels that the existing laws have failed to hold companies financially responsible for man-made disasters and there is a need for a stand-alone law to encourage citizens to claim damages from companies. What’s perhaps been overlooked is that it’s not the laws that have failed us, but the men and women who run the Indian State.
(Aman Hingorani is Advocate, Supreme Court of India. The views expressed by the author are personal)
Siddharth Varadarajan IN THE HINDU
|The legislative challenge is to ensure that Indian victims get the same degree of protection from Indian courts as U.S. victims would from their courts.|
As one of only two countries to run a nuclear power programme without any statute dealing with the possibility of an accident — the other is Pakistan — India has done well to finally recognise the importance of enacting a liability law. With ambitious plans for 20,000 MWe of nuclear power generation capacity on the anvil, liability legislation, especially if it helps internalise the risks associated with this expansion, can lower the probability of accidents. A good law would also ensure speedy and adequate compensation to victims.
The shabby manner in which the Indian system has dealt with the Bhopal disaster is a reminder of the need to place the victim at the centre of legislative action. Unfortunately, the international framework for nuclear liability is designed to favour nuclear suppliers. Despite this constraint, the Manmohan Singh government has managed to frame a law with some positive features. It includes two provisions that are not to the liking of the U.S., which wants to grab a share of the huge Indian market without accepting liability for any accident its products may cause. At the same time, the bill has some definite weaknesses.
The international regime on civil nuclear liability suffers from a serious flaw. By excluding the supplier, channelling liability for a nuclear accident to the operator and capping this liability, it leads to underinvestment in safety. This is because potential tort-feasors optimise their behaviour on the basis of artificially low damages they would have to pay in case things go wrong.
As Michael Faure and Karine Fiore have argued, any legal regime governing civil liability must aim to push the industry towards the prevention of accidents. “A basic notion is that the injurer should be fully exposed to damage costs in order to provide him with the necessary incentives for prevention” (“An economic analysis of the nuclear liability subsidy,” Pace Environmental Law Review, 2009). As a corollary, all those who can contribute to accident risk should be forced to internalise the costs of the damage they might cause. If all treaties on nuclear liability — including the Convention on Supplementary Compensation to which India is planning to accede — stand the economics of torts on their head, this is because of the nuclear suppliers’ lobby. Right from the 1950s, when nuclear power was in its infancy, down to today, U.S. contractors have contended they cannot do business abroad if there is a danger of being exposed to law suits.
Under U.S. influence, international conventions dealing with nuclear liability have thus embodied three concepts of dubious merit from the efficiency perspective. First, legal channelling of liability for accidents to foreign operators, second, giving operators an extremely limited right of recourse against suppliers in the event of an accident and, third, setting aside ordinary tort law and disallowing fault-based claims by victims against operator or supplier.
All of this was done in the name of speedy compensation for victims since the quid pro quo of channelling was the rule of ‘strict liability’ under which the operator is liable even if he is not at fault. Victims benefit from this rule since there is no ambiguity about who must pay. But as Tom Vanden Borre has argued, channelling was “not introduced to protect the victims of nuclear accidents, nor to reduce the insurance costs, but to protect the American nuclear industry.” The irony is that even as it has pushed the regime of legal channelling on the rest of the world, the U.S. system of economic channelling of liability allows tort claims as well as an unrestricted right of recourse for the operator. That is how, for example, Metropolitan Edison, the operator of the Three Mile Island reactor, sued its supplier, Babcock & Wilcox, after the 1979 accident.
Supplementing these layers of protection for nuclear suppliers is a fourth: legal jurisdiction belongs to the courts of the country where the accident takes place. Bhopal, where Indian victims approached a U.S. court, is the ghost that looms large. “While ultimately the court declined to take jurisdiction”, Ben McCrae, legal counsel for the U.S. Department of Energy, notes, “this was not because it doubted its capacity to do so: it basically waited to ensure that there was an adequate remedy available in India.”
In the wake of the Indo-U.S. nuclear agreement, therefore, getting India to accede to the CSC has been Washington’s priority. That would effectively bar Indian victims from approaching an American court in the event of an accident involving a U.S.-supplied reactor. Of course, this in itself cannot be an argument against India adopting a liability law. Rather, the challenge is to embed nuclear liability in a set of legal and administrative measures that can ensure the payment of speedy and adequate compensation to victims as well as force everyone in the nuclear business — suppliers and operators — to internalise the costs of an accident. Indeed, the legislative challenge is to ensure that Indian victims get the same degree of protection from Indian courts as U.S. victims would from their courts.
In a recent article, Evelyne Ameye has confronted the flawed logic of channelling, making a safety-cum-engineering argument in favour of suppliers remaining liable for accidents their products may cause. (“Channelling of nuclear third party liability towards the operator,” European Energy and Environmental Law Review, 2010). This can be done in two ways. Liability for an accident can still be channelled on to the operator but his right of recourse in the event of supplier negligence is left unrestricted. The Russian Federal Act on Atomic Energy, for example, does not impose a limit upon the operator’s right of recourse. (Alexander Matveev, “The Russian approach to nuclear liability,” International Journal of Nuclear Law, 2006). South Korea’s liability legislation also allows operators to recover damages from suppliers in the event of negligence. A second way would be to allow victims to sue suppliers for fault-liability under tort law so as to win damages over and above what the operator pays through strict liability. Thus Germany, a party to the Vienna Convention on nuclear liability, entered a reservation stressing its right, under national law, to hold persons other than the operator liable for nuclear damage. Besides, several conventions on environmental damage — such as the 2003 Kiev Protocol on industrial accidents in transboundary waters — now explicitly provide for strict as well as fault-liability to run side by side.
Ameye argues that channelling can no longer be justified on the grounds of nuclear power being an infant industry. Nor is it healthy to exclude suppliers from the liability chain when nuclear technology is rapidly evolving. “Given the increasingly complex designs of the new generations of nuclear power plants, it is… both legally and realistically incorrect to maintain the heavy burden of legal channelling upon the nuclear plant’s operator … To the extent that design knowledge becomes more hermetic, it will be hard to sustain the operator’s liability for risks he is not aware of or, even worse, for risks he cannot perceive”. This is especially so when all major nuclear accidents in the past — Windscale, Three Mile Island and Chernobyl — have occurred, in part, because of design flaws.
Turning to the Indian bill, the inclusion of strict liability is a positive feature. The bill also legally channels this liability to the operator, thus eliminating any ambiguity about who must pay. On the positive side, too, is the additional 300 million SDRs (approximately Rs. 2050 crore) Indian victims would be entitled to from pooled contributions by state parties to the CSC, as and when it enters into force.
On the negative side is the cap placed on the operator’s no-fault liability. The bill sets this at Rs. 500 crore, a figure that is low by international standards and by the requirement of safety incentivisation. In case the operator is private — a key qualification since the bill is not limited to public operators — this cap amounts to a subsidy as the government will assume liability for damages up to a maximum of 300 million SDRs. Private operators must not get such a benefit. Even if the operator is a public entity, the liability cap will distort the true cost of running a reactor and lead to a higher than optimal share of nuclear power in India’s energy mix.
Where the original Indian bill is innovative is in allowing operators a right of recourse against suppliers in the event of gross negligence (Section 17(b)). Also, the bill would appear to allow victims to sue for fault-liability, though the ambiguous wording of Section 46 leaves unclear whether tort claims can be pressed against only the operator or any other person whose negligence leads to an accident.
Since both provisions undermine the principle of channelling, U.S. suppliers want them deleted. Not only must that pressure be resisted but steps should be taken to clarify their provisions.
Also, in the light of Bhopal, it is cold comfort to be told that victims can use existing laws to pursue compensation. As the Merlin case in England showed, courts can treat tort claims for nuclear damage with scepticism. In India, where the law of the torts is not well developed, it is essential that the nuclear liability bill provide mechanisms to allow victims to effectively press their case.
V. VENKATESAN IN THE FRONTLINE
An application filed by intervener organisations fails to convince the trial court about the merits of ordering a fresh trial in the Bhopal gas case.
THE judgment of the Chief Judicial Magistrate (CJM) Mohan P. Tiwari convicting seven accused in the Bhopal gas tragedy case and sentencing them to two years’ imprisonment has provoked outrage, with activists saying that the punishment is disproportionate to the enormity of their offence.
It is pointed out in defence of the CJM that his hands were tied in view of the Supreme Court judgment on September 13, 1996, diluting the charges against the Indian accused in the Keshub Mahindra case. The Indian accused in the Bhopal disaster criminal case challenged the order framing charges against them and fought the case up to the Supreme Court.
The Supreme Court obliged them by converting their offence from culpable homicide not amounting to murder (Section 304 Part II of Indian Penal Code) to rash and negligent act causing death (Section 304 A IPC). While the punishment for culpable homicide is up to 10 years’ imprisonment, the maximum sentence that could be awarded for rash and negligent act is only up to two years.
A little background to this case may be useful. On April 8, 1993, the Ninth Additional Sessions Judge, Bhopal, W.A. Shah, framed charges of culpable homicide against the nine Indian accused. The Indian accused filed revision petitions in the High Court at Jabalpur. The High Court dismissed these petitions on August 1, 1995. The accused then filed special leave petitions against the High Court order in the Supreme Court.
The plea of the accused was that the charges framed were legally unsustainable on the basis of the material available at that stage. To get relief, the accused relied on Section 227 of the Code of Criminal Procedure (Cr.PC), which lays down that “if, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing”.
The Supreme Court pointed out that at the stage of framing the charge the court was required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. The court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
An accused can be charged for an offence of culpable homicide not amounting to murder if it is alleged that he committed the act with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death.
Section 299 of the IPC defines culpable homicide. It lays down that “whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide”.
Consequently, the material relied upon by the prosecution for framing a charge under Section 304 Part II must at least prima facie indicate that the accused had done an act that caused death with at least such a knowledge that he was by such act likely to cause death. The entire material which the prosecution relied upon before the trail court for framing the charge, according to the Supreme Court Bench comprising Justices A.M. Ahmadi and S.B. Majmudar, could not support such a charge unless it indicated prima facie that on that fateful night of December 3, 1984, the plant was run at Bhopal by the accused with the knowledge that it was likely to cause deaths of human beings.
The Bench further reasoned that even assuming that it was a defective plant and the factory was dealing with a toxic and hazardous substance like methyl isocyanate (MIC), the mere act of storing such a material by the accused could not even prima facie suggest that they had knowledge that they were likely to cause the death of human beings.
The Bench felt that the voluminous evidence led by the prosecution at least prima facie showed that the accused could be alleged to be at least guilty of a rash and negligent act. The Bench concluded so even though the then Additional Solicitor-General, Altaf Ahmed, submitted that there was ample material produced by the prosecution in support of the charge-sheet, which clearly indicated that all the accused shared common criminal knowledge about the potential danger of the escape of the lethal gas, MIC, both on account of the defective plant, which was operated under their control and supervision in Bhopal, and also on account of the operational shortcomings detected by the expert committee (Varadarajan Committee) constituted by the Central government for the purpose of identifying the causes of the disaster.
The prosecution had also relied on the Operational Safety Survey Report dated July 28, 1982, prepared by a team of experts of Union Carbide Corporation (UCC), which showed that there were a number of deficiencies in the maintenance of the MIC unit.
Neither the order framing charge nor the verdict of the apex court Bench referred to several of the pre-disaster facts that showed that from 1981 there had been accidents involving the leakage of gas from the Bhopal plant of Union Carbide India Limited.
On the contrary, counsel for the accused conceded before the Supreme Court in this case that the accused did have prior knowledge of the disastrous consequences of the escape of MIC into the atmosphere. They admitted that the accused knew that MIC was a very highly volatile and dangerous material which had to be properly kept so that it may not spell disaster once it got converted into poisonous gas and if such gas escaped from the factory. Their only contention was whether there was any prima facie evidence to show that the appellants or any one of them was in any way responsible for this tragedy, which in their view was an act of God for which no human being was responsible (emphasis added) .
The Central Bureau of Investigation (CBI) was not willing to file a review petition in the Supreme Court after the Bench gave its ruling. The Supreme Court dismissed the one filed by the Bhopal Gas Peedith Sangharsh Sahyog Samiti (BGPSSS) without a reasoned order on March 10, 1997.
It is in this context that the application filed by the intervenor organisations before the CJM on April 26 suggested a window of opportunity for the CJM to circumvent the limitations of the Ahmadi-Majmudar judgment. In their application, the BGPSSS and the Bhopal Gas Peedit Mahila Udyog Sangathan (BGPMUS) sought directions under Section 216 of the Cr.PC. Under this section, any court may alter or add to any charge at any time before the judgment is pronounced.
If the alteration or addition is such that proceeding immediately with the trial is, in the opinion of the court, likely to prejudice the accused or the prosecutor as aforesaid, the court may either direct a new trial or adjourn the trial for such period as may be necessary.
The BGPSSS and the BGPMUS claimed in their application that they had repeatedly brought to the attention of the prosecution and to the CJM the fact that the prosecution was conducting the trial without placing certain vital primary evidence before the court regarding adoption of substandard and under-designed safety systems in the MIC unit at the plant in gross violation of stipulated safety norms.
The court’s attention was drawn to a letter rogatory issued to the United States government on July 6, 1988. The letter rogatory had sought permission for the CBI to conduct a comparative study of the safety systems installed and operated at the MIC unit of the UCC’s plant at Institute, West Virginia, U.S., with similar systems that were installed and operated at the UCC’s Bhopal plant.
These organisations told the court that the CBI had not taken any action to execute the letter rogatory. An investigative report on the comparative status of the safety systems that had been installed and operated at UCC’s Institute and Bhopal plants could have helped the court decide whether or not dual safety standards had been adopted by UCC with the full knowledge of UCIL.
They also told the court that the Bench’s judgment was flawed and was based on limited materials available before it. During the trial, however, more evidence emerged, which contradicted the conclusions of the Bench. During the past four years, over 178 prosecution witnesses and about eight defence witnesses deposed before the trial court, and substantial additional oral and documentary evidence regarding the case was submitted to the court.
They alleged in their application that the trial court had not properly dealt with answers to the following questions: a) Who decided to store MIC in bulk quantities in large storage tanks? b) Who installed substandard and under-designed safety systems in the MIC unit? c) Who was responsible for not preparing emergency evacuation plans? d) Who was responsible for not appraising the local administration and people about the consequences of exposure to MIC? and e) Who was responsible for failing to maintain nitrogen pressure in tank No. 610 from October 22, 1984, onwards and, thereby, allowing foreign bodies to enter the tank and contaminate the MIC?
On February 22, 2010, in the course of the hearing, the trial court came across irrefutable evidence provided by defence witness No.8, T.R. Raghuraman. He said that on January 7, 1982, Warren Woomer, the works manager at UCIL, Bhopal, had taken the decision to shut off the refrigeration system. According to him, this was evident from the Technical Instruction Note (Document No.37 dated January 12, 1982, exhibit no.46), which the prosecution had submitted as evidence before the court.
He also revealed that the UCC’s inspection team that prepared the Operational Safety Survey Report in May 1982 had not opposed that decision. Neither accused No.5, J. Mukund, who succeeded Warren Woomer as works manager, nor any of the other accused officials of UCIL did anything to reverse the shocking decision, which left huge quantities of MIC in the storage tanks not at 0sup Celsius as stipulated but at ambient temperature, which always ranged between 15o Celsius and 40o Celsius.
In the light of this overwhelming evidence, which was not before the Supreme Court, these organisations argued that it could not be said that the accused officials of UCIL did not have prior knowledge about the disastrous consequence of their acts of commission and omission. For example, UCC’s brochure titled “Methyl Isocyanate” (New York, July 1976), which the prosecution produced as evidence before the trial court, clearly stipulated that MIC should be stored by “maintaining a tank’s temperature below 15oC (about 60oF) and preferably at about OoC (32oF)” (page 7).
The brochure also stipulated that: “Although drums are typically stored at ambient temperature, bulk systems must be maintained at low temperature. With bulk systems, contamination is more likely than with tightly sealed drums. The potential loss is much greater too. The low temperature in a bulk system will not eliminate the possibility of a violent reaction, if contamination occurs. It will, however, increase the time available for detection of the reaction and safe disposal of the material before the reaction rate reaches a dangerous speed” (page 9).
The brochure had further warned that “stringent precautions must be observed to eliminate any possibility of human contact with methyl isocyanate” (page 26).
UCIL’s “Operating Manual Part-I – Methyl Isocyanate Unit” (October 1978), which the prosecution produced as evidence before the trial court, warned as follows: “…[i]t must be foremost in everybody’s mind that there is a probability of injury or accident round the corner. But these can be avoided if all are safety conscious and follow safety procedures strictly. Safety is our prime need. All chemicals like MIC, phosgene, HCl, CO, chlorine, MMA, chloroform and caustic soda, etc., however hazardous they are, can be handled safely by knowing the correct procedure. There is a correct way of handling them and there is ‘No Short Cut’. Any carelessness in operation will endanger you, your colleagues and everybody around you” (page 122).
Contrary to the stringent requirements of keeping the MIC storage tank definitely below 5oC, it is an admitted fact that nearly 90 tonnes of MIC had been stored, with the full knowledge of the accused UCIL officials, under ambient temperature (that is, above 15oC and up to 40oC) from June 1984 or even earlier. Therefore, it is amply evident that all the accused officials of UCC and UCIL were fully aware of the disastrous consequences of the decision to shut off the refrigeration system in complete violation of stipulated safety norms, despite knowing fully well that those safety norms had to be observed “ stringently ”.
In their application, both the BGPSSS and the BGPMUS said that they were aware that amending the charges against the accused to 304 Part-II and other relevant sections of the IPC on the basis of overwhelming evidence against them would entail further trial. However, they said that it was a necessary process in the interest of justice because justice should not only be done but also be seen to be done. Rather than consider this application on merit, the CJM dismissed it, saying he was bound by the Supreme Court’s 1996 judgment.