LAW MANTRA THINK BEYOND OTHERS (National Monthly Journal, I.S.S.N 2321 6417)

Legal Structures and National and International Framework for Sustainable

Development

ABSTRACT

Sustainable development is development that meets the needs of the present without

compromising the ability of future generations to meet their own needs. It is one of the most

important concepts in todays scenario where the natural resources are being immensely

exploited, throughout the world. There have been many instances where the activities of

industries have caused a huge damage not only to the ecology but also to the human race and

their future generations. Thus it is very important to have the concept of sustainable

development as a binding law, which can penalise and deter the activities of the gluttonous

industrialists.

This paper looks into the legal structure and the framework for the implementation of

sustainable development. It analyses the evolution and usage of the concept of sustainable

development in a legal scenario.

Sustainable development has two main principles: one being precautionary principle and the

other, Polluter Pays Principle.This paper analyses the use of Polluter Pays Principle in various

legal precedents in India.

It also looks into the question as to whether the rules made on the basis of the precedents, have

been effective in controlling the damages caused by pollution and whether they are ensuring

sustainable development.

This paper answers the questions after an in depth analysis of the various cases such as the

Vellore Citizens Welfare Forum v. Union of India, the Taj trapezium case, and most

importantly the case of Bhopal Gas Tragedy.It also interprets various international conventions

related to sustainable development and the views by eminent jurists and other officials.

After studying the Bhopal gas tragedy case, one may have to examine the reason for the cause

of disaster and the solution for that particular reason. This research paper answers the question

with an in depth interpretation of the judgment. Another question which comes before us is the

question of the jurisdictional issues of the Supreme Court in relation to the trial of the MNC,

Union Carbide.

After reading this research paper, one may understand the importance of Sustainable

development. One may also, comprehend the laws made for sustainable development and

understand its implementation in relation to various cases.

Keywords:

1. Polluter Pays principle

2. Precedents

3. International agreements and treaties

4. Vellore Citizens welfare forum v. Union of India

5. Bhopal Gas Tragedy 6. Jurisdictional issue of the Supreme Court

Introduction:

Pollution has been defined as the introduction of a substance into the environment with

harmful or poisonous effects. The problem of environmental pollution dates back to the

evolution of Homo Sapiens on this planet.1 The development of science and technology and the

ever increasing world population brought about tremendous changes in the earths

environment.2 In order to combat the ever increasing pollution that upset the fragile ecological

balance with far-reaching impact on the beings that inhabit the earth, the Environment

(Protection) Act, 1986 was enacted. The law generated a plethora of rules and regulations and

facilitated delegation of powers of the Central Government to the various agencies for Centre

and State.3 Section 2(a) of the Act defines the environment as one which includes water, air

and land and the interrelationship which exists among and between water, air and land, and

human beings, other living creatures, plants, micro-organisms and property.

India employs a range of regulatory instruments to preserve and protect its natural resources.4

The judiciary has recently assumed the role of public educator5, policy maker6 and super

administrator.7 Judicial activism (in this context often called environmental activism) has often

been employed as a toolin order to preserve the environment and ensure that the fragile

ecological balance is not disturbed by unchecked activities of the State, individuals or

corporations.

Sustainable Development is defined as per the Brundtland Report prepared by the World

Commission on Environment and Development (WCED) as development that meets the needs

of the present without compromising the ability of the future generations to meet their own

needs. Some of the salient principles of Sustainable Development are culled out from the

Brudtland Report and other international documents are inter-generation equity, use and

conservation of natural resources, environment protection, the precautionary principle, polluter

1P. LEELAKRISHNAN, ENVIRONMENTAL LAW IN INDIA (lexis nexisbutterworths wadhwa,3rded) 2Ibid. 3Ibid. 4DIVAN SHYAM & ARMIN ROSENCRANZ, ENVIRONMENTAL LAW AND POLICY IN INDIA(Oxford University Press, 2nded) 5AIR 1992 SC 382 6AIR 1997 SC 811 7AIR 1997 SC 1228

pays principle, obligation to assist and cooperate, eradication of poverty and financial

assistance to developing countries.8

Thus, this paper, in the coming sections, will focus firstly on the importance of a clean and

healthy environment from the perspective of constitutional as well as human rights and will

deal with judicial intervention and activism in securing this right as well as providing a

national framework derived from international conventions in order to apply the principle of

Sustainable Development in the Indian context.

Right to a Clean Environment

The right to life being the most important of all human rights implies the right to live without

deleterious invasion of pollution, environmental degradation and ecological imbalances.9There

is a building up of a concept that the right to healthy environment and to sustainable

development are fundamental human rights implicit in the right to life.10

Article 3 of the Universal Declaration of Human Rights, 1948 (UDHR) declares that

everyone has the right to life. Furthermore, Article 25 of the UDHR states that everyone has a

right to a standard of living adequate for the health and well-being of himself and of his family.

Furthermore, Article 11 of the International Covenant on Economic, Social and Cultural

Rights, 1966 (ICESCR) declares that the States Parties to the Covenant recognised the right

of everyone to an adequate standard of living for himself and his familyand to the

continuous improvement of living conditions. Article 12(1) of the ICESCR further declares

that the States Parties recognise the right of everyone to the enjoyment of the highest attainable

standard of physical and mental health.

Article 6 of the International Covenant on Civil and Political Rights, 1966, proclaims that

every human being has the inherent right to life and that this right would be protected by law.

Furthermore, the right to sustainable development has been declared by the United Nations

General Assembly to be an inalienable human right.11

8S SHANTHAKUMAR, INTRODUCTION TO ENVIRONMENTAL LAW,110 (Lexis NexisButterworths, Wadhwa, Nagpur, 2nded, 2009) 9S SHANTHAKUMAR, INTRODUCTION TO ENVIRONMENTAL LAW,91(lexis NexisButterworths, Wadhwa, Nagpur, 2nded 2009) 10A.P Pollution Control Board II v. Prof. M.C. Nayudu2000 SOL Case No. 673 11Declaration on the Right to Development, 1986.

In Lopez Ostra v. Spain12, the European Court of Human Rights at Strasburg held that the

result of environmental degradation might affect an individuals well-being so as to deprive

him of his enjoyment of private and family life. A similar observation was made in the case of

Yanomi Indians v. Brazil13 wherein the Inter-American Commission on Human Rights found

that Brazil had violated the Yanomi Indians right to life by not taking measures to prevent

environmental damage.14

Thus, various international conventions and frameworks have recognized the right to live in a

clean, safe and healthy environment as a basic human right which stems from the right to life.

These steps taken by the international community highlighting the importance and need for

sustainable development along with the importance of living in a clean and healthy

environment have paved the way for the right to live in a clean environment to become a

fundamental right in India.

Right to Live In a Healthy Environment as a Constitutional Right

In India, the Constitution was amended in the year 1976 by the Constitution of India Forty-

Second (Amendment) Act.15 This Act added Articles 48A and 51A to the Constitution. Article

48A states, The State shall endeavour to protect and improve the environment to safeguard the

forest and wildlife of the country. and Article 51A(g) provides that it is the fundamental duty

of every citizen of India to protect and improve the natural environment including forests,

lakes, rivers and wildlife and to have compassion for living creatures.

In the case of BadhuaMuktiMorcha v. Union of India16, the Supreme Court for the first time

recognized that the right to a clean and healthy environment stems from the right to life

provided by Article 21 of the Constitution. Following this decision, environmental activism on

the part of the judiciary has taken a more distinct form. Decisions of various High Courts17

have once again proven that the right to a clean and healthy environment is an integral part of

the right to life which is guaranteed by Article 21 of the Constitution.

The Supreme Court in various other landmark judgments has once again stressed on the

importance that a clean and healthy environment has on the right to life of a person. In the case

12303-C, Eur. Ct. H.R. (Ser.A) 1994. 13 Inter-Amer C.H.R 7615 OEA/Ser.L.V/II/66 Doc 10 rev. 1985(1) 14S SHANTHAKUMAR, INTRODUCTION TO ENVIRONMENTAL LAW, 93(Lexis NexisButterworths, Wadhwa, Nagpur, 2nded, 2009 ) 15Ibid 16 1984 (3) SCC 161 17V.Lakshmipathy v. State of Karnataka AIR 1992 Kant 57: M.K. Janardhanam v. The District Collector, Trivallur2002-1-L.W.262: Damodhar Rao v. Municipal Corporation, Hyderabad AIR 1987 AP 170

of Subhash Kumar v. State of Bihar18, the Supreme Court observed, the right to life enshrined

in Article 21 includes the right to enjoyment of pollution free water and air for the full

enjoyment of life. If anything endangers of impairs the quality of life, the affected person or a

person genuinely interested in the protection of society would have recourse to Article 32.19 In

various other cases such as Virandar Gaur v. State of Haryana20, the Supreme Court upon

applying Principle 1 of the Stockholm Declaration held, Article 21 protects the right to life as

a fundamental right. Enjoyment of life and its attainment including their right to life with

human dignity encompasses within its ambit the protection and preservation of the

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 pollution should be regarded as amounting to violation of Article 21. Therefore,

hygienic environment is an integral facet of the right to life and it would be impossible to live

with human dignity without a humane and healthy environment.

Such precedents have established without doubt the importance of the right to a clean and

healthy environment to an individual and how the contravention of the same would lead

Principles and Doctrines for the Protection of the Environment

Following the Bhopal Gas Leak Disaster in 1984, the Union of India filed a suit21 for

compensation on behalf of the victims before the United States District Court of Southern

District of New York. Judge Keenan of the U.S. District Court pointed out that Indian Courts

had the proven capacity to render fair and equal justice.22 Chief Justice Bhagwati in M.C Mehta

v. Union of India23declared, We have to evolve new principles and lay down new norms

which would adequately deal with the new problems which arise in a highly industrialised

economy. We cannot allow our judicial thinking to be constricted by reference to the law as it

prevails in England or for the matter of that in any other foreign country. We no longer need

the crutches of a foreign legal order.24

THE POLLUTER PAYS PRINCIPLE

18 AIR 1991 SC 420 19AIR 1991 SC 420 20 (1995) 2 SCC 577 21Union of India v. Union Carbide Corporation (1986) 2 Comp LJ 169 22S SHANTHAKUMAR, INTRODUCTION TO ENVIRONMENTAL LAW,101(LexisNexisButterworths, Wadhwa, Nagpur, 2nded, 2009) 23 AIR 1987 SC 1086 at p. 1089 24Declaration on the Right to Development, 1986.

The Polluter Pays Principle (PPP) is a tool of environmental policy making that states that

whoever is responsible for damage to the environment should bear the costs associated with

it.25This principle evolved with the recognition that pollution was a symptom of inefficiency in

industrial production.

The Polluter Pays Principle was originally considered as an economic and administrative

measure to restrain and control the pollution problem and has recently been recognized as a

powerful legal tool to combat environmental pollution and associated problems.26 Various

international conventions have recognized the importance of the Polluter Pays Principle in

effectively controlling the menace of pollution which adversely affects the environment.

The World Commission on Environment and Development (WCED) in its report has suggested

that the environment cost of economic activity shall be internalized by the enterprises.27 The

Organization of Economic Cooperation and Development28 for the first time agreed to base

their environmental policies on the Polluter Pays Principle. Furthermore, Principle 16 of the

Rio Declaration proclaims national authorities should endeavour to promote internalization of

environmental costs and the use of economic instruments, taking into account the approach that

the polluter should, in principle bear the cost of pollution with due regard to the public interest

and without distorting international trade and investment.29

Following the framework created by the international community with regard to the Polluter

Pays Principle, the Supreme Court in India has incorporated this principle into environmental

activism, thus furthering the cause of sustainable development in India. This principle has been

applied by the Supreme Court in the case of M.C Mehta v. Union of India30 wherein the

Polluter Pays Principle was applied to deal with the problem caused by the oleum gas leak

from the Shriram Food and Fertilizer Corporation.

Another landmark case in which the Polluter Pays Principle was applied by the Supreme Court

is the case of Vellore Citizens Welfare Forum v. Union of India.31 In this case, the Supreme

25Taking Action, The United Nations Environment Programme 26S SHANTHAKUMAR, INTRODUCTION TO ENVIRONMENTAL LAW, 104 (LexisNexisButterworths, Wadhwa, Nagpur,2nded, 2009) 27 Our Common Future (1987) 28 Guiding Principles concerning international economic aspects of environmental policies Council Recommendations (1972) 29S SHANTHAKUMAR, INTRODUCTION TO ENVIRONMENTAL LAW,93 (LexisNexis butterworths, wadhwa, nagpur, 2nded, 2009) 30 AIR 1987 SC 1086 31 (1996) 5 SCC 647 at 658

Court held that the Polluter Pays Principle is an essential feature of sustainable development.32

The Court observed that the Polluter Pays Principle means that the absolute liability for harm

to the environment extends not only to compensate the victims of pollution but also the cost of

restoring the environmental degradation.33 Remediation of the damaged environment is part of

the process of sustainable development and as such the polluter is liable to pay the cost to the

individual sufferers as well as the cost of reversing the damaged ecology.34 The Court further

declared that the Polluter Pays Principle has been accepted as part of the law of the land.35 The

Court further observed that the Polluter Pays Principle has been accepted as customary

international law and hence, it becomes a part of the law of the country.36 The Court directed

the Central Government to constitute an authority to assess the damage caused by the

environment by the effluents released by the tanneries.37

Thus in this case38, the Polluter Pays Principle was officially recognized by the Courts and

incorporated within the framework of sustainable development in Indian environment law.

This principle not only ensures that the perpetrators of environmental damage pay

compensation to those who suffer due to the pollution caused by them but also pay for the

extent of damage caused by their activities. The incorporation of this principle into Indian

environmental jurisprudence is an important step in ensuring continued and sustained

protection of the environment.

The Supreme Court reemphasized the need to apply the Polluter Pays Principle in the case of

M.C Mehta v. Union of India.39This case dealt with the yellowing and decaying of the

TajMahal due to environmental pollution. The petitioner in this case alleged that the sulphur

dioxide emitted by refineries in Mathura had a corrosive effect on the white marble of the

TajMahal after the gas combined with oxygen with the help of moisture to form sulphuric acid.

The petitioner claimed that this caused the white marble of the TajMahal to yellow, decay and

even blacken in places.

The Court observed that the TajMahal, apart from being a monument representing Indias rich

and vibrant culture and heritage, was also an industry by itself by virtue of it being a tourism

hotspot. It was for this reason that the Court ordered for the setting up of a Taj Trapezium, an 32S SHANTHAKUMAR, INTRODUCTION TO ENVIRONMENTAL LAW,104 (LexisNexisButterworths, Wadhwa, Nagpur, 2nded 2009) 33Ibid. 34Ibid. 35Ibid. 36Ibid. 37Ibid. 38 (1996) 5 SCC 647 at 658 39 AIR 1997 SC 734

area which would be free from industrial plants and factories to minimize damage to the

historic TajMahal.

Judicial activism with respect to environmental law has come a long way in ensuring

environmental protection in India. The Polluter Pays Principle has been used as an effective

tool to minimise environmental damage caused by power houses and industrial plants by

ensuring that the polluter pays for the damage caused by him. The judiciary has recognized the

Polluter Pays Principle as an integral part of Indian environmental jurisprudence. These

precedents have helped secure the right to a clean and healthy environment as a part of the

Right to Life guaranteed under Article 21 of the Constitution. This is also in tandem with

Article 48-A of the Indian Constitution which states that the State shall endeavour to protect

and improve the environment and to safeguard the forests and wildlife of the country. Thus, the

judiciary has played a major role in safeguarding the environment through various principles

and precedents.

THE ANALYSIS OF THE CASE OF THE BHOPAL GAS TRAGEDY AS A

PRECEDENT

"This is an age of interdependence in which we must surrender a part of our sovereignty, and

work together for the elimination of every kind of injustice. Dr. S Radhakrishnan

Ever since the industrial revolution in the 18th century in Europe, the world started witnessing a

greater measure of interdependence in terms of economy. The need for wider and larger

markets for their products resulted in the growth of colonialism. Exploitation of natural

resources was the prime motivator. The concept of environmental protection had not occurred

to the industrialized nations.

Over the years trading companies started acquiring transcontinental reach. Like all business

entities, profit was the main motive. Ethics were something for the philosophers and not for the

business houses. The developed countries started aggressive policies to support the business

interest of multinational companies. The developing countries who had witnessed the

phenomenal economic growth of the developed countries, naturally wanted similar economic

growth in their own predominantly agriculture based economy. To achieve rapid economic

progress they were prepared to accept outdated and polluting technology from the advanced

countries forgetting that they were inviting disaster to their own environment. The advanced

countries were happy to install their old and discarded technology in such countries where

labour was cheap but market was huge. They were not prepared to pass on the latest

technology as it would affect their own competitive edge in the world market.

One such import of outdated technology resulted in a major ecological disaster namely the

Bhopal Gas Tragedy. This incident is one of the biggest examples of a Multinational Company

which destroyed the environment and the habitat for itsbenefit. This shows the carelessness and

negligence of a Multinational company. A question that may arise in ones mind is whether

the Multinational company i.e. Union Carbide Corporation would have shown this kind of

carelessness if this Factory was located in a developed country or in the USA itself.

The answer to the above question is in the negative. The double standard of union carbide has

already been established. Union Carbide has claimed that its plant at Bhopal is very similar to

its plant in the US which is situated in West Virginia .However there is evidence to show that

the company has practiseddouble standards in the installation of safety equipment and in

theobservance of safety and operational practices.

Firstly, the company had not installed a proper pressure/temperature sensing system, which it

has used for several yearsin the US plant as a warning device. This pressure sensing system

would have indicated the anomaly in the proportion of chemicals and thereby it would have

averted the disaster.

Secondly, the community living near the plant was never trained or informed about the

significance of the danger .The caution alarm had been activated several times accidentally in

the past andresembled a nearby factorys shift change Siren. Manypeople on hearing the alarm

after the gas leak actually rushed towardsthe factory. 40

Thirdly, the community had never been informed about thedangers posed by the materials used

in the plant. Several neighboursthought that the plant manufactured medicines.41

In case of Union Carbides operations in West Virginia the corporations had to train the

community about the dangers of living near the locality and they must instruct them about the

safety precautions that the people should take in case of any abnormality in the plant. This was

because they were forced to do so by the law of the Right to Know in West Virginia and the

other states as per the Freedom of information Act, 1966.42 The Government is obliged to

provide information which is pertinent to the general public.43 They also have to give the

40THE BHOPAL DISASTER,http://www.cseindia.org, Lastvisited on 25December 2013 41 Ibid 42M P Jain, S N Jain, Principles of Administrative Law(LexisNexisButterworths, Wadhwa, 7thed) 43Ibid.

information when asked by the individual citizens, provided that it doesnt come under the

exempted information under the Act.44

It is not only the Union Carbide Corporation that is to be blamed. It is the Government of a

developing country that is equally responsible.Union Carbides coming to Bhopal was

welcomed by all, because itmeant jobs and money for Bhopal, and savings in foreign exchange

forthe country, with the rising demand for pesticides after the GreenRevolution. However the

Government did not take any steps to ensure that the corporation did not exploit the resources

of the developing country.

The Government of a developing country must ensure that whenever any transaction is entered

into between a developing country and MNC, the host country should have a specific provision

where in the MNC will be held responsible for any supply of outdated technology affecting the

environment. In the case of India, the people have Constitutional right to Know, just like in the

US. However it is only enforceable against the Government. The Government of India, while

entering into a contract with the MNC, should have insisted on specific safety measures that

the corporation should have followed while it was using the natural resources of the host

country. This was seen in the case of an agreement between McDonalds and Indian

Government where McDonalds was obliged to use the raw materials which were produced in

India.45 This was done to protect the interest of the citizens of the host country. McDonalds

argued that the potatoes which were produced were of a poor quality due to the poor quality

seeds used by the farmers and the obsolete techniques used by them. However, McDonalds,

along with McCain Ltd., started assisting the farmers in Gujarat with better techniques of

farming and with better quality of seeds and fertilizers. This resulted in better yields.46

JURISDICTIONAL ISSUE CAUSED DELAY IN JUSTICE

The second issue that came up in the Bhopal gas tragedy case was the Jurisdictional issue. The

International court of justice in the Lotus case has held that the first and foremost restriction

imposed by international law upon a state is that- Failing the existence of a permissive rule to

the contrary- it may not exercise its powers in any form in the territory of another state.47

This principle can hold relevance in the Bhopal gas tragedy case. This is known as the

prescriptive jurisdiction. This is where the state has been given the power to assert the

44Ibid. 45We use Indian Potatoes for our French Fries, Available at http://www.hindustantimes.com/business-news/we-use-indian-potatoes-for-our-french-fries-mcd-s/article1-968779.aspx, Last visited on 25 december 2013 46www.mcdonaldsindia.com/pdf/potato-farming, Last visited on 9 January 2014 47 Lotus case 1927 PCIJ ser.A No.10

applicability of its national law to any person property, territory or event, wherever they may

be situated or wherever they may occur.48 However a state cannot enforce its prescriptive

jurisdiction in the territory of another state, hence the actual exercise of jurisdiction is limited

to the territory of the state asserting jurisdiction unless there is an agreement between the 2

states for the enforcement of jurisdiction. An example for this can be the extradition treaty

between 2 countries.

Since there were innumerable agonised victims who were mostly Indian citizens, the

Government of India passed an act known as Bhopal Gas Leak Disaster (Processing of Claims)

Act of 1985 as per the JudicialPanel on Multi District Litigation in the United States. This is

where they took up the responsibility and the right to sue for compensation on behalf of the

affected parties. The Union of India filed a suit for realisation of compensation in the Circuit

Court of USA. This is where the principle of prescriptive jurisdiction can be seen. The

contention of Union of India was to hold the mother company i.e. Union Carbide Corporation

vicariously liable for the act of its subsidiary company i.e. Union Carbide India Limited. The

agonised victims demanded the extradition of Mr Warren Anderson, Chairman of Union

Carbide, holding him responsible for the tragedy. Government of India in consultation with the

Attorney General and the relevant ministries decided not to press for extradition on the ground

that they did not have clenching evidence to convince an American court.

At this point, Justice Keenon had dismissed the petition stating forum non convenience. Justice

Keenon, while respecting the sovereignty of India, held that it is the Indian Judiciary who is at

a better position to give a judgment. The cause of action arose in India hence the Indian

judiciary will be efficient in calculating the amount of compensation to be given to the victims.

Thus Justice Keenon held:

Union Carbide shall consent to submit to the jurisdiction of the Courts of India and shall

continue to waive defences based on the statute of limitations.49

This is how the Indian judiciary got its jurisdiction after Judge Keenan made the order on 12th

of May, 1986, in September of that year when Union of India in exercise of its power under the

Act filed a suit in the District Court at Bhopal.

48DIXON MARTIN.TEXTBOOK ON INTERNATIONAL LAW (Oxford university press.6thed) 49Union Carbide Corporation v. Union of India AIR 1992 SC 248

In the Bhopal Gas Tragedy, a large number of people lost their lives and also suffered

incurable ailments. Many of the affected parties moved the district court for compensation to

the affected people. Even private criminal complaints were filed before the jurisdictional

courts. The district court in Bhopal passed an interim order directing Union Carbide to deposit

350 Crores pending the final verdict by the court. This order was challenged before the High

Court. The High Court raised the amount to 450 Crores pending finalization of the case.

In the normal course, cases in Indian courts take a long time to be finalized. The Union

Carbide, with its battery of prominent advocates, was challenging the conduct of the trial at

every stage. The Indian Judicial system allows appeals and revisions to be filed at every stage,

not only before the High Court but also before the Supreme Court. In the normal course of

things the cases would have taken up more than 20 years to be finalized.

Keeping in mind then need to expedite relief to the affected parties, the Supreme Court of India

took an unprecedented decision to invoke its powers under Article 142 of the Constitution, by

which it took upon itself the responsibility of clubbing all the cases pending before various

courts in the country and decided to hear the case itself. The Government of India also took a

practical view and enacted Bhopal Gas Leak Disaster (Processing of Claims) Act of 1985.

However the criminal cases were not touched upon by the Supreme Court in a subsequent

hearing.

One major lacuna was that a through census was not taken of all the affected person by the

Government of India and the local administration. Perhaps they felt that it would delay the

process before the court. If that had been done then the compensation amount would have been

much more than what was decided by the Supreme Court. Justice was not done for many

people who had suffered in the Bhopal Gas Tragedy.

SOLUTION TO THE ABOVE STATED PROBLEM:

One of the ways in which justice can be given at the earliest is by having a fast track court or

by having forums which specifically deal with the environmental issues. One such forum that

has been recently set up in India is theNational Green Tribunal. It was established on

18.10.2010 under the National Green Tribunal Act 2010 for effective and expeditious disposal

of cases relating to environmental protection and conservation of forests and other natural

resources including enforcement of any legal right relating to environment and giving relief

and compensation for damages to persons and property and for matters connected therewith or

incidental thereto. It is a specialized body equipped with the necessary expertise to handle

environmental disputes involving multi-disciplinary issues. The Tribunal shall be guided by the

principle of natural justice.

The Tribunal's dedicated jurisdiction in environmental matters shall provide speedy

environmental justice and help reduce the burden of litigation in the higher courts. The

Tribunal is mandated to dispose of the applications or appeals within 6 months of filing of the

same. Initially, the NGT is proposed to be set up at five places of sittings and will follow

circuit procedure for making itself more accessible. New Delhi is the Principal Place of Sitting

of the Tribunal and Bhopal, Pune, Kolkata and Chennai shall be the other four place of sitting

of the Tribunal.50

This concept was first discussed in the judgment of MC Mehta v. Union of India51 by the

Supreme Court. The Supreme Court stated that as environmental cases frequently involve

assessment of scientific data, it is desirable to set up environmental courts on a regional basis

with a legally qualified judge and two experts, to undertake relevant adjudication.

The importance of National Green Tribunal was also seen in the case of Indian Council for

Enviro-Legal Action v.Union of India52 where the Supreme Court again recommended the

establishment of environmental courts with both civil and criminal jurisdiction in order to deal

with environmental issues in a speedy manner. Again, in the judgment of A P Pollution

Control Board v Professor M V Nayudu53 the Court referred to the need for established

environmental courts. Such courts would have the benefit of expert advice from technically

qualified environmental scientists, as part ofthe judicial process.

If a tribunal like the National Green Tribunal was in existence at the time of the Bhopal gas

tragedy, the affected persons would have got speedier justice and a fair compensation. The

Tribunal is one of the elements for reformation in governance of the environmental related

issues. It has been established that there are some 5,600 environmental related cases that are

pending throughoutIndia.54The Government had made a proposal to create a circuit system for

the new tribunal. The main bench for the tribunal will be situated at Bhopal in recognition of

the citys disastrous industrial history, as shown above. According to the Environment

Minister:

50 http://www.greentribunal.gov.in, Last visited on 25 December 2013

51 (1986) 2 SCC 176 52Indian Council for Enviro-Legal Action v. Union of India (1996) 3 SCC 212 at 252 53AP Pollution Control Board v. Professor M V Nayudu(1999) 2 SCC 718, (2001) 2 SCC 62 54 Gill Gitanjali, A Green Tribunal for India, Available at http://oxfordjournals.org (Oxford University Press) last visited on 25 December 2013

The main bench of the tribunal will be in Bhopal. This way the Government and parliament

could show some sensitivity to the people of Bhopal, the site of the worst industrial disaster.

We can never obliterate that tragedy from our memories but by setting the national green

tribunal in Bhopal, I think we would send a signal that we mean business. A circuit approach

would be followed to enable access for people. The court will go to the people. People would

not come to the court.55

The Bhopal gas tragedy was one of the most tragic disasters witnessed by the people of India.

The judicial system of India and the USA tried to address the grievances of the victims. They

were successful to certain extent however this mechanism took a long time to provide justice to

the victims and their families. Thus the Government of India took the initiative to make the

National Green Tribunal so that the victims are given justice as soon as possible.

The case of Bhopal Gas Tragedy is one of the biggest precedents which have been set not only

for the judiciary but also for the legislative Government of the developing countries. This case

taught the developing countries a lesson to be very careful while transacting with the

Multinational Corporations and to protect the interests of its citizens while entering into an

agreement with corporations.

Conclusion

The right to a clean and healthy environment has been recognized as both a fundamental right

stemming from the right to life under Article 21 of the Constitution as well as a basic human

right. It is for this reason that the Courts, through various precedents, have established that, in

order to secure this right, sustained protection of the environment needs to take place. This led

to the development of the Polluter Pays Principle as a key principle of environmental

jurisprudence by the judiciary which, through the analysis of the above case-laws, has proven

to be effective in curbing damage to the environment.

The Bhopal Gas Tragedy, which is one of the worst environmental disasters that affected large

number of people and animals also led to a great deal of environmental damage. A detailed

analysis of this case showed that pure negligence on the part of a corporation led to serious

environmental repercussions. This case serves as a precedent for Governments of developing

countries to exercise caution while transacting with Multinational Corporations. Furthermore,

55 Statement made by Jairam Ramesh, former Union Minister of Environment and Forests, in the Indian Parliament April 2010.

this case increased the need for a stricter environmental framework within which Multinational

Corporations would have to work.

Thus, precedents have helped to develop a more cogent framework for environmental

protection in India and have helped enhance the principles of environmental jurisprudence in

order to ensure sustained protection of the environment.

By:- Sanjanaram kumar and Shivani Kumar,2nd Year B.A.LLB (Hons.), School Of Law, Christ University Bangalore.