In 1995, India’s Parliament passed the National Environment Tribunal Act. The law was to provide compensation to victims of environmental accidents. It was to ensure special courts quickly decided damage, liability and compensation caused by industrial disasters — not only to people but to the environment also. It was passed after a decision of the Supreme Court in 1989 in the Bhopal gas tragedy case.
Successive governments refused to notify the law that had been enacted. It was finally repealed in 2010, when the National Green Tribunal Act was passed. The Bhopal gas tragedy victims continue to fight a lonely but dogged legal battle for compensation and reparation.
On the 20th anniversary of the Bhopal tragedy in 2004, Usha Ramanathan, a legal expert, detailed how other laws, such as the Factories Act and the Public Liability Insurance Act, were also defanged after being first tightened to help against industrial disasters.
In these past three decades, India’s industrial scape has evolved rapidly and the post-liberalisation economy has spread industries across the country. At least 1,000 industrial plants and factories receive clearance from the Union government annually.
Implementation of other environment laws that were enacted as a consequence of the Bhopal tragedy, such as the Environment Protection Act, 1986, are today seen by governments of all hues as perpetuating a licence raj. Which might not be off the mark – they are bent easily to corrupt ends and have been rarely used to protect either the environment or those affected by industrial pollution.
Where’s the state?
But, as with so much in India, the fault may lie in the political economy of the country rather than the law. “If you look back, most of the cases where people have been compensated or where some liability has been enforced on polluting industries, it’s happened through public interest litigation and the courts. One cannot remember any significant case where the administration acted pro-actively to prevent or punish polluters,” says Ritwick Dutta, a senior environment lawyer.
What Ramanathan wrote a decade earlier for the Bhopal case stands true of the environmental safety agenda at large today. “In the 20 years since Bhopal, statutory law has moved, grudgingly, some distance, but it is in the courts that the law has been largely played out,” she said.
The capacity of governments to monitor and keep tabs on industrial safety and environmental degradation has been unable to keep pace with the growth of industries across the country. With the environment law in 1986, the government set up five regional offices across the country to monitor and regulate pollution. These offices had less than 10 people each, with only a couple at senior levels. The offices remain almost the same size and with as many people, while industries have popped up across the country and many more are in the pipeline.
Industrial sites might still be an easy point of source of pollution to monitor with some diligence. The greater challenge of environmental degradation over a long time from seeping pollution or occupational practices is yet to be tackled even in principle. The air pollution in Delhi and other metropolitan areas gets more than fair attention (though little resolution) from the courts and others. But victims of silicosis or asbestosis in factories, of leeching pesticides and of contamination of air and water from plants around industrial areas are not on the radar.
Victims fighting in courts and with the help of a growing environmental consciousness in public are able to bring up one or two cases to the limelight such as the endosulfan case in Kerala. However, the capacity of states to take cognisance is almost absent. Research and data will tell us academically that environmental damage is a public health crisis, eating into bodies and lives. Yet, there are only a handful of laboratories and a lesser number of scientists mandated to study the deadly link between environmental pollution and the disease burden that afflicts the country.
The Centre for Science and Environment notes, “In 2011, over 1,000 people lost their lives in factory accidents and several thousand were injured. Contamination of land and water is a growing problem. In 2010, 10 toxic sites housing thousands of tonnes of hazardous waste were identified by the Union ministry of environment and forests.”
Its director general, Sunita Narain, says: “We need to fix what is broken and not make new institutions that add to multiplicity and confusion. The institutions should monitor compliance and enforce their directions.”
She is referring to the previous and current government’s plans to outsource its clearance and monitoring responsibilities to a new authority. This government, just as the previous government did, has reviewed environment laws. Three decades after they were passed, perhaps a review of environmental governance and not only the laws was required. “There has to be a strong environmental liability regime for victims of environmental crimes,” says Narain, “Systems of corporate liability cannot remain inadequate, as high-risk and unknown technologies pose new challenges.”
Heading an institution that stepped in to fill the gap in governance and set up its own laboratory for testing environmental pollution and its impact on societies, Narain has first-hand experience. One private laboratory or one public interest suit can only highlight the symptoms. Fighting the malaise of environmental degradation requires a systemic overhaul that India is quite far from.