lawyers in India

Human Rights, Environment And Industrial Disaster A Stand on India

Written by: Pooja Murarka - III Semester, Nirma University, Institute of Law
Constitutional Lawyers in India
Legal Service
  • Mahatma Gandhi once said: " recall the face of the poorest and most helpless person whom you may have seen and ask yourself if the step you contemplate is of going to be of any use to him. Will he be able to gain anything by it? Will it restore him to control over his own life and destiny?

    Globalization has influenced trade all over the world; companies have looked for new opportunities In this era of open global market economy, hazardous industries are playing a decisive role in the economic development and in the advancement of the economy, but simultaneously they are causing the problem of risk to human life and environment. The developing countries like India suffer from the acute problem of environmental pollution. Industrial disaster means threats to people and life support system caused by mass production of goods and services exceed human coping capabilities and the environments absorptive capacities[1]. Or

    Article 1 Which states that:-
    (1) Industrial accident means an event resulting from the uncontrolled development in the course of any activity involving hazardous substances either :
    (i) In an installation, for example during the manufacture, use ,storage, handling, or disposal; or during transportation[2].

    Concept of Environment and Human rights in relation with industrial disaster:

    Article 1.
    All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood[3].

    The Environment world wide is in crises. Although this message for many years been propagated by environmental movements and scientists, it has also been accepted in recent years by the establishment including the worlds political leaders who met at the United Nations Conference on Environment and Development (Earth summit) at Brazil, in June, 1992. Every citizen has the right to live in an environment worthy of human existence [4].

    India is an original signatory to the solemn declaration of United Nations Conference held in Stockholm on Human Environment in the year 1972. This Declaration while acting as an eye- opener to mankind and people in the world on the essential and imperative need to protect the environment makes an interesting and hence it is a felt a part of it is worth recapitulation.

    The distinction between environmental rights and human rights has blurred considerably in the world over. The right to healthy environment is also recognized as ‘third generation human rights in recent years. Man from early 1970 has realized that the importance of environment which is not only hampers his welfare but also his survival. “ the green, blue, white and gray revolution will be a myth not truth unless we realize the deadly portents of pollution”[5] thus, “human beings are at the centre of all concerns for sustainable development. They are entitled to a healthy and productive life in harmony and nature”[6] and therefore, industries or businesses should support and respect the protection of internationally proclaimed human rights; and make sure that they are not complicit in human rights abuses. The Universal Declaration of Human Rights states that every individual and organ of society has the responsibility to strive to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance. As important organs of society, businesses have a responsibility to promote worldwide respect for human rights.

    Victims of industrial disaster

    Bhopal has become synonymous to industrial disaster from which toxic fumes came out of the pesticide company and the chemical responsible for death to destruction of many lives was Methyl Isocyanides. This event has occurred in 1984 in which more than 3500 people died and after that series of accidents took place in India. Of the total number of such accidents, nearly 33% have happened in Maharashtra followed by West Bengal (10%) and Tamil Nadu and Madhya Pradesh (8% each). Maharashtra does not only have a ridiculous distinction of the highest number of accidents but also accounts for the highest number of death and injuries from a single State as against 32% death and 39% injuries in entire India.

    “Number wise the accidents in Maharashtra may be more but statistically, considering the very high number of industries, it will not be much. In Maharashtra, even the documentation of accidents is better”, explains Ms. Chandrasekharan. “Compliance to MOEF rules is best in Maharashtra”, resonates Mr.VN Das, “This is because there is an excellent partnership between the regulatory authorities and the industries”, he adds. Ironically, 10 accidents in Madhya Pradesh after Bhopal also speak of the seriousness with which the bitter experience of 1984 has gone down the throat of the concerned authorities.[7] So, almost one industrial accident every month is definitely an enviable number. More so when there are well defined accident-prone areas. According to sources well placed in MOEF, the reasons at all levels are old technologies as it is make Indian industries innately vulnerable to accidents as commented by a high placed official with the MOEF on condition of anonymity. Obviously, for such extraordinary high number of accidents in the country, reasons for them must be wide ranging vulnerable to accidents Obviously, for such extraordinary high number of accidents in the country reasons for them must be wide ranging.

    What Government has done for the victims ? OR Government Policies and legislation in protection of human rights and environment.

    After the great Bhopal disaster, there was no closure of chemical industries which affected environment greatly and human right were violated.
    For the first decade and a half after the Bhopal disaster, the struggle for justice was all up hill. There were few achievements which could be attributed, at least in part, to strategies of resistance by survivors and their supporters.

    But still the forces of goodness and resistance to evil persisted.
    The struggle for justice in Bhopal over the last two decades has been bedeviled by a preponderance of head-banging and fire-fighting initiatives. It was frustration with conventional methods of fighting corporate power in the Bhopal case that led to the establishment a decade ago of the Program on Corporations, Law & Democracy (POCLAD) that sought to attack the foundations of corporate power rather than the harmful behavior of specific corporations. But Bhopal is primarily a story of one (or at most two – Carbide and Dow) chemical corporation.[8] How then do we move beyond conventional "corporate social responsibility" initiatives to actions that will effectively challenge corporate power in a rapidly globalizing world?[9]

    Nonetheless, the Charter on Industrial Hazards and Human Rights which emerged from a series of peoples tribunals in the 1990s on this very subject provides an important beginning in reframing the goals of struggle in Bhopal. Characterized by a formulation for peoples rights from the bottom up rather than the top down, this Charter could become a dominant feature of the next round of the Bhopal struggle.

    In the final analysis, the Bhopal story reflects the vital importance of ‘peoples law in the struggle for justice. When legal systems backed by state and corporate power failed the survivors and their counterparts elsewhere, legal actions based on popular formulations of justice and the right to be human emerged. The hunger strikes, marches and demonstrations by Bhopal survivors and the various sessions of the Permanent Peoples Tribunal leading to the Charter on Industrial Hazards and Human Rights are all manifestations of peoples law. The compelling challenge for the future is stimulating the framing of peoples law regimes that serve the ends of justice. The Council has been actively involved in the struggle for justice in Bhopal since the beginning. It helped to form the Citizens Commission on Bhopal, and when that wound up, the Bhopal Action Resource Center emerged under the Councils sponsorship, providing a repository of key documents and maintaining liaison with survivor groups in Bhopal.

    Through its publishing arm, The Apex Press, the Council has published several major books on the Bhopal disaster, most notably the just published Bhopal Reader. After the Shriram Oleum Gas Leak case (1986), which happened after the Bhopal tragedy, a whole new chapter, chapter IVA was added to the statute related to the running of industries. It deals with hazardous processes. There are provisions for Site Appraisal Committee to certify where a factory may be located, there are provisions for compulsory disclosure of information about the dangers including health hazard, that could give rise exposure from the materials in the factory or in handling the material during manufacture, transportation, storage or other processes[10]. A disaster management plan is to be drawn up even before a factory may commence activity. For the first time, workers are statutorily accorded the right to be an important actor in the safety management. And for the first time again, the compulsory disclosure of information is not only to the inspector under the act but also the local authority and to the general public in vicinity of the factory -- an acknowledgement of the nearness of people at large to the risk of disaster. That is not all, the Government of India passed the Bhopal Gas Leak Disaster Act that gave the rights to the Government to represent all victims in or outside India.

    For giving compensation to Bhopal victims, Union Carbide Corporation (UCC) offered US$ 350 million only as insurance sum whereas the Government of India claimed US$ 3.3 billion from UCC. In 1989, a settlement was reached under which UCC agreed to pay US$ 470 million (the insurance sum plus interest) in a full and final settlement of its civil and criminal liability.

    When UCC wanted to sell its shares in UCIL, it was directed by the Supreme Court of India to finance a 500-bed hospital for the medical care of the survivors and therefore Bhopal Memorial Hospital and Research Centre (BMHRC) was inaugurated in 1998.[11] It was obliged to give free care for survivors for eight years.
    By the end of October 2003, according to the Bhopal Gas Tragedy Relief and Rehabilitation Department, compensation had been awarded to 554,895 people for injuries received and 15,310 survivors of those killed. The average amount to families of the dead was $2,200. Agencies such as MOEF, Pollution Control Boards (PCBs), Chief Inspector of Factories as well as transport, health and local authorities prescribe precautions/measures to be taken at various stages of handling hazardous substances. It is the responsibility of these authorities / organizations to ensure that the regulations are strictly enforced in public interest. For atomic disasters, the Atomic Energy Regulatory Board is the responsible agency, for chemical accidents, MOEF is the nodal organisation and for biological accidents, Department of Biotechnology is held answerable. The following acts and rules lay down requirements for emergency preparedness and payment of relief and compensation in India.
    The Factories Act, 1948, amended in 1976 and 1987.
    The Environment (Protection) Act, 1986.
    The Public Liability Insurance Act, 1991, amended in 1992.
    The National Environment Tribunal Act, 1995.
    Model rules under Factories Act, 1948, amended in 1987.
    The Manufacture, Storage and Import of Hazardous Chemical (MSIHC) rules, 1989 as amended in 1994.
    The Public Liability Insurance Rule, 1991 as amended in 1992.
    Chemical Accidents (Emergency, Preparedness, Planning, Response) rules, notified in 1996[12]

    The key Provisions in the Manufacture, Storage and Import of Hazardous Chemicals (MSIHC) rules, 1989 under EPA, 1986 are as under:
    MSIHC rules are in effect an industrial accident prevention and preparedness regulation. The rule 13 of these rules requires the occupier to prepare and keep up to date on-site emergency plan for dealing with possible major accidents. The provision applies to hazardous chemical installations, which include both industrial processes, and isolated storages, handling hazardous chemicals in quantities laid down in then rules and indicated as Threshold Planning Quantities (TPQ). Rule 14 of these rules requires the district emergency authority or the District Collector in the state to prepare an off-site emergency plan for the district, incorporating details made available by the hazardous installations and transport authorities. A separate transport plan needs to be drawn up as a sub-plan under the district off-site emergency plan.

    The legislation related to human rights and environment in todays date are:-When it comes protecting environment and human rights the government has initiated various steps at different times:
    (a) Constitutional measures :- India is one of the few countries of the world that have made specific reference in the constitution to need for environmental protection and improvement Originally, constitution of India did not contain any provisions having a direct bearing on environment.[13] However some of the provisions having a direct bearing on environment. However, some of the provisions do make tangential reference to the problem, e.g. Articles 47[14],48[15] and 49[16] contain directives to Government. Some of the direct provisions incorporated in the Constitution as a result of the 42nd amendment Act of 1976 include Article 48-A, states: “the state shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.[17] and 51-A(g) states : “…. To protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.” Article 51(c)[18] Article 21[19]In central as well as state governments, have enacted laws with a specific thrust on control of environmental problem. The Environmental (protection) Act, 1986 is compatively better in approach than the earlier laws.

    Are the rights justified of the victims of industrial disaster

    The victims of the gas disaster have faced death, disability, illness and uncertainty have since dogged the victims' lives. Callousness and criminal negligence have characterized the response of Union Carbide. The state has been inactive, awakening every once in a while to express denial. Twenty years after the disaster, the poison left behind by the corporation spreads into the water and the soil in and around the Union Carbide plant, and the corporation in its altered identity as Dow Chemical disclaims all responsibility for cleaning up the mess they have left behind. The state of India continues as in a state of oblivion - neither demonstrating a capacity for effecting the clean up nor pursuing Dow Chemical and Union Carbide to carry out that task.

    After the initial death and devastation the damage has been enormous and continuing. Many of the people of Bhopal continue to die after prolonged suffering; over 20,000 persons have died by now as a consequence of the disaster. It is not just that the harm was not confined to the moment of the disaster. It is also that it has travelled beyond generations, with birth defects, stunted growth and malfunctioning organs much in evidence. Over 560,000 claims for harm and disability caused have been admitted as having happened. Through all this the corporation has maintained a lack of concern that is itself criminal.

    The learning curve has been remarkably gentle. We now have a minimalist law for interim relief - the Public Liability Insurance Act, 1991 - that has hardly been used. We have a National Environment Tribunal Act, 1995 that has been passed by Parliament but that the bureaucracy has refused to take note of. It is therefore dead and no one seems to particularly care. There have been amendments made to the Factories Act, 1948 in 1987, for instance, which mandate that information regarding potential hazards be given to persons residing in the vicinity of factories dealing with hazardous processes and substances, but there is little evidence that this is done.

    After this amendment to the law was effected, provision was made for Disaster Management Plans, but 17 years have passed and these are only in the realm of unfulfilled legal requirements. Instead the law regarding disclosure of hazardous substances has been made more stringent. It has now enhanced the punishment where any Inspector of Factories discloses information about a sample that he has taken (other than while prosecuting the factory). Despite the demonstrated impossibility of getting information from Union Carbide on what the gas was and its antidote, there is no law that has been introduced to access this information at least where disaster occurs. Most insidious is the provision that was slipped into the law which would provide impunity to any person who designs any plant or machinery once the person buying it for use gives a written undertaking that `if properly used' it would not cause harm! This was actually Union Carbide's defence in the trial, and it is astonishing that this was inducted into the law even as the corporation?s claim was being contested in court. However, going by the state's record this is not surprising. As for criminal law, even this mass homicide has not spurred the government to alter the law to locate the corporation and corporate masters within it.

    Role of disaster management

    The focus of support is on establishing and improving modern, demand oriented consultation and training capabilities at the Disaster Management Institute (DMI) in Bhopal. The DMI acts as an inter-institutional advisor for the implementation of national guidelines for reducing technical risks, and brings together all relevant stakeholders – from industry, administration, fire brigades, hospitals, police, waterworks etc. – to introduce standardised procedures in the elaboration of on-site emergency plans for industrial facilities such as oil refineries or chemical plants. The DMI also organises mock drills in order to gather practical expertise for possible future emergencies. The challenge now is to move from a few best-practice examples to a nationwide dissemination of appropriate disaster risk management. There are about 1,700major accident hazard units on the Indian subcontinent, plus a large number of small and medium enterprises withdisaster potential. The diversity and complexity of the necessary capacity building activities all over India makes professional management and co-ordination a must. A core element of the project is the implementation of a Training Management Unit, while an internet- based “Human Resource Development Platform” serves to announce, document and manage the capacity building measures – training

    courses, awareness campaigns, seminars, workshops and conferences. An integrated user feedback tool helps to evaluate the ongoing activities and detect gaps in the training programme[20].

    What is known about recovery from industrial disaster surprises suggests that the process is disjointed, conflict ridden, long lasting and highly uncertain. Such characteristics are difficult to reconcile with the image of disaster recovery that is projected by existing research models and the professional literature. These sources tend to assume that recovery involves continuity of effort, a minimum level of agreement about community goals, and the attainment of identifiable short-term objectives on the way to a definite endpoint when recovery is completed i.e usually within the lifetimes of victims.

    The gap between the hopeful expectations of this model and reality is wide.[21] India has a played the most significant role in the promotion of the cause of human right with the attainment of Independence, A declaration of rights is the most elaborate in the world . It is known to be the greatest champion of human rights in the third world countries. Article 21 of the constitution guarantees a fundamental right of life, a life of dignity to be lived in a proper environment, free of danger of disease and infection.[22]

    In a world where global warming and climate change are becoming matters of daily concern in the life of a human being, the major environment hazards faced by the human being is because of industrial development. The problem has arisen that on one hand industries are essential for progress and on the other hand how to preserve the environment.[23]

    To curtail this situation, the Government should not be wholly responsible for giving grants and preservation of environment. On the contrary, the whole and sole responsibility should be given to such corporate itself. The principle of absolute liability should be applied. This rule was formulated in the case of M.C. Mehta v Union of India (1987), wherein the Supreme Court termed it as ‘Absolute Liability. This rule was also followed in the case of Indian Council for Enviro-Legal Action v Union of India (1996). Section 92A of the Motor Vehicles Act, 1938 also recognises this concept of ‘liability without fault which should be applied in such industrial disaster cases where industries should be liable for the compensation but by just giving compensation to the public would not solve the whole problem the second major issue is environment which is a global Issue. The best way to overcome this issue is Cleaner production[24] which can be achieved through Basel Convention on the of trans-boundary Movements of Hazardous Wastes and their disposal., as elaborated in Kyoto Protocol in the UN Framework convention on Climate change[25], Stockholm convention on persistent Organic Pollutants.

    But if we see practically, do we really need treaties and convention , as we know U.S is the most powerful country which can handle carbon emission and so developing countries like India have to be relied on U.S. The main issue lies that there are laws made such as , disaster management laws, environmental laws, human rights laws but there is no implementation of such laws. Therefore, we came to a conclusion that the basic developmental modal which India is adopting needs a sea change.

    Today, the whole and sole objective of India is to become a developed country from where various heavy industries, foreign investments etc. are taking place. But such heavy industries not only creates pollution but also hampers environment and public at large, and therefore State tries to shift such industries to some other place with the objective that citizens can get a healthy environment. On the other hand this results into, poor people becomes jobless and homeless. Finally, poor is becoming poorer and rich is becoming richer. Industrial disaster is not just a disaster for a time being, it is slowly and gradually killing people day by day in the form of children born as handicap, women suffering from various health hazards etc. Thus, these disasters is taking place to a major disaster.

    The policy of consummation should not be adopted. On the other hand, Gandhijis policy to have maximum use of minimum resources should be adopted, at-least till the individual is not satisfied with the basic needs. Secondly, enchanting policy of tribals can also be adopted, which considers nature as a part of their family members home and not just merely objects which you can disregard. The developed countries have been able to reduce the risk of disaster by huge investment on mitigation, preparedness and risk transfers mechanism such as insurance etc[26]. West Virginia as an example of the companys discriminatory imposition of double standards of risk, safety and emergency preparedness.

    The Institute plant, they argue, was designed with significantly higher parameters for safety and emergency-preparedness: e.g., computerized warning systems, larger capacity safety devices, and safer processes for storage and containment of methyl isocyanate. For the past two decades, Carbide has insisted that standards of design, technology, safety and emergency-preparedness were either uniform or at least comparable at all of its worldwide operations, including at Bhopal. To date, Union Carbide continues to withhold scientific and medical research on the toxicology of the leaked gases which could assist in the treatment of innumerable victims on the specious grounds that this information constitutes a “trade secret.”

    “An industrial disaster can involve a complexity of violations of civil, political, economic and social rights for generation after generation”

    Surendra Kumar panchali(2006).The Impact of environmental laws on Industry, New Delhi:Aditya books pvt. Ltd
    Singh Sehgal B.P(1995) Human Righta in India (problems and perspectives), New Delhi: Deep and Deep Publications pvt. ltd
    Centre for Environmental Education, Research and Advocacy (1998) Convention on the transboundary effects of industrial accidents. 1992, National law school of Indian university Banglore
    Lakshmanan A.R(2003), International Environmental law, Hyderabad: Asia law House
    Chronology of i ndustrial disaster r
    EarthBase “The Bhopal Disaster” WWW URL: (May 15, 1998)
    Peterson M.J. "Case study: Bhopal Plant Disaster".

    [1] Mitchell, James, The Long Road To Recovery: Community Responses To Industrial Disaster
    [2] Centre for Environmental Education, Research and Advocacy (1998) Convention on the trans-boundary effects of industrial accidents. 1992, National law school of Indian university Bangalore.
    [3] Universal declaration of human rights
    [4] Kapoor V.K ,Environment Laws and Human Rights; B.Sc. L.L.M (Agh). F.I.S.C., Reader in law, faculty of law, University of Jammu, Jammu.
    [5] Justice V.R. Krishna Iyer, Enviornmental pollution and the law (1984),
    [6] Emphasis added
    [7] Health and environment, CSE Draft Dossier Preparedness and response to chemical emergencies, India Country Report (for World Health Organisation), June 1996.
    [8] h David Dembo “The Meaning of Bhopal
    Reframing the Worlds Worst Industrial Disaster After 20 Years 18 November.2009“ttp://
    [9] ibid
    [10] Health and environment, CSE Draft Dossier Preparedness and response to chemical emergencies, India Country Report (for World Health Organisation), June 1996.
    [11] Bhopal Memorial Hospital closed indefinitely The Hindu 4.7.2005.
    [12] Surendra kumar panchali(2006).The Impact of environmental laws on Industry, New Delhi:Aditya books pvt. Ltd
    [13] Singh Sehgal B.P(1995) Human Righta in India (problems and perspectives), New Delhi: Deep and Deep Publications pvt. ltd
    [14] 47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.—The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
    [15] 48. Organisation of agriculture and animal husbandry.—The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle
    [16] 49. Protection of monuments and places and objects of national importance.—It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.
    [17] Pandey, J.N(1993), The Constitutional law of India, Allahbad: Central law Agency
    [18] 51. Promotion of international peace and security.—The State shall endeavour to—(c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another;
    [19] 21. Protection of life and personal liberty.—No person shall be deprived of his life or personal liberty except according to procedure established by law.
    [20] InWEnt – Internationale Weiterbildung undEntwicklungg Gmbh, “A network against industrial disasters Environmental planning and environmental risk management in India”
    [22] Lal Ajeet,Right to live in Healthy Enviornment vis--vis Human Excretion, M.A . L.L.M., Research Scholar, Faculty of law , Jammu university, jammu;Human rights in India (problem and perspectives)
    [23] Pauchari Surendra Kumar(2006), The Impact of Environmental laws on Industry, New Delhi:Aditya books pvt. Ltd
    [24] it is a strategy for the practical application of the precautionary approach, is of key importance for the implementation of international agreements.
    [25] Sets out the goals of reducing emission of greenhouse gases that, without compromising economic or social needs, can be only achieved via Cleaner Production based “win-win” strategies.
    [26] Tidings “Financing Disaster Management.” NIDM News letter, VOL III, July-September 2008,

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