Industrial disasters: Is India better prepared than it was in 1984?
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New Delhi: In 1984, the Bhopal gas tragedy shook the nation. The scale of it was numbing—more than 3,500 people died and 500,000 were injured in the immediate aftermath of the leak of methyl isocyanate gas from Union Carbide India Ltd’s pesticide factory. Generations have been left maimed.
What followed, however, was the realization that if industrial development was unregulated and reckless—without adequate safeguards—the consequences could be far-reaching. Alongside, the demand grew for accountability of industries that engage in potentially hazardous activities.
Thirty years on, it is pertinent to ask: Is India any better prepared today to deal with a similar tragedy? The question acquires greater urgency amid a robust move by the government to promote manufacturing by foreign companies in India.
Bhopal prompted a massive change in the legislative framework of disaster management and a number of laws were passed in its aftermath. The judiciary began taking an active role in environmental protection. Nearly exactly a year to the Bhopal gas tragedy—on 4 and 6 December 1985—the judiciary evolved what came to be called the Doctrine of Absolute Responsibility in a case of oleum gas leak from a Delhi Cloths Mill factory owned by Shriram Foods and Fertiliser Industries in Delhi.
To what extent are these laws relevant today? Have they been effectively used? Or is there a need for a more comprehensive law?
According to the website of the National Disaster Management Authority (NDMA), 130 chemical accidents had been reported around the country in the decade to October 2013, causing 259 deaths and 563 serious injuries.
Since 1984, there have been several other industrial accidents, including a chlorine gas leak at Jamshedpur (2008), a fire at an Oil and Natural Gas Corporation Ltd (ONGC) platform at Bombay High (2005), a toluene fire at a Ranbaxy Laboratories Ltd factory in Mohali (2003) and a chlorine gas leak in Vadodara (2002) that affected 250 people.
In some cases, chemical accidents resulted from natural disasters—ammonia gas leaked at Oswal Chemicals and Fertilisers Ltd at Paradip, Odisha, in 1999 during a supercyclone, and an earthquake damaged a phosphoric acid sludge containment at Bhuj, Gujarat, in 2001.
Clearly, India can boast of more than enough laws to tackle a chemical disaster. However, the effectiveness of these laws needs to be assessed.
One important change that followed Bhopal and the oleum gas leak case came in 1987, when the Factories Act, 1948, was amended to extend the scope of risk from such industries. What used to be a narrowly defined scope covering only workers and the premises of the factory was extended to the general public in the vicinity of the factory. The changes also provided for appraisal when hazardous industries were being set up or expanded.
Lawyer Anil Divan, who appeared for Union Carbide before the Supreme Court in the Bhopal case, said: “Once government allows setting up a factory manufacturing hazardous substances or is otherwise hazardous, if an accident occurs, it is essential for government to ensure an adequate buffer zone and not permit people to stay around in that zone or allow any business shops or constructions therein. Sufficient space must be kept in the buffer zone so that if something goes wrong or an accident occurs, the people are not affected. That is one lesson which must be implemented and vigorously enforced to avoid loss of life and injury.”
On 20 December 1986, in a public interest litigation filed by environmental lawyer M.C. Mehta, a five-judge bench of the apex court defined “absolute liability”.
“We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken,” the judgement said.
It noted that compensation needs to have a “deterrent effect” and must be reflect the “magnitude and capacity of the enterprise”. The larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it, the court said.
According to legal expert Usha Ramanathan, who has written extensively about the Bhopal disaster, “When you look at the Factories Act, Chapter IV A got added after Bhopal, there are a few things that are particularly significant. One is the question of siting—that is, how you locate an industry. Where there are large populations and the industry that actually exists, we do not seem to know what to do with it. Except in Delhi where they outlawed all such industries, courts have found siting to be a complicated exercise. But at least we are aware of (the issue of) siting.”
“The second is about the disaster management plan. It is a complete disaster. They are supposed to have disaster management plans that local authorities—which include hospitals, fire stations and the like—will know and are supposed to communicate to the local people what they are supposed to do in the event of a disaster. These plans are also supposed to be updated regularly. Many companies have disaster management plans for themselves, but what we learnt from Bhopal was the importance of communication on disaster to the local population. This has still not happened and people live in the vicinity of disaster and have no idea what a disaster is, what is likely to happen and what they are supposed to do in the event that it happens. People continue to live treating a hazardous industry as just another risk,” Ramanathan added.
The Environment (Protection) Act, 1986, also has provisions for management of hazardous waste, but the rules were last amended in 2010. In the aftermath of the Bhopal disaster, the environment ministry came up with the Manufacture, Storage and Import of Hazardous Substances Rules, 1989, which detail and catalogue chemicals deemed “hazardous” entering the country, the port of entry and the quantity imported.
In addition, the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008, provide for means of safe storage and disposal of “hazardous waste” (which is listed in its schedules) with the help of central and state pollution control boards. These rules also fix responsibility on those who have control over a facility dealing with such hazardous substances, and those who import, handle or transport such waste, making them “liable for all damages caused to the environment or third party” as well as payment of “financial penalties”.
In addition, there is the Chemical Accidents (Emergency Planning, Preparedness, and Response) Rules, 1996, which address gas leaks and similar events. The Chemical Accidents Rules seem to have been framed for the exact purpose of monitoring plants or industries like the Union Carbide plant in Bhopal. It sets up a Central Crisis Committee with the secretary of the environment ministry as chairman and twenty other members “to deal with major chemical accidents and to provide expert guidance for handling major chemical accidents”. It has provisions for state-, district- and even local-level crisis groups.
These rules define both “chemical accident” and a “major chemical accident”. They define a chemical accident as “an accident involving a fortuitous or sudden or unintended occurrence while handling any hazardous chemicals resulting in continuous, intermittent or repeated exposure to death, or injury to, any person or damage to any property but does not include an accident by reason only of war or radio-activity”. Major chemical accidents are those which occur from “uncontrolled developments in the course of industrial activity or transportation or due to natural events” and extend to “adverse effects” on the environment. The Bhopal gas leak disaster would thus be a “major chemical accident”.
The central crisis group is required to constantly monitor post-accident situations, conduct analyses of these accidents and suggest preventive steps to avoid recurrence. Apart from being generic and to some extent vague, the rules don’t provide for any accountability or deterrence against the industries actually involved in these processes.
Next in India’s response was the Public Liability Insurance Act in 1991, which was supposed to provide for immediate and interim relief to disaster victims till their claims of compensation were finally decided. A cursory look at the provisions of this law shows that the amount of compensation is abysmally low and that it fails to provide for something basic such as inflation indexation. Owners of industries dealing in hazardous substances are required to take out insurance policies under this Act. While on the one hand it requires the insurance policy to not be less than the paid-up share capital of the company, on the other, it imposes a cap of Rs.50 crore on the policy. The provisions of the Act could seem dated in the present-day scenario. In a system where it takes years for such claims to be decided, the compensation under this law is completely inadequate.
“Under this law, the hazardous industries were supposed to take out insurance within one year. At the end of one year, they found that nobody had taken insurance because the insurance companies were unwilling to insure them. They argued that if we have unlimited liability, even if the figures are meagre, in terms of the quantum that has to be given, if there is another Bhopal, they would be wiped out since the number of people to be compensated would be too large. So they asked for a ceiling on how much they have to pay,” says Ramanathan.
An attempt was then made to set up a National Environment Tribunal in 1995 to deal with a Bhopal-like disaster, but it was never enforced. The idea was that the Public Liability Insurance Act would provide interim relief and that the tribunal would determine the final compensation. This responsibility now rests with the National Green Tribunal (NGT), which was set up by an Act of Parliament in 2010. The Act also provides for the “principle of no fault liability”, which means that the company can be held liable even if it had done everything in its power to prevent the accident. The compensation that is ordered to be paid by the NGT is credited to the Environmental Relief Fund scheme, 2008, established under Public Liability Insurance Act of 1991.
In 2013, the NGT fined the Gujarat Pollution Control Board and cement company Ambuja Cements Ltd in a case involving leakage of toxic gases that damaged agricultural fields. While the Gujarat Pollution Control Board was fined Rs.1 lakh, the company was fined Rs.5 lakh. From the facts of the case, it is clear that the compensation was decided between the affected farmers and the company, and that the NGT did not determine the amount.
The NDMA had, in 2007, published a 98-page guideline on chemical disasters. The guidelines were intended to be a “proactive, participatory, well-structured, fail-safe,multi-disciplinary and multi-sectoral approach” to tackle chemical disasters. Through the seven chapters, various aspects including existing gaps in the management of chemical accidents, regulatory framework, preparedness, transportation of hazardous chemicals have been discussed.
“Disasters like Bhopal are very few in number in the history of humanity. What you have every year is a small Bhopal which doesn’t stick in people’s consciousness. The kind of disaster management that should have taken place has not happened,” said Chandra Bhushan, deputy director general of the Centre for Science and Environment . “Bhopal is not just about the leak of a lethal gas, it is also about contamination of the environment. The disposal of toxic waste dumped by the factory has still not happened. Bhopal is also a reminder that the capacity of the institutions in this country to resolve conflict was and remains poor. That is why there is still a feeling that the guilty were never held accountable.”
Environmental lawyer M.C. Mehta said: “I don’t think we have learnt much from the Bhopal disaster so far. Most of the laws are still on paper and their enforcement is poor. What Bhopal and the many accidents that have followed it show us is that we only talk, but the affected persons are not given compensation and no liability is fixed on erring companies. Now the Prime Minister of India is talking about ‘Make in India’ and the government wants to give fast-track clearances without looking at their impact on the environment. If we can give fast-track clearances, why can’t we set up fast-track courts to deal with claims arising out of such accidents?”
With the experience of Bhopal serving as a sobering of the poor implementation of the nation’s abundant legislation, experts are wary about India’s planned move to embrace nuclear energy.
The Civil Liability for Nuclear Damage Act, 2010, is the most recent law that has provision for compensation of more than Rs.100 crore, which could reach up to Rs.1,500 crore, depending on severity. It also comes with a cap of three million special drawing rights (SDR), an international reserve asset that countries can use to supplement their official reserves. The constitutional validity of this Act has been challenged in the Supreme Court and the case is pending.
“The atomic power plants which have completed their lifespan of 30-40 years have still not been decommissioned since there is no proper mechanism for that. Even the Nuclear Liability Act is inadequate to deal with such disasters,” said environmental lawyer Mehta.
“In Kudankulam (nuclear power plant in Tamil Nadu), if you ask around, you will find that there has been no safety drill at all. There is no learning from the past,” Ramanathan added.