Has the Judiciary Abandoned the Environment? EDITOR Vipin Mathew Benjamin 2010 Human Rights Law Network Vision To protect fundamental human rights, increase access to basic resources for the marginalised communities, and eliminate discrimination. To create a justice delivery system that is accessible, accountable, transparent, effi cient and affordable, and works for the underprivileged. Raise the level of pro bono legal expertise for the poor to make the work uniformly competent as well as compassionate. Professionally train a new generation of public interest lawyers and paralegals who are comfortable in the world of law as well as in social movements, and who learn from social movements to refi ne legal concepts and strategies. Has the Judiciary Abandoned the Environment? November 2010 © Socio Legal Information Centre* ISBN: 81-89479-67-9 Editor: Vipin Mathew Benjamin Coordinating editor: Suresh Nautiyal Text editor: Ashima Kanwar Photographs: Harsh Dobhal and others Cover: Mahendra S Bora Layout: Birendra K Gupta Printer: Print Graphics, Ramesh Market, New Delhi-110065 Publisher: Human Rights Law Network (HRLN) (A division of Socio Legal Information Centre) 576, Masjid Road, Jangpura New Delhi – 110014, India Ph: +91-11-24379855/56 E-mail: [email protected] Supported by: European Union Disclaimer The views and opinions expressed in this publication are not necessarily views of the HRLN. Every effort has been made to avoid errors, omissions, and inaccuracies. However, for inadvertent errors or discrepancies that may remain nonetheless, the HRLN takes the sole responsibility. * Any section of this volume may be reproduced without prior permission of the Human Rights Law Network for public interest purposes with appropriate acknowledgement. Contents Acknowledgements vii Foreword ix Introduction xi ONE HAS THE JUDICIARY ABANDONED THE ENVIRONMENT? Has the Judiciary Abandoned the Environment? 3 Building the Commonwealth Games Village 39 on the Yamuna River Floodplain Colin Gonsalves TWO OPINIONS The Supreme Court and Hazardous Waste 47 Claude Alvares Environmental Law: A Critical Appraisal 49 Sanjay Parikh Setting a Precedent for Traffi cking Hazardous Waste 57 Gopal Krishna Status of “Networking of Rivers”: A Case Study 65 Gopal Krishna Environment Crimes and Compensation: The Bhopal Gas Litigation 83 V. Venkatesan Justice for Nature 87 Vikram Soni and Sanjay Parikh Has the Judiciary abandoned the environment? Environment Crimes and Compensation: Are We Concerned About 91 the Survival of the System or Human Beings? Rohit Prajapati Vedanta Case 111 Margreet Wewerinke Coastal Regulation in India – A Saga of Betrayal 115 Ranjan Solomon The Concept of ‘Sustainable Development’ 123 Margreet Wewerinke THREE DELIBERATIONS: NATIONAL CONSULTATION CRITIQUING THE CURRENT JUDICIAL TRENDS ON ENVIRONMENT LAW, FEBRUARY 23-24, 2008 Colin Gonsalves 141, 230, 233 Justice Kuldip Singh 143 R. Venkatramani 147, 168, 171 Sanjay Parikh 150, 169, 200, 204, 208, 213, 218, 233 PB Sahasranaman 157, 213 Prafulla Samantara 158 Ramesh Gauns 160 Claude Alvares 162, 197, 205 Ritwick Dutta 164, 172, 183, 209 Vikram Soni 169, 196 Bhushan Oza 170 Praveen Sabnis 170, 171, 224, 234 Madhu Sarin 176 Shankar Gopalakrishnan 178 Sanjay Upadhyay 181 Kanchi Kohli 184 Ramaswamy Iyer 185 T. Shankar 186 iv Contents Rakesh Shukla 188 PA Pouran 191, 215 Justice JS Verma 198, 201 Gopal Krishna 202, 212, 232 Vivek Bhide 208 NS Kuttiapan 209, 215 T. Mohan 210, 211, 215 V. Venkatesan 216, 221 Rohit Prajapati 218 Mahesh Pandya 220 Ranjan Solomon 222, 234 Praful Bidwai 222 Medha Patkar 227, 232, 236 Raju Mimi 231 Commodore Sinha 234 Prof. Desarda, Aurangabad 234 Simpreet Singh 235 Bharat Jairaj 236 FOUR CASES AND TESTIMONIES OF THE VICTIMS Bhopal Gas Case 241 The History of Litigation in the Bhopal Gas Leak Case 241 The Bhopal Conspiracy 251 Colin Gonsalves Bhopal Gas case 267 The Supreme Court Case on Medical Effects of the Bhopal Gas Disaster 269 Margreet Wewerinke Testimonies of the Victims Abdul Jabbar 272 Ahmad Ali 274 Farha Tabassum 275 v Has the Judiciary abandoned the environment? Bombay Dyeing Case 277 Datta Iswalkar 277 Khader Bi 280 Mumtaz Ahemad 280 Neera Adarkar 281 Rajan Dalvi 283 Vasil Ali Shaiekh 285 Ridge Case 287 Narainee 287 Prakash Kumar 288 Murpal 289 Yamuna River Case 291 Manoj Mishra 291 Nazima 293 Ali Ahmed 294 Vikram Soni 296 Abbreviations 299 Glossary 303 vi Acknowledgements e would like to thank all the contributors for their active role in making this volume Wpossible. The volume is the direct result of the National Consultation Critiquing the Current Judicial Trends on Environment Law in Delhi in February 2008 and would not have been possible without every individual and organisation that participated at the Consultation. Many speakers’ presentations at the Consultation could not be included in the volume but have greatly infl uenced its conceptualisation and organisation. During the preparation for the Consultation, many volunteers, apart from the HRLN staff, offered their valuable time which was critical to the success of the event. We would like to appreciate and thank former Justice of the Supreme Court of India Mr. Kuldip Singh for inaugurating and chairing the Consultation on February 23, 2008 and former Chief Justice of India Mr. JS Verma for chairing the Consultation on February 24, 2008 and for their valuable contribution to the Consultation. In terms of the current volume, we would like to express our gratitude for the contribution and advice of each author and speaker. Each provided much needed focus and breadth on various aspects of environmental regime which contributed towards this publication. We would like to especially thank Sanjay Parikh and T. Mohan for their guidance and assistance for the Consultation. We would also like to acknowledge the assistance of Victoria Ho and others who helped signifi cantly with text editing sections of this book. We are also grateful to Roselle Solomon, Paromita Mukherjee and Srinjoy Ghosh for the logistics and organising the meeting; the students of NUJS Kolkata for transcription of the speeches; Suresh Nautiyal, Ashima Kanwar, Neha Bhatnagar and Parul who provided editorial support; Birendra K. Gupta and Mahendra S. Bora for their creative assistance. We thank Margreet Wewerinke for her valuable contributions to various sections of this book. This book would not have been possible without the fi nancial and administrative support of the Human Rights Law Network (HRLN). Finally, we would like to thank Colin Gonsalves, Deepika D’Souza and Harsh Dobhal for their constant support and guidance from the conception Has the Judiciary abandoned the environment? of the meeting to the fi nality of the book. Without them, this book would have remained an insurmountable challenge. We are thankful to the speakers and organisations for their participation in the meeting: Alternative Law Forum, Alternatives, Arunachal Citizen’s Rights, Atree, Bharath Jairaj, Bhushan Oza, Claude Alvares, Commodore Sinha, Consumer Action Group, Equations, Enviro Legal Defence, Fishermen’s Youth Welfare Association, Goa Foundation, Gopal Krishna, Himanshu Thakkar, HRLN, Kanchi Kohli, Kalpavriksh, Madhu Sarin, Mahesh Pandya, Medha Patkar, Narmada Bachao Andolan, National Alliance of People’s Movements, NS Kuttiapan, PA Pouran, PB Sahasranaman, Plachimada Solidarity Committee, Praful Bidwai, Prafulla Samantara, Praveen Sabnis, Ritwick Dutta, Raju Mimi, Rakesh Shukla, Ramaswamy Iyer, Ramesh Gauns, Ranjan Solomon, Ravi Agarwal, Rohit Prajapati, R. Venkatramani, Sanjay Upadhyay, Sanjay Parikh, Shankar Gopalkrishnan, Siddhartha Narayan, Simpreeth Singh, South Asian Network on Dams, Rivers and People (SANDRP), T. Mohan, T. Shankar, V. Venkatesan, Vikram Soni, Vivek Bhide and Zilla Jagrut Manch. — Vipin Mathew Benjamin viii Foreword nvironmental Law in recent years has emerged as an important discipline of law. EParliament by enactment of laws addressed environmental issues and Supreme Court of India, with its sensitivity and creativity in applying such laws, contributed to the evolution of environmental jurisprudence. The emergence of environmental jurisprudence was witnessed in Rural Litigation and Entitlement Kendra Versus State of UP, which dealt with issues relating to environment and ecological balance. The Supreme Court has used the right to life as a basis to combat environmental violations. It has directed the closure or relocation of industries and ordered that evacuated land be used for the needs of the community. The courts have taken a serious view of unscientifi c and uncontrolled quarrying and mining, issued orders for the maintenance of ecology around coastal areas, shifting of hazardous and heavy industries, protecting forests and water bodies and in restraining tanneries from discharging effl uents. Such were the efforts taken for the protection of the ecology by the courts in India. Matters involving the degradation of the environment have often come to the courts in the form of petitions fi led in the public interest. This mode of litigation has gained momentum due to the lenient view adopted by the courts towards concepts such as locus standi and the ‘proof of injury’ approach of common law, which has facilitated the espousal of the claims of those who would have otherwise gone unrepresented. The Supreme Court incorporated the doctrine of precautionary principle, polluter pays principle and principle of intergenerational and intragenerational equity. Another application is the public trust doctrine to protect and preserve