Hazardous Substances in India and the World: Legislations, Frameworks and Management 9781138366596, 9780367765859, 9781003167648

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HAZARDOUS SUBSTANCES IN INDIA AND THE WORLD LEGISLATIONS, FRAMEWORKS AND MANAGEMENT T. R. Subramanya

HAZARDOUS SUBSTANCES IN INDIA AND THE WORLD

This book examines the nature of hazardous substances and the law governing them, including international conventions, relevant directives and Indian legislation from the pre-independence period to the present. It focuses on legislations passed in the area of hazardous substances, highlighting the background relevant to the continued growth of international environmental law across the globe. It reviews existing strategies available in developing countries and the lack of a systematic approach in administering hazardous substances management programs. The author unfolds the dynamics of hazardous substances, the trade of such substances, transboundary movements and their restrictions through rigorous analyses and evaluation of cases. The book explores the question of liability in hazardous substance litigation, offers an understanding of several judicial decisions in the context, and suggests measures to control and manage the problem of hazardous substances. Authoritative, lucid and comprehensive, this book will be useful to students, researchers and policymakers working on environment, law, international environmental law and development studies, as well as to legal professionals, judicial offcers and NGOs. T. R. Subramanya is Dean of the School of Legal Studies, CMR University, Bengaluru, India. He was previously Vice-Chancellor of Karnataka State Law University, Hubballi; Vice-Chancellor (in-charge) of Bangalore University; Dean and Chairman of the Faculty of Law, Bangalore University and Registrar (Evaluation) and Registrar (in-charge) of Administration at Bangalore University. He served as Coordinator and Research Fellow at the Centre for Regulatory Studies, Governance and Public Policy at the WB National University of Juridical Sciences, Kolkata. He was a Legal Counsellor in the Ministry of Cabinet Affairs, Government of the Kingdom of Bahrain. An international law scholar, he has over three decades of teaching experience. He completed his LLM at Mysore University, and M.Phil. and Ph.D. in International Law from the School of International Studies, Jawaharlal Nehru University, New Delhi. He is the recipient of a Dr. Rajkumar State Award for his outstanding service in the feld of education. He was nominated as an Honorary Member of Karnataka State Law Commission, and a member of several academic and statutory bodies. He is visiting faculty at various national law schools in India and private universities, including Symbiosis Law School. He has published two books and many journal articles. Apart from international law, he works on environmental law, trade law and jurisprudence and has interests in philosophy, literature and public affairs.

HAZARDOUS SUBSTANCES IN INDIA AND THE WORLD Legislations, Frameworks and Management

T. R. Subramanya

First published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 T. R. Subramanya The right of T. R. Subramanya to be identifed as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. Disclaimer: The views and opinions expressed in this book are solely those of the author and do not necessarily refect those of the publisher. The analyses, data and fgures based on research material are intended here to serve general educational and informational purposes and not obligatory upon any party. The author has made every effort to ensure that the information presented in the book was correct at the time of press, but the author and the publisher do not assume and hereby disclaim any liability with respect to the accuracy, completeness, reliability, suitability, selection and inclusion of the contents of this book and any implied warranties or guarantees. The author and publisher make no representations or warranties of any kind to any person, product or entity for any loss, including, but not limited to special, incidental or consequential damage, or disruption alleged to have been caused, directly or indirectly, by omissions or any other related cause. Perceived copyright omissions if brought to notice will be rectifed in future printing. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identifcation and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-1-138-36659-6 (hbk) ISBN: 978-0-367-76585-9 (pbk) ISBN: 978-1-003-16764-8 (ebk) Typeset in Sabon by Deanta Global Publishing Services, Chennai, India

DEDICATED TO MY PARENTS

CONTENTS

viii ix xii xv xvii

List of illustrations List of cases Foreword Preface List of abbreviations Introduction 1

2

3

4

5

6

7

1

An overview of the nature, kinds, effects and global trade in hazardous substances

9

Global management of hazardous substances in foods, pesticides, pharmaceuticals and wastes: the emerging new international legal order

51

Regional management of hazardous substances: the case of EEC, OECD and OAU

94

Evolution of legal mechanisms for national management of hazardous substances: the Indian experience

120

An overview of the law governing hazardous substances in the post-Bhopal era

174

The “principle of liability” in hazardous substance litigation: An overview of the prevailing rules under municipal and international systems

229

Conclusion

270

Bibliography Index

285 302 vii

LIST OF ILLUSTRATIONS

Figures 1.1 1.2 1.3

Chemical sales by top ten country (chemical sales 2016) (Euro billion) Major global companies Leading global agrochemical companies based on sales in 2014

28 30 40

Tables 1.1 1.2 1.3 1.4 1.5 1.6

Chemical production predicted growth, 2012–2020 Changes of pesticide consumption worldwide Country-level agricultural pesticide use (1990 to latest data: 2007–2012) Top ten global pharmaceutical companies by revenue between 2010 and 2013 Impact of recombinant DNA technology on world sales of selected products Exporting countries and targeted developing countries for waste trade schemes

viii

29 36 38 42 46 49

LIST OF CASES

Additional Secretary Offcer in-charge of The Case Executive Engineer M P Poorv Kshetra Vidhyut Vitr v Siyaram Yadav 2014 SCC Online MP 1438 Aditya N Prasad v Union of India & Ors. M. A No. 706 of 2013 Barcelona Traction Light and Power Co. (Belgium v Spain) ICJ Reports (1970) Bhopal Gas Leak Case Borel v Fibre Board Paper Products Corp. 493 F.2d 1076, 1086 (5 Cir. 1973), Cert, denied, 419 US 869 (1974); 493 F.2d 1076 (5th cir. 1973) B Venkatappa v B Lovis AIR 1986 (AP) p. 239 Charan Lal Sahu v Union of India 1989 SC 582–586 City of Philadelphia v Stephen Chem Co. 544 F. Supp. 1135 (E. D. Pa 1982) Consumer Education and Research Centre v Shri Louise Slimming Centre Pvt. Ltd. UTP Enq. No. 23 of 1986 Corfu Channel Case, ICJ Reports, 1949, p.18 Cosmos 954 Case Curry Coal v Aroni 1 Envet Rep. CAS (BNA, 1970) Delhi Pollution case, order passed on 9 November 2017, National Green Tribunal, Delhi. DG (I&R) v Ravi Foundation UTP Enq. No. 93 of 1986 DG (I&R) v Bharqav Clinic UTP Enq. No.1 of 1987 DG (I&R) v Borroughs Welcome (India) Ltd, UTP Enq. No. 55 of 1986 Dow Chemical v Castro Alfaro 786 S.W. 2d 674 (Tex 1990) Ewell v Petro Processors of Louisiana Inc. 364 So. 2d 604 (La Ct. App. 1978) Fukuryu Maru incident Gulf Oil Corp v Gilbert 330 US 501, 507 (1947) Hamdard Dawakhana v Union of India AIR 1960 SC. p. 503 Indian Council for Enviro-Legal Action v Union of India 1996 (3) SCC 212 International Shoe Co v Washington 326 US 310 (1945) ix

LIST OF CASES

K L Chaturvedi v State of Madhva Pradesh AIR 1960 MP 389 Lake Lanoux Arbitration, 1957, International Arbitration Awards 281 Mankunwar v Chairman & Anr. MANU/MP/0401/2010 M C Mehta v Union of India, order dated 13 July 2017, National Green Tribunal, Delhi M C Mehta v Union of India AIR 1988 (SC) 1037 M C Mehta v Union of India AIR 1987 SC 1086 M.P. State Electricity Board and Anr v Collector and Ors. AIR 2003 MP 156 M/S DSM Sugar Distillery Division v Shailesh Singh, order passed on 10 December 2015, National Green Tribunal, New Delhi M/S Nestle India v Food and Safety Standards MANU/1937/2015 M/S Ashok Vihar Mitra Mandel v The Govt. of NCT of Delhi & Others, order passed on 22 September 2016 National Green Tribunal, New Delhi N D Jayal v Union of India (2004) 9 s.c.c 362 Nellikka Achuthan v Deshabhimani and Publishing House Ltd. AIR 1966 Kerala 47 Ohio v Wyandotte Chemicals Corp. (401 US 493 1971) PepsiCo India Holdings v Sudesh Sharma order passed on 6 January 2009, State Disputes Redressal Commission, Delhi Piper Aircraft Co v Reyno 454 US 235 (1981) 455 US 928 (1982) Rahim and Another v Collector and Others 2008 SCC Online All 1172 Ratlam Municipality v Vardhichand AIR 1980 (SC), p. 1629 Rylands v Fletcher 159 Eng. Rep. 737 (Ex. 1865) revd ILR. 265 (Ex. ch.1866), aff’d, 31 LR-E&I APP 330, 332 (H. L. 1868) Sachidanand Pandey v State of West Bengal AIR 1987 SC 1109, 1114–1115 Shriram Gas Leak Case Smt. Sunita Tiwari v State of UP and Ors. MANU/UP/2631/2010 State of Georgia v Tenessee Copper Co. (206 US p. 230) Subhash Kumar v State of Bihar and Others 1991 SC 77–82 Trail Smelter Arbitration Case (1939) 33 AJIL182 and (1941) 55 AJIL 684 Union Carbide Corporation v Union of India (Civil Appeal Nos. 3187 & 3188 of 1988) with special leave petition (Civil) No. 13080 of 1988 UP Power Corporation Ltd & Anr. v Kaleemullah & Ors. (2010) 4 All LJ 11 UP State Electricity Board and Anr v District Magistrate, Dehradun and Ors. AIR 1998 All 1 Village of Wilson Ville v SCA Services Inc., 86. 1112 d 1.426 NE. 2d 824 (1981)

x

LIST OF CASES

Wells v Ortho Pharmaceutical Corp 615 F. Supp. 262 (N.D. Ga. 1985) aff’d 788 F. 2d 741 (11 cir), Cert, denied, 107 S.ct. 437 (1986) White v PepsiCo 866 F.2d 1325 (11 Cir, 1989) Zaffar Mohammad v State of Bengal AIR 1976 SCP 272

xi

FOREWORD

Rachel Carson, perhaps the mother of modern environmentalism, famously remarked, It is a curious situation that the sea, from which life frst arose should now be threatened by the activities of one form of that life. But the sea, though changed in a sinister way, will continue to exist; the threat is rather to life itself. Homo sapiens were supposed to be just one other life form. But, through their activities, they have brought about a tectonic shift in geological realities. It is ironic that today we are talking about saving the Earth. We must be aware of the fact that the Earth has continued to survive even after fve extinctions of other life forms. It may do so, if we don’t mend our ways, even after a sixth extinction. So, it is high time: let us stop posing that we are trying to save Earth. The real issue is of saving us and other life forms. It gives me immense satisfaction to write the foreword of the book Hazardous Substances in India and the World: Legislations, Frameworks and Management. This book is a timely contribution to the debate surrounding the existential discourse of human civilization. Post-industrial revolution, the intensity of the release of hazardous substances to the Earth’s ecosystem has increased meteorically. It has disturbed the natural balance to the extent that the self-healing mechanisms of the environment are proving to be ineffective. At the same time, the world is today perhaps more aware of the travesties and also more capable of addressing them. The contemporary times are best captured by the statement of Charles Dickens, It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of light, it was the

xii

FOREWORD

season of darkness, it was the spring of hope, it was the winter of despair... The understandings created by works like the present one allow us to make informed decisions and choose wisely. Globally, the issue of hazardous substances and their effects on humankind and the environment is a burning problem. The growing population, enormous industrial development and scientifc advancements have all led to the rapid deterioration of the environment day by day, not only at the international level but also at the national level. From time to time, international conventions and state legislations have been enacted to regulate and control hazardous substances. The judiciary has played a signifcant role in the protection of the environment; the Supreme Court of India has delivered several landmark judgments. The author has made a comprehensive study of the United Nations (UN) Charter provisions, General Assembly Regulations, the role of the World Health Organization (WHO), the Nuclear Damage Conventions, the Maritime Pollution Conventions, the regional management of hazardous substances, etc. The chapter on the national management of hazardous substances is highly commendable. It explores relevant legislations starting with The Insects and Pests Act (1914), The Poisons Act (1919) and The Dangerous Drugs Act (1930) and covers all pertinent legislations up until The National Green Tribunal Act of 2010. This book demonstrates the liability in hazardous substance litigation, the fxation with liability under American law and the general principle of liability under international law—illustrating the signifcance of the principle sic utere tuo ut alienum non laedas and the responsibility of stakeholders to control it. The book contains a greatly expanded chapter on liability, refecting the growth of legislation in this area of law, the complexity and its relevance in recent times. There has been a quantum of increase in environmental litigation in the area of hazardous substances. The author has substantially analysed several judicial precedents which harmonize the subject matter with clarity and precision. This book is one of a kind, galloping through a vast expanse of problems in the legal control of hazardous substances in both developed and developing countries. The problem of transboundary shipment of hazardous substances is also illustrated with accuracy. After the Bhopal Gas Case in 1984, the Government of India reviewed the practices of hazardous substances and the negative effects of industrial development. The author explains the dynamics of the case followed by the formulation of the Environment (Protection) Act, 1986. He has dealt with the measures taken by the central government to deem it

xiii

FOREWORD

necessary to ensure proper safeguards for handling hazardous substances and wastes. I congratulate Professor Subramanya for putting this book together. I appreciate the manner in which the subject matter has been succinctly addressed, portraying his practical exposure and eminence in international environmental law. I wish the publisher, Routledge, Taylor & Francis Group, all success in bringing this book to the public domain. Justice S. Abdul Nazeer Judge, The Supreme Court of India

xiv

PREFACE

The aim of this book is to provide a convenient reference work on the nature of hazardous substances and the law governing their use in the international as well as the national context. This would be benefcial to students, researchers, and policymakers alike. This book is the outcome of my Ph.D. thesis prepared between 1990 and 1993 under the scholarly guidance of Prof. Rahamatulah Khan, former Dean and Professor of Environmental Law, Jawaharlal Nehru University, New Delhi, India. However, major parts are conceived afresh, and new areas have been added to account for the developments that have taken place in the last three decades. The core of this text focuses on the legislations passed in the area of hazardous substances highlighting the background of the continued growth of international environmental law at the international, as well as national, level. Despite myriad legal developments, the most complex environmental problems facing international law remain understudied with the exception of the Ozone Treaty Regime. An attempt is made here to provide a review of the existing strategies available in developing countries and the lack of a systematic approach to administer hazardous substances management programs. The book, inter alia, brings to light the issues and concerns connected with hazardous substances and the legislations concerned with protecting the degraded natural resources and mankind. The unprecedented growth in science and technology has posed a grave threat to mankind, arising from hazardous chemical waste. The frst chapter introduces the key aspects of different hazardous substances, and looks at the global trade of hazardous substances and their effect on the environment. Chapter 2 discusses international conventions or declarations, treaties and regional regulations to contain and control the gigantic problem of hazardous substances. Chapter 3 highlights the evolution of the regional management of hazardous substances and transboundary movements of hazardous waste. Chapter 4 deals with the evolution of the legal mechanisms involved in the control of hazardous substances from an Indian perspective. Chapter 5 offers an overview of the laws

xv

PREFACE

governing hazardous substances in the post-Bhopal era. Chapter 6 discusses the principle of liability in hazardous substance litigation, incorporates various cases on the subject and gives signifcant pronouncements on the aspect of liability. It presents the prevailing rules under municipal and international systems. Chapter 7 addresses the need for sustainable development in the era of globalization and industrialization. It also shines a light on the inadequacies in the implementation of regulations associated with hazardous substances due to the fragmented responsibilities of stakeholders. As the environmentally sound management of hazardous substances is becoming a major concern in developing countries, due to the diversity of waste and toxic material, this book has made several practical suggestions that can be incorporated to tackle the issue and control the problem of hazardous waste. I owe a deep sense of gratitude to the Hon’ble Justice S. Abdul Nazeer, Judge, Supreme Court of India, who humbly accepted my request to write the foreword to this book. I express my sincere gratitude to Professor Rahamatulah Khan, former Dean and Professor of Environmental Law, School of International Studies, Jawaharlal Nehru University, New Delhi, who inspired me to explore a topic of this nature and for providing scholarly guidance during my Ph.D. I express my gratitude to Shri K. C. Ramamurthy, IPS (Retd.) current Member of Parliament (Rajya Sabha) and Chairman of CMR group of institutions, and Mrs. Sabitha Ramamurthy Chancellor, CMR University, for their continuous support. I am deeply indebted to the technical services rendered by Dr. Shuvro Prosun Sarkar, Ms. Sayantani Bagchi and Ms. Shreyasi Bhattacharya. I also thank Mrs. Ujwala, faculty of SDM Law College, for editing the book at the fnal stage. Next, I thank my wife Ashalatha and son Jayakrishna for their support and cooperation. I am grateful for the institutional support I received from the Jawaharlal Nehru University Library, Indian Law Institute, Law Ministry Library Government of India, Indian Society of International Law, United Nations Information Centre, Library and United Nations Digital Library in the preparation of this book. Finally, I record my sincere gratitude to Routledge, Taylor and Francis Group, for their patience and support during the preparation of this book. Prof. (Dr.) T. R. Subramanya

xvi

LIST OF ABBREVIATIONS

ACP AP B/MO CADE CDSCO CEQ CERC CERCLA CERDS CGP CPSC CRPC DLC DOT DPCO EC ECOSOC ECOWAS ED EHCP EIA EPA FAO FDA FFDCA FIFRA FRG FSSAI FTC GEAC

Africa Caribbean and the Pacifc Countries Andhra Pradesh Bioresearch Monitoring Program Coalition Against Dangerous Exports Central Drugs Standards Control Organization Council on Environmental Quality Consumer Education Research Centre The Comprehensive Environmental Response Compensation and Liability Act. Charter of Economic Rights and Duties of States. Cooperative Global Program Consumer Product Safety Commissioner Criminal Procedure Code District Level Biotechnology Committer Department of Transportation Drugs Prices Control Order European Community The Economic and Social Council Economic Community of West Africa Essential Drugs Environmental Health Criteria Program Environment Impact Assessment Environmental Protection Agency Food and Agriculture Organization Food and Drug Administration Federal Food Drug and Cosmetic Act Federal Insecticide, Fungicide and Rodenticide Act. Federal Republic of Germany Food Standard and Safety Authority of India Federal Trade Commission Genetic Engineering Approval Committee

xvii

LIST OF ABBREVIATIONS

GEMS GLP HIW IAEA IBSC ICJ ICP IDMP ILC IOCU IOMC IPC IRPTC IRS ITC ITRC MDSS MRTP MSO NCEPC NETB NGT OAU OCCS OECD OSHA P PAN PARA PCBS PIC RADC RCGM RCRA SAC SBCC SPC TEC TNCS TSCA UNCTAD UNDP

Global Environmental Monitoring System Good Laboratory Practice Hazardous Industrial Waste International Atomic Energy Agency Institutional Bio Safety Committee International Court of Justice Industry Cooperative Program International Drug Monitoring Program International Law Commission International Organization of Consumer Unions Inter-Organization Program for the Sound Management of Chemicals Indian Penal Code International Register of Potentially Toxic Chemicals International Referral System International Trade Centre Industrial Toxicology Research Centre Material Data Safety Sheet Monopolies and Restrictive Trade Practices. Medical Stores Organization National Committee on Environmental Planning and Coordination National Environment Tribunal Bill National Green Tribunal Organisation of African Unity Organochlorine Compounds Organization for Economic Cooperation and Development Occupational Safety and Health Administration Act Page Pesticide Action Network Paragraph Polychlorinated Biphenyls Prior Informed Consent Recombinant DNA Advisory Committee Review Committee on Genetic Manipulation Resource Conservation and Recovery Act Site Appraisal Committee State Biotechnology Coordination Committee State Pharmaceutical Corporation Transport Emergency Card Transnational Corporations Toxic Substances Control Act United Nations Conference on Trade and Development United Nations Development Program xviii

LIST OF ABBREVIATIONS

UNEP UNIDO US USAID USD USDA VOL WCED WHA WHO

United Nations Environment Program United Nations Industrial Development Organization United States US Agency for International Development United States Dollars United States Department of Agriculture Volume World Commission on Environment and Development World Health Assembly World Health Organization

xix

Introduction

The technological and industrial expansion of the last four decades has resulted in the development of new chemicals which create or bring with them potential threats to the health and safety of the population. These chemicals are introduced into the food we eat, the water we drink and the air we breathe long before their potentially poisonous effects are known or understood. Property damage can occur after contact with hazardous substances in the form of gases in the atmosphere or liquid substances on the ground. Health disorders engendered by hazardous exported foods, pesticides, drugs and other products have also caused severe problems to man and his habitat and have threatened his very existence. In some cases, scientists are unsure of the precise effects of these substances. The transboundary movement of hazardous waste from one country to another for their disposal is another area of serious concern, especially to developing countries—mainly because of the frequency of movements and the number of shipments involved in the trade. In the era of development leading to modern industrialization, hazardous substances were loosely regulated, causing immeasurable harm to mankind and the environment. The devastation caused as a result is enormous. Wastes generated have potential threats to both health and ecology. In a few instances, hazardous substances have destroyed the natural environment, killing plants, animals and organisms in rivers, lakes and oceans. The toxicity of hazardous substances has an impact on human health too, which will be discovered years later. In some instances, the developed world has exploited developing and least developed countries. These underprivileged countries have become a convenient dumping ground for developed countries. The global waste trade has a disastrous impact on these poorer nations, which have neither the technology nor proper mechanisms needed to recycle the substances. The continent of Africa has become a prominent dumping yard. Countries such as Ghana, Nigeria, Somalia, Kenya and Guinea are highly affected. Other developing countries like China, India, Bangladesh, Pakistan, the Philippines, Lebanon and Vietnam also face a huge challenge in the disposal of hazardous substances. The supply of contaminated food 1

INTRODUCTION

from developed countries to developing and least developed countries has been a common phenomenon for many years. The lack of impact from the World Health Organization (WHO) is felt in many areas; a number of fatal incidents have occurred due to the import of food containing fungicides and pesticides. Unorganized human exposure to pesticides has been a problem for several generations and is a burning issue. The effect of this is mostly seen in the cases of agricultural workers who work in open felds and thus are exposed to such substances. The reason for this is that these workers are not following the instructions required in the use of pesticides and have poor sanitation. Hazardous pesticides have been linked to a number of diseases such as cancer, birth defects, Alzheimer’s disease, impotency, blindness and effects on the nervous system, etc. Another gray area is the handling of pharmaceutical waste. There are many different kinds of deadly pharmaceutical waste that have become a major problem worldwide and are a danger to the ecosystem as their disposal mechanisms are unethical. The handling and disposal of hazardous substances have to be done effectively in all spheres on both the international and national levels. This book analyzes and examines in depth the various measures that have been adopted to regulate hazardous substances in foods, pesticides, pharmaceuticals and wastes on international, regional and (in the case of India) national levels. In this endeavor the book is split into seven chapters. Chapter 1 highlights the effects of hazardous foods on mankind and the problems caused by hazardous exported pesticides on the innocent populations of developing countries, including the least developed countries. The diseases that are spread as a result of pesticide poisoning on crops, and their side-effects on human beings and plant life, are the main issues discussed here. The pharmaceutical industry is growing around the world, and this chapter focuses on its phenomenal growth, a few of its unethical marketing practices and the resulting impact and side effects on human health. Other major issues covered here include the monopoly of the developed world in the pharmaceutical trade, the environmental problems caused by hazardous waste trade, the attitude of African, Latin American and Asian countries to this trade and the dilemma facing developing countries in regulating hazardous industries. The next part of this chapter gives a plethora of information covering Transfrontier trade in hazardous chemicals, foods, pesticides, pharmaceuticals and wastes. The chapter amply proves the monopoly of a few transnational corporations (TNCs) in this area. The movement of hazardous wastes between several countries, trends in their trade in recent times, the reasons for such transportation and the countries involved in this trade are also highlighted. The shipment of hazardous chemical wastes and pesticides has grown considerably to become a major threat to the globe and especially to developing, and the least developed, countries. Although there are several reasons for the movement of such hazardous substances, the need for legal 2

INTRODUCTION

protection against unwanted imports and exports of hazardous substances has been felt. With the tightening of environmental laws in developed countries in the 1970 and 1980s, the cost for disposal of hazardous waste increased dramatically for them. Consequently, globalization of shipping hazardous waste also increased. Several cases came to light regarding the dumping of hazardous waste in high seas. This led to the adoption of a series of conventions and laws at international, regional and national levels to regulate and prevent these activities. For example, the Basel Convention on the Transboundary Movement of Hazardous Wastes and Their Disposal (1989) and the Rotterdam Convention were adopted with the objective of protecting mankind and the environment. Article 4 of the Basel Convention focuses on the need to reduce waste generation, and it inter alia encourages countries to keep their waste and dispose of it within their own territories. The intention of the Rotterdam Convention was to promote shared responsibility and cooperation between parties carrying out trade of certain hazardous chemicals to protect human health and the environment from potential harm. The evolving law on the management of hazardous substances at the international level is the main focus of Chapter 2. The chapter mainly proceeds through a detailed discussion of the various conventions, declarations, resolutions and programs of action undertaken by United Nations (UN) organs like the United Nations General Assembly, Economic and Social Council (ECOSOC), WHO, Food and Agriculture Organization (FAO), United Nations Environment Programme (UNEP), United Nations Industrial Development Organization (UNIDO), International Labor Organization (ILO) and the UN Commission on Transnational Corporations. The chapter critically evaluates the International Code of Marketing of Breast Milk Substitutes (1981), the Basel Convention on the Transboundary Movements of Hazardous Wastes (1989), the London Guidelines for the Exchange of Information on Chemicals in International Trade (1989), the Rotterdam Convention on the Prior Informed Consent Procedure for certain Hazardous Chemicals and Pesticides in International Trade (1998) and The Stockholm Convention on Persistent Organic Pollutants (2001). In addition, the chapter looks at the World Bank’s recent introduction of an Environmental Impact Assessment Program and gives a brief account of private efforts like the Pesticide Action Network (PAN) and Agricultural Chemicals Dialogue Group, Inter-Organization Program for the Sound Management of Chemicals (IOMC) etc. for the safe use of pesticides and other chemicals. The chapter emphasizes the work of the UNEP governing hazardous substances. The achievements of the International Register of Potentially Toxic Chemicals (IRPTC) and the International Referral System (IRS) are listed herein. Chapter 3 briefy describes the law governing hazardous substances at the regional level. The actions initiated by the European Economic 3

INTRODUCTION

Community (EEC) in this domain, such as the directives to regulate cosmetics, drugs and wastes and to prevent accidental hazards of certain industrial activities, feature in this chapter. More importantly, the chapter explains the various measures that are adopted under the Directive on Toxic and Dangerous Waste (1978), the EEC’s Sixth Amendment of 1979 to the 1967 Directive Controlling Dangerous Substances, the Seveso Directive (1982) and the Final Directive on the Supervision and Control within the European Community of the Transfrontier Shipment of Hazardous Waste (1984) and its provisions. In addition, the 1988 proposal for a new council directive designed with a view to amending the 1984 Transfrontier Shipment Directive and the European Commission proposal for a council directive on civil liability for damages caused by wastes, its provisions, the defenses available and, lastly, the legal effects and enforcement of the directive are covered in detail. Another area of discussion is the action initiated by the Organisation for Economic Co-operation and Development (OECD) in regulating hazardous substances. The OECD’s effort in the area of information exchange relating to hazardous chemicals, “banned” or “severely restricted” chemicals and the exchange of information in matters relating to confdential data are discussed in this chapter. In addition, the OECD Council Recommendation on Transfrontier Shipments of Hazardous Wastes (1984) and several other measures adopted by it in this feld are the main highlights of this chapter. The last part focuses on the Organisation of African Unity (OAU) and hazardous waste trade and the several conventions signed between nations to regulate waste trade. Chapters 4 and 5 are devoted to the study of national mechanisms for the management of hazardous substances and extensively explain the law governing this subject in India. Chapter 4 begins with the legislations enacted by the British Government prior to the independence of India. This analysis is undertaken mainly to understand, appreciate and explain the ground reality of these legislations. Among the many legislations enacted by British India, the chapter critically evaluates the Destructive Insects and Pests Act (1914), the Poisons Act (1919), the Dangerous Drugs Act (1930), the Drugs and Cosmetics Act (1940), the law relating to Ayurvedic and Unani drugs, the powers and functions of drug inspectors under the Act, and the fading cases decided by the Supreme Court and high courts. Furthermore, Chapter 4 also discusses the Drugs (Control) Act (1950) and the recommendations of the Hathi Committee to investigate the progress made by the drug industry. In addition to this, the Drugs and Magic Remedies (Objectionable Advertisement) Act (1954), the prohibition of advertisement of certain drugs and the penalties for its violation and various resulting cases are covered in this part. A discourse on the Competition Act (2002) is also provided here. Apart from this, an extensive discussion of the Food Safety and Standards Act (2006), the implementing provisions, 4

INTRODUCTION

the powers and functions of food inspectors and the penalties for violation etc. are addressed. Part two of Chapter 4 mainly concentrates on discussing the provisions of a few major legislations such as the Insecticides Act (1968) and the Consumer Protection Act (1986). The Insecticides Act (1968) proceeds through a discussion of the provisions relating to insecticide registration, insecticide import and export, the establishment of centralized laboratories and the powers of insecticide analysts and penalties for violation of their provisions. The analysis on the Consumer Protection Act sheds much light on the work of the central, state and district consumer protection councils in protecting the rights of consumers. The recently proposed Consumer Protection Bill (2016) and the 2019 amendments and their relevant provisions are also discussed. The 1984 Bhopal gas disaster was the worst ever chemical accident to hit the world, claiming thousands of lives and causing damage and injuries to more than half a million people. Until this breakout, there was no specifc law exclusively for assessing liability arising from the explosion and release of hazardous substances. The Government of India, having realized the heart of the problem and the gravity of the situation, immediately enacted a series  of laws regulating the environment, defning safeguards, stating liabilities and stating standard procedures. These legislations authorize measures to protect environmental quality, set specifc standards and give the power and authority to inspect industrial units. Provisions related to insurance were introduced to provide immediate relief to persons affected by accidents arising out of hazardous substances. Chapter 5 concentrates on providing a critical analysis of the legal developments that have taken place in India in the post-Bhopal era. Part one examines the Planning Commission’s approach to environment-related issues, followed by an extensive discussion on the Environment Protection Act (1986). The scope of the Act, especially relating to the movement and handling of hazardous substances, is discussed herein. This part also gives a brief account of the Government of India’s Rules and Regulations of Carriers of Dangerous Hazardous Goods (1989) and the order of the Transport Commissioner of Maharashtra Government (1986), which governs the transportation of dangerous/hazardous substances by road. Most important of all, this part deals with the law governing hazardous wastes and chemicals in India with special reference to the Government of India’s Rules on Hazardous and Other Wastes (Management and Transboundary Movement) (2016), the Government of India’s Rules on the Manufacture, Storage, and Import of Hazardous Chemicals (1989) and a detailed description on of the Government of India’s Rules for the Manufacture, Use, Import, Export, and Storage of Hazardous Microorganisms/Genetically Engineered Organisms or Cells (1989). The import and export restrictions under these rules have been emphasized. 5

INTRODUCTION

Furthermore, the second part of this chapter exclusively evaluates the law governing hazardous substances in India. Here, a discussion of the 1987 amendments incorporated into Section 41 of the Factories Act (1948) to control and regulate hazardous processes are examined. Additionally, this part carries an extensive discussion on the Public Liability Insurance Act (1991), the recent amendments to it and a few of their loopholes. A comprehensive discussion is given on The National Green Tribunal Act (2010), its composition, jurisdiction, powers and liability provisions and its role as a statutory body established for the effective and expeditious disposal of cases. The last important area of Chapter 5 deals with the decision of the Environment Ministry to introduce environment-friendly products. Ecofriendly products are ones that do not harm the environment in the manufacturing process or during use and disposal. Such products can significantly reduce pollution and promise a healthier lifestyle. The main reason for developing eco-friendly products is to aim for sustainable development, as the Earth is flled with pollutants and toxic substances. The criteria of an “Eco mark” and the introduction of Environment Impact Assessment (EIA) compulsorily for all projects above a certain limit aims to reduce the production of chemical wastes from industries. The disposal and management of hazardous waste is a diffcult job for developing countries—a country like India is no exception and faces several challenges due to the expansion of industries in several sectors. Although there are laws, as a result of international pressure industries have often violated the safeguards by taking refuge under inadequate provisions. The usual practice of the owners of industries is to employ laborers on minimum wages without providing any training in the handling of hazardous substances. Even the inspecting authorities ignore violations. Such ignorance on the part of the government concerning violations increases hazardous substance-related accidents and causes harm to both the environment and human beings. The harm caused by hazardous substances in cases of this type is always of a large magnitude. Chapter 6 outlines a discussion on the principle of liability in hazardous substance litigation. The diffculties in proving a case, especially in matters pertaining to hazardous substances under common law and the general principles of liability relating to manufacturers and sellers, are discussed here. The principle of liability governing hazardous substances in Indian law takes prime place in this chapter, starting with the relevant penal, civil, procedural and constitutional provisions. The discussion stresses hazardous substance litigation and the emergence of tort law in India: the Bhopal case in its entirety, the Shriram Gas Leak case, the reasons for the diffculties in developing tort law in India and the modifcation of the strict liability rule in Ryland v Fletcher by the Supreme Court are the major

6

INTRODUCTION

issues covered here. In addition, the chapter analyzes the principle of liability under American law. The common law remedies under trespass, negligence, strict liability, etc. are discussed with illustrations from leading cases. Developments in the area of product liability law over the last two decades are also outlined here. Many states, when they conduct activities that cause irreparable damage to the environment of other states, cause transboundary environmental harm. Here, the application of provisions found in civil law and common law comes to the rescue and can be applied in the international sphere as well for the protection of the global environment. This principle is commonly known as the no-harm rule and became a widely recognized principle of customary international law whereby a state is bound to prevent, reduce and control the risk of environmental harm to other states. The last part of this chapter, while discussing the principle of liability under international law for damages caused by hazardous substances, critically examines sic utere tuo ut alienum non laedas maxim, its recognition and application in leading cases like Trail Smelter Arbitration. It also examines the maxim’s later affrmations in leading decisions of the International Court of Justice and conventions in the area of nuclear damage, the Maritime Pollution Conventions and its further developments in the period from the Stockholm Declaration to the Rio Earth Summit, as well as more recent trends (especially in the USA). The judiciary has shown great concern for the protection of natural resources from hazardous substances in the precedents laid out. It has constantly highlighted the public and private concerns for keeping the environment safe for our future generations. It has further stressed, in several of its decisions, that we need to build and strengthen our ecosystem by giving top priority to the prevention of disasters caused by hazardous substances. Due to industrial development, there is a constant rise in amounts of hazardous substances. The present legislations need to be strengthened and awareness should be created both on the national and international levels for regulating hazardous wastes. Chapter 7 identifes the loopholes in the existing laws governing hazardous substances. It envisages that better regulating mechanisms need to be adopted by stakeholders. It should be stated here that the idea of sustainable development was introduced in the Brundtland Report in 1987, which encourages the development of technologies that conserve and enhance our resource base. The object of the report was mainly to take care of all life forms and minimize the depletion of natural resources. With this in mind, the book also highlights the need to accept, canvas for and implement the basic principles of sustainable development in the era of globalization and suggests certain recommendations to overcome the present problems concerned with hazardous substance and waste management.

7

INTRODUCTION

Immense care has been taken to organize material from the relevant available sources and these are extensively used in the discussions ahead. Most of the original sources available from the leading libraries in Delhi, such as the Indian Law Institute, Indian Society of International Law, United Nations Information Centre, the American Centre, the Law Ministry Library, Jawaharlal Nehru University Library, West Bengal National University of Juridical Sciences Library, as well as the United Nations Digital Library, have been consulted thoroughly.

8

1 AN OVERVIEW OF THE NATURE, KINDS, EFFECTS AND GLOBAL TRADE IN HAZARDOUS SUBSTANCES

The technological and industrial expansion of the last few decades has resulted in the development of new chemicals1 which create or bring with them potential threats to the health and safety of the population. These chemicals are introduced into the food we eat, the water we drink and the air we breathe long before their potentially poisonous effects are known or understood. Persons exposed to such chemicals for even short periods of time may show carcinogenic or other detrimental effects years later. More than anything, toxic2 substance3 pollution reduces the aesthetic and recreational pleasure associated with the use and enjoyment of natural resources. The dangers associated with many of these chemicals in commerce are unknown.4 New substances are continually produced and distributed, and

1 The London Guidelines for the Exchange of Information on Chemicals in International Trade (amended in 1989) in Article 2 (a) defnes a “chemical” as a substance “whether by itself or in a mixture or preparation, whether manufactured or obtained from nature and includes such substances used as industrial chemicals and pesticides.” See UNEP/PICWG 2/4, 9. Chemicals include toxic chemical substances found in consumer goods, pesticides, herbicides or fungicides. 2 Toxicology is broadly defned as the science that deals with poisons and their effects. (Webster’s Third New International Dictionary, 1976) 2419. 3 The concept of a “substance” is that of a permanent substratum preserved through all changes. Substance is the basic matter from which all other materials have issued. It designates accordingly, the “beginning” of all becoming at large and, at the same time, an immutable unit, a uniform and constant “nature” which is neither subject to, nor affected by, becoming. See (1950) 21 Encyclopedia Britannica 500; that in which qualities or attributes exist, the existence to which qualities belong: that which constitutes anything that it is: the principal part—Chambers English Dictionary (Allied Publishers Ltd 1990) 1466. 4 The United States Geological Survey and State Agencies which monitor the quality of groundwater pointed out that readings from more than a hundred thousand wells, in the past 25 years, showed that these sources (groundwater) have become increasingly polluted by nitrates and chemicals. Fertilizer was chiefy-responsible for the rising nitrate levels according to Barry Commoner’s ‘The Environment,’ in Peter Borelli (ed), Crossoads: Environmental

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AN OVERVIEW OF HAZARDOUS SUBSTANCES

evidence frequently implicates as a potential hazard a substance previously thought to be safe. According to the International Organization of Consumer Unions in 1987, of the 600,000 chemicals in production, international safety standards exist only for some 1,180 chemicals.5 Since the testing of each new chemical may take as long as three years to complete, with costs running into over $ USD 500,000, not many chemicals are adequately tested, if at all.6 Additionally, substances that are not dangerous in themselves may form a dangerous chemical compound when combined with other substances. Some hazardous substances are extremely toxic, capable of causing death even in small amounts; other substances that are much less toxic are likely to cause nothing more than a modest skin rash in most persons.7 Health disorders engendered by hazardous exported foods,8  pesticides,9

5

6 7

8 9

Priorities for the Future (D. C., Island Press 1988) 128; a minimum of 140 plant and animal species are condemned to extinction each day according to Sandra Postel, ‘It is now or never’ in The Hindu Survey of the Environment (Madras, 1992) 17. Abraham, M., The Lessons of Bhopal: A Community Action Resource Manual on Hazardous Technologies (Penang, International Organisation of Consumer Unions 1987) 3; in the United States alone, more than 50,000 commercial chemicals are produced, including some 3,350 pesticides, 1,815 pharmaceutical drugs, 8,627 food additives, and 3,140 cosmetic ingredients. The Environmental Protection Agency (EPA) estimates that 2,000 new chemical substances are introduced into the market each year—see Lester B. Lave and Arthur C. Upton, ‘Regulating Toxic Chemicals in the Environment’ in Toxic Chemicals, Health and the Environment (1987) 282; The World Health Organization (WHO) estimates that some fve lakh people in the developing world suffer from agro-chemical poisoning each year, out of which at least 5,000 die. See Indian Express (New Delhi, 4 January 1993). Ibid 3. The massive use of toxic chemicals has been accompanied by an alarming rise in the incidence of cancer, which kills over a thousand Americans every day. Moreover, chemicals that cause sterility are regularly found in human semen samples, and studies show that the sperm count of American males appears to have dropped 30 to 40 percent in the last 30 years, with toxic chemicals being largely to blame. See: Julie Sullivan, The American Environment (The H. W. Wilson Company 1984) 111. Foods include grains and food additives. See note, ‘Exportation of Hazardous Products’, (1980) 7 Syracuse Journal of International Law and Commerce 269. Pesticide is defned as, “Any substance or mixture of substances intended for preventing, destroying or controlling any pest, including vectors of human or animal disease, unwanted species of plants or animals causing harm during or otherwise interfering with the production, processing, storage, transport, or marketing of food, agricultural commodities, wood and wood products or animal feed stuffs which may be administered to animals for the control of insects, arachnids or other pests in or on their bodies.” The term generally includes substances intended for use as a plant growth regulator, defoliant, desiccant or fruit thinning agent or agent for preventing the premature fall of fruit and substances applied to crops, either before or after harvest, to protect the commodity from deterioration during storage and transport. See UNIDO, Global Overview of the Pesticide Industry, Sub-Sector Sectoral Working Paper (United Nations Industrial Development Organization, 2 December 1988) 61.

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AN OVERVIEW OF HAZARDOUS SUBSTANCES

drugs,10  wastes11 and other products have attracted worldwide attention. In some cases, scientists are unsure of the effects of certain chemicals. The following examples explain the devastating effects caused by hazardous exported foods, pesticides, pharmaceuticals and wastes.

Foods In 1971, wheat and barley seeds treated with methyl mercury, a fungicide banned from use in the United States of America and several other countries, were exported to Iraq from the US. The seeds were widely distributed among the Iraqi population, who used them for baking bread and cakes. As a consequence, 6,000 people died and 10,000 more suffered serious injury.12 In Japan, toxicity associated with yellow-colored moldy rice has long been a problem, especially after World War II when rice had to be imported from various other countries. The intake of “yellow rice” caused vomiting, convulsions and ascending paralysis.13 The presence of organo10 Drugs include pharmaceutical products. As Section 3 (b) of the Drugs and Cosmetics Act, 1940 states: the term “drug” includes: 3(b) (i) All medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes (1982 Amended Version). (ii) Such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of vermin or insects which cause disease in human being or animals, as may be specifed from time to time by the central government by notifcation in the Offcial Gazette. (iii) All substances intended for use as components of a drug including empty gelatin, capsules. (iv) Such devices intended for internal or external use in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, as may be specifed from time to time by the central government by notifcation in the Offcial Gazette, after consultation with the board. Sub-sections (iii) and (iv) are newly added to section 3 (b) by the 1982 Drugs and Cosmetics (Amendment) Act 1982. 11 Hazardous wastes are legally defned as those wastes that may cause adverse or chronic effects on human health or the environment when not properly controlled. See, Louis Theodore and Joseph Reynolds, Introduction to Hazardous Waste Incineration (New York 1987) 3; under the Resource Conservation and Recovery Act of the United States, hazardous waste means “a solid waste or combination of solid wastes, which because of its quantity, concentration or physical infectious characteristics may: a. Cause or signifcantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or b. Pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of or otherwise managed.” (The Resource Conservation and Recovery Act 42 USC (1976), Section 6903 (5). 12 Gabriel M. Benrubi, ‘State Responsibility and Hazardous Products Exports: A Solution to an International Problem’ [1983] 13 [1] California Western International Law Journal 119. 13 Manuals of Food Quality Control 10 (Food and Nutrition Paper 14/10) (FAO 1990) 4.

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AN OVERVIEW OF HAZARDOUS SUBSTANCES

chlorine compounds (OCCs) in human milk has been reported in studies from various countries in recent years.14 Inappropriate marketing efforts in Third World countries by largescale producers of infant formula have been criticized both within and outside the health profession. Economical packaging requires that the formula be delivered in concentrated form and prepared with water.15 Contaminated water supplies, common in many developing countries, lead to unsanitary preparation of the formula. This, in turn, results in serious or fatal illness in infants who have far less resistance to water-borne diseases than adults. In addition, however, exaggerated and inaccurate allegations of corporate misconduct have also been made. To regulate this, the WHO adopted an International Code of Marketing of Breast Milk Substitutes in 1981.16 The code focuses upon the sources of public information concerning the formula and imposes a strict ban on public advertising of breast milk substitutes. Environmental contamination of food takes two forms: (1) long-term, low-level contamination, resulting from gradual diffusion of persistent chemicals throughout the environment and (2) relatively shorter term, higher-level contamination, stemming from direct application, accidental releases and waste disposal.17 In most developing countries, agriculture and the export of crops is the backbone of the economy. Most of these crops are cereals and oilseeds that are highly susceptible to fungal growth and mycotoxin18 production. The mycotoxins are not only hazardous to consumer health but also affect food quality, resulting in huge economic losses for these countries.19 Today, no edible substance can be regarded as absolutely safe from possible mycotoxin contamination, and mycotoxin production can occur in the feld, during harvest, processing, storage and shipment of a given commodity.20 14 R. Galetin-Smith, S. Pavko and N. Roncevic, ‘DDT and PCBs in Human Milk: Implication for Breast Feeding Infants’ [1990] 45 [6] Bulletin of Environmental Contamination arid Toxicology (USA) 811. 15 Erich Shuman, ‘Potentially Hazardous Merchandise: Domestic and International Mechanisms for Consumer Protection’ [1983] 16 Vanderbilt Journal of Transnational Law 185. 16 On 21 May 1981 the World Health Assembly endorsed an International Code of Marketing of Breast Milk Substitutes (Code). The vote on the resolution proposed by the World Health Organization was 118 in favor to one opposed (Argentina, Japan and the Republic of Korea abstained). The one vote opposed was that of the United States. 17 Curtis C. Travis and Angela D. Arms, ‘The Food Chain as a Source of Toxic Chemical Exposure’ in Lester B. Lave and Arthur C. Upton (eds), Toxic Chemicals, Health and the Environment (John Hopkins University Press 1987) 96. 18 Mycotoxins may be defned as metabolites of fungi, which evoke pathological changes in man and animals. The term “mycotoxin” is derived from the Greek words “mykes” (fungus) and “toksikon” (poison); Manuals of Food Quality Control (Training in mycotoxins analysis) (FAO 1990) 1–2. 19 Ibid 2. 20 Ibid.

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AN OVERVIEW OF HAZARDOUS SUBSTANCES

Another problem faced by both developed and developing countries is food adulteration. In 2010, the Food Standard and Safety Authority of India picked up over 1.17 lakh samples of food articles and tested them. Around 13 percent of the samples overall were found to be adulterated. A comparative analysis has shown adulteration rates are as high as 40 percent in Chhattisgarh, 34 percent in Uttarakhand, 29 percent in Uttar Pradesh, 23 percent in Rajasthan and 20 percent in West Bengal and Himachal Pradesh. Additionally, nearly 17 percent of the food samples tested in Bihar and Chandigarh, 16 percent in Nagaland, 15 percent in Punjab, Madhya Pradesh and Orissa, 14 percent in Haryana, 12 percent in Tamil Nadu and 10 percent in Maharashtra were also adulterated.21 The area of adulteration is so wide in India that just a few examples will prove the point. Adulteration in tea is a frequent occurrence and poses a great hazard to health, culminating in the development of various ailments and health problems. Used tea leaves are mixed into fresh tea leaves. Artifcial color is also added to the used tea leaves to mask the adulteration.22 Spices, condiments and chili powder are mixed with sawdust. Sand and grit are combined with deadly chemicals that are used to disguise the true nature of foodstuffs. Dyes and color applications are used to make substandard food appealing. This can cause cancer, paralysis and other fatal diseases.23

Pesticides In a 1972 study, the World Health Organization Expert Committee on Insecticides24 “conservatively” estimated that approximately 500,000 people are accidentally poisoned by pesticides each year and two-thirds of the

21 Kounteya Sinha, ‘Around 13% of food samples found contaminated nationwide,’ Times of India (New Delhi, 11 January 2012). https://timesofndia.indiatimes.com/india/Around-1 3-of-food-samples-found-contaminated-nationwide/articleshow/11442961.cms. Accessed 15 December 2017. 22 Rajendra Kumar Nayak, Consumer Protection Law in India (M. M. Tripati Pvt Ltd 1991) 228. 23 Ibid 229. In this regard The Times of India (New Delhi) in its editorial on 4 July 1983 aptly and explicitly said: “As survey after survey in different parts of the country has shown, between 30 and 70 per cent of all food samples are adulterated with toxic mineral oils and grain, saw dust arid chalk, inedible colours, or poisonous, carcinogenic chemicals such as metanil yellow. The incidence of adulteration has skyrocketed as the consumption of packaged food stuffs has grown. Residues of cancer causing and mutagenic pesticides can now be found in anything from a quarter to two thirds of all vegetables, milk and grain sold on the market”. 24 Insecticides means a substance or mixture of substances intended to prevent, destroy, repel or reduce the amount of any insects which may be present in a given environment; UNIDO, Global Overview of the Pesticide Industry Sub-sector (Sectoral Working Paper 1988) 59.

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AN OVERVIEW OF HAZARDOUS SUBSTANCES

10,000 fatalities occur in developing countries.25 The situation has worsened further in recent times. It was reported in 2004 that an estimated one to fve million cases of pesticide poisonings occur every year.26 Most of these poisonings also take place in developing countries, where safeguards typically are inadequate or lacking altogether.27 Hence, although developing countries use just 25 percent of the world’s production of pesticides, they experience 99 percent of the deaths.28 Different pesticides cause different adverse health reactions in the human body. Some agents cause dizziness, nausea, vomiting and other temporary symptoms. Others cause more permanent harm such as nerve damage, sterility or blood, liver and other diseases. Some pesticides may cause such severe health problems as genetic changes and birth defects or cancer.29 The actual extent of the problem is unclear because limited medical resources hamper the collection of statistics on human poisoning. In 1991 it was observed that Third World countries consumed 20 percent of all pesticides used globally.30 When regulations became stricter in developed countries, the production units were shifted to developing countries where multinational corporations could take advantage of cheap labor, cheap land and extremely hospitable governmental policies.31 Moreover, agricultural programs in many developing countries emphasize the production of cash crops for export in order to help alleviate developing countries’ national debt.32 As a result of the marketing infuences of agriculture chemical companies, farmers in these developing countries introduced foreign high-yielding hybrid seeds, which lacked natural resistance to indigenous pests.33 In addition, cash crop marketing infuences are creating plant mono-

25 Karen A. Goldberg, ‘Efforts to Prevent Misuse of Pesticides Exported to Developing Countries: Progressing Beyond Regulation and Notifcation,’ [1985] 12 [4] Ecology Law Quarterly 1026. 26 UNEP Chemicals, Childhood Pesticide Poisoning: Information for Advocacy and Action (UNEP Chemicals 2004) 7. http://www.fao.org/NEWSROOM/common/ecg/51018/en/ma quette_childhood.pdf. Accessed 21 December 2017. 27 Ibid. 28 Ibid. 29 Goldberg (n 25) 1026. 30 Mark A. Kablack, ‘Pesticide Abuses in Third World Countries and a Model for Reform’ [1991] 11 [2] Boston College Third World Law Journal 279. 31 This is partly due to a decision in US v Catz American Co. [53 F.2d 425 (9th cir 1931)] which established the traditional view that American businesses are free to export products with little or no regulatory supervision (the decision remained unchallenged for 50 years). 32 Mark A. Kablack, ‘Pesticide Abuses in Third World Countries and a Model for Reform’ [1991] 11 [2] Boston College Third World Law Journal 279. 33 Pest means, “Any organism which injures man, his property, or his environment or which annoys him. Such organisms include principally certain insects, nematodes, fungi, weeds, birds and rodents or any other terrestrial aquatic plant or animal life, or virus, bacteria or other organisms.” (Except microorganisms living on or in man or other living beings). See

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AN OVERVIEW OF HAZARDOUS SUBSTANCES

cultures uniform plantings of one plant variety in the Third World. Plant monocultures present a further problem because non-diverse plant populations are more vulnerable to pest infestation. Pests can affect the whole of monoculture crops causing loss of an entire growing season.34 This, in turn, has paved the way for the “pesticide treadmill.”35 For instance, in 2013 47 primary school children became sick after consuming a meal of rice and soybeans as part of the midday meal scheme in a school at Bihar, India. The meals provided as part of the scheme are free, but they are unhygienic. On examination, the children showed symptoms of poisoning by organo-phosphorus, a compound also used as a pesticide for crops. Such incidents highlight the inadequacy in pesticide management by Third World countries.36 The extent of human suffering and environmental harm resulting from trade in banned or restricted pesticides cannot be fully documented. But then, some of the incidents that occurred due to its export from the developed to developing world explains the alarming situation. In 1975, the Texas-based Velsicol Chemical Corporation exported the nerve-attacking pesticide leptophos to 30 countries.37 Over half of its total export was shipped to Egypt, a country with no procedure for pesticide regulation or tolerance setting. Its use in Egypt resulted in the deaths of several Egyptian farmers and severe convulsions and speech impairment in others. Despite the harm that was done, the Velsicol Corporation continued to export the product while proclaiming its safety. Leptophos was never registered with the Environmental Protection Agency (EPA).38 In Guatemala, a country with widespread poverty, mothers’ milk was contaminated with DDT39 imported mostly from the United

34 35

36 37 38 39

UNIDO, Global Overview of the Pesticide Industry (Sub-Sectoral Working Paper) (UNIDO 1988) 60. Mark A. Kablack, ‘Pesticide Abuses in Third World Countries and a Model for Reform’ [1991] 11 [2] Boston College Third World Law Journal 279. The “pesticide treadmill” is often referred to as the phenomenon of continually replacing a previous pesticide with a new, more toxic pesticide. Even in the United States herbicides represent about two-thirds of total pesticide sales. Greater than 90 percent of all corn, cotton, soybean and peanut acreage is treated with herbicides each year. Roughly one-quarter of the pesticides used are insecticides, and more than 80 percent of that used is directed at pests in corn, cotton and soybeans; Gino J. Marco, Robert M. Hollingworth and William Durham (eds), Silent Spring Revisited (Washington, D. C. American Chemical Society 1987) 20. ‘India lunch deaths children buried in Bihar school’ BBC News (India, 18 July 2013). http://www.bbc.com/news/world-asia-india-23353017. Accessed 20 December 2017. Patrick B. Seferovich, ‘United States Export of Banned Products: Legal and Moral Implications’ [1981] 10 [3] Denver Journal of International Law and Policy 537. Ibid 538. Ibid.

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AN OVERVIEW OF HAZARDOUS SUBSTANCES

States.40  The  export  of grain coated with mercury fungicides,41 a chemical banned in the US, resulted in the deaths of at least 400 Iraqis and the hospitalization of 5,000 more.42 Similarly, Herbicide 2.4.5.T—a pesticide similar in its makeup—was exported to South America, even after the EPA canceled its registration for most domestic uses. The WHO estimates that approximately 500,000 persons worldwide are poisoned each year and as many as 5,000 die from Herbicide 2.4.5.T.43 Dow Chemical Company v Castro Aifaro44 dealt with the charge that a large number of Costa Rican banana plantation workers allegedly suffered serious personal injuries as a result of exposure to a liquid pesticide, dibromochloropropane (DBCP). The EPA had banned DBCP in the US in 1977. Before and after the ban of DBCP in the US, the company manufacturing it (Shell and Dow) apparently shipped several hundred thousand gallons of the pesticide to Costa Rica for use resulting in nearly 3,000 exposed plantation workers exposed primarily sterile. Other injuries claimed are genital pain, impotence and increased risk of stomach cancer.45 Similarly, nerve-damaging kepone was manufactured in Virginia and was sprayed on Guatemalan bananas destined for US markets.46 Similarly, in Bolivia, an avalanche of salesmen had persuaded farmers in the small indigenous village of Comarapa to abandon traditional crop rotation in favor of pesticide usage. Instead of reducing pests, it resulted in a plague of moths which prompted the salesmen to recommend the application of more and more different pesticides. That gave rise to resistant moths and a pesticide addiction which has been described as the “pesticide treadmill.” Some of the

40 Ibid. Third World populations also rank high in their exposure to toxic chemicals. In a sample of ten industrialised and developing countries, three of the four countries with the highest blood lead levels of their populations were Mexico, India and Peru; for the same ten countries, DDT contamination of human milk was highest in China, India and Mexico. See Gus Speth, ‘Environmental Pollution: High and rising’ in Peter Borrelli (ed), Environmental Priorities for the Future (Washington D. C. 1988) 173. 41 Fungicides are used on farm crops, preferably as protective rather than curative treatments, by being applied to the surface of the plant in water suspensions or dusts before the attack of a fungus. Deciduous fruit trees and numerous vegetable crops and ornamentals, as well as germinating seeds, are usually subject to attack unless protected; UNIDO, Global Overview of the Pesticide Industry (Sub-Sector. Sectoral Working Paper) (UNIDO 1988) 59. 42 Patrick B. Seferovich, ‘United States Export of Banned Products: Legal and Moral Implications’ [1981] 10 [3] Denver Journal of International Law and Policy 537. 43 The Washington Post, 25 February 1980. 44 786 S W 2d 674 (Tex 1990); for details (1991) 104 (7) Harvard Law Review 1611–12. 45 Mark A. Kablack, ‘Pesticide Abuses in Third World Countries and a Model for Reform’ [1991] 11 [2] Boston College Third World Law Journal 269. 46 Patrick B. Seferovich, ‘United States Export of Banned Products: Legal and Moral Implications’ [1981] 10 [3] Denver Journal of International Law and Policy 545; The Washington Post, 15 February 1980.

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AN OVERVIEW OF HAZARDOUS SUBSTANCES

farmers subsequently committed suicide by drinking the pesticides which destroyed their crops.47 The misuse of pesticides has global as well as local effects.48 Pesticides can haunt the countries that manufacture and export them in the form of residues on agricultural products.49 This boomerang effect can occur even in those countries which ban the domestic use of the pesticides they manufacture. Recently, the Food and Drug Administration of America (FDA) acted upon an anonymous tip and detected two Chilean grapes that had been contaminated with cyanide.50 In 1989, the FDA warned consumers not to eat imported Chilean foods while it conducted an investigation.51 The negative impact of pesticides on the environment is not limited to direct adverse effects on human and animal populations. Studies of coffee plantations in Kenya indicate that the heavy use of fungicides has so poisoned the soil with copper-based chemicals that it has rendered the soil unft for other crops and has gradually harmed the coffee trees which are beginning to show signs of copper damage. The contaminated soil poses a threat to Kenya’s agricultural future.52 Similarly, Thailand encountered the greatest ecological disaster in its history—a mammoth fsh kill, which offcials blame on agrochemicals.53 Additionally, careless spraying sometimes causes pesticides to drift into forests and jungles, killing off benefcial non-target species and harming ponds, canals, livestock and even children.54 47 Carolyn D. Greenwood, ‘Restrictions on the Exportation of Hazardous Products to the Third World: Regulatory Imperialism or Ethical Responsibility?’ [1985] 5 [2] Boston College Third World Law Journal 134. 48 Breast milk samples from women in cotton-growing regions of Guatemala and Nicaragua have some of the highest levels of DDT ever recorded in humans, and the illness and mortality rates from pesticide poisoning in these areas approach those for major diseases; World Development Report 1992 (Oxford University Press 1992) 140. 49 Karen A. Goldberg, ‘Efforts to Prevent Misuse of Pesticides Exported to Developing Countries: Progressing Beyond Regulation and Notifcation’ [1985] 12 [4] Ecology Law Quarterly 1028. In the US, even after the ban of DDT in 1972, over 40 million pounds a year of DDT have continued to be manufactured and supplied abroad, much of it distributed at taxpayer expense by the US Agency for International Development (US Aid). See Julie Sullivan, The American Environment (New York, The H. W. Wilson Company 1984) 109. 50 Mark A. Kablack, ‘Pesticide Abuses in Third World Countries and a Model for Reform’ [1991] 11 [2] Boston College Third World Law Journal 278. 51 The New York Times (14 March 1989) 15. 52 Carolyn D. Greenwood, ‘Restrictions on the Exportation of Hazardous Products to the Third World: Regulatory Imperialism or Ethical Responsibility?’ [1985] 5 [2] Boston College Third World Law Journal 135. 53 Ibid. 54 Ibid. Heavy contamination of pesticides in water in turn leads to oxygen starvation in bioplanktons. Pesticides also disturb the calcium metabolism and eventually the thickness of egg shell is reduced in birds. This results in the large-scale cracking of eggs, death of bird embryos and abrupt decline in population. The pesticides effect reproductive systems too,

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Pharmaceuticals Developing countries rely on pharmaceuticals as a frst line of defense against a wide range of diseases, because of a general lack of adequate sanitary, nutritional and primary health care facilities for the bulk of their population.55 Transnational corporations account for 70 percent to 80 percent of the total pharmaceutical production in developing countries. The Economic and Social Council of the United Nations has expressed concern that this concentration of marketing power inhibits the investigation of exported drugs that do not meet the same quality control requirements for drugs in domestic use.56 Drug frms also resort to excessive claims concerning the properties of their products without information on side effects, furnish questionable data on testing experiments and promote ineffective drugs.57 Compounding the problem are the questionable marketing practices of transnational corporations.58 These include the distribution of free samples, extensive advertising, frequent visits by sales representatives and other offerings to medical personnel which tend to infuence the decisions made by the latter in prescribing particular brands.59 Dr. Gaitonde, regional advisor of WHO, at a seminar said that most of the 30,000 drug formulations

55 56 57

58

59

which shows marked derangement in both sexes; R. Sahai, ‘Pesticides and Environmental Pollution—Genotoxic effects’ in R. Prakash and S. M. Choubey (eds) Environmental Pollution Health Hazards (1990) 3. Veronica A. Santos, ‘The International Liability for Hazardous Exports’ [1986] 61 [3] Philippine Law Journal 352. Transnational Corporation in the Pharmaceutical Industry of Developing Countries [UN ECOSOC E/C 1085, 1985]. Veronica A. Santos, ‘The International Liability for Hazardous Exports’ [1986] 61 [3] Philippine Law Journal 352; for example, chloramphenicol is a potent antibiotic used in US only against life-threatening diseases such as typhoid fever. Its application must be confned to critical cases because of possible side effects producing aplastic anemia, which has a 30 to 60 percent mortality rate. Despite such controls, chloramphenicol has been exported to Latin America for use against such routine diseases as measles, tonsillitis, chickenpox and the common cold and has been sold without warnings of its possible side effects; see Erich Shuman, ‘Potentially Hazardous Merchandise: Domestic and International Mechanisms for Consumer Protection’ [1983] 16 Vanderbilt Journal of Transnational Law 192. Prolonged administration of tetracycline to premature infants infrequently results in growth retardation and pigmentation of teeth. Long-term studies in experimental animals have shown that tetracycline can affect both the absorption and metabolism of Vitamin D leading to defciency. This, in turn, can affect calcium levels. Vitamin D or its derivatives are needed for the absorption of calcium from the intestinal tract as well as for the normal mineralization of bone. This well-known tetracycline, marked with several trade names like Ledermycin, Achromycin, Steclin, Tetracyn, etc. is a broad-spectrum antibiotic. The most common nutritional hazard associated with tetracycline therapy results from its effect on the intestinal microfora. Patriot (New Delhi) 4 October 1989. Veronica A. Santos, ‘The International Liability for Hazardous Exports’ [1986] 61 [3] Philippine Law Journal 352.

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in India (30 percent are sold over the counter) had not been evaluated for their safety.60 This deplorable state of affairs persists for the simple reason that state drug laboratories do not have suffcient facilities in terms of either equipment or trained staff.61 In addition, without full and accurate disclosure of information regarding the merits of products, consumers in developing countries are not guaranteed maximum effcient and safe use of such products.62 Drugs imported by developing countries do not comply with safety, price and labeling norms of the producing countries.63 Over-populated developing countries, in a few cases, have even imported drugs that were banned in the exporting state. For example, Depo-Provera, a long-term injectable contraceptive, was banned for domestic use in the US. Several leaders of developing countries claimed that the drug would help reduce their overpopulation problems and their associated illnesses and mortality rates. They argued that not only was this drug vitally needed in their countries, but that unlike the US they had no effective alternatives.64 In situations of this kind, a developed country faces a dilemma: should it permit the drug to be exported, risking the harm it might cause to foreign consumers, or should it deny exportation and risk diplomatic tension with the developing country?65

60 Quoted by Rajendra Kumar Nayak, Consumer Protection Law in India (M. M. Tripathi Pvt Ltd 1991) 279. 61 Ibid. 62 In India, EP Forte—a drug wrongly used for pregnancy testing and which can cause fetal defects—was banned by the Drugs Controller of India in 1982. But within months, drug companies managed to get a stay order. The resulting litigation continued until June 1988. Finally, by a gazette notifcation (in June 1988) under the Drugs and Cosmetics Act 1940, the central government banned the manufacture and sale of the controversial EP Forte. However, doctors and chemists pleaded ignorance of the ban, and the tablets were still available across the counter. It was only after Bombay’s Association for Consumer Action on Safety and Health submitted cash memos to prove such violations that the High Court of Bombay directed the Maharashtra Government and the States’ Food and Drug Administration to seize the stocks and ensure that no further sales took place. See The Statesman (New Delhi, 14 November 1988). 63 Committed to selling medicine rather than health, the country’s pharmaceutical industry’s production has concentrated on the production of money-spinning non-essential and often irrational and hazardous products. See Financial Express (New Delhi) 24 October 1989; Bangladesh in 1982 banned over 1,700 harmful and useless drugs and introduced a drugs policy which has been universally acclaimed as the “right position” for Third World countries and has also been praised by the WHO. See Vimal Balasubramanyam, ‘How the Drug Industry Strikes Back,’ Newstime (Hyderabad, 15 September 1986). 64 Patrick B. Seferovich, ‘United States Export of Banned Products: Legal and Moral Implications’ [1981] 10 [3] Denver Journal of International Law and Policy 537559. 65 Another important example involved the antibiotic chloromycetin. It was severely restricted in the United States to a few serious diseases. The Federal Food and Drug Administration had determined that its risks greatly outweighed its benefts. However, in some developing

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AN OVERVIEW OF HAZARDOUS SUBSTANCES

Wastes The transboundary movements of wastes across frontiers raise political and social problems.66 Many countries emphasize that the waste generating state should provide adequate and proper disposal facilities for fnal treatment in its own territory so that the environmental problem is not exported to another country. However, due to the tough ecological legislations and public protests against environmental pollution, there are instances where a few Western corporations of the developed world still resort to improper disposal of their poisonous waste.67 Most recently countries such as Guyana, Haiti, Panama, Venezuela, Benin, Congo, Djibouti, Guinea, Guinea Bissau and Swaziland, just to mention a few cases known to UNEP,68 have been used for waste dumping. In some cases, the industrialized states themselves were directly involved and, in many, industrialized countries’ entrepreneurs have indulged in activities of this kind. The following few instances illustrate the magnitude of the crisis. (1) Without the knowledge of the military regime, about 4,000 tons of highly toxic waste are reported to have been brought to Nigeria from Italy, including substances containing the deadly dioxin. Later, reports confrmed the presence of radioactive substances there. As a result, large tracts of land near the Port of Koko in Bendel State were poisoned. The port remained closed to all navigation and part of the population was evacuated. The Government of Nigeria arrested 15 persons involved in the transportation of the poisonous chemicals and lodged a protest with the Italian Ambassador to Lagos. The Nigerian Ambassador to Rome was recalled.69 (2) In another interesting case, 15 thousand tons of ash from urban waste was brought by a transnational corporation (TNC) from Philadelphia to the Guinean island of Kassa, situated only seven kilometers away from the country’s capital, Conakry. The TNC was a Norwegian-Guinean

66 67 68 69

countries, the drug is widely used to combat a variety of serious diseases or infections which are uncommon in the United States. See ibid 558. Pierre Lilben, ‘The OECD Program on Hazardous Waste Management’ in J.P. Lehman (ed), Hazardous Waste Disposal (New York 1983) 156. ‘Between 1986 and 1988, more than 3,656,000 tons of wastes were shipped from developed countries to the Third World’ Amrita Bazar Patrika (Calcutta, 25 November 1989). ‘Industry and Environment’ [1988] 11 [1] Journal of UNEP 1-2; See also [1989] 40 [2] International Digest of Health Legislation 493. M. K. Shridharan, ‘Nuclear and toxic waste disposal bring a $12 billion a year business, some ten African countries have received or signed contracts allowing the dumping of waste from industrialized countries’ Patriot (New Delhi, 22 November 1988); See also Hindustan Times (New Delhi, 26 July 1988).

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joint venture iron products company, Aluco Guinea.70 Trees and vegetation on the island began dying, killed by dioxin and the mix of heavy metals. The Government of Guinea was not informed of the burial of waste on the island of Kassa.71 The shipment was brought in under cover of an important program for a brick manufacturing project but the intention was to dump 85,000 tons.72 In this connection, the consul general of Norway in Conakry and several offcials of the Guinean Ministry of Trade were detained and charged with involvement in the importation of damaging substances. (3) In another incident, one Houston company transported barrels of polychlorinated biphenyls (PCBs) to Mexico. Mexicans, not knowing what the barrels contained, emptied the contents and used them to store drinking water.73 (4) Haiti’s bitter experience with Philadelphia’s garbage is yet another case worth noting. Paolino and Sons, a Philadelphia-based frm, paid the Liberian fagged Khian Sea to haul away 13,476 tons of toxic incinerator ash in August 1986. Samples of the ash showed it contained arsenic, barium, cadmium, lead, mercury and two different types of dioxins between 0.184 and 4.7 parts per billion. In March 1987, the ship’s owner, Amalgamated Shipping, tried to cut a deal with Honduras through Honduran promoter Edgardo Pacall. But Honduras refused Amalgamated’s offer to sell the ash for 22,000 USD. Similarly, the Bahamas, Bermuda, the Dominican Republic and Guinea Bissau also rejected the load. In October 1987, after 14 months on the high seas, the Haitian commerce department imported the toxic ash74 to its territory on the grounds that it was fertilizer.75 (5) Toxic substances were secretly dumped from Western ships even in the southwestern part of the Indian Ocean in the immediate vicinity of Madagascar and Mauritius.76 In cases of this kind, containers carrying

70 The Times of India (New Delhi, 6 June 1988). 71 M. K. Shridharan, ‘Nuclear and toxic waste disposal bring a $12 billion a year business, some ten African countries have received or signed contracts allowing the dumping of waste from industrialized countries’ Patriot (New Delhi, 22 November 1988); See also Hindustan Times (New Delhi, 26 July 1988). 72 The Times of India (New Delhi, 6 June 1988). 73 Deccan Herald (Bangalore, 12 October 1987). 74 This was done at the insistance of Felix and Antonio Paul (the brothers of recently indicted drug traffcker Col. Jean Claude Paul) who convinced the Haitian commerce department to allow them to import the toxic ash which they said was fertilizer. 75 Amrita Bazar Patrika (Calcutta, 25 November 1989). 76 M. K. Shridharan, ‘Nuclear and toxic waste disposal bring a $12 billion a year business, some ten African countries have received or signed contracts allowing the dumping of waste from industrialized countries’ Patriot (New Delhi, 22 November 1988); See also Hindustan Times (New Delhi, 26 July 1988).

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the waste are made of light plastic and can therefore eventually foat away—taken by the currents away from the location where they were originally buried.77 Incidents of this kind led to representatives of African and Latin American countries accusing the industrialized world of acting in an inhuman manner. They called for an end to “toxic terrorism.”78 President Daniel Arap Moi of Kenya condemned this as “garbage imperialism”79 by developed countries. The awareness of this problem and the diverse human effect due to toxic waste exposure ultimately led to the adoption of an international convention at Basel in 1989.80

Hazardous industries A particularly sensitive but crucial issue raised by the Bhopal81 disaster is the transfer of potentially hazardous technologies from industrialized nations to the south. The prospect of exploiting cheap labor and of captive markets are the sole causes for multinational corporations to enter developing countries for such economic exploitation. In such a situation, what are the legal obligations of the multinational corporations making such transfers, especially when the recipient developing country may neither fully appreciate

77 78 79 80

Ibid. Iwona Rummel Bulska, ‘The road to Basle’ [1989] 1 Our Planet (Nairobi) 3. Ibid. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposa1, UNEP/IG. 80/3, 22 March 1989. 81 On 3 December 1984, in what became the worst industrial accident in history, 40 tons of a highly toxic pesticide, methyl isocyanate, was released into the atmosphere from a Union Carbide chemical plant in Bhopal. The disaster left more than 2,800 nearby residents dead, and well over 40,000 others seriously injured. See Armin Rosencranz, ‘The Twists and Turns of the Bhopal Law Suits’ [1988] 18 [3] Environmental Policy and Law 81; see also David Davidar, ‘Beyond Bhopal: The Toxic Waste Hazard in India’ [1985] 17 [2] Ambio 112–16. In addition to the serious, permanent, mild and temporary injuries, livestock was killed, crops damaged and businesses interrupted. See Upendra Baxi, Inconvenient Forum and Convenient Catastrophe: The Bhopal Case (M. M. Tripathi Pvt. Ltd., 1986) 36; Hilmy Ismail, ‘Forum Non-convenience, United States Multinational Corporations, and Personal Injuries in the Third World: Your Place or Mine?’ [1991] 11 [2] Boston College Third World Law Journal 249-76; Union Carbide Corporation v Union of India [Civil Appeal Nos. 3187 & 3188 of 1988] with Special Leave Petition (Civil) No. 13080 of 1988, [1989] 2 Judgements Today 463; Ratna Kapur, ‘From Human Tragedy to Human Rights: The Accountability of Multinational Corporations for Human Rights Violations,’ [1990] 10 [1] Boston College Third World Law Journal 1–41; C.M. Abraham and Sushila Abraham, ‘The Bhopal Case and the Development of Environmental Law in India’ [1991] 40 [2] International and Comparative Law Quarterly 334–36.

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the potential hazards associated with a specifc industry nor possess the technological and regulatory infrastructure to control it? However, mass industrial disasters are not confned to developing countries alone. The explosion that occurred in Meda,82 a small industrial town in northern Italy, and the Chernobyl83 disaster speak volumes about the loopholes in the existing regulations on the subject. Furthermore, many governments in developing countries have fewer controls on pollution and workplace environment, and have long welcomed and encouraged industrialization by foreign capital. Since the advent of controls in developed countries84 there have been instances of the fight of several hazardous industries to the developing world. The movement of asbestos85 manufacturing from the north to the south is a case in point. 82 On 10 July 1976, an explosion occurred in Meda, a small industrial town in northern Italy, at the Icmesa plant owned by Givaudan, a subsidiary of the Swiss-controlled Hoffman La Roche Chemical Combine. As a result of the explosion at this chemical plant, a thick whitish cloud of trichlorophenol gas with a pungent, medicinal odor containing the deadly dioxin was released into the atmosphere surrounding the plant. It contaminated 1,800 hectares of countryside and caused serious skin diseases amongst the local population. A medical survey of workers at the plant also indicated that many had suffered from nausea and vomiting, burns, blisters, intoxication and vertigo. The most severe biological impact was the loss of produce and domestic animals raised in the contaminated zones, which either died or were destroyed. See Andrew Chetley, ‘Cleared for export: An examination of the European Community’s chemical and pharmaceutical trade’ (Unknown Binding 1985) 42; Ved P. Nanda and Bruce C. Bailey, ‘Export of Hazardous Waste and Hazardous Technology: Challenge for International Environmental Law’ [1988] 17 [1] Denver Journal of International Law and Policy 163. 83 On 26 April 1986, a chemical explosion occurred at the Chernobyl nuclear power plant in the Soviet Union. In the ensuing days, a fre in the damaged reactor caused the release into the atmosphere of far more radioactive elements than had ever been emitted in a previous nuclear accident. 135,000 people, some living as far as 100 miles from the plant, were evacuated from the area. See Jillian Barren, ‘After Chernobyl: Liability for Nuclear Accidents under International Law’ [1987] 25 [3] Columbia Journal of Transnational Law 647–72; Michael A. Heller, ‘Chernobyl Fallout: Recent IAEA Conventions Expand Transboundary Nuclear Pollution Law’ [1987] 23 [1] Stanford Journal of International Law 51–64; Sharon MC Brayer, ‘Chernobyl’s Legal Fallout: The Convention on Early Notifcation of a Nuclear Accident’, September 26, 1986, UST, TIAS No.-) [1987] 17 [2] Georgia Journal of International and Comparative Law 303–19. 84 There are almost two million workers totally or partially disabled from occupational diseases in the US. According to the Department of Health and Human Services, between eight and 11 million workers have been exposed to asbestos since the beginning of World War Two. Since 1968, victims have brought over 20,000 lawsuits, making asbestos-related disease cases the most common type of products liability lawsuit. Susan Stevens Ford, ‘Who will Compensate the Victims of Asbestos Related Diseases? Manville’s Chapter II Fuels the Fire,’ [1984] 14 [2] Environment Law 466–69. 85 Asbestos can cause asbestosis, mesothelioma and bronchogenic carcinoma. Asbestos poisoning is a chronic infammatory process within the lung that eventually results in fbrosis of the lung tissue, respiratory failure and death; Troyen A. Bernann, ‘Collateral Estoppel in Asbestos Litigation’ [1983] 14 [1] Environmental Law 201–02.

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Many developing countries lack both the resources and industrial infrastructure required, making less advanced technologies more appropriate for their needs. Unfortunately, the less advanced technologies in a given industry are often the most hazardous. Most of the workers in these factories are unaware of these health risks.86 In effect, workers in plants with known occupational hazards are being forced to risk their future health, without being informed of the hazards they are encountering or being equipped to take precautions.87 Another major issue facing the international community, at present, is the diffculty of adopting an acceptable defnition of hazardous substances itself. Defnitions adopted by the north are not necessarily agreeable to the members of the south. For example, developing countries plagued with malaria and other tropical diseases may perceive a need to use banned products like DDT, which they claim have saved fve million lives and prevented 100 million illnesses since 1942.88 Moreover, domestic regimes which control these substances establish environmental standards for domestic activities. Domestic regimes differ not only in the standards they set, but also in the effectiveness of their enforcement.89 The pharmaceutical industry is the worst affected90 by this kind of attitude. Hence, a unilateral approach

86 Ibid. Asbestos can cause asbestosis, miesothelioma, and bronchogenic carcinoma. Asbestos poisoning is a chronic infammatory process within the lung that eventually results in fbrosis of the lung tissue, respiratory failure and death. 87 Troyen A. Brennan and Lawrence J. Lucas, ‘A Legal Strategy for Controlling the Export of Hazardous Industries to Developing Countries: The Case of Asbestos’ [1983] 9 [2] The Yale Journal of World Public Order 280. Castleman documents two examples of asbestos processors moving overseas: Johns Manville Corporation to Madras, India, and Amatex Corporation to Agua Prieta, Mexico. See Castleman, ‘The Export of Hazardous Factories to Developing Nations’ [1979] 9 International Journal of Health Services 573–74; According to the National Cancer Institute, at least four million American workers have been exposed to hazardous levels of asbestos dust in their workplace since the 1940s. The Institute estimates that at least 1.6 million will die from cancer attributable to that exposure. See Irvin B. Nathan and Robert N. Weiner, ‘Superfund for Asbestos Liabilities: A Sensible Solution to a National Tragedy’ in the Editors, ‘Recovery for Exposure to Hazardous Substances: The Superfund 301 (e) Report and Beyond’ 14 [1984] ELR 10098. 88 Greenwood, Carolyn, ‘Restrictions on the Exportation of Hazardous Products to the Third World; Regulatory Imperialism or Ethical Responsibility’ [1985] 25 [2] Boston College, Third World Law Journal 130. 89 Many developing countries allow the use of pesticides such as DDT which many developed nations have prohibited as environmentally unacceptable. See ‘Developments in the Law– International Environmental Law’ [1991] 104 [7] Harvard Law Review 1613; in 1972, the use of DDT and related insecticides were banned in the United States because they were shown to promote cancers and also to be a hazard to wildlife. See, Barry Commoner, ‘The Environment’ in Peter Borelli (ed), Crossroads: Environmental Priorities for the Future (Washington D.C. Island Press 1988) 128–29. 90 Some hazardous drugs that enjoy phenomenal sales in India due to aggressive marketing strategies of the drug company includes Baralgan, manufactured by Hoechst (FRG) an

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AN OVERVIEW OF HAZARDOUS SUBSTANCES

followed by just a few states is not an answer to the present phenomenal problems involved in the legal control of hazardous substances. “Globalism” must replace the drive for national beneft and advantage. In 1980, industrialized market economies accounted for 65 percent of the world total of patents granted, and the socialist countries of Eastern Europe held 29 percent. Developing countries held only 6 percent, and most of these had been granted to non-residents.91 By 2006, the total number of patent applications across the world was shown to be 1.76 million.92 Approximately 72,700 patents were granted across the world in 2006.93 Along with developed countries, the proportion of patents in developing countries has also increased. In 1983, chemicals accounted for roughly one-fourth of the stock of foreign direct investment in manufacturing in developing countries from four leading countries—Japan (23 percent), the United States (23 percent), the United Kingdom (27 percent) and the Federal Republic of Germany (14 percent).94 Developing countries paid about two billion USD in 1980 by way of royalties and fees, mainly to industrialized countries. By 1986, more than 500 chemicals and chemical products had been banned altogether or

91

92

93 94

anti-spasmodic, sales of which went up 75 percent between 1979 and 1984. This drug can cause a fatal disease in which the production of white blood cells in the bone marrow is suppressed. Novalgin, by Hoechst (FRG), a pain killer banned in 15 countries has recorded a 94 percent sales increase in the same span of time. Similarly, Oxalgin by Cadilla, and Suganril by SG Pharma (Ciba Geigy Swiss), both anti-infammatory drugs, are hazardous. Nonessential drugs, further identifed, are: Becosules, Pfzer (USA); Dexorange, Francho Indian, a blood tonic, Vicks Vaporub (Richardson, USA), a non-drug, Benadryl, Parke Davis, cough expectorant; Neurobion, E. Merck, B. Complex; Phensedyl, May and Baker, cough expectorant, Herato Globin, Raptakos, blood tonic. These hazardous and useless drugs have been identifed in a list published in ‘Health Status of the Indian People,’ a report produced by the Foundation for Research in Community Health, in May 1989, and supported by the Indian Council of Medical Research. See, Financial Express (New Delhi, 24 October 1989) Hydroxyguinolines, available in India in the form of a well-known drug, has been banned in Japan as it was associated with numerous cases of neurological toxicity causing partial or severe blindness which left 10,000 patients with permanent disabilities. This drug is sold freely over the counter with a warning about ocular toxicity written microscopically in English, which only a small percentage of the population can read. See Pawan Sikka, ‘Dangers of Uncontrolled Drug Trade’ Patriot (New Delhi, 6 July 1988). The World Commission on Environment and Development, Report of the World Commission on Environment and Development: Our Common Future (Oxford University Press 1987) 87. World Intellectual Property Organisation, World Patent Report: A Statistical Review (2008) http://www.wipo.int/ipstats/en/statistics/patents/wipo_pub_931.html. Accessed 14 December 2017. Ibid. Environmental Aspects of the Activities of the Transnational Corporations: A Survey, (UN Centre on Transnational Corporations 1985).

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had their uses severely restricted in the country of origin.95. In addition, an unknown number of chemicals are withdrawn from clearance processes every year in the light of control agency concerns or because they are never submitted to national control agencies for clearance. Some of these end up going to the export market.96. A large number of developing countries that import these chemicals are not in a position to effectively control the trade in chemicals that are banned or severely restricted in exporting countries. In order to elucidate the problem more clearly, the following pages will investigate the trade in chemicals, foods, pesticides, pharmaceuticals and wastes in the last decade. Statistics to show this have been provided, wherever possible as per availability.

Toxic chemicals Until the 1980s, more than seven million chemicals were known, and the list soon grew steadily longer. About 80,000 chemicals are currently known to be used to manufacture a wide range of products to satisfy the everexpanding material consumption of modern life. Over 1,000 billion dollars’ worth of chemical products are produced today and sold all over the world.97 The United States and Europe each produced over 200 billion dollars’ worth of chemical products. Each one of these chemicals used in manufacturing processes is potentially hazardous if wrongly applied or if released in large quantities by design or accident.98 Worse yet, they tend to remain, in some form or other, as polluting agents long after their original job is done. Moreover, not only has the number of chemicals been expanding rapidly from 1960 onwards, but their quantities have also seen phenomenal growth. Global production of organic chemicals, for example, made huge jumps from about one million tons a year in the 1930s to seven million in 1950, 63 million in 1970 and about 250 million in 1985.99 In 2005, this number reached a whopping 400 million tons.100 Since the 1990s, the global chemical industry structure has been continuously changing due to shutdowns, consolidations, mergers and 95 Consolidated List of Products Whose Consumption and/or Sale Have Been Banned, Withdrawn, Severely Restricted or not Approved by Governments Compiled by the UN (1st Revised Edition, DIESA/WP/1, 1986). 96 The World Commission on Environment and Development, Report of the World Commission on Environment and Development: Our Common Future (Oxford University Press 1987) 87 224. 97 United Nations Industrial Development Organisation, Industry and Development: Global Report 1990–91 (UNIDO 1990) 120. 98 Ibid. 99 Ibid 21. 100 Innovest, ‘Overview of Chemical Industry: Overview for Coming Clean’ March 2007 28. http://www.precaution.org/lib/07/innovest.pdf. Accessed 13 December 2017.

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acquisitions.101 Some of the most defning changes include the introduction of new feedstock, both renewable and fossil-based, thus forcing people to reconsider the chemical economy.102 Global chemical production growth slowed down from 4.4 percent per annum from 1999 to 2004, to 3.6 percent per annum from 2004 to 2009.103 In 2008, the European Union (EU) was severely affected by the economic crisis. Although the EU, together with the United States and Japan, has always been world leaders in the production of chemicals, a shift in production took place and is still taking place—principally to China, Brazil, Russia and India. The shift is taking place without any decrease in absolute numbers in the former group, apart from the temporary decline during the economic crisis of 2008.104 It has thus been observed that the industry is increasingly moving eastwards, in line with the shift of its key consumer industries (e.g. automotive, electronics, etc.) to leverage greater manufacturing competitiveness of emerging Asian economies and to serve the increasing local demand.105 This has led to Asia’s share in the global chemical industry increasing from 31 percent in 1999 to 45 percent in 2009 (see Figure 1.1).106 Since then, the chemical industry had continued to grow at a massive rate. In 2016, a geographical breakdown of world chemical sales exhibited a 0.4 percent growth rate from 2015 at 3,417 billion pounds.107 The total turnover was valued at 3,360 billion pounds, with China having 1,331 billion pounds, followed by NAFTA countries (528 billion pounds) and the European Union (507 billion pounds), respectively. China has emerged as the clear leader not just in Asia but across the world. This is also evident in Figure 1.1, which shows chemical sales by country in 2016 with China as the leading country—followed by the US and Germany. In 2001, the OECD issued projections claiming that by 2020 developing countries would be home to 31 percent of global chemical production and 33 percent of global chemical consumption. Recent forecasts from the American Chemistry Council (ACC) also predict signifcant growth in chemical production in developing countries in the period from 2012 to

101 R. Rajagopal, Sustainable Value Creation in the Fine and Specialty Chemicals Industry (John Wiley & Sons Ltd. 2014). 102 Ibid. 103 Indian Chemical Industry, Five Year Plan (2012–2017) 4. 104 Swedish Chemical Agency, ‘Chemical Industry from an Economic Perspective’ (Developments trends in the world, EU and Sweden in 2010) 7. 105 Indian Chemical Industry, Five Year Plan (2012–2017) 4. 106 Ibid. 107 Cefc Facts and Figures, 2017 http://fr.zone-secure.net/13451/451623/?startPage=14#pa ge=5. Accessed 11 December 2017.

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An overview of hazardous substances

Chemical Sales by Top 10 Country (Chemical Sales 2016 (Euro Billion) 1,400

1,331 Chemical Sales by Top 10 Country (Chemical Sales 2016 (Euro Billion)

1,200 1,000 800 600

476

400 145 140

200

113

71

76

63

59

50

ly Ita

il az Br

an iw

ce

Ta

an

a

Fr

di In

US A Ge rm an y Ja pa So n ut h Ko re a

Ch

in a

0

Figure 1.1 Chemical sales by top ten country (chemical sales 2016) (Euro billion). Source: Cefic Chemdata International

2021, and more modest growth in developed countries. This is shown in Table 1.1.108 Major companies Figure 1.2 shows the leading global chemical companies active in 2015.109 BASF was the leading global chemical company followed by Dow Chemical, Bayer. All these companies were based in the US or Europe. With the exception of Saudi Basic Industries, all the remaining companies were based in developed countries. This shows the predominance of developed countries in the chemical sector. Food and beverage processing The food and beverage processing industry can be divided into three main sectors: the staple food sector, the branded food sector and the export food

108 Global Chemical Outlook, 2012, ‘Towards Sound Management of Chemicals’ (UNEP 2013) http:​/​/wed​​ocs​.u​​nep​.o​​rg​/bi​​tstre​​am​/ha​​ndle/​​20​.50​​0​.118​​22​/84​​55​/Gl​​obal%​​20che​​mical​​ s​%20o​​utloo​​k_​%20​​towar​​ds​%20​​sound​​%20ma​​nagem​​ent​%2​​0of​%2​​0chem​​icals​​-2013​​​ Globa​​l​%20C​​hemic​​als​%2​​0Outl​​ook​.p​​df. Accessed 11 December 2017. 109 Statista, ‘2015 ranking of the global top 10 chemical companies based on revenue (in billion U.S dollars).’ www​.statista​.com. Accessed 14 December 2017.

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Table 1.1 Chemical production predicted growth, 2012–2020 Percentage (%) change, 2012–2020 North America

Latin America Western Europe Emerging Europe Africa & Middle East Asia-Pacifc

United States Canada Mexico Brazil Other Russia Other Japan China India Australia Korea Singapore Other

25

33 24 35 40 46

25 27 28 35 31 34 36 22 66 59 23 35 35 44

Source: Percentages calculated based on projections for the regions and for selected countries by swift Thomas Kevin et al., (June 2011)* Mid-Year 2011 Situation & Outlook, American Chemistry Council.

sector.110 Although transnational corporations are involved in all three, their activity is strongly concentrated in the branded food sector. Affliates of transnational corporations produce about one-eighth of the processed food in developing countries as a whole, but in a number of the larger, more advanced developing countries with heavy foreign investment in the food industry, the proportion rises to over 25 percent. Investment in developing countries represents about one-quarter of the total foreign investment of the food processing industry. Product differentiation, coupled with aggressive advertising, promotion and marketing strategies aimed at winning consumer acceptance for specifc branded foods, appear to be the most important factors underlying the dominance of transnational corporations in the branded food sector.111

110 United Nations, Transnational Corporations and Technology Transfer: Effects and Policy Issues (ST/CTC/86, UN, 1987) 1. 111 V. R. Whiting, Jr., ‘Transnational Enterprise in the Food Processing Industry,’ in R. S. Newfarmer (ed), Profts, Progress and Poverty: Case Studies of International Industries in Latin America (Notre Dame, University of Notre Dame Press 1985). See also (n 11) 17.

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2015 ranking of the global top 10 chemical companies based on revenue (in billion U.S. Dollars) 89.9

BASF 58.2

Dow Chemical, U.S.

51.1

Bayer, Germany

50.1

Saudi Basic Industries, Saudi Arabia

41.8

Lyondell Basell Induatries, U.S.

34.9

E.I. Du Pont de Nemours, U.S 20.6

Linde, Germany Henkel, Germany

19.9

Air Liquide, France

18.6

PPG Industries, U.S

15.4 0

20

40

60

80

100

2015 ranking of the global top 10 chemical companies based on revenue (in billion U.S. Dollars) Figure 1.2 Major global companies. Source: Statista.com

In the United States, 80 to 85 percent of the volume of farm output is processed before it is delivered to the consumer. On its way, it passes through a well-articulated storage, transportation and distribution network whose smooth functioning is assured by adequate banking, communication and other services.112 Food manufacturing enterprises in developed market economy countries differ not only in size but also in type of ownership. In addition to the leading private food manufacturing frms, cooperatives/associations of consumers, growers and retailers or wholesalers all have their own processing operations. In France, for instance, producer cooperatives have become especially important in the production of processed meat and dairy products and animal feed, not only for the national market but also for export.113 The Centre on Transnational Corporations observed that of its sample of 165 leading manufacturing frms, 110 had affliates in developing countries.

112 UNCTAD, Food Processing Sector in Developing Countries: Some Recent Trends in the Transfer and Development of Technology (report by the UNCTAD Secretariat, TD/B/C.6/66 UN 1980) 5. 113 Ibid 10.

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110 companies in the mid-1970s had a total of 750 affliates in developing countries (plus another 50 affliates in territories and possessions in developing regions), and accounted for an estimated one-eighth of the output of the food processing industries of developing countries, mostly in the branded food and export sectors.114 Interestingly, over 100 leading food industry frms had investments in more than 600 developing country affliates engaged in the processing and local marketing of branded products, as of the mid-1970s. The largest number of branded food affliates (more than 100) are in processed dairy products, but ten other branded food lines have 20 or more affliates each: canned fruit and vegetables, dried soups and vegetables, breakfast cereals, margarine and table oils, confectionery, soft drink concentrates, beer, coffee and cocoa products.115 Expanding domestic markets, in combination with host government policies of using tariff protection and other incentives to encourage import substitution in consumer products in the 1950s and 1960s, are the main factors that attracted foreign investment in branded goods. The products are marketed almost exclusively in the host country or other markets in the region.116 In the 1970s, the industry was heavily dominated by US and UK frms. US frms earned more proft and sales per unit of capital employed, while the UK frms seem to have specialized in the least capital-intensive activities in the industry (or in the most labor-abundant areas).117 The developing world, as a whole, accounted for about one-ffth of US and UK food industry investment (with the US heavily concentrating on Latin America, mainly in Mexico and Brazil, and the UK’s focus more dispersed over the Caribbean, Africa and Asia).118 In terms of proftability, the developing world generally provided higher rates of return to the US- and UK-based TNCs than the developed world, the percentage of net earnings on assets employed in food processing are 12 for developed countries and 15 for developing countries.119 From the 1990s onwards, there has been a behemothic growth in the food processing and beverage industry. It is evident that since the 1970s, TNCs have employed various new strategies and, thus, the food processing and beverage sector has become one of the largest industries worldwide. In the past few decades, the sector has fourished from a collection to

114 115 116 117

Ibid 15. Ibid. Ibid 17. UNCTAD, Technological Policies in the Food Industry: Issues for Research (UNCTAD TD/B/C.6/40 (UN 1978) 8. 118 1975 fgures. 119 UNCTAD, Technological Policies in the Food Industry: Issues for Research (UNCTAD TD/B/C.6/40 (UN 1978) 10.

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AN OVERVIEW OF HAZARDOUS SUBSTANCES

a trillion-dollar business led by giant multinational corporations. Certain companies, like Coca-Cola and McDonald’s, can be found in all corners of the world. The overarching theme dominating the food and beverage sector is blowing up global demand and rapidly rising food prices. The instantaneous economic growth of developing nations such as China, India, Brazil and Vietnam gives billions of people the ability to indulge in ways previously enjoyed only by people of developed nations. This huge entry of consumers into the global food market has resulted in a fast and continuous increase in food prices, leading to an increase in global infation. As a result of the globalization of the industrial market and technological advancement, the competition in the food industrial market is severe. It is important for organizations to identify new methods to maintain their competitiveness and sustainability in the market. The overall growth of the sector comes from international expansion. Global frms like ITC, HUL, Britannia and Pepsi offer a wide range of products that are high in quality and various Indian players like Haldirams, MTR and Parle leverage their position on competitive pricing and mass reach.120 According to the ETC Group, an organization dedicated to addressing socio-economic issues that have an impact on the world’s poorest people, the global packaged foods market was worth approximately USD 1.37 trillion in 2009. Moreover, the top ten food and beverage corporations control more than 28 percent of the global market for packaged food products, with combined sales reaching close to USD 400 million.121 Overall, the growth of packaged foods is fve times higher in developing countries compared to developed countries. The intense growth and consumption of packaged foods in developing countries presents one of the largest barriers to proper nutrition in low- to middle-income countries.122 As a group, developing countries are highly dependent on the food trade. They are large net exporters of unprocessed products like coffee, sugar, oilseeds, nuts and oils, cocoa, fruit, animal feed, meat, fsh and maize, etc.

120 Sheena Chabra and Dr. Ravi Kiran, ‘An Analysis of Some Key Segments of Food and Beverage Sector in India’ [2012] 12 [14] Global Journal of Management and Business Research https://journalofbusiness.org/index.php/GJMBR/article/download/777/706/. Accessed 14 November 2017. 121 ETC Group, ‘Who Will Control the Green Economy?’ (ETC Group December 2011) 37 http://www.etcgroup.org/files/publication/pdf_file/ETC_wwctge_4web_Dec2011.pdf. Accessed 12 December 2018; As seen in Black, Elizabeth, ‘Globalization of the Food Industry: Transnational Food Corporations, the Spread of Processed Food, and Their Implications for Food Security and Nutrition (2016) Independent Study Project (ISP) Collection. Paper 2353. http://digitalcollections.sit.edu/isp_collection/2353. Accessed 13 December 2017. 122 Elizabeth Black, ‘Globalization of the Food Industry: Transnational Food Corporations, the Spread of Processed Food, and Their Implications for Food Security and Nutrition (2016) Independent Study Project (ISP) Collection. Paper 2353. http://digitalcollections .sit.edu/isp_collection/2353. Accessed 13 December 2017.

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In 1982, the International Trade Centre published a market survey123 according to which world trade in fruit and vegetable juices increased from about 1,000 million USD to 2,000 million USD (from about 1.3 million tons to 1.7 million tons) during the period 1977–1981. From 2007 to 2011, the value in current prices of exports of fruit and vegetable juices124 increased on average by 5.0 percent each year and amounted to 17.4 billion USD. During the same period, imports increased on average by 4.3 percent each year and amounted to 17.1 billion USD in 2011. In 2011, Brazil was the top exporting country: it accounted for 14.7 percent of world exports. Other major exporting countries were the Netherlands and Belgium, respectively at 9.1 and 7.6 percent of world exports. Major destinations were the USA, Germany and the Netherlands. Europe accounted for a large share of trade.125 In 2016, the global juice concentrate market was valued in terms of revenue at 89.56 billion USD and is anticipated to reach 117.89 billion USD by 2025, at a CAGR of 3.4 percent from 2017 to 2025.126 Further, in 2016, according to ITC calculations on the list of exporters for fruit juices including vegetable juice and grape musts based on UN COMTRADE and ITC statistics,127 Brazil stands at the top followed by the Netherlands, Belgium and the US.

Supply pattern Developing countries and areas, taken as a group, accounted for between 44 and 55 percent of the value of world export of juices during the period from 1984 to1988. In the latter year, they accounted for as close to 52 percent. Among developing countries, Brazil was by far the largest exporter of fruit juices and was also the world’s major supplier throughout the period under review.128 The beverage industry is by far the largest outlet for fruit juices, concentrates and pulps, probably absorbing about 80 percent of total raw material

123 Tropical Fruit Juices and Pulp World Market Prospects (Geneva: International Trade Centre, UNCTAD/GATT, 1990). 124 Statistics were gathered for the fruit and vegetable juices, unfermented and without added spirit with product no. 059 (Comtrade Database) https://comtrade.un.org/db/mr/daCom moditiesResults.aspx?px=ST& cc=059. Accessed 13 December 2017. 125 Ibid. 126 Transparency Market Research, ‘Juice Concentrate Market Global Industry Analysis, Size, Share, Growth, Trends and Forecast 2017–2025’, July 2017. Synopsis available at http: //www.fruitjuicefocus.com/fruit-juice-sector-market-reports-and-research/. Accessed 12 December 2017. 127 Bar Chart on imported value. https://www.trademap.org/Country_SelProduct_Graph. aspx?nvpm=1|||||2009|||4|1|1|1|1|1|2|1|1. Accessed 14 December 2017. 128 Tropical Fruit Juices and Pulp World Market Prospects (Geneva: International Trade Centre, UNCTAD/GATT 1990) 2.

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AN OVERVIEW OF HAZARDOUS SUBSTANCES

imports.129 Likewise, the dairy industry uses imported fruit juice raw materials to produce yogurt, ice-cream, desserts, puddings, sauces and so on. Fruit juice raw material is used more and more in other food products, such as in the aforementioned dairy products—in particular, yogurts, bakery products and baby food. Over the past few decades, developing countries have also come to occupy a signifcant position in the food processing and beverages sector. For instance, Mexico is a major producer of food and beverages, with a 20 percent and 17 percent share in the total MVA of developing countries and EIEs in 2005 and 2011, respectively.130 Leading Mexican brands have well-developed national distribution networks and are well-positioned in the market. They enjoy high levels of brand awareness among consumers, who are very loyal despite economic variations. The US had a 24 percent and 21 percent share of world total value added in the food and beverages industry in 2005 and 2011, respectively.131

Trade in pesticides132 Pesticides play an important role in both agricultural production and public health programs. It has been estimated that pests destroy on an average onethird of the world’s potential crop production. This means that pesticides, together with integrated farm management, are critical factors in increasing crop yields and preventing crop losses.133 Developing countries, which rely on agricultural exports for much of their foreign exchange earnings, need pesticides to improve their cash crop production and raise their own living standards. The per capita food production has been decreasing in many developing countries and pesticides are considered as a panacea to achieve food self-

129 Ibid. 130 United Nations Industrial Development Organisation, Working Paper 02/2014, Growth and Distribution Pattern of the World Manufacturing Output: A Statistical Profle. https ://open.unido.org/api/documents/4812021/download/Growth%20and%20distributio n%20pattern%20of%20the%20world%20manufacturing%20output%20-%20A%2 0statistical%20profle. Accessed 16 December 2017. 131 Ibid. 132 A pesticide is any substance or mixture of substances intended to prevent or control any unwanted species of plants or animals and also includes any substances or mixture of substances intended as plant growth regulators, defoliants or desiccants. WHO, Report of the 1975 Joint Meeting of the FAO Expert Committee on Pesticide Residues in Food, WHO TECH-REP SER (No. 592) 39 (Annex 3) (1976); see also comment, ‘Agricultural Pesticides: The Urgent Need for Harmonisation of International Regulation,’ [1979] 9 [1] California Western International Law Journal. 133 Global Overview of the Pesticide Industry Sub-sector Sectoral Working Paper (United Nations Industrial Development Organisation, 2 December 1988), (Prepared by Industrial Statistics and Sectoral Surveys Branch Policy and Perspectives Division) 8–9.

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suffciency. However, several developing countries lack a regulatory regime for pesticides and, even if it was present, enforcement remains a problem.134 Pesticides that are banned in a particular country are often still produced there for export. Pesticides are essential inputs in the control of vector-borne diseases such as malaria. But since pesticides are biologically active, their careless or excessive use may damage the environment and its inhabitants.135 Pesticides lead to environmental hazards by their persistent presence in soil, air and water. They can affect humans or animals by indirectly entering into the food chain. Some pesticide residue may also enter groundwater through infltration. Pesticide demand is primarily determined by climatic conditions, the number of hectares planted by crops and by the frequency of applications which, in turn, depend on the intensity level of agro-technics. Crop structure is another major determinant of the demand for major pesticide groups. Pesticide dependency has increased manifolds throughout the last decade. Between 2008 and 2012, expenditure on herbicides consistently accounted for the largest portion of total expenditure in all years (approximately 45 percent), followed by expenditure on insecticides, fungicides and other pesticides, respectively136 Global pesticide use has steadily grown over the years to 3.5 billion kg/year, thus amounting to a global market worth 45 billion USD.137 Table 1.2138 shows that worldwide pesticide consumption has undergone major changes from 1960 to 2005. The highest world market growth rates of pesticides occurred in the 1960s, at 12 percent per year, later falling back to 2 percent and below during the 1980s and 1990s, then rising again to 3 percent per year to 2014.139 The value of the global market in 2015 was 45 billion USD per year. Herbicides accounted for 42 percent of sales, insecticides 27 percent,

134 Human Rights Council, 34th Session, 27 February–24 March 2017 ‘Report of the Special Rapporteur on Right to Food’ http://www.pan-uk.org/site/wp-content/uploads/United-Na tions-Report-of-the-Special-Rapporteur-on-the-right-to-food.pdf. Accessed 16 December 2017. 135 A 1983 study estimated that approximately 10,000 people died each year in developing countries from pesticide poisoning and about 400,000 suffered. See A. Gear (ed), The Organic Food Guide (Essex: 1983); The World Commission on Environment and Development, Report of the World Commission on Environment and Development: Our Common Future (Oxford University Press 1987) 126. 136 United States Environmental Protection Agency (EPA), ‘Pesticide Industry Sales and Usage 2008–2012 Market estimates’ https://www.epa.gov/sites/production/fles/2017-01/docu ments/pesticides-industry-sales-usage-2016_0.pdf. Accessed 17 December 2017. 137 Jules Pretty and Zareen Pervez Bharucha, ‘Integrated Pest Management for Sustainable Intensifcation of Agriculture in Asia and Africa’ [2015] 6 [1] Insects 154 http://www.mdpi .com/2075-4450/6/1/152/htm. Accessed 12 October 2017. 138 Wenjun Zhang, Fubin Jiang Jianfeng Ou, ‘Global pesticide consumption and pollution: with China as a focus,’ Proceedings of the International Academy of Ecology and Environmental Sciences, 2011, 1(2) 125–144, 126. 139 Ibid.

35

36

3.5 100

30 850

159 2700

1002 939 599

Sale

1970

1980

5.9 100

37.1 34.8 22.2 638 11600

4025 4756 2181

Percent Sale

Source: Xu, 1997; http://www.docin.com/p-55305172.html Sale: Million US dollars

36.5 20.0 40.0

310 170 340

Insecticides Herbicides Fungicides & Bactericides Others Total

Percent

Sale

Category

1960

Table 1.2 Changes of pesticide consumption worldwide

5.5 100

34.7 14.0 18.8 1575 26400

7655 11625 5545

Percent Sale

1990

6 100

29 44 21

1354 27104

7559 12885 5306

Percent Sale

2000

5.0 100

27.9 47.5 19.6

936 31191

7798 14791 7486

Percent Sale

2005

3.0 100

25.0 48.0 24.0

Percent

AN OVERVIEW OF HAZARDOUS SUBSTANCES

AN OVERVIEW OF HAZARDOUS SUBSTANCES

fungicides 22 percent, and disinfectants and other agrochemicals 9 percent.140 The largest markets were in Europe and Asia (USD 12 billion each), Latin America (USD ten billion) and North America (USD nine billion) while the market in the Middle East and Africa was USD 1.5 billion141. The global crop protection chemicals market was estimated to be valued at USD 54.89 billion in 2016 and projected to reach 70.57 billion USD by 2021, at a CAGR142 of 5.15 percent from 2016 to 2021. With the increase in demand for food security for the growing population along with the limited agricultural land available in the world and the rise in crop loss due to various pest attacks, the use of crop protection chemicals is expected to enhance the market growth.143 In 1985, industrialized countries consumed about 73 percent of the 2.45 million tons of the world’s shipments of pesticide fne chemicals. Developing countries accounted for about one-ffth of global industrial consumption.144 World sales of pesticide fne chemicals (active ingredients) were estimated to be about 12 billion USD at cost, insurance and freight (CIF) import prices.145 During the period from 2007 to 2012, the statistics on the annual pesticide consumption worldwide146 show China as the largest consumer, followed by the US, Argentina, Thailand and Brazil.

140 Ibid. 141 Ibid. 142 CAGR refers to compound annual growth rate. It is the “annual return calculated based on each year's previous balances where each previous balance includes both the original principal and all interest accrued from prior years.” For instance, if one invested $100 today and made 5 percent in the frst year and reinvested ($105) to make 8 percent in the second year, the compound annual growth rate would be 6.489 percent. The calculation is $100 x 1.05 x 1.08 = $113.4 (the resulting amount at the end of year two). The average return is [square root (113.4/100) -1] = 0.06489 or 6.489 percent. In the case of three compounding periods, one would have to take the cubic root (power of 1/3). If we had invested at exactly 6.489 in both periods, we get $100 x1.06489 x1.06489 =$113.4. Although this example is given in case of a return, CAGR could be applied to earnings growth, GDP growth, etc. See http://www.nasdaq.com/investing/glossary/c/compound -annual-growth-rate. Accessed 15 December 2017. 143 Markets and Markets, ‘Crop Protection Chemicals Market by Type (Herbicides, Insecticides, and Fungicides), Origin (Synthetic, and Biopesticides), Crop Type (Cereals & Oilseeds, Fruits & Vegetables), Mode of Application, Form, and by Region. Global Forecasts to 2021.’ Report Description. Published August 2016. accessed on 15 December 2017. 144 A 1983 study estimated that approximately 10,000 people died each year in developing countries from pesticide poisoning and about 400,000 suffered. See A. Gear (ed), The Organic Food Guide (Essex: 1983); The World Commission on Environment and Development, Report of the World Commission on Environment and Development: Our Common Future (Oxford University Press 1987) 126. 145 Ibid. 146 Aelsu Bajak, ‘Developing World is awash in pesticides: Does it have to be?’ (Ensia, 22 June 2016) https://ensia.com/features/developing-world-pesticides/. Accessed 16 December 2017.

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Table 1.3 Country-level agricultural pesticide use (1990 to latest data: 2007–2012) Changes in pesticide use over an

Country

Latest tear approximate 20 year period (% change) (M kg) in descending All Data period order pesticides Insecticides Herbicides Fungicides (year-month)

OECD USA Italy France Canada Japan Spain Germany UK The Netherlands Denmark Sweden

386 63 62 54 52 40 37 16 8 4 1.8

101% 74% 62% 172% 68% 94% 113% 56% 99% 79% 90%

88% 93% 10% 103% 74% 147% 71% 44% 53% 15% 60%

95% 96% 64% 171% 102% 69% 102% 41% 80% 112% 120%

43% 69% 64% 335% 54% 96% 95% 82% 88% 37% 33%

1990-07 1990-11 1990-10 1990-08 2000-11 1990-10 1990-11 1990-11 1990-10 1990-11 1990-11

Latin America Argentina Brazil Chile

265 76 23

815% 298% 263%

593% 302% 349%

1190% 312% 228%

378% 303% 201%

1993-11 1991-01 1990-11

Asia China Thailand India Bangladesh Turkey Vietnam Pakistan Sri Lanka

1806 87 40 34 33 19 12 1.3

246% 395% 47% 489% 139% 76% 129% 91%

nd 184% 31% 2110% 70% 57% 148% 137%

nd 642% 95% 9500% 101% 97% 42% 54%

nd 143% 100% 801% 460% 151% 51% 112%

1991-12 1993-11 1991-10 1990-10 1990-11 1994-01 1990-01 1991-11

Africa South Africa Ghana Cameroon Algeria Ethiopia Kenya Burkina Faso

27 15 11 4 4 1.6 0.8

154% 1683% 766% 34% 1256% 44% 4800%

159% 591% 582% 28% 465% 27% 662%

134% 5936% 1620% 229% 2380% 64% 24800%

179% 2064% 587% 28% 413% 47% nd

1994-00 1995-09 1990-11 1990-09 1995-10 1994-01 1992-11

Source: Jules Pretty and Zareen Pervez Bharucha, ‘Integrated Pest Management for Sustainable Intensifcation of Agriculture in Asia and Africa’ [2015] 6 [1] Insects 155

Table 1.3147 shows the country-level agricultural pesticide use from 1990 to 2007 through 2012. China, the US and Argentina by then accounted for 70 percent of world pesticide use in agriculture, with China alone now responsible for half of pesticide use worldwide. Thailand, Brazil, Italy, 147 Jules Pretty and Zareen Pervez Bharucha, ‘Integrated Pest Management for Sustainable Intensifcation of Agriculture in Asia and Africa’ [2015] 6 [1] Insects 155 http://www. mdpi.com/2075-4450/6/1/152/htm. Accessed 12 October 2017.

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AN OVERVIEW OF HAZARDOUS SUBSTANCES

France, Canada and Japan each consumed between 50–100 Mg of pesticides. The consumption in China has grown four-fold, Argentina eight-fold, Brazil three-fold, Bangladesh fve-fold and Thailand four-fold over the past several years. Aggregate use has been stable in Germany and the US. There has been a large increase in herbicide use in Canada (three-fold), and substantial reductions in insecticide use in India (down 70 percent). There have been very large increases in both insecticides and herbicides in Argentina, Thailand, Burkina Faso, Ghana, and increases in all categories in Brazil and Chile. Thailand witnessed rapid growth in use, rising 9 percent a year from 1.2 kg/ha to 3.7 kg/ha over 1997 to 2007.148 In 2016, a list of importers149 and exporters150 of selected products such as fungicides, insecticides, etc. shows that among the importers, Brazil had the highest imports, amounting to over two million dollars, followed by France, Germany and Canada. The top exporting countries were Germany, China, the US, France and India. Germany emerged as the top exporter, with exports worth fve million dollars. Figure 1.3151 shows the top global agrochemical companies based on sales in 2014.

Pharmaceuticals The total investment in the industry increased from 240 million rupees in 1952 to 2000 million rupees in 1972. The value of production had been only 100 million rupees in 1948. In 2011, the total pharmaceutical bill across countries of the Organization of Economic Cooperation and Development (OECD) was about 800 billion USD. In 2013, global pharmaceutical sales reached an all-time high of approximately 980 billion USD.152 The global pharmaceutical market will reach nearly 1,430 billion USD by 2020.153 A few developing countries (e.g. Argentina, Brazil, Egypt, India, Mexico) have developed advanced production capabilities for the manufacture of some of the basic materials needed for pharmaceutical supplies for their

148 Ibid 154. 149 Bar chart on imported value, https://www.trademap.org/Country_SelProduct_Graph. aspx?nvpm= 1|||||3808|||4|1|1|1|1|1|2|1|1. Accessed 16 December 2017. 150 Ibid. 151 Statista, ‘Leading global agrochemical companies based on sales in 2014 (in million US Dollars)’ https://www.statista.com/statistics/257489/revenue-of-top-agrochemical-comp anies-worldwide-2011/. Accessed 15 December 2017. 152 The role of competition in the pharmaceutical sector and its benefts for consumers note by the UNCTAD secretariat, Seventh United Nations Conference to Review All Aspects of the Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices. 27 April 2015. 153 International Federation of Pharmaceutical Manufacturers and Associations, the Pharmaceutical Industry and Global Health, Facts and Figures 2017.

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AN OVERVIEW OF HAZARDOUS SUBSTANCES

11381

Syngenta Bayer CropScience

10252

BASF

7239

Dow AgroSciences

5686

Monsanto

5115

DuPont

3700 3029

Adama Nufarm

2281

FMC

2174

Sumitomo Chemical

2122 0

2000 4000 6000 8000 10000 12000

Fig 1.8: Leading global agrochemical companies based on sales in 2014 (Revenue in Million U.S. Dollars)

Figure 1.3 Leading global agrochemical companies based on sales in 2014. Source: Statista.com

population.154 In other words, production is limited to formulation and packaging, for which they are completely dependent on imported raw materials. The above developments have given the impression that these developing countries have achieved considerable success in the establishment of pharmaceutical industries. In reality, however, what is considered as national production is dominated by subsidiaries that are wholly owned by the parent companies or by joint ventures in which foreign transnational corporations hold over 50 percent of the equity. Even in cases where national enterprises may own over one half of the equity, actual control operations are exercised by foreign enterprises through the ownership of technology and know-how. Licensed patents and trademarks often serve as instruments for the control of domestic markets by major foreign pharmaceutical frms.155 The national industry is thus seen to be basically an extension of the operations of the

154 Guidelines on Technology Issues in the Pharmaceutical Sector in the Developing Countries. Prepared by UNCTAD Secretariat (New York, 1982) 7. 155 Ibid 8.

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major pharmaceutical transnational corporation.156 World pharmaceutical production and consumption are still unevenly dispersed around the world with the developed countries as the leading producers and consumers of pharmaceuticals.157 According to IMS Health (an international consulting and data services company), in 2010, the world pharmaceutical market was valued at 875 billion USD with a growth rate of 4.1 percent over the previous year at the constant exchange rate.158 The worth of the pharmaceutical industry has surged from 647 billion USD in 2005 to 875 billion USD in 2010, corresponding to an increase of 35.2 percent.159 During this period, the industry’s growth rate showed a declining trend from 7.2 percent in 2005 to 4.1 percent in 2010, which is mainly due to the slowdown in economic activity, especially in developed countries that consume a large chunk of global pharmaceutical products.160 In 2008, the economic slowdown in developed countries culminated into one of the worst global fnancial and economic crises since the Great Depression, and its negative impacts were felt across the globe affecting all sectors. The pharmaceutical industry was not an exception and it has witnessed one of the lowest year-on-year growth rates, of 6.1 percent, in 2008. In 2009, however, the negative effects of the crisis subsided, and the global economy began to recover. These positive developments helped the global pharmaceutical industry to rebound to its precrisis level and its growth rate climbed to 7.1 percent in 2009.161 The global pharmaceutical market, both in terms of production and consumption, is highly concentrated in developed regions. In 2010, where North America (38 percent), Europe (29 percent) and Japan (12 percent) accounted for nearly 79 percent of the global market, developing regions with a share of nearly 85 percent of the world population, however, accounted for only 21 percent of global pharmaceutical consumption.162 Asia, Australia and Africa represent nearly 15 percent of the global pharmaceutical market, whereas Latin America accounts for 6 percent of the global pharmaceutical market. Further, a list of importers163 and exporters164 analyzed in relation to pharmaceutical products in 2016 shows that the US, Germany, Belgium and

156 Ibid. 157 Organisation of Islamic Cooperation, Statistical Economic and Social Research and Training Centre (SERIC), Pharmaceutical Industry in OIC member Countries Production, Consumption and Trade http://www.sesric.org/fles/article/433.pdf. Accessed 16 December 2017. 158 Ibid. 159 Ibid. 160 Ibid. 161 Ibid. 162 Ibid. 163 Bar chart on imported value l. Accessed 11 June 2017. 26 The UN Globally Harmonized System of Classifcation and Labeling of Chemicals (GHS) .pdf>. Accessed 24 December 2017. 150 Ec.europa.eu. (2017) http://ec.europa.eu/environment/legal/liability/pdf/Summary%20E LD>.pdf. Accessed 24 December 2017.

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into the air; installations discharging polluting substances into water; the manufacture, use, storage, processing, flling, release into the environment and onsite transport of dangerous substances and preparations; the contained use of genetically modifed micro-organisms and deliberate release into the environment and the transport and placing on the market of genetically modifed organisms.151 It also excludes the norm of establishing fault or negligence on part of the operator as a prerequisite. The second liability applies to the damage of protected species and natural habitats caused by any occupational activities other than those listed in Annex III, and to any imminent threat of such damage occurring by any of the listed activities, whenever the operator has been at fault or negligent.152

151 Ibid. 152 European Union, European Commission, press release: Questions and Answers Environmental Liability Directive http://europa.eu/rapid/press-release_MEMO-07-157_en.htm ?locale=en. Accessed 24 December 2017.

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4 EVOLUTION OF LEGAL MECHANISMS FOR NATIONAL MANAGEMENT OF HAZARDOUS SUBSTANCES The Indian experience The concern British India had about the management of hazardous substances was considerable. During the British rule, much of the legislations governing hazardous substances were passed. The approach of an independent India, in reacting to environmental problems, although very slow in the beginning, grew focused and sharp with the creation of the Department of Environment in 1980 with the integrated Ministry of Environment and Forests at the center1 in 1985. A number of legislative changes in this area were passed in the last decade. This chapter analyzes and evaluates the major legislations on hazardous substances and the consequent rules adopted by the Government of India, for its effective regulation. For clarity, sequence and proper understanding of the subject, this chapter is split into two parts. The frst part focuses on the law adopted by the British Government and the initiatives continued by the Indian Government on the subject. Part 2 extensively covers the Insecticides Act of 1968 and the law on consumer protection.

Part 1 Destructive Insects and Pests Act, 1914 The frst legislation relevant to this sphere is the Destructive Insects and Pests Act, 1914.2 This act gave power to the central government to control the importation3 of articles that are likely to cause infection to crops into 1 In 2014, the Ministry of Environment and Forests was renamed the Ministry of Environment, Forests and Climate Change. 2 The bill is the outcome of representations made by the Bombay Chamber of Commerce in 1906. The Act is passed with a view to prevent the introduction into India and the transport from one State to another of any insect, fungus or other pest, which is destructive to crops. See (1981) 15 AIR Manual vol 558–62. 3 Under Section 2 (b) of the Destructive Insects and Pests Act 1914, “import” means the bringing or taking by sea.

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British India.4 Under Section 4 (a) the export and transportation from one state to another within India of any article which is likely to cause infection to crop or insects is put under the regulation/power of the central government. In the event of a notifcation issued by the central government prohibiting the transportation of any article from one state to another,5 the person responsible for the booking of goods or parcels at any railway station or inland vessel station must refuse to receive such articles for its onward transportation.6 If the notifcation imposes conditions on the transportation of such articles, the consignor must produce a document in a prescribed manner to the person responsible for the booking of goods, showing that the conditions are fulflled.7 The central government is empowered to make rules prescribing the nature of documents that must accompany an article or insect before it is booked for export or transportation.8 Under Section 5 the state government is given the power to make rules for the detention, inspection and destruction of any article, insect or class of insects in respect of which a notifcation has been issued under Section 4 (a). Any intentional violation of a notifcation and the resultant transportation of any article or insect from one state to another or exports from a state or even an attempt to do so is punishable under the provisions of this act. The person responsible for the booking of such goods, knowingly accepting such articles at a railway or inland steam vessel station, together with the person transporting it is punishable with a fne up to 250 rupees and, for any subsequent conviction, he will be fned up to 2,000 rupees.9 The Poisons Act,10 1919 The state government can make rules for the regulation of the sale of poison within the whole or any part of the territories under its administration.11The rules made by the state under this provision may extend to: (1) The granting of wholesale or retail licenses to possess any specifed poison for sale and fxing the fee to be charged for such licenses.12

4 Destructive Insects and Pests Act 1914, Section 3 (1). 5 Notifcation must be Under Section 4 (a) of the Destructive Insects and Pests Act 1914. 6 Destructive Insects and Pests Act 1914, Section 4 (a). 7 Ibid, Section 4 (b). 8 Ibid, Section 4 (d). 9 Ibid, Section 5 (a). 10 Act 12 of 1919. Passed on 3 September 1919. 11 Poisons Act 1919, Section 2. 12 Ibid, Section 2 (2) (a).

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(2) Determine the classes of persons to whom such licenses are granted.13 (3) Determine the classes of persons to whom such poison may be sold.14 (4) Determine the maximum quantity of any such poison which may be sold to a person.15 (5) The maintenance of poison registers by vendors and its inspection.16 (6) The safe custody of such poisons and the labeling of the vessels, packages or coverings in which such poison is sold or possessed for sale.17 (7) The inspection and examination of any such poison when possessed for sale by such seller.18 The state government under Section 4 (1)19 is empowered to regulate the possession of any specifed poison in any local area, where murder or mischief by poisoning cattle appears to be frequent. Any breach of this section is punishable with imprisonment of up to one year or with a fne of up to 1,000 rupees or with both. In event of a breach, the articles and poison in question, along with the vessels and packaging, can be confscated. The central government may prohibit or impose conditions of a license for the importation of any poison into India. The “power” to regulate the granting of licenses also vests with the central government.20 Whoever charged with the import of poison without a license into the country and thereby violates the provisions relating to the granting of a license is to be punished,21 on a frst conviction, with imprisonment for a term of up to three months, or with a fne of up to 500 rupees or with both.22 For a second conviction, he may be imprisoned up to six months or with a fne of up to 1,000 rupees or with both.23 In the event of an offense, all involved materials—including vessels, packages or coverings containing poison—are liable to be confscated.24 The act conferred power to the District Magistrate, the Sub Divisional Magistrate and the Commissioner of Police to issue a search warrant and confscate any poison for violation of the provisions of this act.25

13 14 15 16 17 18 19 20 21 22 23 24 25

Ibid, Section 2 (2) (b). Ibid, Section 2 (2) (c). Ibid, Section 2 (2) (d). Ibid, Section 2 (2) (e). Ibid, Section 2 (2) (f). Ibid, Section 2 (2) (g). Ibid, Section 4 (1). Ibid, Section 3. Violation must be under Sections 2 and 3 of the Poisons Act 1919. Ibid, Section 6 (i). Ibid, Section 6 (ii). Ibid, Section 6 (2). Ibid, Section 7 (1).

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The Dangerous Drugs Act, 193026 This act was passed to regulate the importation and sale of narcotic drugs, especially those derived from opium, Indian hemp and coca leaf. The object of this act was to suppress the contraband traffc and abuse of dangerous drugs.27 The Drugs and Cosmetics Act, 194028 This act was passed to regulate the importation, manufacture, distribution and sale of drugs such as: (1) (2) (3) (4)

Patent medicines. Vaccines, sera, toxins and other such biological products. Vitamins, hormones, etc.; and Other drugs that are intended for internal or external administration to human beings or animals.

The legislation underwent several amendments29 to cover many issues for effective regulation. Section 5 (1) confers power on the central government to establish a Drugs Technical Advisory Board to advise the central and state governments on technical matters and to carry out other functions under this act. The Board consists of many expert members30 and the DirectorGeneral of Health Services is the chairman of the board. The nominated

26 Dangerous Drugs Act 1930. 27 C. K. Parikh, Parik’s Text Book of Medical Jurisprudence and Toxicology (CBS Publishers 1988) 645. 28 Drugs and Cosmetics Act 1940. 29 The act was amended in 1955 to bring within its purview insecticides, disinfectants and contraceptive. It was further amended by Drugs (Amendment) Act 1962 (21 of 1962), to include Cosmetics within its purview, and the title was changed from the original “Drugs Act” to the Drugs and Cosmetics Act 1940. The act has been further amended by Drugs (Amendment) Act 1964 (13 of 1964) to include Ayurvedic and Unani drugs. Before 2000, the other two major amendments came in 1982 (Act No. 68 of 1982) and 1988 (Eighth Amendment). See The 35 AIR Manual 944–60 and (1989) 30 Lucknow Law Times 150–60. It was again amended by the Drugs and Cosmetics (Amendment) Act 2008. 30 They include offcials like the Drugs Controller of India; the Director of the Central Drugs Laboratory, Calcutta; the Director of the Central Research Institute, Kasauli; the Director of the Indian Veterinary Research Institute, Izatnagar; the President of the Medical Council of India; the President of the Pharmacy Council of India; the Director of the Central Drug Research Institute, Lucknow; two persons nominated by the central government from among persons who are in charge of drugs control in the states; one person to be elected by

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and elected members31 of the board hold offce for three years and are eligible for re-nomination or re-election.32 The board is empowered to make by-laws and can lay down rules of procedures in relation to all business it conducts.33 In addition, it can constitute sub-committees to realize the object and purpose of this Act.34 The central government appoints the secretary of the board and provides the necessary clerical and other staff. Section 9 of the Act deals with misbranded drugs.35A drug is deemed to be misbranded: (1) If it is so colored, coated, powdered or polished that damage is concealed or if it is made to appear of better or greater therapeutic value than it really is. (2) If it is not labeled in the prescribed manner. (3) If its label, container or anything else accompanying the drug makes a misleading or false claim for the drug. Further, under Section 9 (a), a drug is deemed to be adulterated:36 (1) If it consists, in whole or in part, of any flthy, putrid or decomposed substance. (2) If it has been prepared, packed or stored in unsanitary conditions whereby it may have been rendered injurious to health. (3) If its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health. (4) If it bears a color other than the one which is prescribed. (5) If it contains any harmful or toxic substance which may render it injurious to health. (6) If any substance is mixed therewith so as to reduce its quality.

31 32 33 34 35 36

the Executive Committee of the Pharmacy Council of India; one person to be elected by the Executive Committee of the Medical Council of India; one member nominated by the central government from the pharmaceutical industry; one pharmacologist to be elected by the governing body of the Indian Council of Medical Research; one person to be elected by the Central Council of the Indian Medical Association; one person to be elected by the Council of Indian Pharmaceutical Association and two government analysts to be nominated by the central government. Ibid. Drugs and Cosmetics Act 1940, Section 5 (3). Ibid, Section 5 (4); all such rules are subject to the previous approval of the central government. Ibid, Section 5 (5); such committees should not exceed their tenure beyond three years. Drugs and Cosmetics Act 1940, amendment of 1982. Ibid.

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Similarly, Sections 9 (b), 9 (c) and 9 (d) deal with spurious drugs,37 misbranded cosmetics38 and spurious cosmetics39 respectively. The act was amended in 2008 to include a defnition of adulterated cosmetics under Section 17 (e) where it is laid down that a cosmetic shall be deemed adulterated if: (1) It consists in whole or in part, of any flthy, putrid or decomposed substance. (2) It has been prepared, packed or stored under insanitary conditions whereby it may have been contaminated with flth or whereby it may have been rendered injurious to health. (3) Its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health. (4) It bears or contains, for purposes of coloring only, a color other than one which is prescribed. (5) It contains any harmful or toxic substance which may render it injurious to health. (6) Any substance has been mixed therewith so as to reduce its quality or strength.

37 Ibid, Section 9 (b). (1) If it is imported under a name that belongs to another drug. (2) If it is an imitation of, or is a substitute for, another drug or resembles another drug in a manner likely to deceive or bears upon it or upon its label or container the name of another drug unless it is plainly and conspicuously marked so as to reveal its true character and its lack of identity with such other drug. (3) If the label or container bears the name of an individual or company purporting to be the manufacturer of the drug, when the individual or company is fctitious or does not exist. (4) If it has been substituted wholly or in part by another drug or substance. (5) If it purports to be the product of a manufacturer of whom it is not truly a product. 38 Under Section 9 (c) of the 1982 Amendment, a cosmetic is deemed to be misbranded: (1) If it contains a color which is not prescribed. (2) If it is not labeled in the prescribed manner. (3) If the label, container or anything accompanying the cosmetic bears any statement which is false or misleading. 39 A cosmetic under Section 9 (d) is deemed to be spurious: (1) If it is imported under a name that belongs to another cosmetics. (2) If it is an imitation of, or is a substitute for, another cosmetic or resembles another cosmetic in a manner likely to deceive or bears upon it or upon its label or container the name of another cosmetics, unless it is plainly and conspicuously marked so as to reveal its true character and its lack of identity with such other cosmetic; or (3) If the label or container bears the name of an individual or a company purporting to be the manufacturer of the cosmetic which individual or company is fctitious or does not exist. (4) If it purports to be the product of a manufacturer of whom it is not truly a product.

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Section 10 prohibits the import of the following: (1) (2) (3) (4) (5)

Drugs (or cosmetics) that are not of standard quality. Any misbranded drug or misbranded or spurious cosmetic. Any adulterated or spurious drug.40 The import of any drug (or cosmetic) for which a license is required, Any patent or proprietary medicine, unless there is displayed, on the label, the true formula or list of active ingredients contained in it together with the quantities thereof. (6) Any drug which, by means of any statement, design or device accompanying it, claims to cure or mitigate any disease or ailment. (7) Any cosmetic containing any ingredient which is harmful for use.41 (8) The import of a drug that is prohibited by rule under this act. In addition to the above,42 the central government may prohibit the import of drugs the use of which is likely to involve any risk to human beings or animals or any drug that does not possess the therapeutic value it claims.43 Any person who, either by himself or through another, imports any adulterated44 or spurious drug45 or any spurious cosmetic46 is punishable with imprisonment for a term up to three years and with a fne of up to 5,000 rupees.47Similarly, the import of a drug or cosmetic in violation of Section 10 is punishable with imprisonment up to a period of six months, a fne that may extend up to 500 rupees or both.48 Furthermore, any import made in contravention of Section 10 (a) is punishable with imprisonment up to a term of three years, a fne of up to 5,000 rupees or both.49 For any second conviction under Section 13,50 the imprisonment may increase to one year, a fne that may reach 10,000 rupees or both. When a person is charged under this section, all drugs or cosmetics relating to the offense are liable for confscation. In order to secure uniformity throughout the country in the administration of this act, the central government may constitute an advisory committee

40 41 42 43 44 45 46 47 48 49 50

Drugs and Cosmetics Act 1940, Section 10 (b). Ibid, Section 10 (ee). The government can import small quantities of any drug for examination and analysis. Drugs and Cosmetics Act 1940, Section 10 (a). This prohibition is imposed in the public interest. Ibid, Section 9 (a). Ibid, Section 9 (b). Ibid, Section 9 (d). Ibid, Section 13 (1) (a). Ibid, Section 13 (1) (b). Ibid, Section 13 (1) (c). Ibid, Sections 13 (1) (a) and 13 (1) (c); if it is a second conviction.

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called “Drugs Consultative Committee” and the Drugs Technical Advisory Board to advise the central and state governments.51 The state government by notifcation under Section 18 may prohibit a person from manufacturing, selling, distributing or even offering for sale: (1) Any drug which is not of standard quality or is misbranded or spurious. (2) Any cosmetic which is not of the standard quality or is misbranded or spurious. (3) Any adulterated drug. (4) Any patent or proprietary medicine, unless the label or container displays the true formula or list of active ingredients, contained in it. (5) Any drug which, by means of any statement, design or device accompanying it, purports to claim, prevent, cure or mitigate any disease. (6) Any cosmetic containing an ingredient which is unsafe or harmful for use. (7) Any drug or cosmetic which is imported or manufactured, in violation of this act. (8) Any act conducted in pursuance of this act without a license. ]In addition to this, the state government may by notifcation appoint government analysts for such areas in the state in respect of certain drugs and cosmetics specifed in the notifcation.52 A person with a fnancial interest in the import, manufacture or sale of drugs cannot be appointed as a government analyst.53 The analyst must be familiar with relevant new scientifc discoveries and technologies in order to detect new adulterations that are hazardous to public health. The role of the analyst is to offer all help to the state in the law enforcing process through technical and scientifc expertise.54 By virtue of the amendment in 2008, the government has the power to regulate or restrict the sale, manufacture and distribution of drugs after the publication of a notifcation to that effect if the government is satisfed that such drugs are essential to meet the requirements of any emergency arising due to epidemic or natural calamities.55 Inspectors To realize the purpose and object of this act, the central or state governments may appoint inspectors by way of notifcation. An inspector appointed

51 52 53 54 55

Ibid, Section 7. Ibid, Section 20. Ibid, Section 20 (4). Rajendra Kumar Nayak, Consumer Protection Law in India (M. M. Tripathi Ltd 1991) 86. Drugs and Cosmetics (Amendment) Act 2008, Section 26 (b).

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under this act56 is a public servant57 and a subordinate offcial of the agency who appoints him. Under Section 21 (3) of the Act, a person who has a fnancial interest must not be appointed as an inspector. An inspector appointed under Section 21 of this Act can exercise the following functions within the local limits of the area for which he is appointed:58 (1) He may inspect any premises where any drug or cosmetic is being manufactured and the means employed for standardizing and testing of the drug or cosmetic.59 (2) He may also inspect premises where any drug or cosmetic is being sold, stocked, exhibited, distributed or offered for sale.60 (3) He may take samples of any drug or cosmetic from any person when that person is in the process of conveying or delivering it to a purchaser or a consignee.61 (4) He may search any person who, according to him, has secreted about his person any drug or cosmetic in respect of which an offense under this act has been committed.62 (5) He may enter and search any premises in which an offense under this act has been committed.63 (6) He may stop and search any vehicle, vessel or other conveyance which, he has reason to believe, is being used for carrying any drug or cosmetic in respect of which an offense has been or is in the process of being committed.64 Under Section 18 (a), a duty is imposed on every person other than the manufacturer, to disclose to the inspector the name, address and other particulars, if any, of the person from whom he acquired the drug or cosmetic. In the event of such an offense, the inspector may order them in writing to not to dispose of any stock of such drug or cosmetic for up to 20 days.65 In addition to these powers, the inspector may also examine any record, register, document or any other material which furnishes evidence of the

56 57 58 59 60 61 62 63 64 65

Drugs and Cosmetics Act 1940, Section 21. Ibid, Section 21 (4). Ibid, Section 22. Ibid, Section 22 (a) (i). Ibid, Section 22 (a) (ii). Ibid, Section 22 (b) (ii). Ibid, Section 22 (c) (i). Ibid, Section 22 (c) (ii). Ibid, Section 22 (c) (iii). Ibid, Section 22 (c) (iii).

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commission of an offense under the provisions of this act.66 The seizure and search operations conducted by the inspector are governed by the Code of Criminal Procedure.67 Any willful obstruction by a person while discharging his duties is punishable with imprisonment up to three years, with a fne or with both.68 Information given to the magistrate In case of seizure of any record, registered document or any stock of the drug or cosmetic the inspector must inform the magistrate and take his orders for the custody of such record, registered document or any stock of the drugs/cosmetics seized.69 The duty of an occupier of premises Every person who is responsible for a premise where any drug or cosmetic is being manufactured or is kept for sale or distribution must disclose all relevant information to the inspector when questioned.70 Refusal to do so is punishable with imprisonment for a term of up to one year, a fne of up to 1,000 rupees or both.71 Power of the central government to prohibit the manufacture and sale of drugs in the public interest The central government may prohibit the manufacture, sale and/or distribution of any drug or cosmetic it deems likely to involve risk to humans or animals. This is the same for any drug the central government believes does not have the therapeutic value it claims or if it contains ingredients in such a quantity for which there is no therapeutic justifcation. In these cases, the prohibitions would be in the public interest.72 Penalties for manufacture and sale etc. of drugs Section 27 of the Drugs and Cosmetics Act, 1940 deals with penalties for manufacture, sale etc. of drugs in contravention of the provisions of this act. Under this provision, any person who, either by himself or through another,

66 67 68 69 70 71 72

Ibid, Section 22 (cc). Ibid, Section 22 (2). Ibid, Section 22 (3). Ibid, Sections 23 (5) (b) and (6). Ibid, Section 24. Ibid, Section 28. Ibid, Section 27.

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manufactures for sale or distribution, stocks and/or exhibits for sale an adulterated or spurious drug (or when said drug is used by a person for mitigation or prevention of any disease or disorder, is likely to cause his death or is likely to cause bodily harm amounting to grievous hurt73) is punishable with a minimum imprisonment of ten years, and this may extend to life with a minimum fne of ten lakh rupees or three times the value of the drug which has been confscated, whichever is more.74 A person selling a drug without a valid license75 is also punishable with a minimum imprisonment of one year and this may increase to three years with a minimum fne of 5,000 rupees.76 For a second conviction under this section, the guilty is punishable with imprisonment for a term which must not be less than two years and which may extend to six years with a fne, which is not to be less than 10,000 rupees.77 On similar lines, if anyone who either himself or through another person manufactures for sale or distribution or sells, stocks, exhibits or offers for sale any cosmetic which is spurious is punishable with imprisonment of up to three years and with fne.78 In case of a cosmetic manufactured by a person other than the one covered under the section79 discussed here, the person manufacturing such a cosmetic is punishable for a period of up to one year, or with a fne which may extend to 1,000 rupees or with both.80 Under Section 18 (b), every person holding a license must keep and maintain the necessary records, registers and other documents prescribed by this act. Moreover, the license holder must furnish the required information to an offcer/inspector appointed for this purpose. Violation of this provision is punishable with imprisonment of up to one year, with a fne of up to 1,000 rupees or both.81 Any person in violation of this central government notifcation,82 by himself or through another person, in the manufacture, sales or distribution of any drug or cosmetic is punishable with imprisonment for a term of up to three years and is also liable to pay a fne of up to 5,000 rupees. Upon conviction, the stock of the drug or cosmetic can be confscated.83

73 74 75 76

77 78 79 80 81 82 83

Indian Penal Code, Section 320. Drugs and Cosmetics (Amendment) Act 2008, Section 27 (a). Drugs and Cosmetics Act 1940, Section 18 (c). Ibid, Section 27 (b) (ii). If the court is satisfed the punishment awarded under this section may be reduced to a period which is less than one year and a fne which is less than 5,000 rupees. Ibid, Section 30 (a). But then, this punishment can be reduced by the court if given due reason. Ibid, Section 27 (a) (i). Ibid. Ibid, Section 27 (a) (ii). Ibid, Section 28 (a). Ibid, Section 26 a. Ibid, Section 31.

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Prosecution details listed in this chapter must, in all cases, be instituted by an inspector84 and the Court of the Metropolitan Magistrate or the Court of the Judicial Magistrate of the First Class is competent to exercise jurisdiction.85 Further, during the trial of a case for an offense committed by a person,86 the court, if it is satisfed with the evidence adduced before it, may implead the manufacturer or agent of a drug or cosmetic, and proceed against him,87 on the ground that such a manufacturer or agent is also concerned in the offense. Furthermore, the Indian Penal Code, in order to preserve the purity of drugs for medicinal purposes, introduced Section 274, which reads: Whoever adulterates any drug or medical preparation in such a manner as to lessen the effcacy or change the operation of such drug or medical preparation, or to make it noxious, intending that it shall be sold or used for, or knowing it to be likely that it will be sold or used for, any medicinal purpose, as if it had not undergone such adulteration, shall be punished with imprisonment of either description for a term which may extend to six months, or with fne which may extend to one thousand rupees, or with both.88 Similarly, Article 47 of the Constitution of India considering the larger public interest casts an obligation on the central government and the state governments to ensure that the adulterated and sub-adulterated drugs are not marketed. It declares: 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 endeavor to bring about prohibition of the consumption, except for medicinal purposes, of intoxicating drinks and of drugs which are injurious to health.89 The responsibilities of a government analyst Whenever a sample of any drug or cosmetic is submitted to an analyst for the purpose of analysis, the report prepared by the analyst in triplicate in

84 85 86 87 88 89

Ibid, Section 32 (1). Ibid, Section 32 (2). Drugs and Cosmetics Act 1940. Ibid, Section 32 (a). Ratanlal and Dhirajlal, The Indian Penal Code (Lexis Nexis 1987) 248. V.N. Shukla, Constitution of India (Eastern Book Company 1990) 244.

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the prescribed form duly signed by him must be delivered to the inspector concerned.90 Any person, as per the provisions of Section 26 of the Drugs and Cosmetics Act 1940, can submit a drug purchased by him to a government analyst for testing or analysis. An application for submitting the drug to the analyst must be made in the prescribed manner by remitting the necessary fee for the purpose. When once these formalities are met, he is entitled to receive a report of the test or analysis signed by the analyst.91 The report of a test or analysis made by the Central Drugs Laboratory or by a government analyst, and any extract from such report must not be used by anybody to advertise a drug or cosmetic. Any violation of this provision is punishable with a fne of up to 500 rupees.92 Further, the central government is empowered to make rules to give effect to the provisions of this act.93 Ayurvedic and Unani drugs The Ayurvedic, Siddha and Unani Drugs Technical Advisory Board94 and the Ayurvedic, Siddha and Unani Drugs Consultative Committee,95 constituted by the central government, ensures the effective regulation of Ayurvedic and Unani drugs. The Technical Advisory Board consists of experts.96 The consultative committee97 is in place to advise the central government and the state governments. The Advisory Board oversees the maintenance of uniformity throughout India in matters relating to Ayurvedic, Siddha and Unani drugs. Sections 33E, 33EE, 33EEA, of the Drugs and Cosmetics Act (1940) deal with misbranded, adulterated and spurious Ayurvedic, Siddha and Unani

90 91 92 93 94

Ibid, Section 25 (1). Ibid, Section 26. Ibid, Section 26. Ibid, Section 33. The 1964 amendment to the Drugs and Cosmetics Act 1940 brought the Ayurvedic, Siddha and Unani drugs, under its purview; Drugs and Cosmetics Act 1940, Section 33 (c). 95 Ibid, Section 33 (d) (1). 96 The Ayurvedic and Unani Drugs Technical Advisory Board consists of the following members: (1) The Director-General of Health Services. (2) The Drugs Controller of India. (3) The principal offcer dealing with Indian systems of medicine in the Ministry of Health, ex-offcio. (4) The Director of the Central Drugs Laboratory, Calcutta, ex-offcio. 97 The Ayurvedic, Siddha and Unani Drugs Consultative Committee must consist of two persons nominated by the central government and one representative from each state nominated by the state government.

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drugs, respectively. There is practically no difference between Sections 9, 9A and Sections 33E and 33EE of this act dealing with misbranded and adulterated drugs. These are repetitions of the same in two different sections of the same act—one dealing with misbranded and adulterated drugs covering drugs in general and the other dealing with misbranded and adulterated drugs covering Ayurvedic and Unani drugs. But one can notice a slight difference between Section 9B and Section 33EEA dealing with spurious drugs. The provisions inserted in Section 33EEA (a) and 33EEA (d) are not applicable to Section 9 (b) as currently provided under the statute. Under Section 33EEA (a) and 33EEA (d), an Ayurvedic drug is deemed to be spurious when: (1) It is sold or offered or exhibited for sale, under the name which belongs to another drug;98 or (2) It has been substituted wholly or in part by another drug or substance.99 The other three provisions are found in both sections. POWER OF THE CENTRAL GOVERNMENT TO PROHIBIT THE MANUFACTURE OF AYURVEDIC, SIDDHA AND UNANI DRUGS IN THE PUBLIC INTEREST

The central government, based on the evidence before it, may prohibit the manufacture, sale and distribution if the use of any Ayurvedic, Siddha or Unani Drug which is likely to involve risk to human beings and animals or if it does not possess the therapeutic value claimed by it.100 PENALTY FOR MANUFACTURE, SALE, ETC.

Any violation of this provision is punishable under this act.101 If a person, by himself or through another person, manufactures for sale or for distribution any Ayurvedic, Siddha or Unani drug which is deemed to be misbranded, adulterated102 or manufactured without a valid license,103 is punishable with imprisonment of up to one year and with a minimum fne of 20,000 rupees or three times the value of the drugs so confscated or whichever is more.104 Similarly, the minimum punishment for the manufacture and sale of a spurious drug is one year but it may be extended up to three years with a fne

98 Drugs and Cosmetics Act 1940, Section 33EEA (a). 99 Ibid, Section 33EEA (d). 100 Ibid, Section 33I 101 Ibid. 102 Ibid, Section 33EE read with Section 33I. 103 License is required under Section 33EE (c). 104 Drugs and Cosmetics (Amendment) Act, 2008, Section 33I (a) (i).

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which shall not be less than 50,000 rupees or three times the value of the confscated drugs or whichever is more.105 Minor violations of these chapters are punishable with imprisonment of up to six months, with a (minimum) fne of 100 rupees.106 The Drug and Cosmetic Rules were passed in 1945, for effective implementation of this act. The act also provides for the establishment of special courts under Section 36AB under special circumstances when the central government or the state government in consultation with the Chief Justice of a high court shall designate one or more sessions court as special courts to deal with matters within the ambit of this act. Now, after the amendment in 2008 an offense under Sections 13 (1) (a) and (c), 13 (2), 22 (3), 27 (a) and (c), 28, 28A, 28B, 30 (1) and (2) is cognizable and offenses under Sections 13 (1) (a) and (c), 13 (2) shall be non-bailable. Section 275 was introduced in the Indian Penal Code to prevent an adulterated drug being sold, offered, exposed for sale or issued from any dispensary as unadulterated in form. It provides that: Whoever knowing any drug or medical preparation to have been adulterated in such a manner as to lessen its effcacy, to change its operation, or to render it noxious, sells the same or offers or exposes it for sale or issues it from any dispensary for medicinal purposes as unadulterated, or causes, it to be used for medicinal purposes by any person not knowing of the adulteration, shall be punished with imprisonment of either description for a term which may extend to six months, or with fne which may extend to one thousand rupees, or with both. Further, under Section 276, it is provided that, Whoever knowingly sells, or offers or exposes for sale, or issues from a dispensary for medicinal purposes, any drug or medical preparation, as a different drug or medical preparation, shall be punished with imprisonment of either description for a term which may extend to six months, or with fne, may extend to one thousand rupees or with both.107 In essence, the Drugs and Cosmetics Act (1940) not only regulates the import, manufacture, sale and distribution of drugs and cosmetics but

105 Ibid, Section 33I (b). 106 Ibid, Section 33I (2). 107 Ratanlal and Dhirajlal, The Indian Penal Code (Lexis Nexis 1987) 248.

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also prohibits the import, manufacture and sale of sub-standard adulterated or misbranded drugs. The government, as we have seen earlier, has the power to check the quality of imported drugs, coordinates the activities of the states and grants approval for the import or manufacture of new drugs. For the effective enforcement of this act, zonal offces of the Central Drugs Standard Control Organization (CDSCO) at Bombay, Calcutta, Ghaziabad and Madras maintain close liaison with state organizations. CDSCO arranges training programs for personnel concerned with the standard and control drugs.108 In addition to this, the Central Drugs Laboratory, Calcutta, which falls under the provisions of this act,109 functions as the testing laboratory for imported drugs and analytical quality control of drugs manufactured within the country on behalf of the center and state drug control authorities. The Calcutta Laboratory tests samples of drugs sent to it by courts. The Central Indian Pharmacopeia Laboratory, Ghaziabad, tests samples of non-biological drugs included in the Indian pharmacopeia.110 The courts in India have been very active in protecting the rights of the consumer, especially concerning medicines. The cases that come before it give ample testimony to this fact. In many cases, the courts expressed the view that the consumer has every right to know the ingredients of medicines they consume and the price of the drugs or medicines. In K. L. Chaturvedi v State of Madhya Pradesh,111 the High Court of Madhya Pradesh held that the disclosure of ingredients is necessary to protect the health and ensure the safety of the consumer. The Drugs and Cosmetics Act (1940)112 puts a duty on the manufacturer to reveal on the label or container the basic ingredient or formula contained in the drug. Therefore, the restriction that the court declared is not arbitrary and unreasonable. The court stated further: Drugs are potent things. Modern scientifc discoveries of recent years have vastly added to their numbers. With the growing consciousness of the people in their effciency, the need has arisen that the State see to it that the drugs of standard purity and quality are put in the market that there is no misbranding and that spurious drugs are not put into the hands of the unwary. With this end in view the Drugs Act, 1940 provided certain reasonable restrictions

108 Government of India, India 1990 A Reference Annual (Publication Division, Government of India 1990) 210. 109 Drugs and Cosmetics (Amendment) Act 2008, Section 6 (1). 110 Government of India, India 1990 A Reference Annual (Publication Division, Government of India 1990) 210. 111 AIR 1960 MP 391–393. 112 As amended in 1955 (then).

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in the exercise of the power to regulate their manufacture, sale, stocking or exhibiting for sale of drugs by the persons concerned.113 The Drugs (Control) Act, 1950114 This act provides for fxing of maximum prices arid quantities which may be held or sold, general limitation on quantity which may be possessed at any one time, duty to declare possession of excess stocks, marking of prices and exhibiting a list of prices and stocks, and obligation to state separately price on composite offer. The government, under the provisions of this act, can declare any drug as a drug and control its sale, supply and distribution.115 Section 4 confers the following powers on the chief commissioner: (1) To fx the maximum price of a drug that may be charged by a dealer or producer. (2) The maximum quantity that may be at any one time possessed by a dealer. (3) The maximum quantity that may be sold in any one transaction to a person. The rates and the quantities fxed by the commissioner under Section 4 may be different in different localities.116 Any person possessing a drug exceeding the permissible limits must report this fact to the chief commissioner and must take the necessary permission to store, distribute or dispose of the excess quantity.117 Similarly, no dealer/producer is permitted to sell or offer for sale any drug for a price exceeding the maximum rate fxed by the commissioner for the sale of such drug.118 In a transaction involving fve rupees or more, the dealer/producer must give a cash memo containing the particulars of the transaction to the purchaser.119 Under Section 10 (1) the chief commissioner may direct dealers or producers to exhibit on the premises a price list of drugs held by them for sale which must indicate the quantities of such drugs in their possession.120 113 47 AIR 391–92. 114 Act 26 of 1950 passed on 7 April 1950. By 1950 many state governments within the Union of India passed enabling legislations with a view to give effect to the Drugs and Cosmetics Act 1940. For instance, the Madhya Pradesh Drugs (Control) Act 47 of 1949; the Madras Drugs (Control) Act 30 of 1949, the Mysore Drugs (control) Act 6 of 1950; the Uttar Pradesh Drugs (Control) Act 14 of 1950 are the standing examples. 115 Drugs Control Act 1950 read with the objectives, Section 3. 116 Ibid, Section 4 (2). 117 Ibid, Section 7. 118 Ibid, Section 5 (a). 119 Ibid, Section 9. 120 Ibid, Section 10 (1).

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Destruction, alteration of any label or mark affxed to a drug by a dealer indicating the price marked by a producer is punishable under the provisions of this act.121 Failure of compliance is punishable with imprisonment which may extend up to three years, a fne or both.122 In case of conviction, the stock of drugs in respect of which the offense is committed must be forfeited in whole or in part to the government.123 Realizing the gravity of the situation and the need to protect consumers, the Government of India appointed the “Hathi Committee” to enquire into the progress made by the drug industry and to recommend necessary measures for ensuring that public sector attains a leading role in the manufacture of basic drugs and formulations and also to develop research in this area. The most important aims of the Hathi Committee were to recommend measures for effective quality-control of drugs, to reduce the prices of drugs for the consumer, to suggest measures so as to rationalize the prices of basic drugs and formulations and to recommend measures for providing essential drugs and common household remedies to the general public especially, in the rural areas.124 The Hathi Committee recommended the creation of the National Drug Authority of India to perform the functions of assessing national needs for essential drugs in the context of diseases prevalent in the country. Such authority, according to the committee, should also plan programs, coordinate and monitor the production of all essential bulk drugs and allocate production responsibilities to identify the individual units in bulk drug production and formulations.125 The result of all these developments is that prices of bulk drug formulations have been under statutory control since 1962.126 In 1986, the central government announced a National Drug Policy. As a fulfllment of one of the major provisions of the 1986 policy the Government of India announced the New Drugs Prices Control Order in 1987127 covering 166 drugs.128 The

121 122 123 124 125 126

127

128

Ibid, Section 10 (2). All provisions under the act. Drugs Control Act 1950, Section 13 (2). The Report of the Hathi Committee on Drugs and Pharmaceutical Industry (Government of India, April 1975) 1–2. Rajendra Kumar Nayak, Consumer Protection Law in India: An Eco Legal Treatise on Consumer Justice (NM Tripathi 1991) 278. The prices of all drugs are more effectively controlled since 1970. The Drugs (Prices Control) order, 1970 was replaced by the Drugs (Price Control) order 1971, and the Drugs (Prices Control) order 1987. This newer DPCO (Drugs Prices Control Order) (1987) is more realistic and took cognizance of the principle that the availability of basic drugs is more important than relatively high prices. See Financial Express (Bombay) 31 August 1987. The text in the Financial Express (New Delhi, 30 August 1987). Statesman (New Delhi, 2 September 1987).

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central government under the new DPCO is empowered to bring within the ambit of control any decontrolled drug.129 The setting up of the Medical Stores Organization (MSO) for procurement and supply of quality medicine through medical stores is another welcome step in fulflling the objectives of the Drugs and Cosmetics Act (1940). The MSO—with seven units at Bombay, Calcutta, Guwahati, Hyderabad, Madras, Karnal and Delhi—is responsible for procurement and supply of quality medicines to medical stores including equipment to about 1,800 regular indenters across the country at economical rates.130 MSO as of today has seven chemical laboratories attached to Medical Store Depots at Mumbai, Calcutta and Chennai, Hyderabad, Guwahati, Karnal and New Delhi. Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954131 In recent years, there has been a great increase in the number of objectionable advertisements published in newspapers or magazines relating to alleged spores for diseases and sexual stimulants, alleged cures for diseases and conditions particular to women. These advertisements tend to cause the ignorant and unwary to resort to self-medication with harmful drugs and appliances, or to turn to “quacks” who indulge in such advertisements for treatments that cause great harm.132 Hence, this legislation was passed to stop undesirable advertisements133 in the public interest. Section 3 prohibits a person from taking part in the publication of any advertisement, of any drug which is made to promote the use of that drug for: (1) The procurement of miscarriage in women or prevention of conception in women. (2) The maintenance or improvement of the capacity of human beings for sexual pleasure. (3) The correction of menstrual disorder in women.

129 Financial Express (Bombay, 15 March 1988). 130 Government of India, India 1990 A Reference Annual (Publication Division, Government of India 1990) 212. 131 Drugs and Magic Remedies Act XXI of 1954. In April 1955, Vide Notifcation No. S.R.O 511 (dated 26 February 1955 Gazette of_ India 1955, Part II) 449. 132 The Statement of Objects and Reasons of the Drugs and Magic Remedies Act XXI of 1954 Act. See AIR Manual vol 16 (Nagpur 1979) 51. 133 As per Section 2 (a), “advertisement” includes any notice, circular, label, wrapper, or other document, and any announcement made orally or by any means of producing of transmitting light, sound or smoke. According to Section 2 (c) “magic remedy” includes a talisman, mantra, Kavacha, and any other charm of any kind which is alleged to possess miraculous powers for or in the diagnosis, cure, mitigation, treatment or prevention of any disease in human beings or animals or for affecting or infuencing in any way the structure or any organic function of the body of human beings or animals.

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(4) The diagnosis, cure, mitigation, treatment or prevention of any disease, disorder or condition which is specifed in accordance with the rules made under this act. Similarly, Section 4 of the Drugs and Magic Remedies Act (1954) prohibits the publication of misleading advertisements relating to drugs. Under this provision, no one can take part in the publication of any advertisement if the advertisement: (1) Directly or indirectly gives a false impression of the true character of the drugs. (2) Makes a false claim for the drug. (3) Is otherwise false or misleading. A person in the profession of administering magic remedies cannot take part in the publication of any advertisement134 relating to matters mentioned under Section 3. Further, Section 6 prohibits the import into and export from India of certain advertisements which are of the nature mentioned in Sections 3, 4 and 5. Any violation of the provisions of this act135 on conviction, is punishable in the case of a frst conviction, with imprisonment of up to six months, or with fne, or with both.136 In the case of subsequent conviction, the imprisonment may extend up to one year, or with fne, or with both.137 Section 8 confers power to any gazette offcer authorized by the state government to enter and search, seize any advertisement which he has reason to believe contravened the provisions of this act. Further, the companies are also liable under the provisions of this act.138 The Drugs and Magic Remedies Act, read as a whole, does not merely prohibit advertisements relating to drugs and medicines connected with diseases mentioned in Section 3, but it covers all advertisements which are objectionable, unethical or are used to promote self-medication or self-treatment. In Zaffar Mohammad v State of West Bengal139 the Supreme Court of India found the following advertisement to be an objectionable one: New life, New Vigor, New Spirit, New wave. If you want a cure, see today well known, world-famous, experienced, registered 134 135 136 137 138

Drugs and Magic Remedies Act 1954, Section 5. Ibid, Section 7. Ibid, Section 7 (b) inserted by Act 42 of 1963. Ibid, Section 7 (a). Ibid, Section 8 (a), (b) and (c). The provisions of the Criminal Procedure Code 1973 are applicable to any search and seizure. 139 AIR 1960 SC 563 (554).

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physician. Special diseases such as oldness in youth, all sorts of defects in nerves, as weakness, laziness are treated with full responsibility, with new methods, new machines of science and elective treatment and are cured permanently. In another leading case, Hamdard Dawakhana v. Union of India,140 the Supreme Court of India held that the advertising of prohibited drugs or commodities of which the sale was not in the interest of the general public could not be seen within the purview of freedom of speech as envisaged in the Constitution of India. Kapur J. endorsing the proposition declared: It cannot be said therefore that every advertisement is a matter dealing with freedom of speech nor can it be said that it is an expression of ideas. In every case one has to see what is the nature of the advertisement and what actually falling under Art. 19 (1) … it seeks further. The advertisements in the instant case relate to commerce or trade and not to propagating of ideas; and advertising of prohibited drugs or commodities of which the sale is not in the interest of the general public cannot be speech within the meaning of freedom of speech and would not fall within art 19(1) (a)141of the constitution of India. In order to prevent this dangerous trend, the Government of India made serious efforts by inserting Articles 36A to 36E in the Monopolies and Restrictive Trade Practices (Amendment) Act, 1984 (MRTP Act).141 Five categories of practices were declared as unfair trade practices under these provisions and they relate to142 (1) misleading advertisements and false representations emanating from statements made orally or in writing or by visual representation; (2) bargain sales; (3) practices relating to the offering of prizes etc.; (4) product safety standards and (5) hoarding and destruction of goods and refusal to sell.143 The Eleventh Report of the Monopolies and Restrictive Trade Practices (MRTP) Commission suggested that trade practices like profteering,

140 Under Article 19 (1) (a) of the Constitution of India, all citizens shall have the right to freedom of speech and expression. This freedom is not an absolute freedom and is subject to the limitations contained in cl. (2) of Article 19, laws may be passed by the state imposing reasonable restrictions on the freedom of the press in the interests of the security of the state, sovereignty and integrity of India, friendly relations or for the prevention of contempt of court, defamation or incitement to an offense. Durga Das Basu, Introduction to the Constitution of India (Prentice Hall 1991) 100. 141 1984 Amendment to the MRTP Act 1969 (Act No. 54, 27 December 1969). Again, it was amended in 1988 and 1991. Section 36A of the MRTP Act defnes Unfair Trade Practice. 142 S. Krishnamurthi, Principles of Law Relating to MRTP (Orient Law House 1990) 49. 143 Ibid 149.

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interrupting the fow of goods and services, adulteration of goods and services, hazardous goods etc. should also be brought within the fold of unfair trade practices.144 An analysis of the above provisions reveals that, statements made in respect of wonder cures that are not substantiated by medical authorities are held unfair trade practices, as being injurious to the public or consumers.145 In DG (I&R) v Bhargav Clinic146 an Ayurvedic clinic issued an advertisement claiming to cure white patches on skin. The claim was found misleading and not medically sound. Similarly, in DG (I&R) v Ravi Foundation147 the claim made by the parties that the diet treatment offered to a woman before pregnancy could give birth to a baby with a gender of one’s choice was not accepted. Another interesting case is Consumer Education and Research Centre v Sheri Louise Slimming Centre Pvt. Ltd,148 the respondents made tall claims about their treatment to reduce one’s weight, viz., Safe Health Weight Loss Program. On enquiry, it was found that drugs like amphetamine administered for reducing appetite were harmful to the patients. The MRTP Act placed the responsibility of commercial entrepreneurs for falsely induced beliefs as the quality of foods or services offered. The key to the liability in those situations is the misleading and false statements. What the seller promised is determined by ascertaining what his words and conduct would have led the buyer reasonably to believe that he was promising. In other words, the main object of MRTP was to bring transparency to the relationship between the seller and consumer.149 For instance, in DG (I & R) v Borroughs Welcome (India) Ltd.,150 the respondent manufacturers of “Ridake Paracetamol Tablets” emphasized in their statements, the views of the British Medical Journal dealing with the side effects of Aspirin but extolled the quality of Ridake, suppressing the view of the Medical Journal regarding its side effects. The commission held that the representation that Ridake did not have any side effect was a misrepresentation and was, therefore, an unfair trade practice. Thus, the MRTP commission151 may inquire into any unfair trade practice. Under Section 36E, the MRTP commission Director-General has the

144 145 146 147 148 149 150 151

Ibid 150. Ibid 151. UTP Enq No 1 of 1987. UTP Enq. No. 93 of.1986. UTP Enq. No. 23 of 1986. S. Krishnamurthy, Principles of Law Relating to MRTP, (Orient Law House, 1989) 152. UTP Enq. No. 55 of 1986. Constituted under the MRTP Act 1969, consisted of a chairman and not less than two and not more than eight other members to be appointed by the Central Government (Section 5(1)) The chairman of the commission must be a person who is, or has been or is quali-

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power to grant an injunction against any trader, undertaking or any person carrying on unfair trade practice which will prejudicially affect public interest. The commission may even award compensation to a person for the loss or, damage suffered by him. If any person contravenes any order passed by the MRTP commission152 he is punishable with imprisonment for a term of up to three years, or with a fne of up to 10,000 rupees, or with both.153 The Monopolies and Restrictive Trade Practices Act, 1969154 contained provisions for dealing with and curbing unfair trade practices155 such as false representation, misleading advertisements, guarantees and warranties not based on proper and adequate testing, bargain sale, bait sale and switch selling, etc.156 In its broadest sense, the MRTP Act could be described as a legislation designed to protect the economic interests of the vast consuming public and also to provide adequate means to promote consumer justice in the market place.157 However, the act was repealed and replaced by the Competition Act, 2002.158 The Competition Act, 2002159 The provisions of the Competition Act 2002160 dealt with anti-competitive practices. It aimed to establish a Competition Commission to prevent practices which would have an adverse impact on competition, and instead promote and sustain competition in markets as well as protecting the interests of consumers and ensure freedom of trade for all participants in India.161

152 153 154 155 156

157 158

159 160 161

fed to be a judge of the Supreme Court or of a High Court. A member is appointed for a period of fve years and is eligible for reappointment. One can serve as a member to a maximum period of ten years. MRTP Act 1969, Section 36 D. Ibid, Section 48 (c). Act No. 54 of 1969. The Act came into force from 27 December 1969. The Act has been amended in 1984, in 1988 (10.12.1988) and in 1991. Section 36A of the MRTP Act defnes Unfair Trade Practices. The MRTP Commission in its Eleventh Report has suggested that the trade practices like profteering, interruption of fow of goods and services, adulteration of goods and services, hazardous goods etc. should also be brought within the fold of unfair trade practices. S. Krishnamurthi, Principles of Law Relating to MRTP (2nd edn, Orient Law House 1986). Rajendra Kumar Nayak, Consumer Protection Law in India: An Eco Legal Treatise on Consumer Justice (NM Tripathi 1991) 356. Section 66 of the Competition Act, 2002 repealed the Monopolies and Restrictive Trade Practices Act 1969 and transferred cases of related matters to the Competition Commission of India which was constituted under the Competition Act 2002. The act received the president’s assent in January 2003 and was published in Gazette of India of 14 January 2003 Part II, Section 1. Competition Act 2002; Amendment Act of 2009. Competition Act 2002, preamble.

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The commission162 has the power to inquire into anti-competitive agreements and abuse of dominant position either (a) on its own motion (b) on receipt of any information from any person, consumer, or their association or trade association or (c) reference made to it by central government or state government or any statutory authority.163 The commission may also inquire into any combination on its own knowledge or on receiving any information related to acquisition.164 The Director-General, appointed by the central government, conducts the inquiry and submits a report to the CCI.165 If the CCI holds that the opinion that further investigation is required after obtaining the report’s fndings it can order further inquiries.166 Following an inquiry, the CCI can pass orders for preventing for anti-competitive agreements and dominant position abuse as necessary.167 Failure to comply with the orders of the commission attracts a fne that may extend to rupees one lakh for each day during which such non-compliance occurs, subject to a maximum of rupees ten crore.168 Further, failure to pay the fne results in imprisonment that may extend for a term of three years or a fne that may extend to rupees 25 crore or both.169 Under Section 53A of the Act, a Competition Appellate Tribunal170 has also been set up for hearing or disposing of appeals against any direction issued or decision made or order passed by the commission and it can also adjudicate claims that may arise from the fndings of the commission or orders of the tribunal in an appeal against the commission. Food Safety and Standards Act, 2006 The Food Safety and Standards Act of 2006 (FSSA) was enacted with an objective to consolidate all the laws pertaining to food and establish an

162 The Competition Commission consists of a chairperson and not less than two and not more than ten members who shall be appointed by the Central Government. (Section 8(1)) of the Act. Each member shall be appointed for a period not exceeding fve years and are eligible for reappointment and shall be eligible for reappointment. Every person appointed to be a member must, before entering upon his offce, make and subscribe to an oath of offce and secrecy before the chairman. 163 Competition Act 2002, Section 19. 164 Ibid, Section 20. 165 Ibid, Section 26 (1). 166 Ibid, Sections 26 (7) and (8). 167 Ibid, Section 27. 168 Ibid, Section 42 (2). 169 Ibid, Section 42 (3). 170 The tribunal shall consist of a chairperson and not more than two other members appointed by the central government. Each member shall hold a term for fve years and shall be eligible for re-appointment.

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authority namely the Food Safety and Standards Authority of India (FSSAI) in order to outline science-based standards of food171 and to regulate the manufacture, distribution, sale, storage and import so that safe food is available for human consumption.172 It repealed the previous act, namely “The Prevention of Food Adulteration Act, 1954.”173 Further, “unsafe food” is defned under Section 3 (zz).174 Any food is deemed to be “misbranded” under Section 3(zf) of the act: 1. If it is purported, or is represented to be, or is being– (i) Offered or promoted for sale with false, misleading or deceptive claims either: (a) Upon the label of the package, or (b) Through advertisement, or (ii) Sold by a name which belongs to another article of food; or 171 Section 2 (j) of the Act defnes “food” as any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food to the extent defned in clause (zk), genetically modifed or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum and any substance, including water, used in the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants, prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances. The central government may also declare, by notifcation in the Offcial Gazette, any other article as food for the purposes of this act in relation to its use, nature, substance or quality. 172 Food Safety and Standards Act 2006. 173 The Prevention of Food Adulteration Act 1954 was a piece of consumer legislation enacted in the interest of the vast consuming masses of India. The purpose of this legislation was to protect the public against harmful food articles and to control the marketing of mechanically adulterated products It was repealed by Section 97 of the Food and Safety Standards Act 2006. 174 As per this Section, “unsafe food” means an article of food whose nature, substance or quality is so affected as to render it injurious to health: (i) by the article itself, or its package thereof, which is composed, whether wholly or in part, of poisonous or deleterious substances; or (ii) by the article consisting, wholly or in part, of any flthy, putrid, rotten, decomposed or diseased animal substance or vegetable substance; or (iii) by virtue of its unhygienic processing or the presence in that article of any harmful substance; or (iv) by the substitution of any inferior or cheaper substance whether wholly or in part; or (v) by addition of a substance directly or as an ingredient which is not permitted; or (vi) by the abstraction, wholly or in part, of any of its constituents; or (vii) by the article being so colored, favored or coated, powdered or polished, as to damage or conceal the article or to make it appear better or of greater value than it really is; or (viii) by the presence of any coloring matter or preservatives other than that specifed in respect thereof; or (ix) by the article having been infected or infested with worms, weevils or insects; or (x) by virtue of its being prepared, packed or kept under insanitary conditions; or (xi) by virtue of its being miss-branded or sub-standard or food containing extraneous matter or (xii) by virtue of containing pesticides and other contaminants in excess of quantities specifed by regulations.

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(iii) Offered or promoted for sale under the name of a fctitious individual or company as the manufacturer or producer of the article as borne on the package or containing the article or the label on such package; or 2. If the article is sold in packages which have been sealed or prepared by or at the instance of the manufacturer or producer bearing his name and address but– (i) The article is an imitation of, or is a substitute for, or resembles in a manner likely to deceive, another article of food under the name of which it is sold, and is not plainly and conspicuously labeled so as to indicate its true character; or (ii) The package containing the article or the label on the package bears any statement, design or device regarding the ingredients or the substances contained therein, which is false or misleading in any material particular, or if the package is otherwise deceptive with respect to its contents; or (iii) The article is offered for sale as the product of any place or country which is false; or 3. If the article contained in the package– (i) Contains any artifcial favoring, coloring or chemical preservative and the package is without a declaratory label stating that fact or is not labeled in accordance with the requirements of this Act or regulations made thereunder or is in contravention thereof; or (ii) Is offered for sale for special dietary uses, unless its label bears such information as may be specifed by regulation, concerning its vitamins, minerals or other dietary properties in order suffciently to inform its purchaser as to its value for such use; or (iii) Is not conspicuously or correctly stated on the outside thereof within the limits of variability laid down under this Act. The second chapter deals with the establishment of a body known as the Food Safety and Standards Authority of India (FSSAI). Under Section 4, the FSSAI will be a corporate body and has to perform functions assigned to it by the central government. It shall consist of a chairperson and 22 members, out of which one-third shall be women175: (1) Seven ex offcio members, not below the rank of a Joint Secretary to the Government of India, to be appointed by the central government, to respectively represent the ministries or departments of the central government dealing with: (a) Agriculture. (b) Commerce.

175 Food Safety and Standards Act 2006, Section 5.

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(2) (3) (4) (5) (6) (7)

(c) Consumer Affairs. (d) Food Processing. (e) Health. (f) Legislative Affairs. (g) Small-scale Industries. Two representatives from the food industry of which one shall be from small-scale industries. Two representatives from consumer organizations. Three eminent food technologists or scientists. Five members to be appointed on rotation every three years, one each in seriatim from the zones as specifed in the First Schedule to represent the states and the union territories. Two persons to represent farmers’ organizations. One person to represent retailers’ organizations.

The FSSA also provides for the constitution of a Central Advisory Committee under Section 11. This committee shall comprise of two members each to represent the interests of food industry, agriculture, consumers, relevant research bodies and food laboratories and all Commissioners of Food Safety, and the Chairperson of the Scientifc Committee shall be ex offcio member.176 Apart from this, the Chairperson shall be the ex-offcio Chairperson of the Committee.177 The Food Authority is provided with widespread powers under the act. Its main function is to regulate and monitor the manufacture, processing, distribution, sale and import of food so as to ensure safe and wholesome food.178 The Food Authority is empowered to specify: (1) The standards and guidelines in relation to articles of food and specifying an appropriate system for enforcing various standards notifed under this act. (2) The limits for use of food additives, crop contaminants, pesticide residues, residues of veterinary drugs, heavy metals, processing aids,

176 Ibid, Section 11 (2). furthermore, under Section 11 (3), the invitees to the deliberations of the Central Advisory Committee shall be the central government’s ministries and departments of Agriculture, Animal Husbandry and Dairying, Biotechnology, Commerce and Industry, Consumer Affairs, Environment and Forests, Food Processing Industries, Health, Panchayati Raj, Small-scale Industries and Food and Public Distribution, or government institutes or organizations and government-recognized farmers. 177 Ibid, Section 11 (4). 178 Provisions on duties and functions of the Food Authority are laid down in Section 16.

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(3) (4) (5) (6) (7) (8) (9)

mycotoxins, antibiotics and pharmacologically active substances and irradiation of food. The mechanisms and guidelines for accreditation of certifcation bodies engaged in certifcation of food safety management systems for food businesses. The procedure and the enforcement of quality control in relation to any article of food imported into India. The procedure and guidelines for accreditation of laboratories and notifcation of the accredited laboratories. The method of sampling, analysis and exchange of information among enforcement authorities. Conduct surveys of enforcement and administration of this act in the country. Food-labeling standards including claims on health, nutrition, special dietary uses and food category systems for foods; and The manner in which and the procedure subject to which risk analysis, risk assessment, risk communication and risk management shall be undertaken.179

Apart from these, it shall also: (1) Provide scientifc advice and technical support to the central government and the state governments in matters of framing the policy and rules in areas that have a direct or indirect bearing on food safety and nutrition. (2) Search, collect, collate, analyze and summarize relevant scientifc and technical data particularly relating to— (i) Food consumption and the exposure of individuals to risks related to the consumption of food. (ii) Incidence and prevalence of biological risk. (iii) Contaminants in food. (iv) Residues of various contaminants. (v) Identifcation of emerging risks; and (vi) Introduction of rapid alert system. (3) Promote, coordinate and issue guidelines for the development of risk assessment methodologies and monitor and conduct and forward messages on the health and nutritional risk of food to the central government, state governments and commissioners of food safety. (4) Provide scientifc and technical advice and assistance to the central government and the state governments in the implementation of crisis management procedures with regard to food safety and to draw up a

179 Food Safety and Standards Act 2006, Section 16 (2).

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general plan for crisis management and work in close cooperation with the crisis unit set up by the central government in this regard. (5) Establish a system of network of organizations with the aim to facilitate a scientifc cooperation framework by the coordination of activities, the exchange of information, the development and implementation of joint projects, the exchange of expertise and best practices in the felds within the Food Authority’s responsibility. (6) Provide scientifc and technical assistance to the central government and the state governments for improving cooperation with international organizations. (7) Take all such steps to ensure that the public, consumers, interested parties and all levels of panchayats receive rapid, reliable, objective and comprehensive information through appropriate methods and means. (8) Provide, whether within or outside their area, training programs in food safety and standards for persons who are or intend to become involved in food businesses, whether as food business operators or employees or otherwise. (9) Undertake any other task assigned to it by the central government to carry out the objects of this act. (10) Contribute to the development of international technical standards for food, sanitary and phytosanitary standards. (11) Contribute, where relevant and appropriate, to the development of agreement on recognition of the equivalence of specifc food-related measures. (12) Promote coordination of work on food standards undertaken by international governmental and non-governmental organizations. (13) Promote consistency between international technical standards and domestic food standards while ensuring that the level of protection adopted in the country is not reduced; and (14) Promote general awareness as to food safety and food standards. Further, the Central Advisory Committee shall be responsible for the delivery of the following functions. (1) The Central Advisory Committee shall ensure close cooperation between the Food Authority and the enforcement agencies and organizations operating in the feld of food.180 (2) The Central Advisory Committee shall advise the Food Authority on (a) The performance of its duties under this section and in particular in drawing up of a proposal for the Food Authority’s work program.

180 Ibid, Section 12 (1).

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(b) (c) (d) (e)

The prioritization of work. Identifying potential risks. The pooling of knowledge, and Such other functions as may be specifed by regulations.181

The Central Advisory Committee shall meet regularly at the invitation of the Chairperson of Central Advisory Committee or at the request of at least one-third of its members and not less than three times a year.182 Under Section 13, the FSSAI can create scientifc panels that shall comprise of independent scientifc experts and shall remain responsible for inviting relevant industry and consumer representatives in its deliberations.183 The FSSAI may also establish a Scientifc Committee184 which shall be responsible for providing scientifc opinions to the FSSAI and organize public hearings as well. The Food Authority also has the power to constitute Scientifc Committees comprising of the Chairpersons of the Scientifc Panels and six independent scientifc experts not belonging or affliated to any of the Scientifc Panels.185 The Scientifc Committee shall: (1) Be responsible for providing the scientifc opinions to the Food Authority, and shall have the powers, where necessary, of organizing public hearings. (2) Be responsible for the general coordination necessary to ensure consistency of the scientifc opinion procedure and in particular with regard to the adoption of working procedures and harmonization of working methods of the Scientifc Panels. (3) Provide opinions on multi-sectoral issues falling within the competence of more than one Scientifc Panel, and on issues which do not fall within the competence of any of the Scientifc Panels. (4) Wherever necessary, and particularly, in the case of subjects which do not fall within the competence of any of the Scientifc Panel, set up working groups and in such cases, it shall draw on the expertise of those working groups when establishing scientifc opinions.186

181 Ibid, Section 12 (2). 182 Ibid, Section 12 (3). 183 As per Section 13 (3), the Food Authority may establish as many scientifc panels as it considers necessary in addition to the panels on: (a) food additives, favorings, processing aids and materials in contact with food; (b) pesticides and antibiotics residues; (c) genetically modifed organisms and foods; (d) functional foods, nutraceuticals, dietetic products and other similar products; (e) biological hazards; (f) contaminants in the food chain; (g) labeling and (h) method of sampling and analysis. 184 Food Safety and Standards Act 2006, Section 14. 185 Ibid, Section 14 (1). 186 Ibid, Section 14 (2), (3), (4) and (5).

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Under Sub-section (4) of Section 16 of the act, The Food Authority must make (a) the opinions of the Scientifc Committee and the Scientifc Panel immediately after adoption; (b) the annual declarations of interest made by members of the Food Authority, the Chief Executive Offcer, members of the Advisory Committee and members of the Scientifc Committee and Scientifc Panel, as well as the declarations of interest if any, made in relation to items on the agendas of meetings; (c) the results of its scientifc studies; and (d) the annual report of its activities, accessible to the public without any undue delay. Further, the Food Authority may give such directions on matters relating to food safety and standards to the Commissioner of Food Safety,187 who shall be bound by such directions while exercising his powers under this act.188 It shall also not disclose or lead to disclosing to third parties confdential information that it receives for which confdential treatment has been requested and has been acceded, except for information which must be made public if circumstances so require, in order to protect public health.189 Section 18 outlines a number of principles the authority must carry out while implementing the provisions of this act. These principles include: (a) endeavor to achieve an appropriate level of protection of human life and health and the protection of consumer’s interests, including fair practices in all kinds of food trade with reference to food safety standards and practices; (b) carry out risk management which shall include taking into account the results of risk assessment and other factors which in the opinion of the Food Authority are relevant to the matter under consideration and where the conditions are relevant, in order to achieve the general objectives of regulations; (c) where in any specifc circumstances, on the basis of assessment of available information, the possibility of harmful effects on health is identifed but scientifc uncertainty persists, provisional risk management measures are necessary to ensure appropriate level of health protection, pending further scientifc information for a more comprehensive risk assessment; (d) the measures adopted on the basis of clause (c) shall be proportionate and no more restrictive of trade than is required to achieve appropriate level of health protection, regard being had to technical and economic feasibility and other factors regarded as reasonable and proper in the matter under consideration; (e) the measures adopted shall be reviewed within a reasonable period of time, depending on the nature of the risk to life or health being identifed and the type of scientifc information needed to clarify the scientifc uncertainty and to conduct a more comprehensive risk assessment;

187 Appointed by the state government under Section 30 for effcient implementation of food safety and standards and other requirements laid down under this act and its rules and regulations. 188 Food Safety and Standards Act 2006, Section 16 (5). 189 Ibid, Section 16 (6).

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(f) in cases where there are reasonable grounds to suspect that a food may present a risk for human health, then, depending on the nature, seriousness and extent of that risk, the Food Authority and the Commissioner of Food Safety shall take appropriate steps to inform the general public of the nature of the risk to health, identifying to the fullest extent possible the food or type of food, the risk that it may present, and the measures which are taken or about to be taken to prevent, reduce or eliminate that risk; and (g) where any food which fails to comply with food safety requirements is part of a batch, lot or consignment of food of the same class or description, it shall be presumed until the contrary is proved, that all of the food in that batch, lot or consignment fails to comply with those requirements. While framing the regulations it shall take into account existing practices such as agricultural practices as well as international standards or practices, if they exist or are in the process of being created.190 It shall also (1) determine food standards on the basis of risk analysis except where it is of opinion that such analysis is not appropriate to the circumstances or the nature of the case; (2) undertake risk assessment based on the available scientifc evidence and in an independent, objective and transparent manner; (3) ensure that there is open and transparent public consultation, directly or through representative bodies including all levels of panchayats, during the preparation, evaluation and revision of regulations, except where it is of opinion that there is an urgency concerning food safety or public health to make or amend the regulations in which case such consultation may be dispensed with (4) ensure protection of the interests of consumers and shall provide a basis for consumers to make informed choices in relation to the foods they consume; (5) ensure prevention of– (i) fraudulent, deceptive or unfair trade practices which may mislead or harm the consumer; and (ii) unsafe or contaminated or sub-standard food.191 Under Section 25, a person shall not import into India (1) any unsafe or misbranded or sub-standard food or food containing extraneous matter; (2) any article of food for the import of which a license is required under any Act or rules or regulations, except per the conditions of the license; and (3) any article of food in contravention of any other provision of this act or of any rule or regulation made thereunder or any other act.192

190 Ibid, Section 18 (2). If it is of opinion that taking into account of such prevalent practices and conditions or international standards or practices or any particular part thereof would not be an effective or appropriate means for securing the objectives of such regulations or where there is a scientifc justifcation or where they would result in a different level of protection from the one determined as appropriate in the country then these shall not be taken into account. 191 Ibid. 192 Ibid, Section 5 (2). The central government shall, while prohibiting, restricting or otherwise regulating import of article of food under the Foreign Trade (Development and

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Food articles must not contain any additive or processing aid,193 contaminants,194 naturally occurring toxic substances,195 heavy metals,196 pesticides,197 veterinary drugs residues,198 antibiotic residues and microbiological counts199 in excess of tolerance limit prescribed by the regulations. A person shall also not manufacture, distribute, sell or import any novel food, genetically modifed articles of food,200 irradiated food, organic foods,201 food for special dietary use,202 functional food, nutraceutical, health

193

194 195 196 197

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199 200

201 202

Regulation) Act, 1992 (22 of 1992), follow the standards laid down by the Food Authority under the provisions of this act and the rules and regulations made thereunder. Ibid, Section 19. Here, processing aid means any substance or material, not including apparatus or utensils, and not consumed as a food ingredient by itself, used in the processing of raw materials, foods or its ingredients to fulfll a certain technological purpose during treatment or processing and which may result in the non-intentional but unavoidable presence of residues or derivatives in the fnal product. Ibid, Section 20. Ibid. Ibid. Ibid, Section 21. Here pesticide residue means any specifed substance in food resulting from the use of a pesticide and includes any derivatives of a pesticide, such as conversion products, metabolites, reaction products and impurities considered to be of toxicological signifcance and also includes such residues coming into food from environment. Ibid, Section 21. Here, residues of veterinary drugs include the parent compounds or their metabolites or both in any edible portion of any animal product and include residues of associated impurities of the veterinary drugs concerned. Ibid, Section 21. In this section, solvent residues, pharmacological active substances are also included in the list of prohibited items. Ibid, Section 22 (2). It states that genetically engineered or modifed food means food and food ingredients composed of or containing genetically modifed or engineered organisms obtained through modern biotechnology, or food and food ingredients produced from but not containing genetically modifed or engineered organisms obtained through modern biotechnology. Ibid, Section 22 (3). It states that organic food means food products that have been produced in accordance with specifed organic production standards. Ibid, Section 22 (1). Section 22 (1)—foods for special dietary uses or functional foods or nutraceuticals or health supplements means: (a) foods which are specially processed or formulated to satisfy particular dietary requirements which exist because of a particular physical or physiological condition or specifc diseases and disorders and which are presented as such, wherein the composition of these foodstuffs must differ signifcantly from the composition of ordinary foods of comparable nature, if such ordinary foods exist, and may contain one or more of the following ingredients, namely: (i) plants or botanicals or their parts in the form of powder, concentrate or extract in water, ethyl alcohol or hydro alcoholic extract, single or in combination; (ii) minerals or vitamins or proteins or metals or their compounds or amino acids (in amounts not exceeding the Recommended Daily Allowance for Indians) or enzymes (within permissible limits); (iii) substances from animal origin; (iv) a dietary substance for use by human beings to supplement the diet by increasing the total dietary intake. Moreover, Section 22 (1) (b) states that a product that is labelled as a Food for special dietary uses or functional foods or nutraceuticals or health supplements or similar such foods which is not represented for use as a conventional food and whereby such

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supplement, proprietary food203 and such other articles of food which the central government may notify. A person must not manufacture, distribute, sell or expose for sale or dispatch or deliver to any agent or broker for the purpose of sale, any packaged food products which are not marked and labeled in the manner as may be specifed by regulation.204 Food business operator must ensure that such packaging or labeling does not mislead consumers.205 The Food business operator shall ensure that the articles of food satisfy the requirements of this Act and the rules and regulations made thereunder at all stages of production, processing, import, distribution and sale within the businesses under his control.206 Advertisement any food which is misleading or deceiving or contravenes the provisions of this Act or its Rules must not be made.207 A person shall refrain from engaging himself in any unfair trade practice for purpose of promoting the sale, supply, use and consumption of articles of food or adopt any unfair or deceptive practice including the practice of making any statement, orally or in writing or by visible representation which– (a) falsely represents that the foods are of a particular standard, quality, quantity or grade composition; (b) makes a false or misleading representation concerning the need for, or the usefulness; (c) gives to the public any guarantee of the effcacy that is not based on an adequate or scientifc justifcation.208 The manufacturer or packer of an article of food shall be liable for such article of food if it does not meet the requirements of this Act and the rules.209A person must not carry out any business without a license.210 The Food Safety Offcer is appointed by the Commissioner of Food Safety having the qualifcations prescribed by the Central Government, as Food

203 204 205 206 207 208 209 210

products may be formulated in the form of powders, granules, tablets, capsules, liquids, jelly and other dosage forms but not parenteral, and are meant for oral administration; (ii) such product does not include a drug as defned in clause (b) and Ayurvedic, Sidha and Unani drugs as defned in clauses (a) and (h) of Section 3 of the Drugs and Cosmetics Act, 1940 (23 of 1940) and rules made thereunder; (iii) does not claim to cure or mitigate any specifc disease, disorder or condition (except for certain health beneft or such promotion claims) as may be permitted by the regulations made under this act; (iv) does not include a narcotic drug or a psychotropic substance as defned in the Schedule of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and rules made thereunder and substances listed in Schedules E and EI of the Drugs and Cosmetics Rules 1945. Ibid, Section 22 (4). Section 22 (4) states that proprietary and novel food means an article of food for which standards have not been specifed but is not unsafe. Ibid, Section 23 (1). Ibid, Section 23 (2). Ibid, Section 26 (1). Ibid, Section 24 (1). Ibid, Section 24 (2). Ibid, Section 27 (1). Ibid, Section 31.

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Safety Offcers for such local areas as he may assign to them for the purpose of performing functions under this Act and the Rules and regulations.211 He has the power to (1) take a sample of any food or substance meant for human consumption or sale or which may be used an evidence; (2) seize any article which appears to be in contravention of this act; (3) keep it in the safe custody of the food business operator such article of food after taking a sample. He may enter and inspect any place where the article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food or exposed or exhibited for sale and where any adulterant is manufactured or kept, and take samples of such articles of food or adulterant for analysis.212 Under Section 43, the Food Authority may notify food laboratories and research institutions accredited by National Accreditation Board for Testing and Calibration Laboratories or any other accreditation agency for the purposes of carrying out analysis of samples by the Food Analysts under this act. The Commissioner of Food Safety may, by notifcation, appoint such persons as he thinks ft, having the qualifcations prescribed by the central government, to be food analysts for the local areas that may be assigned to them by the Commissioner of Food Safety.213 The Food Analyst, on receipt of a package containing a sample for analysis from a Food Safety Offcer or any other person, shall compare the seal on the container and the outer cover with specimen impression received separately and shall note the conditions of the seal.214 The Food Analyst shall cause to be analyzed any samples of food that may be sent to him by the Food Safety Offcer or by any other person authorized under the act.215 Within 14 days of receiving the sample, he shall send the required copies of a report to the designated offcer.216 Chapter 9 of the act lays down the offenses and penalties related to food adulteration, contamination, etc. Under Section 50, any person found guilty of selling, manufacturing or distributing etc. food for human consumption whose quality or standard does not comply with the provisions of the FSSA shall be made liable to pay a fne which shall not exceed fve lakh rupees. Sale of substandard food under Section 51 is punishable with a fne which may extend to fve lakh rupees. A person shall be liable to pay a fne of up

211 Ibid, Section 37(1). The state governments may authorize any offcer of the government having the qualifcations prescribed under Sub-section (1) to perform the functions of a Food Safety Offcer within a specifed jurisdiction under Sub-section (2). 212 Ibid, Section 38. 213 Ibid, Section 45. 214 Ibid, Section 46 (1). 215 Ibid, Section 46 (2). 216 Ibid, Section 46 (3).

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to three lakh rupees if they sell, manufacture, store, distribute or import misbranded food for human consumption.217 Section 65 states that if any person found guilty of selling, distributing or manufacturing food for human consumption, or doing so on behalf of another person, which (a) causes death, or (b) grievous injury or (c) injury such person shall be liable to pay a compensation of fve lakh rupees, three lakh rupees and/or one lakh rupees, respectively.

Part 2 The Insecticides Act, 1968218 In recent times, India has emerged as the fourth largest producer of pesticides after the US, Japan and China, and as the second largest producer of pesticides in Asia.219 Andhra Pradesh is the largest consumer of pesticides followed by Punjab and Maharashtra.220 Crops like cotton, wheat and rice together account for 70 percent of total agro-chemical consumption.221 In India, cotton and paddy together account for around 57 percent of the total pesticide consumption, while wheat and pulses contribute about 4 percent, vegetables 9 percent and other crops about 7 percent.222 Pesticide manufacturing in India commenced in 1952. By 1990, 2,700 units were already engaged in the production and formulation of over 137 different varieties of pesticides.223 The Government of India felt the urgent need to regulate224 the manufacture, sale, storage, transport, distribution and use of insecticides 217 Ibid, Section 52. 218 The Insecticides Act 1968 (Act 46 of 1968) passed on 2 September 1968. 219 Report by Working Group on Chemicals set up by Planning Commission for preparation of 12th 5 year plan , ‘Indian Chemical Industry, Five Year Plan’ (2012–2017) 45. http:// chemicals.nic.in/sites/ default/fles/XIIth %20 Five%20Year%20Plan-Yr%202011_0.pdf. Accessed 2 December 2017. 220 ‘Impact of Pesticides Application in Agricultural Industry: An Indian Scenario’ (2013). https://www.ripublication.com/ijafst_spl/ijafstv4n8spl_18.pdf. Accessed 2 December 2017. 221 Report by Working Group on Chemicals set up by Planning Commission for preparation of 12th 5 year plan, ‘Indian Chemical Industry, Five Year Plan’ (2012–2017) 45. http:// chemicals.nic.in/sites/ default/fles/XIIth %20 Five%20Year%20Plan-Yr%202011_0.pdf. Accessed 2 December 2017. 222 ‘Impact of Pesticides Application in Agricultural Industry: An Indian Scenario’ (2013). https://www.ripublication.com/ijafst_spl/ijafstv4n8spl_18.pdf. Accessed 2 December 2017. 223 R. Sahai, ‘Pesticides and Environmental Pollution -Genotoxic Effects’ in R. Prakash and S. M. Choubey (ed), Environmental Pollution and Health Hazards (Society of Bio Sciences 1990) 7. 224 In the months of April and May 1958, many people died in the states of Kerala and Madras as a result of food poisoning arising from contamination of food with a poisonous

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including pesticides, herbicides225 or fungicides226 in the country. Hence, the Insecticides Act (1968) was passed by the government, with view to regulating the import, manufacture, sale, transport, distribution and use of insecticides in order to prevent risks to human beings or animals and for matters connected therewith.227 The act gave effect to almost all the recommendations228 made by the Kerala and Madras Food Poisoning Cases Enquiry Commission.229

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227 228

organo-phosphorous insecticide parathion (falidol). There were also cases of food poisoning in the same areas where people fell seriously, though not fatally, ill. The Government of India, realizing the danger, appointed the Kerala and Madras Food Poisoning Cases Enquiry Commission under the chairmanship of Justice J. C. Shah, then a judge of Bombay High Court (and who later became a judge of the Supreme Court of India), to inquire into and report on the circumstances in which the foodstuffs came to be contaminated and outline the measures to be taken against similar occurrences in future. The recommendations of the enquiry commission were accepted by the government. The long-term measures suggested by the commission envisaged the enactment of legislation to regulate the manufacture, sale, storage, transport, distribution and use of insecticides in the country. See the AIR Marvua_l (nagpur) vol. 23. Consumption of pesticides in India was 1.09 million metric tons in between 1986 and 1987 and was about 1.19 million in 1990. The consumption of pesticides between 1991 and 1992 is estimated to have been 78,400 tons. Most of the requirements of pesticides were met through indigenous production. Only a limited quantity of pesticides is imported. ‘Economic Survey 1992–93’ The Economic Times (New Delhi, 24 February 1993) XIX. Herbicides include compounds which are highly selective to particular groups or plants and also more general pathogens that attack all green plants. Fungicides are used both to treat seed prior to planting and as foliar sprays. David Briggs and Frank Courtney, Agriculture and Environment (London, Longman Scientifc and Technical 1989) 127. The 1968 Act has been amended by Act 46 of 1971 and Act 24 of 1977. The act came into force on 1 August 1971. The salient features of this bill include: (1) Establishment of a Central Insecticides Board and the setting up of a committee called the “Registration Committee” for the purpose of granting certifcates of registration to persons desiring to import or manufacture insecticides. (2) Licensing of persons desiring to manufacture, sell or exhibit any insecticide for sale or distribution. (3) Establishment of a Central Insecticide Laboratory for carrying out certain functions under the act. (4) Prohibition of import, manufacture, sale, etc. of insecticides in contravention of the provisions of this act. (5) Regulation of transport and storage of insecticides so as to prevent cases of accidental contamination of food with insecticides.

Provision for taking immediate action by way of prohibition of sale, distribution or use of any insecticide where it is found that the sale, distribution or use of the insecticide is being done in such a way as to involve risk to human beings or vertebrate animals and where immediate action is necessary. See (Gazette of India, 16 December 1964, Part II, s 2 Extra) 945. 229 UNEP, Cartagena Declaration on the Prevention, Minimization and Recovery of Hazardous Waste and Other Wastes. http://www.basel.int/Implementation/CartagenaDeclaration /Overview/tabid/5854/Default.aspx. Accessed 23 May 2018.

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Under Section 3 (K) of the Insecticides Act (1968) an insecticide230 is deemed to be misbranded: (1) If its label231 contains any statement, design or graphic representation relating thereto which is false or misleading in any material particular or if its package is otherwise deceptive in respect of its contents; or (2) If it is an imitation of, or is sold under the name of, another insecticide; or (3) If its label does not contain a warning or caution which may be necessary and suffcient, if complied with, to prevent risk to human beings or animals; or (4) If any word, statement or other information required by or under this Act to appear on the label is not displayed thereon in such conspicuous manner as the other words, statements, designs or graphic matter have been displayed on the label and in such terms as to render it likely to be read and understood by any ordinary individual under customary conditions of purchase and use; or (5) If it is not packed or labeled in accordance with the provisions of this Act; (6) If it is not registered in the manner required by this Act; (7) If the label contains any reference to registration other than the registration number; or (8) If the insecticide has a toxicity which is higher than the level prescribed or is mixed or packed with any substance so as to alter its nature or quality or contains any substance which is not included in the registration. In order to advise the central government and state governments on technical matters arising out of the administration of this act, the central government has the power to call the Central Insecticides Board.232 The board consists of expert members233 who are connected with insecticides and the

230 Initially, many insecticides were based upon chlorinated hydrocarbon compounds. These were highly persistent and had a relatively low toxicity. Amongst their disadvantages were their tendency to accumulate in the soil run-off waters and biota and the fact that organisms often developed resistance to them. David Briggs and Frank Courtney, Agriculture and Environment (London: 1989) 125. 231 Under Section 2(h) ‘label’ means any written, printed or graphic matter on the immediate package and on every other covering in which the package is placed or packed and includes any written, printed or graphic matter accompanying the insecticide. 232 Insecticides Act 1968, Section 4 (1). 233 Under Section 4 (3) of the Act, the Central Insecticides Board consists the following members: (i) The Director General of Health Services; (ii) The Drugs Controller of India; (iii) the Plant Protection Advisor to the Government of India; (iv) the Director of Storage and Inspection, Ministry of Food, Agriculture, Community Development

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Director-General of Health Services is its chairman. The board,234 with a view of realize the objectives laid down under this act,235 may appoint committees that include persons who are not members of the board.236 Under the provisions of Section 5 (1) of the Act, the central government appoints a Registration Committee. The Registration Committee is presided by a chairman237 and not more than fve other members.238 In addition, the central government must provide the necessary technical and other staff to the Board and the Registration Committee.239 The Registration Committee is authorized to register insecticides after scrutinizing their formulae and verifying claims made by the importer or the manufacturer, as regards their effcacy and safety to human beings and animals.240 Any person desiring to import or manufacture any insecticide may apply to the Registration Committee for registration of such insecticide in the form so prescribed.241 Persons who are already engaged in the business of import or manufacture of any insecticide immediately before the commencement of this act must make an application to the Registration Committee for the

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236 237 238 239 240 241

and Cooperation (Department of food); (v) the Chief Advisor of Factories; (vi) the Director, National Institute of Communicable Diseases, ex offcio; (vii) the Director General, Indian Council of Agricultural Research; (viii) the Director-General, Indian Council of Medical Research, ex-offcio; (ix) the Director, Zoological Survey of India, ex-offcio; (x) the Director-General Indian Standards Institution; ex-offcio; (xi) the Director General of Shipping; ex-offcio; (xii) the Joint Director, Traffc (General) Ministry of Railways, ex-offcio; (xiii) the Secretary, Central Committee for Food Standards, Ex-offcio; (xiiia) the Animal Husbandry Commissioner; Dept. of Agriculture, ex-offcio; (xiiib) the joint commissioner (Fisheries, Dept. of Agriculture), ex-offcio; (xiiic) the Deputy Inspector General of Forests (Wild Life), Dept. of Agriculture, ex-offcio; (xiiid) the Industrial Advisor (Chemicals), Directorate General of Technical Development, ex-offcio; (xiv) one person to represent the Ministry of Petroleum and Chemicals to be nominated by the central government; (xv) one pharmocologist to be nominated by the central government; (xvi) one medical toxicologist to be nominated by the central government (xvii) one person who shall be in charge of the department dealing with public health in a state, to be nominated by the central government; (xviii) one person to represent the council of Scientifc and Industrial Research to be nominated by the central government; one ecologist to be nominated by the central government. The Central Insecticides Board. Under Section 7, the Central Insecticides Board can make by laws for the purpose of regulating its own procedures and the procedures of any other committee established by it. But the by-laws made by it is subject to previous approval of the central government. Insecticides Act 1968, Section 7. Ibid, Section 6. Appointed by the central government under Section 8 of the Act. ibid, Section 8. All the fve members must be members of the Central Insecticides Board which includes the Drugs Controller, India and the Plant Protection Advisor to the Government of India. Insecticides Act 1968, Section 8 (ii). Ibid, Section 5 (i). Ibid, Section 9.

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registration of such insecticide within seven months from the date of commencement of this act.242 The Registration Committee, on receiving the application, may make the necessary enquiry to confrm the claims made by the importer or the manufacturer and can vary the conditions of registration.243 The aggrieved party can appeal before the central government within a period of 30 days from the date of communication of the decision by the Registration Committee.244 The decision of the central government in matters relating to registration of insecticides is fnal. The Registration Committee, after examining the effcacy of the insecticide and its safety to human beings and animals, is empowered to register the pesticide on specifc conditions. It can also collect the fee prescribed, allot a registration number and issue a certifcate of registration to the applicants. The approval or rejection of an application for registration of insecticides must be made within 12 months from the date of the application’s receipt. If the Registration Committee is unable to arrive at a decision on the basis of the materials placed before it within the stipulated timeframe of 12 months, the period can be extended for six more months. The Registration Committee may refuse to register the insecticide on the grounds that the precautions claimed by the applicant to ensure safety to human beings or animals cannot be easily observed and the use of the insecticide involves serious risk to human beings or animals. Further, the Registration Committee is entitled to grant a provisional registration to an insecticide for a period of two years on certain conditions if, in its opinion, the insecticide is being introduced for the frst time in India.245 Under Section 11 of the Insecticides Act (1968) the central government, within one year from the decision of the Registration Committee, for the purpose of satisfying itself, can call for the record relating to any case in which the Registration Committee has given the decision. After examination of records, it may pass orders as it sees ft.246 Under Section 12 of this Act, a state government is entitled to appoint licensing offcers and may defne their areas of jurisdiction. All those desiring to manufacture, sell, stock, exhibit for sale and distribute any insecticide within the state should make an application to the licensing offcer for the

242 If any person fails to make an application within the stipulated period, he may make such application any time on payment of a penalty of 100 rupees for every month or part thereof after the expiry of such period for the registration of each such insecticide. 243 Insecticides Act 1968, Section 9 (3). 244 The central government may entertain an appeal after the expiry of the period if satisfed that the appellant was prevented by a suffcient cause from fling the appeal in time. ibid, Section 10. 245 Ibid, Section 10 (3) (b). 246 Ibid, Section 11.

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grant of license.247 In addition, a person engaged in the business of manufacturing, selling, stocking, exhibiting for sale or distributing any insecticide, before the commencement of this act must also make an application to the licensing offcer for the grant of license within seven months from the date of the commencement of this act. On receiving the application, the licensing offcer may a grant license on such conditions after payment of the prescribed fee by the applicant. The license so granted is valid for the term specifed in the license and be renewed from time to time.248 The licensing offcer, when he is fully satisfed with the facts of a case, has the power to revoke, suspend, change or amend a license granted by him on the following grounds:249 (1) The license granted under Section 13 has been granted because of misrepresentation as to an essential fact. (2) When the holder of a license fails to comply with the conditions subject to which a license was granted, or (3) Contravenes any of the provisions of this Act.250 Before cancelling or suspending a license, the licensing offcer should give the license holder an opportunity to explain his position. However, the decision of the licensing offcer is not fnal and may be challenged before such forums within 30 days251 by the aggrieved party.252 To carry out the functions entrusted to it under the provisions of the Insecticides Act (1968), the central government is empowered to establish a Central Insecticides Laboratory.253 The laboratory is to be under the control of a director appointed by the central government.254 In a notifcation, the central government can decide that the Central Insecticides Laboratory must function at any institution it deems appropriate. Thereupon, the functions of the Director or Head Central Insecticides Laboratory must be overseen by the head of that institution.255 Further, Section 17 prohibits a person either by himself or through another to import or manufacture: (1) Any misbranded insecticide. 247 248 249 250 251 252 253 254 255

Ibid, Section 13 (1). Ibid, Section 13 (4). Ibid, Section 14. Ibid, Section 14 (b). From the date of the communication of the decision to him. Insecticides Act 1968, Section 15. Ibid, Section 16. Ibid. Ibid.

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(2) Any insecticide the sale, distribution or use of which for the time being is prohibited under Section 27.256 (3) Any insecticide except in accordance with the conditions on which it was registered. (4) Any insecticide in contravention of any other provisions of this Act or any rule made thereunder. Furthermore, no person either by himself or through another is permitted to manufacture any insecticide except in accordance with a license issued for such purpose.257 Similarly, Section 18 of the Insecticides Act, 1968, prohibits the sale of certain insecticides. As per its provision, no one, either by himself or through another shall sell, stock, exhibit for sale or distribute: (1) Any insecticide which is not registered under the provisions of this act. (2) Any insecticide, the sale, distribution or use of which is for the time being prohibited under Section 27. (3) Any insecticide in contravention of any other provisions of this act or any rule made under it. Section 19 of the Act confers power to both the central and state governments to appoint persons possessing technical qualifcations to be Insecticide Analysts. The persons appointed under this provision may take charge of such areas and such insecticides or class of insecticides. No person having any fnancial interest in the manufacture, import or sale of any insecticide should be appointed as an insecticide analyst. For a smooth working of the Insecticides Act, 1968, the central government or a state government is given the power to appoint technically qualifed men as insecticide inspectors. Their number, area of control, etc. will be/ determined by the respective governments which appoint them.258 An insecticide inspector is a public servant under the provisions of the act.259 The insecticide inspectors enjoy the following powers under Section 21 of the Act. (1) To enter and search260 any premises at all reasonable times where he has reason to believe that an offense punishable under the act has been committed. 256 This prohibition must be under Section 27 of the Act, where the use of any pesticide or any specifc batch is likely to involve risk to human beings or animals. In this case, the government (by notifcation in the Offcial Gazette) may prohibit the sale, distribution or use of the insecticide in such areas for a period of up to 60 days. 257 Insecticides Act 1968, Section 17 (2). This paragraph is substituted by the Insecticide Amendment Act 1972. 258 Insecticides Act 1968, Section 20. 259 Within the meaning of Indian Penal Code 1860, Section 21. 260 For all cases of search or seizure, the provisions of CRPC 1973 shall apply.

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(2) To require the production of, and to inspect, examine and make copies of, or take extracts from registers, records or other documents kept by a manufacturer, distributor, carrier, dealer etc. and seize them if he reasonably believes that an offense punishable under the act has been committed. (3) To make an examination and inquiry to ascertain whether the provisions of this act and the rules made under it are being complied with or not. The power conferred here permits him to stop any vehicle. (4) To stop the distribution, sale or use of an insecticide that is being distributed or sold in violation of the provisions of this act for up to 30 days. He can also seize the stock of such insecticide unless the alleged defect is being removed by the possessor of the insecticide. (5) To take samples of any insecticide and send it for analysis to the insecticide analyst for test. (6) To exercise such powers that are necessary for carrying out the provisions of this act.261 Under Section 21 (3), an insecticide inspector may exercise the powers of a police offcer for ascertaining the true name and residence of the person from whom an insecticide is seized, or a sample is taken. Whenever the insecticide inspector seizes any record, register, document262 or stock of insecticide he should inform this matter to the magistrate and take his orders to keep them in his custody.263 Moreover, if he takes a sample of an insecticide he must pay its fair price and take a written acknowledgment from the person if the sample has been found not be misbranded in an analyst’s report after a test or analysis.264 When the inspector takes the sample for analysis, he must put in writing in the details of the person from whom the insecticide has been taken for analysis. Further, he must divide the sample into three portions in the presence of the person from whom it is collected. He must then seal the samples and put a mark on it and have the person in question265 also add his seal and mark.266 Thereafter, the inspector must restore one portion of the sample to the person from whom it is collected; the second portion is to be sent to the insecticide analyst for test and the third to be produced before the court at the time of proceedings.267 The insecticide manufacturer/seller, during the 261 Insecticides Act 1968, Section 21 (1) (a) to (f). They deal with the powers of insecticide inspectors. 262 Done under Section 21 (b) of subSection (1) of Section 21 of the Act. 263 Insecticides Act 1968, Section 22 (1). 264 Insecticides (Amendment) Act 2000, Section 22 (3). 265 From whom it is collected. 266 Insecticides Act 1968, Section 22 (5). 267 Ibid, Section 22 (6) (i) (ii). Production of the sample before the court will arise only when proceedings are instituted in respect of the insecticide.

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course of the inspection, is duty-bound to disclose the premises where the insecticide is manufactured, stored and sold.268 The insecticide analyst to whom the sample is referred for analysis must deliver a signed report within 30 days to the insecticide inspector.269 The report of the analyst must be considered as conclusive evidence by the court of a case, unless the person from whom the sample was taken challenges the report before the court within 28 days.270 In the event of such a challenge, the court may (on its own or at the request of the complainant or of the accused) refer the sample to the Central Insecticides Laboratory for analysis.271 The report of the Director of the Central Insecticides Laboratory is fnal. The expenses of such analysis must be paid by the parties.272 A state government may, by way of notifcation in the Offcial Gazette, require such offcers appointed by it to report to it all occurrences of poisoning taking place within the jurisdiction conferred on such offcers mentioned in the notifcation.273 Under Section 27 of the Insecticides Act, 1968, both the central and the state governments enjoy the absolute privilege to prohibit the sale, distribution or use of an insecticide or any specifc batch of insecticides for 60 days in specifc areas mentioned by it.274 The central or state government must have suffcient evidence reported to it before the taking of such a decision (under Section 26 of the Act or otherwise) to the effect that the continued sale of insecticides in such areas is likely to involve risk to human beings or animals. Section 29 deals with offenses and penal provisions. Under the provisions, whoever (a) imports, manufactures, sells, stocks or exhibits for sale or distributes any insecticide that is misbranded; or (b) imports or manufactures any insecticide without a certifcate of registration; or (c) manufactures, sells, stocks or exhibits for sale or distributes an insecticide without a license; or (d) sells or distributes an insecticide, in contravention of Section 27; or (e) causes an insecticide, the use of which has been prohibited under Section 27, to be used by any worker or; (f) obstructs an insecticide inspector to discharge his duties; shall be punishable, in the case of a frst offense, with imprisonment of up to two years or with a fne which shall not be less than 10,000 rupees but which may extend up to 50,000 rupees, or with both. For the commission of a second and subsequent offense the person (charged) is 268 The legal duty imposed on the manufacturer, seller under Section 23 of the Act. 269 The insecticide inspector is the one who submitted the sample for analysis under Section 22 (6) of the Act. 270 Insecticides Act 1968, Section 24 (2). 271 If this was not done earlier by the Central Insecticides Laboratory. 272 Insecticides Act 1968, Section 24 (5). 273 Ibid, Section 26. 274 This period of 60 days may be extended for 30 more days where the investigation by the central or the state government to ascertain the cause of the incident has not been completed within the period.

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punishable with imprisonment of up to three years or with a fne which shall not be less than 15,000 rupees but which may extend up to 75,000 rupees, or with both.275 Additionally, any person using an insecticide in contravention of this Act shall also be punishable with a fne not less than 500 rupees but which may extend up to 5,000 rupees, or with an imprisonment which may extend up to six months, or both.276 Further, under Section 29 (3) of the Act, a person is punishable for the frst offense with imprisonment for a term of up to one year, or with fne which shall not be less than 5,000 rupees but which may extend up to 25,000 rupees, or with both for contravening any of the other provisions of this act or violating any condition of a certifcate of registration or license granted under it. If the offense is committed for a second and subsequent time, the imprisonment may extend up to two years, or a fne which shall not be less than 10,000 rupees but which may extend up to 50,000 rupees, or with both. If a person convicted for an offence under the provisions of the Insecticides Act (1968) commits a similar offence afterwards, the court before which the second conviction takes place can publish in the media the offender’s name and place of residence and the offense and penalty imposed by the court.277 During the course of the trial the accused is not permitted to claim ignorance of the nature or quality of the insecticide as a defense, in respect of which the offense was committed or of the risk involved in the manufacture, sale or use of such insecticide or of the circumstances of its manufacture or import.278 Section 30 (3) exempts a person not being an importer or a manufacturer of an insecticide or his agent for distribution for contravening the provisions of this act if he proves: (1) that he acquired the insecticide from an importer or from a duly licensed manufacturer, distributor or dealer; (2) that he did not know and could not, with due diligence, have ascertained that the insecticide in any way contravened the act; and (3) that the insecticide, when it was under his possession, was properly stored and remained in the same state as when he acquired it. All prosecutions under this Act must be instituted with the written consent of the state government and all cases must be tried by a court that must not be inferior to that of a Judicial Magistrate of the First Class.279 When a person is convicted, the stock of the insecticide in respect of which the contravention is alleged is liable to be confscated.280 275 276 277 278 279 280

Insecticides (Amendment) Act, 2000, Section 29 (1) (i) & (ii). Ibid, Section 29 (2). Insecticides Act 1968, Section 29 (4). Ibid, Section 30 (1). Ibid, Section 31. Ibid, Section 25.

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Section 31A lays down provisions for Special Courts. If the state government is satisfed that it is necessary for the purpose of providing for speedy trial of offenses under this act it may, by notifcation in the Offcial Gazette and after consultation with the high court, notify one or more Courts of Judicial Magistrates of the frst class, or Metropolitan Magistrates, in such district or metropolitan area to be Special Courts. Sub-section (2) states that, unless otherwise directed by the high court, a court thus notifed shall exercise jurisdiction only in respect of cases under this act. The jurisdiction and powers of the presiding offcer of court in any district or metropolitan area shall extend throughout the district or the area.281 Subject to the foregoing provisions of this section, a court in any district or metropolitan area shall be deemed to be a court established under Sub-section (1) of Section 11, or Sub-section (1) of Section 16 of the Code of Criminal Procedure (1973) and the provisions of that code shall apply accordingly in relation to such courts282. Offenses committed by a company are dealt with in Section 33 of the Act. According to the provision, whenever any offense is committed by a company, every person who at the time the offense was committed was in charge of the company and was responsible for the conduct of the business of the company shall be deemed to be guilty of the offense. However, the offcer/ person charged with such an offense is not liable if he proves that the offense was committed without his knowledge and he exercised all reasonable care to prevent the commission of such offense. The liability extends even against a director, manager, secretary or offcer of a company with whose consent, connivance or neglect, the offense is perpetrated. Acts conducted in good faith by an offcer of the government, the board, the Registration Committee and any committee of the board are protected under Section 35 of the Act. Consequently, no prosecution or suit etc. will be fled against the government. The central government has the power to give the necessary directions to any state government under the provisions of Section 34 of the Insecticides Act 1968, for carrying into execution in the state any of the provisions of this act or any rule or order made by it. Furthermore, the central government under Section 36 and the state governments under Section 37 (1) are permitted to make rules for the purpose of giving effect to the provisions of the Insecticides Act, 1968. But then, the rules effected by the state government must always be in conformity and not inconsistent with the rules made by the central government. The Insecticides Rules were adopted in 1971. The rules prescribe the procedure for licensing, packaging, labeling transporting insecticides. They also

281 Ibid, Section 31A (3). 282 Ibid, Section 31A (4).

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provide for work’s safety during the manufacture and handling of insecticides through protective clothing, respiratory devices and medical facilities. The Consumer Protection Act, 1986283 This act aims to provide better protection of the interests of consumers, and with this in view, to make provision for the establishment of consumer councils and other authorities for the settlement of consumers’ disputes. Most of the consumers are almost unrecognized, ignorant and negligent of their rights and are not capable of receiving expert advice, both legal and technical, unlike manufacturers. The act provides for hearing the grievances of consumers by quasi-judicial bodies like the district forums,284 state commissions285 and a national commission.286 The Central Consumer Protection Council constituted by the central government under Section 4 (1) of the Act is chaired by the Minister of Food and Civil Supplies and consists of other offcial and non-offcial members representing various public interests.287 The council must at least meet three times in a year.288 The Central Consumer Protection Council is constituted with a view to promoting and protecting the rights of the consumers such as: (1) the right to be protected against the marketing of goods that are hazardous to life and property; (2) the right to be informed about the quality, quantity, potency, purity, standard and price of goods so as to protect the consumer against unfair trade practices; (3) the right to be assured, wherever possible, of access to a variety of goods at competitive prices; (4) the right to be heard and assured that consumers interests will receive due consideration at appropriate forums; (5) the right to seek redressal against unfair trade practices or unscrupulous exploitation of consumers; and (6) the right to consumer education.289 In order to promote these objectives within the state, the state consumer councils may be appointed by the state government290 on the pattern of the central consumer council. Under Section 9, a Consumer Disputes Redressal Forum popularly known as the “District Forum” could be established by

283 284 285 286 287 288 289 290

Ibid, Section 31A (4). Ibid, Section 9. Ibid, Section 7 (1). The consumer protection council is constituted under Section 4 (1) of the Consumer Protection Act 1986. The Consumer Protection Act 1986, Section 4 (2) (b). Ibid, Section 5 (1). Ibid, Section 6 (a) to (f). Ibid, Section 7 (1) and (2). All States, except the State of Meghalaya, within the Union of India have state consumer councils.

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the state government with the prior approval of the central government.291 There can be a Consumer Disputes Redressal Commission to be known as “the State Commission” for the State established by the State with the prior approval of the Central Government.292At the national level, the National Consumer Disputes Redressal Commission could be established by the Central Government.293 The district forum established by the state government must consist of the following persons: (a) a person who is, or has been, or has the requisite qualifcation to be a district judge and be nominated by the state government. Such a person will be its chairman.294 (b) a person of eminence295 and (c) a female social worker.296 The members of the district forum hold offce for a term of fve years or up to the age of 65 years297 and are not eligible for reappointment.298 The district forum is empowered to entertain complaints where the value of the goods or services and the compensation, if any, claimed by the parties are up to 20 lakh rupees. A complaint under Section 12 may be fled by: (a) the consumer to whom such goods are sold or delivered, or (b) any recognized consumer association;299 or (c) the central or the state government. On receiving the complaint, the forum must refer the matter to the opposite party and hear its version within 40 days.300 At this stage of the hearing, the district forum can refer the sample (hazardous) sealed to the appropriate laboratory for test/analysis. The laboratory must give its fndings within 45 days to the district forum.301 The parties to the dispute can question the accuracy of the methods and tests etc. adopted to arrive at the fndings by the laboratory in writing to the district forum. Thereafter, the district forum must give a reasonable opportunity of hearing to both the parties to the dispute to defend

291 292 293 294 295 296 297 298 299

Ibid, Section 9 (a). Ibid, Section 9 (b). Ibid, Section 9 (c). Ibid, Section 10 (1) (a). Ibid, Section 10 (1) (b). Ibid, Section 10 (1) (c). Whichever is earlier Ibid, Section 10 (2). “Recognized Consumer Association” means any voluntary consumer association registered under the Companies Act, 1956 or by any other law which is in force. For instance, under the MRTP (Recognition of Consumers Association) Rules 1987 (Gazette of India. Extraordinary, Part II, Section 3 (ii) dated 1.6.1987). A consumers’ association that is desirous of being recognized as a consumer association must have not less than ten consumers as its members; The Consumer Protection Act 1986, Section 3. 300 Ibid, Section 13 (1) (a). 301 Ibid, Section 13 (1) (c).

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or deny the report and the objections thereto by the parties.302 When once the above procedural formalities are complete the district forum can pass an order directing the party: (1) to remove the defect pointed out by the appropriate laboratory from the goods; (2) to replace them with new goods of similar description which must be free from defect; (3) to return to the complainant the price, or the charges paid by the complainant; (4) to award compensation to the consumer any loss or injury suffered by the consumer due to the negligence of the opposite party.303 The Delhi State Consumer Disputes Redressal Commission in Pepsico India Holdings Pvt. Ltd v Sudesh Sharma304 stated that: The object of the Consumer Protection Act 1986 is not to make consumer unjustly rich by way of wind fall. No consumer can be allowed to blackmail the service provider or manufacturer by producing one or two bottles of drink having some kind of foreign substance whereas the manufacturer produces the goods in huge bulk every day. Punitive damages are imposed only when a manufacturer or dealer is found guilty of having manufactured lot of goods which are either hazardous or whole lot is defective or of substandard quality, purity and potency and not in such like isolated cases. So far as compensation to a consumer for having been sold a defective good is concerned Supreme Court has widened the connotation of word compensation that it includes each and every element of suffering like mental agony, harassment or physical discomfort, expected or actual loss, insult and other suffering, which a consumer suffers. We have further extended this connotation by including the expenses and agony undergone by a consumer who has been forced by the service provider to approach legal forum or court to seek redressal of his grievance as forcing the consumer to seek remedy before Consumer Forum or before any other legal forum is again tortuous process as it causes further mental agony and harassment and fnancial pressure as nowadays the legal remedy is becoming costlier day by day and it is not only time consuming but at time harassing In this case, a consumer had allegedly experienced physical discomfort after consuming the soft drink under the brand Pepsi which contained a foreign substance. Conforming to the above stance, it set aside punitive damages

302 Ibid, Section 13 (1) (g). 303 Ibid, Section 14 (1) (a) (b) (c) (d). 304 Pepsico India Holdings Pvt. Ltd v Sudesh Sharma (order passed on 6 January 2009—State Dispute Commission, Delhi).

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previously ordered by the District Forum citing that there was no ground for the same. Section 15 of the Act gives an opportunity to the aggrieved party to prefer an appeal against the order of the district forum to the state commission. Such appeals must be made within thirty days from the date of the order passed by the district forum. In this way, at the district level the act is implemented. The victims of hazardous substances can invoke the protection of this Act and address to their grievances and claim an effective remedy under the act. The composition of the state commission is on the pattern of the district forum and it is presided over by a person who is or has been a judge of a high court.305 The state commission is empowered to entertain a complaint where the value of goods or services claimed are between rupees 20 lakh and one crore.306 An aggrieved person, by an order of the state commission, may prefer an appeal within 30 days from the date of order to the national commission.307 The national commission consists of four308 members who must have the ability, integrity, standing and have knowledge or experience or the capacity in dealing with problems of economics, law, commerce, accountancy, industry, public, affairs. It is presided over by a person who is or has been a judge of the Supreme Court.309 The national commission can entertain complaints, were the value of goods or services and compensation claimed exceeds rupees one crore.310 Any aggrieved person by an order made by the national commission may prefer an appeal against such order to the Supreme Court of India within 30 days311 from the passing of such order. The order passed by the district forum, state commission or the national commission will be treated as if it were a decree or order of a court in a suit pending therein and enforced respectively by the district forum, state commission or the national commission against the parties.312 The order of the district forum, state commission or the national commission is binding for the parties against whom it is delivered. Any failure of compliance with the order is punishable with imprisonment of up to three years from one month, or with a fne of up to 10,000 rupees.313

305 306 307 308 309 310 311 312 313

The Consumer Protection Act 1986, Section 16 (1) (a). Ibid, Section 17. Ibid, Section 19. Ibid, Section 20 (b). And one among them must be a woman. Ibid, Section 20 (1) of the Act. Appointed by the central government. Ibid, Section 20 (a) (i). Ibid, Section 23. Ibid, Section 23. Ibid, Section 27. The minimum fne imposed is 2,000 rupees.

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In this way, the quasi-judicial bodies under the have the power to give appropriate relief in a given case against the manufacturer for removal of defects pointed out by the appropriate laboratory or to replace the goods with new goods or to return the price or to pay compensation. The real purpose of the act is not to make it easier to secure compensation, but to increase the feeling of supplier responsibility and reduce the risk of faulty goods or of accidents.314 The authorities constituted under the Consumer Protection Act 1986 have, on several instances, been proactive in protecting the public interest. After a consumer purchased a bottle of Pepsi branded soft drink from the local store and found a gutka pouch foating inside the sealed drink container, he accused the company of a defciency of service that could cause a health hazard for consumers. Shockingly, although the company replied to his notice, it was after an entire year had passed. The Consumer Court in Gujarat asked the company to pay 22,000 rupees in total as compensation after judging the merits of the case.315 Another instance was noted on 5 June 5 2015, when nine variants of the beloved brand of Maggi Noodles (made by Nestle in India for over two decades) were recalled and withdrawn by the Food Safety and Standards Authority of India (FSSAI) via a regulatory order. The order was based on tests conducted on batches of the noodles showing that they contained more than permissible amounts of lead and monosodium glutamate (MSG). The order was subsequently challenged at the Bombay High Court.316 The ban was thereafter lifted and fresh tests were ordered after it was found that the labs used for the previous rounds for testing were not accredited.317 In the meantime, the Consumer Affairs Ministry fled a class-action lawsuit on behalf of the Indian consumers seeking damages worth 640 crore rupees on grounds of unfair trade practices, false labeling, misleading advertisements before the National Consumer Disputes Redressal Commission (NCDRC).318 The case was later on transferred to the Supreme Court.

314 A. Rajendra Prasad, ‘The Consumer Protection Act 1986: A Critical Appraisal’ [1989] 76. All India Reporter 12–13. 315 Saeed Khan, ‘Gutka pouch in bottle: Pepsi asked to compensate consumer’ The Times of India (Ahmedabad, 1 October 2013). https://timesofndia.indiatimes.com/city/ahmedabad /Gutka-pouch-in-bottle-Pepsi-asked-to-compensate-consumer/articleshow/23353767.c ms. Accessed 5 December 2017. 316 M/S Nestle India Limited v The Food Safety and Standards MANU/MH/1937/2015. 317 ‘Maggi Noodle: Timeline of events.’ https://www.nestle.in/aboutus/ask-nestle/answers/m aggi-noodles-india-overview-timeline. Accessed on 24 November 2017. 318 Express India Service, ‘Maggi ban: Govt fles case against Nestle seeks Rs640 cr in damages’ Indian Express (12 August 2015). /. Accessed 24 November 2017.

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After the Maggi Noodles controversy, there was a growing concern in the country about the safety of consumer products and services.319 This was, in fact, one of several instances in recent times where consumers have fallen prey to the emergence of increasingly complex structures in products and services in the modern world. Hence, to protect the interest of consumers, the Consumer Protection Bill was introduced on 10 August 2015.320 Thereafter, it was referred to the Standing Committee which submitted its report suggesting several amendments. Since then, the bill has been lingering for two years and is yet to be approved by the cabinet.321 The bill aims to (1) establish a regulatory body for the enforcement of consumer rights, (2) establish redressal agencies for adjudicating consumer disputes, (3) enable consumers to fle claims for product liability (4) defne unfair contracts and allow consumers to fle complaints against them.322 First and foremost, it aimed to establish a Central Consumer Protection Authority to “promote protect and enforce the rights of consumers.”323 Among other functions, the CCPA will be primarily set up (1) to inquire into violations of consumer rights, investigate and launch prosecution at the appropriate forum; (2) to pass orders for recall of goods, or withdrawal of services and reimbursement of the price paid, and pass directions for discontinuation of unfair trade practices; (3) to issue safety notices and order withdrawal of advertisements and (4) to declare contracts that are unfair to a consumer as void.324 Under the Bill, Consumer Grievance Redressal Commissions are to be set up at the district, state and national levels. A consumer can fle a complaint with these commissions, regarding (i) unfair or restrictive trade practices, (ii) defective goods or services, (iii) overcharging or deceptive charging, (iv) the offering of goods or services for sale which may be hazardous to life and safety, and (v) incurring loss due to an unfair contract. The District Commission may issue certain resulting orders regarding a complaint such

319 ‘Consumer Protection Bill 2015 tabled in Lok Sabha’ The Economic Times (10 August 2015). https://economictimes.indiatimes.com/news/politics-and-nation/consumer-protec tion-bill-2015-tabled-in-lok-sabha/articleshow/48426500.cms. Accessed 24 November 2017. 320 ‘Consumer is king if new law gets nod’ The Hindu (30 Aug 2017). http://www.thehindu .com/news/national/consumer-protection-bill-awaits-govt-nod/article19589010.ece. Accessed 24 November 2017. 321 Ibid. 322 PRS Legislative Research, Standing Report Summary, The Consumer Protection Bill 2015, Ahttp://www.prsindia.org/uploads/media/Consumer/SCR%20summary-%20Consumer %20Protection%20Bill,% 202015.pdf. accessed 5 December 2017. 323 Consumer Protection Bill 2015, Section 11 (1). 324 PRS Legislative Research, Standing Report Summary, The Consumer Protection Bill 2015, http://www.prsindia.org/uploads/media/Consumer/SCR%20summary-%20Consumer %20Protection%20Bill,% 202015.pdf. Accessed 5 December 2017.

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as removal of the defect, replacement of the goods, refund of the price amount, prohibition of the sale or manufacture of hazardous products, discontinuation of unfair trade practices or payment of compensation for any loss suffered by the consumer. Appeals from its decisions will be heard by the state commission. Moreover, appeals may be fled before the national commission and then before the Supreme Court325. Mediation as a mode of consumer dispute resolution has also been brought forth by the Bill. Consumer Mediation Cells will be established and attached to the redressal commissions at the district, state and national level.326 The bill also has introduced the concept of product liability and has defned it as “the responsibility of a manufacturer or vendor of goods or service provider to compensate for injury or damage caused to a consumer by defective product sold to a consumer or defciency in services.”327 In case of any personal injury, death or property damage is caused to the consumer resulting from defects in the manufacture, construction, design, formula, preparation, assembly, testing, service, warning, instruction, marketing, packaging, or labeling of any product, the manufacturer or producer of such product shall be liable for the product in product liability action.328 In order to claim product liability, a claimant has to establish four kinds of defects in the product, the injury caused from it, and that it belonged to the manufacturer. The claimant must also establish that the manufacturer had knowledge of such a defect.329 Chapter VI of the Bill has laid down further comprehensive provisions related to product liability. The bill classifes six contract terms as “unfair.” These cover terms such as (1) payment of excessive security deposits; (2) disproportionate penalty for a breach; (3) unilateral termination without cause and (4) one which puts the consumer at a disadvantage.330 An aggrieved consumer can obtain relief via the authorities provided for in the Bill. Needless to say, the bill if passed would, defnitely revamp the current consumer protection law of India for the better. The digitalized world and the increase in e-commerce transactions have brought changes in various legislations including changes to the Hazardous Waste Management Rules, 2016. The landmark changes brought out in the Consumer Protection (Amendment) Act, 2019 which came into force on 20 of July 2020 is one such statute which needs special mention in relation

325 326 327 328 329

Ibid. Ibid. Consumer Protection Bill 2015, Section 2(31). Ibid, Section 72. PRS Legislative Brief, Legislative Brief Consumer Protection Bill 2015 http://www .prsindia.org/uploads/media/Consumer/Brief%20Consumer%20Protection%20Bill, %202015.pdf. Accessed 6 December 2017. 330 Ibid.

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to the topic discussed herein. Though the act includes many highlights which are newly added, the introduction of the concept of “product liability” into the act deserves mention here. Within the scope of this concept, the product manufacturer, product seller and product service provider are liable for any claim of compensation resulting from any harm caused to a consumer by defective products manufactured or sold or by a defciency in services. The provisions clearly show the shift from the old paradigm of “let the buyer beware” to “let the seller beware” which is being warmly welcomed. This has brought in a sense of responsibility on the product manufacturers and product sellers to comply with proper due diligence before claiming their exceptions under the new law. One such exception is that a product manufacturer shall not be liable for failure to instruct or warn of any danger which is commonly known to the user or consumer and of which they ought to have been aware. Hence, if there are substances which are dangerous in nature not commonly known, it has to be declared through a warning. Further, a reading of the provision also refects the fact that there is an increased liability risk for manufacturers as compared to product service providers and product sellers considering the fact that even if he proves that he was not negligent or fraudulent in making the express warranty of a product.

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5 AN OVERVIEW OF THE LAW GOVERNING HAZARDOUS SUBSTANCES IN THE POST-BHOPAL ERA Part 1 The Planning Commission’s approach to environment-related problems A report by the Planning Commission of India highlighted that the environment must not be considered as just another sector of national development. It should form a crucial guiding dimension for plans and programs in each sector.1 In February 1972, a National Committee on Environmental Planning and Coordination (NCEPC) was established by the Government of India in the Department of Science and Technology. The NCEPC was an apex advisory body in all matters relating to environmental protection and improvement. The committee consisted of 14 members drawn from various disciplines concerned with environmental management.2 Most of the non-offcial members were specialists. The committee was to plan and coordinate while the responsibility for execution remained with the various ministries and agencies of the government. The Draft Fifth Plan (1974–1979) stressed that the NCEPC should be closely associated with all major industrial decisions so that environmental goals are fully taken into account. The Sixth Five Year Plan (1980–1985) document included a separate chapter on “Environment and Development” emphasizing sound environmental and ecological principles in land use, agriculture, forestry, wildlife, water, air, marine environment, minerals, fsheries, renewable resources, energy and human settlements. Further, the chapter provided a plethora of information on environmental concerns to administrators and resource managers, formulating and implementing 1 Planning Commission, Report of the Planning Commission of India—Sixth Five Year Plan 198–85 (New Delhi, 1981) 9. 2 The committee members were appointed for a two-year term. The members of NCEPC increased from 14 in 1972 to 24 in 1977 to 35 in 1979.

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programs, and laid down an institutional structure for environmental management in the central and state governments.3 In the Ninth Five Year Plan (1997–2002), it was noted that there was a signifcant increase in the generation of domestic, urban and industrial wastes in the last few decades due to rapid population growth and industrialization. It further noted Although a major part of the waste generated is non-hazardous, substantial quantities of hazardous waste is also generated. The growth of chemical industries has resulted in the extensive use of chemicals, which release huge quantities of wastes into the environment in the form of solids, liquids and gases. A substantial amount of these wastes are potentially hazardous to the environment. The leaching of hazardous wastes at the dumping sites is a common feature. This results in the contamination of surface and groundwater supply and is a potential risk to human health. Effective control of hazardous wastes is of paramount importance for the maintenance of health, environmental protection and natural resource management.4 The creation of the Department of Environment in 1980 and the integrated Ministry of Environment and Forests, at the center in 1985, by the government to serve as the focal point in the administrative structure of the central government for planning, promotion and coordination of environmental and forestry programs was a major development. The ministry’s main activities include conservation and survey of fora, fauna, forests and wildlife, prevention and control of pollution, afforestation and regeneration of degraded areas and overall protection of the environment. In 2006, the government also formulated the National Environment Policy. It was touted as a response to the national commitment to a clean environment, mandated in the Constitution in Articles 48A and 51A (g), strengthened by judicial interpretation of Article 21. It is recognized that maintaining a healthy environment is not the state’s responsibility alone, but also that of every citizen.5

3 Armin Rosencranz, Shyam Divan, Martha L. Noble, Environmental Law and Policy in India (NM Tripathi Pvt Ltd, 1991) 43. 4 Government of India, Ninth 5-year plan, Environment and Forest Overview http://planningcommission. gov.in/plans/planrel/fveyr/9th/vol2/v2c8.htm. Accessed 27 December 2017. 5 Ministry of Environment and Forests, National Environment Policy 2006, Government of India, http://www.moef.gov.in/sites/default/fles/introduction-nep2006e.pdf. Accessed 27 December 2017.

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The Environment (Protection) (EP) Act, 19866 This act was passed to protect and improve the environment as also to prevent hazards to human beings and other living creatures, plants and property.7 Section 2 (e) of the Act defnes “hazardous substance” as any substance or preparation which, by reason of its chemical or physio-chemical properties or handling, is liable to cause harm to human beings, other living creatures, plants, microorganism, property or the environment.” The central government is empowered to lay down procedures and safeguards for the handling of hazardous substances.8 Measures taken under Section 3 (2) may include the following matters: (1) Planning and execution of a nationwide program for the prevention, control and abatement of environmental pollution.9 (2) Laying down standards for the quality of the environment in its various aspects.10 (3) Laying down standards for emission or discharge of environmental pollutants from various sources.11 (4) Restriction of areas in which any industrial operations, or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards.12 (5) Laying down procedures and safeguards for the prevention of accidents that may cause environmental pollution and remedial measures for such accidents.13 (6) Examination of such manufacturing processes, materials and substances which are likely to cause environmental pollution.14 (7) Carrying out and sponsoring investigations and research relating to problems of environmental pollution.15 (8) Inspection of any premises, plant, equipment, machinery, manufacturing or other processes, materials or substances and giving, by order, of such directions to such authorities, offcers or persons as it may 6 No. 29 of 1986, 23 May 1988. 7 In passing the act, the government felt that although existing laws generally focus on specifc types of pollution or specifc categories of hazardous substances they do not cover major or areas of environmental hazards. Further, control mechanisms to guard against the slow, insidious build-up of hazardous substances, especially new chemicals, in the environment are weak. See the Gazette of India, Extraordinary. Pt. II, Section 1, dated 26 May 1986. 8 Environment Protection Act 1986, Section 3(2) (VII). 9 Ibid, Section 3 (2) (iii). 10 Ibid, Section 3 (2) (iii). 11 Ibid, Section 3 (2) (iv). 12 Ibid, Section 3 (2) (v). 13 Ibid, Section 3 (2) (vi). 14 Ibid, Section 3 (2) (vii). 15 Ibid, Section 3 (2) (ix).

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consider necessary for the prevention, control and abatement of environmental pollution.16 (9) Establishment or recognition of environmental laboratories and institutes to carry out the functions entrusted to such environmental laboratories and institutes;17 and on any other matter which the central government deems it necessary for securing the effective implementation of the provisions of this act. The government, while exercising these powers, may make rules on all or any of the matters discussed in the list by a notifcation in the Offcial Gazette.18 The government’s power stretches even further to make rules on the processing, treatment, package, storage, transportation, use, collection, destruction, conversion, offering for sale and transfer of such substances.19 The exhaustive power of the government, as we have seen, extends to the control and regulation of the manufacturers of hazardous substances and the inspection of any such premises, plant, equipment or machinery manufacturing the substances.20 In addition, the government may make rules to provide: (1) The maximum allowable limits of concentration of various environmental pollutants for different substances.21 (2) The procedures and safeguards for the handling of hazardous substances.22 (3) The prohibition and restrictions on the handling of hazardous substances in different areas.23 (4) The prohibition and restrictions on the location of industries and the carrying out of the processes and operations in different areas.24 (5) The procedures and safeguards for the prevention of accidents that may cause environmental pollution and for the providing for remedial measures for such accidents.25 Under Section 7 (2) of the Act, no industry, operation or process is allowed to discharge environmental pollutants in excess of the permissible limits.

16 Ibid, Section 3 (2) (x). 17 Ibid, Section 3 (2) (xi). 18 Ibid, Section 6 (1). Under this Section the central government may, by notifcation in the Offcial Gazette, makes rules in respect of: “the procedures and safeguards for the handling of hazardous substances.” Ibid, Section 6 (2) (c). 19 Ibid, Section 2 (d). 20 Ibid, Section 3. 21 Ibid, Section 6 (2) (b). 22 Ibid, Section 6 (2) (c). 23 Ibid, Section 6 (2) (d). 24 Ibid, Section 6 (2) (e). 25 Ibid, Section 6 (2) (f).

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All persons handling hazardous substances must follow rules, procedures and safeguards prescribed by the government.26 For the purpose of enforcing the provisions of the Environment Protection Act, an offcer of the central government27 is given the right to enter, at all reasonable times and with the necessary assistance, any such premises to determine whether, and to what extent, the provisions of the act are being complied with or to perform the functions entrusted by the Central Government.28 While exercising such powers the offcer can take samples of air, water, soil or other substance from any factory premises or from any other place for the purpose of analysis.29 Such samples must be referred to the government analysts30 working in environmental laboratories.31 A duty is imposed on the person carrying out any industry operation, or process of handling hazardous substances, to assist the person engaged by the central government in implementing the rules and regulations of this Act.32 A person who fails to cooperate with the government, or wilfully delays in helping the offcer in-charge, is guilty of offense.33 Under Section 15 of the EP Act, each failure of compliance or contravention is punishable with a term of imprisonment up to fve years or with a fne of up to one lakh rupees or with both.34 For each act of failure to comply, happening after the conviction for such failure or contravention, an additional fne of 5,000 rupees per day is prescribed. Additionally, if such failure or contravention continues beyond a period of one year after conviction, the offender is liable to imprisonment for a term that may extend to seven years.35 All acts carried in good faith by an offcer of the government in pursuance of the purposes and objects of this act are protected and no suit, prosecution and other legal proceedings can be brought against the government or the offcer who acted on its behalf.36 In order to facilitate the objectives aimed under this legislation the central government, under Section 25 of the Act, is given the power to make rules on the following matters, namely:

26 27 28 29 30 31 32 33 34 35 36

Ibid, Section 8. Empowered to do so under ibid, Section 10 (1). Ibid, Sections 10 (1) (a) and (b). Ibid, Section 11. Appointed under Section 13 of the Act by the government from persons having prescribed qualifcations. Ibid, Section 12 (1). Ibid, Section 10 (2). Ibid, Section 10 (3). Ibid, Section 15 (1). Ibid, Section 15 (2). Ibid, Section 18.

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(1) The standards in excess of which environmental pollutants must not be discharged or emitted under Section 7.37 (2) The procedures and guidelines to handle hazardous substances.38 (3) The manner in which samples of air, water, soil or other substance must be taken for analysis.39 The central government passed the Environment (Protection) Rules (1986)40 to effectively enforce the provisions of the EP Act.41 These rules have laid down extensive provisions governing items such as prohibition and restriction on the location of industries and the carrying out of processes and operations in different areas,42 procedures for taking samples and submitting for analysis,43 serving notices44 and the form of laboratory report thereon,45 functions of environmental laboratories,46 qualifcations of government analysts,47 tanner of giving notice48 and prohibition and restriction on handling of hazardous substances in different areas.49 In order to consider ways for the effective implementation of the Environment Protection Act, a meeting of experts was convened by the Consumer Education and Research Centre (CERC) and the Indian Law Institute, New Delhi, in 1986.50 The meeting of experts felt the need to have comprehensive legislation on hazardous waste disposal as soon as possible and recommended to the government so accordingly.51 Transportation of dangerous/hazardous substances by road— Order of the Transport Commissioner, Maharashtra State In order to control and regulate the transportation of dangerous/hazardous substances by road, a model legislation was passed by Maharashtra State in 1986.52As per the government order, “hazardous chemical” will mean any 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51

Ibid, Section 25 (2) (a). Ibid, Section 25 (2) (b). Ibid, Section 25 (2) (d) read with Section 11 (1). S.O. 844 (E), dated 19 November 1986. Made while exercising the powers conferred under Section 6 and 25 of the EP Act 1986. Environment Protection Rules 1986, Rule 5. Ibid, Rule 6. Ibid, Rule 7. Ibid, Rule 8. Ibid, Rule 9. Ibid, Rule 10. Ibid, Rule 11. Ibid, Rule 13. The expert meeting was held from 22–24 August 1986. Upendra Baxi, Environment Protection Act: An Agenda for Implementation (NM Tripathi 1987). 52 Transportation of Dangerous/Hazardous Substances by Road Order of Transport Commissioner, Maharastra State. Published in the Maharashtra Government Gazette (Part osl central Sr. No. 2, dated 1 January 1986) 5.

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material which may pose an unreasonable risk to human health or the safety of property. This will include gases, compressed liquefed dissolved under pressure, infammable liquids, infammable solids, oxidizing substances, organic peroxides, poisonous (toxic) and infectious substances, corrosive substances, dangerous substances, radioactive substances and explosives. Every public or private carrier handling such hazardous chemicals, before transporting them, should satisfy the following conditions:53 (1) Fixing of special labels or notices on packages or on vehicles, bearing emblems as specifed by the transport commissioner. (2) The correct technical names of the chemical should invariably be displayed on packages or vehicles carrying hazardous chemicals. (3) The drivers of all road vehicles carrying hazardous chemicals must carry with them “instruction in writing” relating to each dangerous substance or to each class of dangerous substance whether carried in packed form (i.e. in tins, drums, etc.) or in bulk road vehicles. The instructions including frst aid treatment, and advice for dealing with fre, accident, spillage or leakage must be written in English, Hindi and Marathi and in the languages of the State of transit and destination. These instructions in writing should be obtained from the frm/chemical company which load hazardous chemicals for transportation.54 (4) A summary of these instructions in writing should be carried by the driver in his cabin. Under the Rules, these instructions are known as “Transport Emergency Card.” This card should be provided to the driver by the party or supplier of the chemical company loading the chemical. (5) In addition to the above safeguards, special signs or plates denoting that dangerous goods are being conveyed should be displayed on the vehicle so as to identify the substance and also reveal its hazardous properties and indicate the necessary action to be taken in emergencies. In another order issued in the same year, the Maharashtra Government55 clarifed a few of the provisions contained in the earlier order. Under the new order,56 the carriers of dangerous chemicals—while displaying the correct technical names of the chemicals on packages or vehicles—should also give the name by which those dangerous goods are referred to in the third revised edition of the United Nations Committee of Experts on the Transport of Dangerous Goods. Furthermore, the label to be affxed on a 53 Ibid. 54 Upendra Baxi, Environment Protection Act: An Agenda for Implementation (NM Tripathi 1987) 68–69. 55 Transportation of Dangerous Hazardous Substances by Road Transport Commissioner. Maharashtra State. Order No. MVH 3885/D-II (2) THCR/on 1127 dated 1 July 1986. 56 Ibid.

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vehicle carrying this information should not be less than 250mm square and should be marked on the vehicle in such a position that it does not obscure any markings. The carrier of the chemical waste, in addition, should affx another label not less than 50mm in height carrying the name and telephone number of the emergency services to be contacted in the event of an accident or fre and also the name and telephone number of consignor of the dangerous goods or another person from whom expert information and advice may be obtained concerning the measures that should be taken in the event of an emergency, involving dangerous goods. All labels put either on the vehicle or on the bulk container should be weatherproof.57 The Government of India’s rules and regulations The order of the Government of Maharashtra has been in force in the State of Maharashtra since 1986 without central legislation on this subject until 1989. The Government of India, realizing the urgent need to promote the objective and purpose envisaged in the EP Act (1986) outlined rules and regulations in 1989 under Section 3 (1) of the EP Act58 for the regulation of carriers of dangerous or hazardous goods. All carriers (vehicles) of dangerous and hazardous goods, in addition to complying with any law for the time in force in relation to any category of dangerous or hazardous goods brought under the new order,59 must display a distinct mark of the class label60 on every package containing dangerous or hazardous goods. The “class label” must be displayed on the vehicle and be positioned at an angle of 45 degrees to the vertical and its size shall not be of less than 25mm square.61 The class label must be made of waterproof material and be displayed both in the front and in the rear side of the vehicle in a conspicuous manner. The consigner intending to transport any dangerous or hazardous goods must supply to the owner carrying the goods, full and accurate information so as to make him aware of the risks created by such goods to the health or safety of any person.62 Under Rule 132, the carrier of 57 Upendra Baxi, Environment Protection Act: An Agenda for Implementation (NM Tripathi 1987) 66. 58 Section 3 (1) of the Environment Protection Act 1986 provides: “subject to the provisions of this Act, the Central Government shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution.” 59 Government Order No. 287 was issued on 2 June 1989 in Gazette of India (1989) 142–56. 60 “Class label,” in relation to any dangerous or hazardous goods, means the class label specifed in column three of the table in Rule 137. 61 Rules and regulations in 1989 under Section 3(1) of Environment Protection Act 1986, Rule 130. 62 Ibid, Rule 131 (2).

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dangerous or hazardous goods, before undertaking the transportation of such goods, should satisfy himself of the accuracy of the information given by the consigner and then pass it on to the driver. The driver must keep this information in the cabin of the vehicle while transporting the goods. Moreover, during the course of transportation, he should act with due diligence so as to prevent the goods from fre, explosion or escape. Similarly, when the carriage is not in motion the driver should park the vehicle in a place which is safe from fre, explosion and any other risk. He should keep a watch over the goods either himself or with the help of a competent person above the age of eighteen years. Under Rule 134, the carriage used for transporting any dangerous or hazardous goods shall be legibly and conspicuously marked with emergency information containing the correct technical name of the dangerous or hazardous goods, the name and telephone number of emergency services to be contacted in the event of fre or any other accident, and the name and telephone number of the consigner of the dangerous or hazardous goods or the address of the person from whom expert information and advice can be obtained concerning the measures that should be taken in the event of an emergency involving such goods. In case of accident, the driver transporting any hazardous or dangerous goods in a carriage must report the incident to the nearest police station. The 1989 order also gives a long list of the names of hazardous and toxic chemicals.63 Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 201664 The central government, in exercise of the powers conferred under Sections 6, 8 and 25 of the EP Act (1986) passed the Hazardous and Other Wastes (Management and Transboundary Movement) Rules in 2016.65 Unlike its predecessors, these rules distinguish between hazardous and other wastes. Other wastes include tyre waste, paper waste, metal scrap, used electronic items, etc. and are recognized as a resource for recycling and reuse.66 These will supplement the industrial processes and reduce the load on the virgin resources of the country.

63 See Table III, List of Hazardous and Toxic Chemicals, Government Order of 2 June 1989 [149–56]. 64 GSR NO 395(E) dated 4 April 2016. 65 Initially, the Hazardous Wastes (Management and Handling) Rules were enacted in 1989. These rules were subsequently superseded in 2008 by the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules. In 2016, these Rules were again re-notifed by the Hazardous and Other Wastes (Management and Transboundary Movement) Rules. 66 Specifed in Part B and Part D of Schedule III of the Hazardous Waste Rules 2016.

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The Hazardous Other Wastes (Management and Transboundary Movement) Rules apply to designated categories of waste, such as cyanide waste and wastes from dyes, that are enumerated in the schedule to the rules. Radioactive wastes, covered under the Atomic Energy Act of 1962, and waste discharged from ships, covered under the Merchant Shipping Act of 1958, are explicitly excluded from the Hazardous Wastes Rules, 1989. Likewise, the rules do not apply to wastewater and exhaust gases regulated under the Water Act and Air Act.67 Rule 4 of the Hazardous and Other Wastes Rules, 2016, makes the occupier responsible for the management of hazardous wastes by various steps such as (1) prevention; (2) minimization; (3) reuse, (4) recycling; (5) recovery, utilization including co-processing; (6) safe disposal. An obligation is placed upon the occupier for safe and environmentally sound management of hazardous and other wastes. The hazardous waste generated in the establishment of the occupier shall be sent or sold to an authorized actual user or shall be disposed of in an authorized facility, transported from an occupier’s establishment to an authorized actual user or an authorized disposal facility in accordance to provisions of the Rules and after sharing such information to the operator of a treatment, storage and disposal facility, regarding the safe storage and disposal of wastes. It shall be the duty of the occupier to take steps to contain contaminants, prevent accidents and limit the consequences on human beings and the environment and provide persons working on the site with appropriate training, equipment and the information necessary to ensure safety. The Department of Industry, or the agency duly authorized by the respective state governments, have been entrusted the responsibility of earmarking or allocating of industrial space or shed, for recycling, pre-processing and other utilization of hazardous or other waste, in existing and upcoming industrial estates, parks or clusters.68 The Labor Department or an agency duly authorized by the respective state government has been given the responsibility of recognizing and registering workers involved in recycling, pre-processing and other utilization activities, assist the formation of groups of such workers for setting up such facilities, undertake industrial skill development of these workers and annually monitor and ensure safety and health of these workers.69 The state government may prepare an integrated plan for effective implementation of these provisions and submit an annual report to the Ministry of Environment, Forest and Climate Change of the Central Government.70

67 68 69 70

Hazardous and Other Wastes Rules 2016, Rule 2 (a) (b) (c). Hazardous and Other Wastes Rules 2016, Rule 5 (1). Hazardous and Other Wastes Rules 2016, Rule 5 (2). Ibid, Rule 5 (3).

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Every occupier of the facility engaged in handling, generation, collection, storage, packaging, transportation, use, treatment, processing, recycling, recovery, pre-processing, co-processing, utilization, offering for sale, transfer or disposal of hazardous and other wastes shall be required to make an application to State Pollution Control Board to obtain an authorization within a period of 60 days from the date of publication of these Rules.71 The application for authorization has to be accompanied by copies of consent to establish and operate granted under the Water (Prevention and Control of Pollution) Act 1974 and the Air (Prevention and Control of Pollution) Act (1981) and in case of renewal of authorization, it should further contain a self-certifed compliance report with regard to effuent, emission standards and the conditions specifed in the authorization for hazardous and other wastes. An application for renewal of authorization may be made three months before the expiry of authorization. A person who is authorized under the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008, before the commencement of these Rules, shall not be required to make an application for authorization till the authorization expires. The same applies for any person engaged in recycling or reprocessing of hazardous waste72 and having registration under the 2008 Rules. Before granting an authorization form, the State Pollution Control Board must be satisfed after conducting the necessary inquiries about the existence of appropriate facilities for collection, storage, packaging, transportation, treatment, processing, use, destruction, recycling, recovery, pre-processing, co-processing, utilization, offering for sale, transfer or disposal of hazardous and other waste, and that the technical capabilities and equipment is in conformity with the standard operating procedure or other guidelines specifed by the Central Pollution Control Board from time-to-time and through site inspection.73 The authorization is granted within a period of 120 days, which shall be valid for a period of fve years subject to certain prescribed conditions.74 For commonly recyclable hazardous waste,75 the guidelines already prepared by the Central Pollution Control Board must be followed. In the case of an application for renewal of authorization, before granting such authorization, the State Pollution Control Board may satisfy itself that there has been no violation of the conditions specifed in the previously given authorization and same shall be recorded in the inspection report76.

71 72 73 74 75 76

Ibid, Rule 6 (1). Ibid, Rule IV. Ibid, Rule 6 (2). Ibid. Given in Schedule IV of the Rules. Hazardous and Other Wastes Rules 2016, Rule 6 (2).

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The authorization granted by the State Pollution Control Board shall be accompanied by a copy of the feld inspection report signed by the board indicating the adequacy of facilities for collection, storage, packaging, transportation, treatment, processing, use, destruction, recycling, recovery, pre-processing, co-processing, utilization, offering for sale, transfer or disposal of the hazardous and other wastes and compliance to the guidelines or standard operating procedures specifed by the Central Pollution Control Board from time to time.77 The State Pollution Control Board may refuse to grant an authorization under these rules. The reasons for the same must be recorded and the concerned applicant should be given a reasonable opportunity for a hearing before a refusal in such a case.78 The user has to maintain records of hazardous and other wastes purchased in a passbook issued by the State Pollution Control Board along with the authorization.79 Handing over of the wastes to the actual user shall only be carried out after making the entry into such passbook.80 An occupier is required shall maintain a record of hazardous and other wastes managed by him and submit an annual return containing the details before 30 of June following the fnancial year to which the return pertains to the State Pollution Control Board.81 A register containing particulars of the conditions specifed for management of hazardous and other wastes has to be maintained by the State Pollution Control Board and it shall be open for inspection during offce hours. Rule 7 empowers the State Pollution Control Board, Power to suspend or cancel an authorization. The State Pollution Control Board has the power to suspend and cancel an authorization, for failure to comply with the provisions, after providing a reasonable opportunity of being heard to the occupier and after recording reasons for such cancellation in writing. It may also give suitable directions for safe storage and handling after such cancellation or suspension. The period of suspension shall be determined in the public interest. As per Rule 8, the occupiers may store the hazardous and other wastes for a maximum period of ninety days and along with maintaining a record of sale, transfer, storage, recycling, recovery, pre-processing, co-processing and utilization of such wastes. These records must be made available for inspection. The 90 day period may be extended in certain cases82.

77 78 79 80 81 82

Ibid, Rule 6 (3). Ibid, Rule 6 (4). Ibid, Rule 6 (7). Ibid, Rule 6 (8). Ibid, Rule 6 (5). Ibid, Rule 8 (1) lists these cases: (1) small generators (up to ten tons per annum) up to 180 days of their annual capacity; (2) actual users and disposal facility operators up to 180 days

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The utilization of hazardous and other wastes as a resource or after pre-processing either for co-processing or for any other use within the premises of the generator or outside it, shall be carried out only after obtaining authorization from the State Pollution Control Board on the basis of standard operating procedures or guidelines provided by the Central Pollution Control Board.83 If standard operating procedures or guidelines are not available for specifc utilization, approval has to be sought from Central Pollution Control Board which will be granted on the basis of trial runs and thereafter, standard operating procedures or guidelines have to be prepared by Central Pollution Control Board.84 If the trial run has been conducted for particular waste with respect to particular utilization and compliance to the environmental standards has already been demonstrated, authorization may be granted by the State Pollution Control Board without the need of a separate trial run by Central Pollution Control Board. Trial runs are not required for co-processing of waste in cement plants for which guidelines by the Central Pollution Control Board are already available.85 Rule 10 states that the Ministry of Environment, Forest and Climate Change or the Central Pollution Control Board may issue guidelines or standard operating procedures for environmentally sound management of hazardous and other wastes. Chapter III has been inserted to deal with the export and import of hazardous wastes. Under Rule 11, The Ministry of Environment, Forest and Climate Change has been designated to be the nodal Ministry to deal with the transboundary movement of hazardous and other wastes. The import of hazardous and other wastes from any country to India for disposal is prohibited.86 The import of hazardous and other wastes from any country will be permitted only for recycling, recovery, reuse and utilization including co-processing.87 The import of hazardous waste in may be allowed to actual users with the prior informed consent of the exporting country and the permission of the Ministry of Environment, Forest and Climate Change.88

83 84 85

86 87 88

of their annual capacity, (3) occupiers who do not have access to any treatment, storage, disposal facility in the concerned state; or (4) the waste which needs to be specifcally stored for development of a process for its recycling, recovery, pre-processing, co-processing or utilization; (5) in any other case, on justifable grounds up to 180 days. Ibid, Rule 9 (1). Ibid, Rule 9 (2). However, the actual users shall ensure compliance to the standards notifed under the Environment (Protection) Act 1986 (29 of 1986), for cement plant with respect to co-processing of waste and until the time the standards are notifed, the procedure as applicable to other kind of utilization of hazardous and other waste shall be followed. Hazardous and Other Wastes Rules 2016, Rule 12(1). Ibid, Rule 12 (2). Ibid, Rule 12 (3).

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Hazardous and other wastes which are prohibited for import,89 as per the Rules, shall in no way be imported.90 The import of “other wastes” (which require prior informed consent)91 may be allowed to actual users with the permission of the Ministry of Environment, Forest and Climate Change.92 On the other hand, the import of those “other wastes” which do not require consent93 will be allowed as per procedure given in Rule 13. Hazardous and other wastes94 from India shall be exported with the permission of the Ministry of Environment, Forest and Climate Change.95 Applications shall be considered on the basis of prior informed consent of the importing country. The import and export of hazardous and other wastes not specifed, but exhibiting certain hazardous characteristics outlined shall require prior written permission of the Ministry of Environment, Forest and Climate Change before it is imported to or exported from India.96 Rule 13 lays down the procedure for the import of hazardous and other wastes. Persons intending to import or transit for transboundary movement of hazardous and other wastes shall apply along with the required documents, to the Ministry of Environment, Forest and Climate Change for the proposed import along with the prior informed consent of the exporting country, if necessary. A copy of the application shall also be sent to the concerned State Pollution Control Board for information for receipt of acknowledgment. The acknowledgment then must be submitted to the Ministry of Environment, Forest and Climate Change along with the application.97 In case of the import of other wastes that do not require permission, the necessary information such as details as importer or exporter along with certain additional documents has to be submitted to the customs authorities.98 In the case of import of any used electrical and electronic assemblies or spares or part or component or consumables under the E-Waste (Management and Handling) Rules, 2011, as amended from time to time, the importer needs to obtain extended responsibility authorization as producer.99 Before clearing the consignment of wastes listed, the custom authorities shall verify the documents.100

89 Ibid, Schedule VI. 90 Ibid, Rule 12 (6). 91 Ibid, part B of Schedule 3. 92 Ibid, Rule 12 (4). 93 Ibid, part D of Schedule 3. 94 Ibid, listed in part A and part B of schedule III and schedule VI. 95 Ibid, Rule 12 (7). 96 Ibid, Rule 12 (8). 97 Ibid, Rule 13 (1). 98 Ibid, Rule 13 (2). 99 Ibid, Rule 13 (3). 100 Ibid, Rule 13 (4).

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On receipt of the complete application, the Ministry of Environment, Forest and Climate Change shall examine the application and after considering the comments and observations, received from the State Pollution Control Boards, may grant the permission for import within a period of 60 days subject to the condition that the importer has (1) the environmentally sound facilities; (2) adequate arrangements for treatment and disposal of wastes generated; (3) a valid authorization and consents from the State Pollution Control Board; (4) prior informed consent from the exporting country where necessary.101 The Ministry of Environment, Forest and Climate Change must forward a copy of the permission to the concerned port and customs authorities, Central Pollution Control Board and the concerned State Pollution Control Board for ensuring compliance in all concerned areas.102 The importer of the hazardous and other wastes shall maintain records of the hazardous and other waste imported by him in Form 3 and the record so maintained shall be made available for inspection.103 The importer of the hazardous and other wastes also has to fle an annual return to the State Pollution Control Board on or before 30 of June following the fnancial year to which that return relates.104 Samples of hazardous and other wastes being imported for testing or research and development purposes up to 1000gm or 1000ml are exempt attaining permission for import under these rules.105 The port and customs authorities shall ensure that shipment is accompanied by the movement document and the test report of analysis of the waste consignment from a laboratory accredited or recognized by the exporting country. In case of any doubt, the customs may verify the analysis.106 Rule 14 deals with the procedure for export of hazardous and other wastes from India. For export of waste, an application along with insurance cover has to be submitted to the Ministry of Environment, Forest and Climate Change together with the prior informed consent in writing from the importing country in respect of wastes where consent is necessary.107 After receiving an application, the Ministry of Environment, Forest and Climate Change may give permission for the proposed export within a period of 60 days from the date of submission of the complete application and may impose such conditions as it considers necessary.108 A copy of the permission granted shall also be forwarded by the Ministry to the State

101 102 103 104 105 106 107 108

Ibid, Rule 13 (5). Ibid, Rule 13 (6). Ibid, Rule 13 (7). Ibid, Rule 13 (8). Ibid, Rule 13 (9). Ibid, Rule 13 (10). Ibid, Rule 14 (1). Ibid, Rule 14 (2).

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Pollution Control Board of the state where the waste is generated and the Pollution Control Board of the state where the port of export is located as well as the concerned port and customs authorities for ensuring compliance of the conditions of the export permission.109 The exporter has to ensure that a consignment is not shipped before obtaining prior informed consent from the importing country.110 It also has to ensure that the shipment is accompanied with a movement document.111 The exporter of the hazardous and other wastes shall maintain the records of the waste and such record shall be made available for inspection.112 The export and import of hazardous or other wastes from and into India, respectively shall be deemed illegal, if (1) it is without permission of the central government in accordance with these rules; or (2) permission has been obtained through falsifcation, miss-representation or fraud; or (3) it does not conform to the shipping details provided in the movement documents; or (4) it results in deliberate disposal (i.e., dumping) of hazardous or other waste in contravention of the Basel Convention and of general principles of international or domestic law.113 In the case of illegal import of hazardous or other waste, the importer shall re-export the waste in question at his own cost within a period of 90 days from the date of its arrival into India and its implementation will be ensured by the concerned port and custom authority. Disposal of such waste by the port and custom authorities shall be done in accordance with these rules with the permission of the Pollution Control Board of the respective state.114 If the importer is not traceable then the waste can either be sold by the customs authority to any user with authorization under these rules from the relevant State Pollution Control Board or can be sent for authorized treatment, storage and disposal facility.115 Chapter IV is concerned with the treatment, storage and disposal facility for hazardous and other wastes. Rule 16 (1) states that the state government, occupier, operator of a facility or any association of occupiers shall individually or jointly or severally be responsible for identifcation of sites for establishing the facility for treatment, storage and disposal of hazardous and other waste in the state. As per Rule 16 (2), the operator of a common facility or occupier of a captive facility shall design and set up the treatment, storage and disposal facility as per technical guidelines issued by the Central Pollution Control Board along with obtaining approval from the State Pollution Control Board for design and layout in this regard. The State Pollution Control Board shall

109 110 111 112 113 114 115

Ibid, Rule 14 (3). Ibid, Rule 14 (4). Ibid, Rule 14 (5). Ibid, Rule 14 (6). Ibid, Rule 15 (1). Ibid, Rule 15 (2). Ibid, Rule 15 (3).

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monitor the building and operation of the common or captive treatment, storage and disposal facility, regularly.116 The operator of a common facility or occupier of a captive facility shall be responsible for safe and environmentally sound operation of the facility and its closure and post-closure phase, as per guidelines or standard operating procedures issued by the Central Pollution Control Board.117 Records of hazardous and other wastes handled by him also have to be maintained118 and an annual return has to be fled to the State Pollution Control Board on or before the 30 of June following the fnancial year to which that return relates.119 Chapter V consists of provisions pertaining to the packaging, labeling, and transport of hazardous and other wastes. Rule 17 (1) states that any occupier handling hazardous or other wastes and any operator of treatment, storage and disposal facilities must ensure that the hazardous and other wastes are packaged in a manner suitable for safe handling, storage and transport as per the guidelines issued by the Central Pollution Control Board. The labeling must be done in the prescribed form120 and should be of non-washable material, weatherproof and easily visible.121 Rule 18 (1) states that the transport of hazardous and other waste must be in accordance with the provisions of these Rules along with those made by the central government under the Motor Vehicles Act, 1988 and the guidelines issued by the Central Pollution Control Board. As per Rule 18 (2), the occupier has to provide the transporter with all relevant information regarding the hazardous nature of the wastes and measures to be taken in case of an emergency. They must label the hazardous and other wastes containers. In case of transportation of hazardous and other waste for fnal disposal to a facility existing in a state other than the state where the waste is generated, the sender shall obtain a “No Objection Certifcate” from the State Pollution Control Board of both states.122 In the case of transportation of hazardous and other waste for recycling or utilization including co-processing, the sender shall notify both relevant State Pollution Control Boards before handing over the waste to the transporter.123 In the case of transit of hazardous and other waste for recycling, utilization including co-processing or disposal through a state other than the places of origin and destination, the sender shall give prior intimation to the concerned State Pollution Control Board of the concerned states of transit before handing over the

116 117 118 119 120 121 122 123

Ibid, Rule 16 (3). Ibid, Rule 16 (4). Ibid, Rule 16 (5). Ibid, Rule 16 (6). Ibid, Form 8 of the Rules. Ibid, Rule 17 (2). Ibid, Rule 18 (3). Ibid, Rule 18 (4).

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wastes to the transporter.124 The responsibility of the safe transportation is on the party arranging the transport with the necessary authorization from the concerned State Pollution Control Board, whether that party be the sender or the receiver. This responsibility should be clearly indicated in the manifest.125 The authorization for transport should be obtained either by the sender or the receiver on whose behalf the transport is being arranged.126 Rule 19 (1) states that the sender of the waste must prepare seven copies of a document comprising of a color code as indicated in the Rules and all seven copies must be signed by the sender. Under Rule 19 (2), the sender shall forward a copy to the State Pollution Control Boardand, in the case that the hazardous or other wastes are likely to be transported through any transit state, the sender shall notify the State Pollution Control Boards of transit states of the movement of the waste. Procedures regarding the sending and receiving of copies have to be carried out in accordance with the Rules. Rule 20 states that the occupier handling hazardous or other wastes and operator of the disposal facility must maintain records of such operations and send annual returns to the State Pollution Control Board. The board, based on the annual returns received from the occupiers and the operators of the facilities for disposal of hazardous and other wastes, has to prepare an annual inventory of the waste generated, waste recycled, recovered, utilized including co-processed; waste re-exported and waste disposed and submit to the Central Pollution Control Board by 30 of September every year. The State Pollution Control Board shall also prepare an inventory of hazardous waste generators, actual users and common and captive disposal facilities and submit the information to Central Pollution Control Board every two years. The Central Pollution Control Board must prepare a consolidated review report on the management of hazardous and other wastes. This review has to be forwarded to the Ministry of Environment, Forest and Climate Change, along with its recommendations, before 30 of December every year. Rule 22 states that in case of an accident which occurs at the facility handling hazardous or other wastes or during transportation, the occupier, operator or the transporter shall immediately notify the State Pollution Control Board, by telephone or email, of the accident and subsequently send a report. Rule 23 lays down the liability of the occupier of the facilities. The occupier, importer or exporter and operator of the disposal facility shall be liable for all damages caused to the environment or third party due to improper handling and management of hazardous and other waste. The occupier and

124 Ibid, Rule 18 (5). 125 Ibid, Rule 18 (6). 126 Ibid, Rule 18 (7).

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operator of the disposal facility shall also be liable to pay fnancial penalties as levied for any violation of the provisions under these rules by the State Pollution Control Board with the prior approval of the Central Pollution Control Board. Rule 24 contains provisions on appeal. Any person aggrieved by an order of suspension or cancellation or refusal of authorization or its renewal passed by the State Pollution Control Board may, within a period of 30 days from the date on which the order is communicated to him, prefer an appeal in to the Appellate Authority i.e. the Environment Secretary of the State. The appellate authority may entertain the appeal after expiry of the said period of 30 days if suffcient cause exists. Every appeal fled under this rule shall be disposed of within a period of 60 days from the date of its fling. Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989 The Government of India, in exercise of the powers conferred on it by Sections 6, 8 and 25 of the Environment (Protection) Act, 1986, made Rules on manufacture, storage and import of hazardous chemicals. These Rules were amended in 2000 and the Manufacture, Storage and Import of Hazardous Chemical (Amendment) Rules were passed thereafter. Rule 3 lays down duties of the Chief Controller of Imports and Exports. According to the rule, he is responsible for: (1) Enforcing the directions issued and procedures made in respect -of isolated storage of hazardous chemicals; and (2) Enforcing the directions issued and procedures made on import of hazardous chemicals. An occupier who has control of an industrial activity, under Rule 4 (2), must provide evidence to show that he has (a) identifed the major accident hazards; (b) taken adequate steps to prevent such major accidents and to limit their consequences to persons and the environment; and (c) to provide to the persons working on the site with the information, training and equipment including antidotes necessary to ensure their safety. In the event of an accident on a site or in a pipeline, the occupier of such site must inform the concerned authorities of the accident and furnish a report relating the accident. On receiving the information the concerned authority must undertake a full analysis of the accident and send this information through the appropriate channel to the Ministry of Environment and Forests. At an industrial site in which a quantity of hazardous chemical127 is present the occupier (manufacturer) of such site cannot undertake any

127 Listed in column two of Schedule 7.

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industrial activity unless he submits a written report of the industrial activity to the concerned authorities at least three months before commencing such activities.128 If after making the application to the authority the occupier intends to involve more additional hazardous chemicals in the industrial site, or intends to increase or decrease the quantity of a hazardous chemical which affects the particulars submitted in the earlier report, he must make a subsequent report to the concerned authority.129 Rule 10 places an obligation on the occupier of an Industrial site to prepare safety reports and safety audit reports130 on the industrial activity carried on in the site and send it 90 days before the commencement of such activity to the concerned authority. The three month time limit is applicable to all site occupiers carrying their activities prior to the commencement of the Rules.131 When a report is made to the relevant authority, no modifcation of the industrial activity which could materially affect the safety report is permitted,132 unless the occupier makes another report mentioning the modifcation he intends to make before its adoption, to the concerned authority. The occupier of an industrial site fulflling the above obligations narrated in Rules 10 and 11 can carry on the industrial activity for three years. Once the three-year period of the last submission of such report expires, they must make a further report which must have due regard to the new technical knowledge which has affected the particulars of the previous report relating to safety and hazard assessments. The report prepared in accordance with the above developments must be submitted to the concerned authority within 30 days or within such time agreed by the concerned authority.133 Rule 12 of the 1989 Rules confers power on the concerned authority to ask for any additional information by serving a notice on the occupier. In the event of receiving such a notice from the concerned authority, the occupier

128 Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Micro Organisms/Genetically Engineered Organisms or Cells 1989, Rule 7 (1); the three-month time period may be reduced by the concerned authority. 129 Ibid, Rule 8. 130 The report must be in accordance with the conditions laid down in Schedule 8. Which includes (1) the name and address of the person furnishing information (2) description of the industrial activity; (3) description of the processes; (4) description of the hazardous chemicals generated; (5) information on the preliminary hazard analysis; (6) description of information on organizational systems used to carry on the industrial activity safety; (7) information on assessment of the consequences of major accidents; (8) information on the mitigation of major accidents; (9) description of safety relevant units and (10) information on the hazard assessment. 131 Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Micro Organisms or Genetically Engineered Organisms or Cells 1989, Rule 10 (3). 132 Ibid, Rule 11 (1). 133 Ibid, Rule 11 (2).

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must send the required information to the authority within the timeframe specifed in the notice or within such extended time specifed subsequently.134 Under Rule 13, the occupier must prepare and keep an up-to-date an onsite emergency plan detailing how major accidents will be dealt with on the site where industrial activity is carried on. This emergency plan prepared by the occupier must include the name of the person who is responsible for safety on the site and the names of those who are authorized to take action in accordance with the plan in case of an emergency. Any modifcation made in the industrial activity must be taken into account by the occupier and every person affected by the plan must be informed of the modifed provisions. In the case of a new industrial activity, the emergency plan must be prepared prior to its commencement. In the case of existing industrial activity, it must be prepared within 90 days from the date of coming into operation of the Rules. The concerned authority135 having gained access to the necessary information is duty bound to prepare and keep an up-to-date and adequate offsite emergency plan detailing how emergencies relating to a possible major accident on the site will be dealt with. While preparing such a plan, the authority must consult the occupier and any other persons which they deem necessary.136 The occupier of a site, when consulted, must provide information relating to the industrial activity under his control to the concerned authority.137 Similarly, the concerned authority must also provide the necessary information from the off-site emergency plan to the occupier. In the case of a new industrial activity such emergency plan must be prepared before the commencement of its activity and in other cases within six months from the date of the commencement of these rules.138 Under Rule 15 (1), the occupier of a site conducting industrial activity must take steps to inform persons outside the site either himself or through District Emergency Authority about (a) the nature of the major accident hazard; and (b) the safety measures and the “dos and don’ts” to be adopted in the event of such major accident. Sub-clause 2 of Rule 15 places an obligation on the occupier to take steps under the sub-rule (1) to inform persons about the nature and effect of the industrial activity prior to its commencement. All new industrial activities established after the commencement of the chemicals rules must do so within 90 days from its commencement.

134 Ibid, Rule 12. 135 As mentioned in column 2 of schedule 5. 136 Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Microorganisms or Genetically Engineered Organisms or Cells 1989, Rule 14 (1). 137 This includes information relating to the nature, extent and likely effects off-site of possible major accidents. 138 Cases relating to existing industrial activities.

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An occupier who has control of an industrial activity139 must arrange to obtain or develop information in the form of a safety data sheet pertaining to the chemicals’ identity.140 The occupier, while obtaining or developing a safety data sheet in respect of a hazardous chemical handled, must take all precautions to ensure that the information collected to make a hazard determination is recorded accurately and with all the available scientifc evidence. Any additional information which is signifcant regarding the hazards of a chemical collected later must be added to the material safety data sheet as soon as practicable.141 The safety data sheet prepared on these lines must be accessible upon request for reference to the needy. Furthermore, every container of a hazardous chemical must be clearly labeled or marked. This is mainly to identify (1) the contents of the container; (2) the name and address of the manufacturer or importer of the hazardous chemical; (3) the physical, chemical and toxicologica1 data.142 A person importing hazardous chemicals into India must provide either at the time of import or within 30 days from the date of import to the concerned authorities143 information pertaining to (i) the name and address of the person receiving the consignment in India; (ii) the port of entry in India; (iii) mode of transport from the exporting country to India; (iv) the quantity of chemicals being imported; and (v) complete product safety information.144 On examination of the information provided by the importer the concerned authority, if it is satisfed that the chemical being imported is likely to cause major accident, may direct the importer to take appropriate steps including the stoppage of such imports.145The port authority must also be simultaneously informed by the concerned authority to take the necessary steps for the safe handling and storage of hazardous chemicals while off-loading the consignment in the port premises.146 The importer, under Rule 18 (5), must maintain the records of the hazardous chemicals imported,147 and these records must be kept open to inspection by the concerned authority of the state, or the Ministry of Environment and Forests or an offcer appointed by it. Furthermore, the importer or the person working on his behalf while transporting the hazardous chemicals from one port of entry to the ultimate 139 As outlined in part two of Schedule 1 and listed in column two of part two of Schedule 1. Part one of Schedule 1 deals with toxic chemicals, fammable chemicals and explosives and part two gives a list, of as many as 434 hazardous chemicals. 140 Schedule 9 provides the safety data sheet relating to chemical identity. 141 Manufacture, Storage and Import of Hazardous Chemicals Rules 1989, Rule 17 (3). 142 Ibid, Rule 17 (4). 143 As identifed in column two of Schedule 5. As many as nine authorities are identifed with legal backing. 144 Ibid, Rule 18 (2). 145 Ibid, Rule 18 (3). 146 Ibid, Rule 18 (4). 147 Ibid, as specifed in Schedule 10.

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destination must adhere to, and act according to the provisions of the Motor Vehicle Rules 1989, framed under the provisions of the Motor Vehicles Act, 1988.148 The import rules discussed here are also applicable to the import of toxic chemicals, fammable chemicals, explosives and the 434 chemicals listed in column two of part two of Schedule 1.149 The concerned authority is empowered to serve a notice to any person if in its opinion the person has contravened provisions of the rules under discussion, and it can request him to remedy the contravention within a time frame specifed by the concerned authority.150 In addition, the central government, in order to carry out the rules effectively, can make changes in the schedules at any time by way of notifcation in the offcial gazette.151 Rules for the manufacture, use, import, export and storage of hazardous microorganisms or genetically engineered organisms or cells, 1989152 The central government, in exercise of the powers conferred on it by Sections 6, 8 and 25 of the Environment (Protection) Act, 1986, adopted Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Microorganisms or Genetically Engineered Organisms or Cells in 1989, with a view to protecting the environment, nature and health in connection with the application of gene-technology and microorganisms. The Recombinant DNA Advisory Committee (RADC), under Rule 4, is empowered to review developments in biotechnology153 at national and international levels and to recommend suitable and appropriate safety regulations for India in recombinant DNA research, use and applications from time to time.154 The Review Committee on Genetic Manipulation155 (RCGM) monitors the safety-related aspects in respect of ongoing research projects and activities involving genetically engineered organisms/hazardous microorganisms.156 148 149 150 151 152 153

154 155 156

Ibid, Rule 18 (5). Manufacture, Storage and Import of Hazardous Chemicals Rules 1989, schedule 1 Ibid, Rule 19. Ibid, Rule 20. Notifcation of 5 December 1989. Published in the Gazette of India Extraordinary part II, s 3(1), 5 December 1989 1–19. Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Micro Organisms or Genetically Engineered Organisms or Cells, 1989; According to rule 3 (i) “Biotechnology" means the application of scientifc and engineering principles to the processing of materials by biological agents to produce goods and services. The seat of this committee is in the Department of Biotechnology. Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Micro Organisms or Genetically Engineered Organisms or Cells 1989, Rule 4 (2). The RCGM consists of representatives from (a) Department of Biotechnology (b) Indian Council of Medical Research; (c) Indian Council of Agricultural Research; (d) Council of Scientifc and Industrial Research; and (e) Other experts in their industrial activity.

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As part of its function, the RCGM must bring out manuals of guidelines specifying the procedure for regulatory process with respect to activities involving genetically engineered organisms in research, use and applications including industry to ensure environmental safety. All on-going projects involving high risk category and controlled feld experiments must be reviewed to ensure that adequate precautions and containment conditions are followed as per the guidelines. In addition, the Review Committee on Genetic Manipulation is to lay down procedures restricting or prohibiting production, sale, importation and use of such genetically engineered organism of cells. Rule 4 (3) puts an obligation on an occupier or any person including research institutions handling microorganisms or genetically engineered organisms to constitute committee known as the Institutional Biosafety Committee (IBSC). This committee must comprise the Head of the Institution, scientists engaged in DNA work, a medical expert and a nominee of the Department of Biotechnology. The occupier or any person including research institutions handling microorganisms/genetically engineered organisms must prepare an up-to-date on-site emergency plan according to the manuals/guidelines of the RCGM with the assistance of the Institutional Biosafety Committee. The copies of manuals/guidelines so prepared must be made available to the district Level Committee or State Biotechnology Coordination committee and the Genetic Engineering Approval Committee. Similarly, the Genetic Engineering Approval Committee (GEAC)157 functions as a body under the Department of Environment, Forest and Wildlife and oversees the approval of activities involving largescale use of hazardous microorganisms and recombinants in research and industrial production from the environmental angle. The committee has been given the power and responsibility for the approval of proposals relating to the release of genetically engineered organisms and products into the environment including experimental feld trials. It can take punitive action.158

157 Under Rule 4 (4) the Genetic Engineering Approval Committee consists of (1) chairman who is Additional Secretary, Department of Environment, Forests and Wild life, Representative of Department of Biotechnology who is the co-chairman; (2) Member representatives of the concerned Agencies and Departments, namely, Ministry of Industrial Development, Department of Biotechnology and the Department of Atomic Energy, as members; (3) Director General of Indian Council of Agricultural Research, Director General of Indian Council of Medical Research, Director General of the Council of Scientifc and Industrial Research, Director General of Health Services, Plant Protection Advisor of the Directorate of Pliant Protection “Quarantine and storage; Chairman, Central Pollution Control Board and three experts in individual capacity, as expert members. The committee may even co-opt other members/experts if necessary. 158 Environment Protection Act 1986.

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For effective enforcement of the Rules at the state and district levels in India, the State Biotechnology Coordination Committee (SBCC)159 and the District Level Biotechnology Committee (DLBC)160 have been established. The SBCC has the power to inspect, investigate and take punitive action in the case of violations of statutory provisions. Moreover, it must periodically review the safety and control measures in the various industries which handle genetically engineered organisms or hazardous microorganisms. In the same vein, the District Level Committee monitors the safety regulations in installations engaged in the use of genetically modifed organisms/hazardous microorganisms and its application in the environment.161 The DLC, or any person authorized by it, must visit the installation engaged in activity involving genetically engineered organisms and/or hazardous microorganisms, formulate an information chart and identify the hazards and risks associated with each of these installations. Using this information, it must coordinate activities with a view to meeting any emergency. Furthermore, it must also prepare an offsite emergency plan. The DLC must regularly submit reports of its activities to the SBCC. Under Rule 7, a person can import, export, transport manufacture, use or sell any hazardous microorganisms/genetically engineered organisms/substances only with the prior approval of the Genetic Engineering Approval Committee. The use of pathogenic microorganism or any genetically engineered organisms or cell will be allowed only for the purpose of research in laboratories inside laboratory areas notifed by the Ministry of Environment and Forests.162 The GEAC must give directions to the occupier to determine or take measures concerning the discharge of microorganisms or genetically engineered organisms from the laboratories and other areas. This includes laying down measures to prevent such discharges.163 In addition, any person operating or using genetically engineered organisms/microorganisms for scale-up or pilot operations should obtain a license from the GEAC. 159 The SBCC consists of the following members (1) Chief Secretary of the State as its chairman; (2) Secretary, Department of Environment; Secretary, Department of Health; Secretary, Department of Agriculture; Secretary, Department of Industries and Commerce; Secretary, Department of Forests; Secretary, Department of Public Works; Chief Engineer, Department of Public Health Engineering; State Microbiologists and Pathologists and Chairman of State Pollution Control Board as members. The SBCC may co-opt other members/experts, if necessary. 160 The District Committee consists of the District Collector as its Chairman, Factory Inspector, a representative of the Pollution Control Board, Chief Medical Offcer (CMO), District Agricultural Offcer, a representative of the Public Health Engineering Department, District Microbiologists, Pathologist; Commissioner, Municipal Corporation and such other co-opted members, if necessary, as its members. 161 Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Micro Organisms/Genetically Engineered Organisms or Cells 1989, Rule 4 (6). 162 Ibid, Rule 7 (2). 163 Ibid, Rule 7 (3).

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The production of genetically engineered organisms or cells or microorganisms can commence only with the consent of the GEAC. In addition, permission from the GEAC is required not only for the discharge of genetically engineered organisms from these places of production into the environment but also for the development and testing experiments carried on in such place. Rule 9 prohibits the deliberate or unintentional release of genetically engineered organisms /hazardous microorganisms164 into the environment. Sections 10 and 11 are very important from the point of our investigation for the simple reason that, under Section 10, substances and products, which contain genetically engineered organisms or cells or microorganisms must not be produced, sold, imported or used except with the approval of GEAC. Similarly, under Section 11, the approval of the GEAC is necessary for production, importing or selling of food stuffs, ingredients in food stuffs and additives including processing aids containing or consisting of genetically engineered organisms. The person who applies for approval165 must submit the necessary information to the GEAC and make its examinations as per the specifc directions issued by the GEAC at such laboratories. Further, he must also make available an on-site emergency plan to GEAC before obtaining approval.166 In case the GEAC itself makes the examination, the expenses incurred for such examination may be borne by the person on whose behalf it was done. While granting approval under Rules 8–11 the GEAC must lay down the terms and conditions as to the control to be exercised by the applicant and as to the submission of information to the State Biotechnology Coordination Committee for to the District Committee. All approvals granted by the GEAC are valid up to a specifed period not exceeding 4years and renewable for 2 years at a time.167 The GEAC is empowered to revoke such approval in the following situations: (a) if there is any new information as to the harmful effects of the genetically engineered organisms or cells; (b) if the genetically engineered organisms or cells cause such damage to the environment, nature or health as it could not be envisaged when the approval was given or (c) non-compliance of any condition stipulated by GEAC.168 The GEAC may supervise the implementation of the above terms and conditions169 through the State Biotechnology Co-ordination Committee

164 The release is prohibited even for the purpose of experiment. But then in special cases under Rule 9 (2) the GEAC may give permission for deliberate releases. 165 Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Micro Organisms/Genetically Engineered Organisms or Cells 1989, Rules 8, 9, 10 and 11. 166 Ibid, Rule 12. 167 Ibid, Rule 13 (2). 168 Ibid, Rule 13 (2) (a) (b) (c). 169 Ibid, Rule 13 as per Rule 14.

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(SBCC) or the State Pollution Control boards or District Pollution Control Boards or through any authorized persons.170 In the event of a failure to comply with the order Issued by the GEAC the District Level Committee (DLC) or State Biotechnology Coordination Committee is empowered to take the necessary measures at the expense of the person responsible for the damage.171 The SBCC or DLC, under Rule 15(2), may take the necessary steps without issuing any notice or service order on the party responsible for such act, to prevent any immediate damage to the environment, nature or health. The expenses incurred in situations of this kind must be payable by the person responsible for such damage.172 The SBCC or DLC is given the power to take samples for a more detailed examination of organisms and cells.173 Further, these two committees can ask for assistance from any other Government authority to carry out their instructions.174 Under Rules 7–11, a person while carrying on his activities, in the event of any interruption of operations or accidents that may lead to discharges of genetically engineered organisms or cells which is harmful to the environment, nature or health, must immediately notify to the DLC or SBCC and the state medical offcer.175 Rule 17 (1) puts an obligation on the DLC to prepare an off-site emergency plan detailing how emergencies relating to a possible major accident at a site will be dealt with, and the DLC in preparing this plan must consult the occupier of the site and other persons connected with it. In this endeavor the occupier of the site must provide the necessary information relating to the handling of hazardous microorganisms or genetically engineered organisms which is under his control, to the DLC. Correspondingly, the DLC must also provide the occupier with the necessary information from the offsite emergency plan which relates to his duties under Rule 16.176 For the purpose of carrying out supervision, the SBCC, the GEAC, the DLC or any person authorized by these committees can at any time be admitted to any public as well as to private premises and localities.177 The occupier of such premises must allow supervision/inspection of the premise by these authorities. Moreover, the person carrying out activities under Rules 7–11 at the request of DLC, SBCC or GEAC must submit

170 171 172 173 174 175 176 177

Ibid, Rule 14 (2). Ibid, Rule 15. Ibid, Rule 15 (3). Ibid, Rule 15 (3). Ibid, Rule 15 (4). Ibid, Rule 16 (1). Ibid, Rule 17 (2). Ibid, Rule 18 (1).

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the essential information concerning fnancial conditions and accounts.178 Under Rule 18 (3), the expenses incurred by the authorities in connection with approvals, examinations, supervision and control in part or in whole may be fxed by the GEAC. The aggrieved party, within 30 days from the communication of the decision by the GEAC or SBCC, may prefer to appeal to an authority appointed by the Ministry of Environment and Forests.179 The Ministry of Environment and forests can exempt180 an occupier handling a particular microorganism/ genetically engineered organism from Rules 7–11.

Part 2 Factories (Amendment) Act, 1987 A study on the legal control of hazardous substances is incomplete without analyzing the 1987 Amended Provisions of the Factories Act of 1947 relating to hazardous processes. The incident at Bhopal prompted the central government to amend the Factories Act of 1948181 with the aim of correcting its inadequacies in order to protect the workers and to control environmental pollution. Since the 1987 amendment, there has been substantial modernization and innovation in the industrial feld. These developments introduced in the amendments place an obligation on several chemical industries to provide and adopt safeguards against the use and handling of hazardous substances by the occupiers of factories and for the laying down of emergency standards and measures. The 1987 amendment established procedures for siting to ensure that hazardous and polluting industries are not set up in areas where they can cause adverse effects on the general public. Provision had also been made in the Amendment Act for the workers’ participation in safety management.182 The present discussion is confned to the new sections introduced in the 1987 amendments dealing with hazardous processes. Under Section 2 (cb), “hazardous process” means any process or activity in relation to an industry specifed in the First Schedule183 where,

178 179 180 181

Ibid, Rule 18 (2). Ibid, Rule 19 (1). Ibid, Rule 20. The Factories Act 1948 (Act No. LXIII of 1948) came into force on 1 April 1948. The Act provides for the health safety welfare and other aspects of workers in factories. The act is enforced by state governments through their factory inspectors. 182 Sumeet Malik, P.L. Malik’s Industrial Law (25th edn, Lucknow Eastern Book 2017). 183 The First Schedule gives a list of 29 industries involving hazardous processes. They are: Ferrous Metallurgical industries, non-ferrous metallurgical industries, foundries, coal industries, power generating industries, pulp and paper industries, fertilizer industries, cement

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unless special care is taken, raw materials used therein or the intermediate or the fnished products, by-products, wastes or effuents thereof would: (1) cause material impairment to the health of the persons engaged in connection therewith, or (2) result in the pollution of the general environment. As per Section 7A (1), it is the duty of every occupier to ensure the health, safety and welfare of all workers while they are at work in the factory. This duty extends to: (1) The provision and maintenance of plant and systems of work in the factory that are safe, and without risks to health. (2) The arrangements in the factory for ensuring safety and absence of risks to health in connection with the use, handling storage and transport of articles and substances. (3) The provision of such information, instruction, training and supervision that are necessary to ensure the health and safety of all workers at work. (4) The maintenance of all places of work in the factory should be in condition and safe without risks to health and provision for maintenance of such means of access, so that such places are safe and without risks. (5) The provision, maintenance or monitoring of such working environment in the factory for the workers that is safe, without risks to health and adequate as regards facilities and arrangements for their welfare at work.184 In addition, the occupier in special cases should revise a written statement of his general policy with respect to the health and safety of the workers and the organization and arrangements for the time being for carrying out that policy. Such revision made by the occupier must be brought to the attention of all workers.185

industries, petroleum industries, petrol chemical industries, drugs and pharmaceutical industries, fermentation industries, rubber industries, leather tanning industries, electroplating industries, chemical industries, insecticides, fungicides, herbicides and other pesticides industries, synthetic resin and plastic, man-made fber industry, paints and pigment industries, manufacture and repair of electrical accumulators, glass and ceramics, grinding or glazing of metals, manufacture, handling and processing of asbestos and its products, extraction of oils and fats from vegetable and animal sources, manufacture, handling and use of benzene and substances containing benzene, manufacturing processes and operations involving carbon disulfde, dyes and dyestuff including their intermediates. Highly fammable liquids and gas. This list may be amended by way of addition, omission, or variation of any industry by the state government in the form of a notifcation in the Offcial Gazette. 184 Factories Act 1948, Sections 7 (2) (a) (b) (c) (d) and (e). 185 Ibid, s 7 (3).

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The other duties are mentioned in Section 7B. Under this provision, every person who designs, manufactures, imports or supplies any article for use in any factory must: (1) Ensure that the article is designed and constructed so as to be safe and without risks to the health of the workers when properly used. (2) Carry out or arrange for any tests and examinations that may be considered necessary for the effective implementation of clause (a). (3) Take steps to ensure that adequate information will be available: (a) In connection with the use of the article in any factory. (b) About the use for which it is designed and tested; and (c) About any conditions necessary to ensure that the article, when put to such use, will be safe and without risks to the health of the workers. Where an article is manufactured outside India, it is obligatory for the importer to see: (a) that the article conforms to the same standards as if it was manufactured in India or (b) if the standards adopted in the country outside for the manufacture of such article are above the standards adopted in India, that the article conforms to such standards. Under Section 36 (1), no person shall be required or allowed to enter any chamber, tank, vat, pit, pipe, fue or other confned space in any factory in which any gas, fume, vapor or dust is likely to be present to such an extent as to involve risk to persons being overcome, unless they are provided with a manhole of adequate size or other effective means of exit. Hence, workers or others can enter such places only when practical measures have been taken to remove any gas, fume, vapor or dust to bring their levels within the permissible limits. But before permitting such an entry, the following two conditions must be satisfed: (1) A certifcate in writing must have been given by a competent person, based on a test carried out by himself, that claims the space is reasonably free from dangerous gas, fume, vapor or dust. a. The person must be wearing suitable breathing apparatus and a belt which is securely attached to a rope, the free end of which is held by a person outside the confned space. Section 38 (1) of the Factories Amendment Act of 1987, imposes an obligation on every factory to take all measures to prevent the outbreak of fre and its spread both internally and externally and to provide and maintain: (a) Safe means of escape for all persons in the event of a fre, and (b) The necessary equipment and facilities for extinguishing fre. Furthermore, effective measures must also be taken to ensure that in every factory all workers are familiar with the means of escape

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in case of fre and are adequately trained in the routine to be followed in such cases.186 The state government, in order to consider applications for grant of permission for the initial location of a factory involving hazardous processes or for the expansion of any such factory, may appoint a Site Appraisal Committee.187 This committee consists of experts on the subject from the center and the state and experts from other related subjects.188 The Site Appraisal Committee (SAC) must examine the application for the establishment of a factory involving hazardous processes and make its recommendations to the state within 90 days of the receipt of the application.189 The SAC has the power to call for any information from the applicant for the establishment or expansion of a factory involving a hazardous process.190 The state government must co-opt a representative nominated by the central government as a member of the SAC in cases where any process relates to a factory owned or controlled by the central government or to a corporation or a company owned or controlled by the central government.191 Under Section 41 B (l), the occupier of every factory involving a hazardous process must disclose all information192 regarding dangers, including 186 Factories Act, s 38 (2). 187 Factories (Amendment) Act 1987, s 41A (1). 188 The Site Appraisal Committee consists of the following members: (a) The Chief Inspector of the state who shall be its chairman. (b) A representative of the Central Board for the Prevention and Control of Water Pollution appointed by the central government under Section 3 of the Water (Prevention and Control of Pollution) Act, 1974. (c) A representative of the Central Board for the Prevention and Control of Air Pollution referred to in Section 3 of the Air (Prevention and Control of Pollution) Act, 1981. (d) A representative of the state board appointed under Section 4 of the Water (Prevention and Control of Pollution) Act, 1974. (e) A representative of the State Board for the Prevention and Control of Air Pollution referred in Section 5 of the Air (Prevention and Control of Pollution) Act, 1981. (f) A representative of the Department of Environment in the State. (g) A representative of the Meteorological Department of the Government of India. (h) An expert in the feld of occupational health; and (i) A representative of the Town Planning Department of a state government and not more than fve other members who may be co-opted by the state government who shall be (1) a scientist with specialized knowledge of the hazardous process which will be involved in the factory; (2) a representative of the local authority within whose jurisdiction the, factory is to be established; (iii) not more than three other persons as deemed ft by the state government. 189 Factories (Amendment) Act 1987, Section 41(A) (2). 190 Ibid, Section 41(A) (4). 191 Ibid, Section 41(A) (3). 192 The information must include accurate information as to the quantity, specifcations and other characteristics of wastes and the manner of their disposal—Factories (Amendment) Act 1987, Section 41 B (3).

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health hazards and the measures to overcome such hazards arising from the exposure to, or handling of, the materials or substances in the manufacture, transportation, storage and other processes, to the workers employed in the factory, the chief inspector, the local authority within whose jurisdiction the factory is situated and the general public in the vicinity. Moreover, every occupier at the time of registering the factory involving a hazardous process must lay down a detailed policy with respect to the health and safety of the workers employed there. This fact must be brought to the knowledge of the chief inspector and the local authority. Any change made in such policy at such intervals must also be brought to the knowledge of the chief inspector and the local authority.193 It is the duty of every occupier to draw up an onsite emergency plan and detailed disaster control measures for his factory, with the approval of the chief inspector. Such a plan must be brought to the attention of workers employed therein and to the general public living in the vicinity of the factory so as to enable them to adopt the safety measures in the event of an accident taking place.194 In addition, every occupier of a factory involving a hazardous process must inform the chief inspector of the nature and details of the process involved as prescribed by this act195 Any failure to comply with the provision will lead to a penalty and the cancellation of a license issued196 under this act.197 Furthermore, the occupier of a factory involving a hazardous process must outline measures for the handling, usage, transportation and storage of hazardous substances inside the factory premises and the disposal of such substances outside the factory premises and publicize them among workers and the general public living in the vicinity. The measures undertaken must also have the approval of the chief inspector.198 The occupier of a factory involving in any hazardous process is obliged to maintain accurate and up-to-date health and medical records of the workers in the factory who are exposed to chemical, toxic or any other harmful substances which are manufactured, stored, handled or transported. The workers must be given access to these records.199 While appointing workers to handle these substances, the occupier must appoint persons who possess 193 Ibid, Section 41 B (2). 194 Factories (Amendment) Act 1987, Section 41 B (4). 195 This information must be given within 30 days if the factory engaged in a hazardous process before the commencement of the Factories Act, 1987. In cases where the factory proposes to engage in a hazardous process at any time after the commencement of the 1987 amendments to the Factories Act, the time limit to inform the chief inspector would be 30 days before the commencement of such process. Section 41B (5) (a) and (b) of the Factories Act. 196 License to a factory is issued under Section 6 of the Act. 197 Factories (Amendment) Act 1987, Section 41B (6). 198 Ibid, Section 41 B (7). 199 Ibid, Section 41 C (a).

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qualifcations and experience in handling hazardous substances, and they must be competent to supervise such handling within the factory.200 Equally important is the duty of an occupier to arrange for medical examination of every worker under the following circumstances: (1) Before such worker is assigned to a job involving the handling of, or working with, a hazardous substance; and (2) While continuing in such job, and after he has ceased to work in such job, at intervals not exceeding twelve months.201 Under the provisions of Section 41 D (l) the central government is empowered to appoint an inquiry committee in the event of the occurrence of an extraordinary situation involving a factory engaged in a hazardous process, to inquire into the standards of health and safety observed in the factory with a view to identifying the causes of any failure or neglect in the adoption of the measures or standards prescribed for the health and safety of the workers employed in the factory or the general public affected or likely to be affected, due to such failure or neglect and to prevent the recurrence of such extraordinary situations in future in the factory or elsewhere.202 The inquiry committee must consist of a chairman and two other members and their tenure of offce and the terms of reference will be determined by the central government, taking into consideration the requirements of the situation.203 The recommendations of the committee must be advisory in nature.204 The central government may direct the Director-General of Factory Advice Service and Labor Institutes, or any other institution specialized in matters relating to standards of safety in hazardous processes, to lay down emergency standards for the enforcement of suitable standards in respect of such hazardous processes only when it is satisfed that no standards of safety exist in respect of a hazardous process or a class of hazardous processes, or the existing standards are inadequate.205 The emergency standards laid down can be enforced immediately.206 The second schedule makes mention of the permissible levels of certain chemical substances in a work environment. Hence, every occupier of a factory involving a hazardous process must adhere to the schedule and must not exceed the limits laid down in the schedule.207 The central government

200 201 202 203 204 205 206 207

Ibid, Section 41 C (и). Ibid, Section 41 C (c). Ibid, Section 41 D (1). Ibid, Section 41 D (2) Ibid, Section 41 D (3). Ibid, Section 41 E (1). Ibid, Section 41 E (2). As had been incorporated in the rules made under this act. Ibid, Section 41 F (1).

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may make suitable changes in the schedule (in the form of a notifcation in the Offcial Gazette) to give effect to any scientifc proof obtained from specialized institutions or experts.208 Another important provision added to the Factories Act is Section 41 G. Under this provision, the occupier of every factory where a hazardous process takes place or hazardous substances are used or handled must set up a safety committee consisting of an equal number of representatives of workers and management to promote cooperation between the workers and the management in maintaining proper safety and health at work and periodically to review the measures taken. However, the state government may exempt the occupier of any factory or class of factories from setting up such committee by an order in writing.209 In the event of a reasonable apprehension of imminent danger to their lives or health due to an accident, workers may bring this fact to the notice of the occupier, agent or manager who is in charge of the factory or the process concerned. They can do this either directly, or through their representatives in the safety committee, and also to the notice of the inspector. The occupier, agent, manager or the person in charge of the factory/process, in such situations, is legally bound to take immediate remedial action in respect to imminent danger. He should also prepare a report of the action taken and send it to the nearest inspector.210 The duty to inform the nearest inspector is obligatory even in cases where the occupier, agent, manager or person in charge of the factory/process does not believe there is any immediate danger as apprehended by the workers. In such cases, the decision taken by the inspector is fnal.211 If the owner or occupier has contravened the provisions relating to information required to be given under Section 41 F, failed to perform his duties under Section 41 C or failed to take remedial measures to prevent imminent danger under Section 41 E, he would be punishable with imprisonment that may extend to seven years and with a fne up to two lakh rupees. If the failure or contravention is a continuing one, an additional fne of 5,000 rupees may be imposed for every day of the failure or contravention. If such a failure or contravention continues for more than one year after the date of conviction, the offender may be punished with imprisonment, which may extend to as much as ten years. Moreover, as we have seen, if the information required under Section 41 B is not given by an occupier of a factory, his license for operating the factory may be canceled as an additional penalty. 208 Ibid, Section 41 F (2). 209 Ibid, Section 41 G (1). The reasons for exempting the setting up of such committees must also be given by a state government. The composition of the safety committee, the tenure of offce of its members and their rights and duties must also be laid down. 210 Ibid, Section 41 H (1). 211 Ibid, Section 41 H (2).

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The Public Liability Insurance Act (PLIA) 1991212 This legislation was passed with a view to providing immediate relief to the persons affected by accidents occurring while handling any hazardous substance.213 Under its provisions, all hazardous chemical industries must compulsorily insure themselves and give immediate relief to all affected parties.214 The legislative history of the act indicates that the growth of hazardous industries, processes and operations in India has been accompanied by the growing risk of accidents that may lead to death and injury to human beings and other living beings and damage to private land/public properties. Hence, the government felt it needed to provide for mandatory public liability insurance for handling hazardous substances to provide minimum relief to victims.215 The act seeks to mandate compulsory insurance to provide immediate relief to the victims of an accident caused while handling any hazardous substance. In the light of the decision of the Supreme Court, in light of the principles gained from the Oleum Gas Leak Case and the Bhopal disaster, the act was passed to consolidate the law in relation to an enterprise’s liability while handling any hazardous substance. The act’s primary goal is to protect members of economically weaker sections of society who cannot afford prolonged litigation in a court of law.216 The act has been envisaged to provide immediate compensation in terms of an industrial accident to a victim of a hazardous substance. However, one aspect which it fails to touch upon is the principle of “accident prevention” or its “deterrence effect.” The object of the act clarifes that it is applicable only to accidents or incidents which result from the handling of hazardous substances. The term “accident” has been defned in the act as an accident that involves a fortuitous, sudden or unintentional occurrence while handling any hazardous substance resulting in continuous, intermittent or repeated exposure to death, of or injury to any person or damage to any property.217 As per the wording, this defnition fails to provide any remedy to the affected where

212 See (1991) XXXII Lucknow Law Times 30–32. 213 Public Liability Insurance Act 1991, preamble. 214 The maximum relief under this act is Rs.25,000/- per person for fatal accidents in addition to reimbursement of medical expenses, if any, incurred on the victim up to a maximum of 12,000 rupees. However, the availability of immediate relief would not prevent the victims to go to courts for claiming larger compensation. See the schedule to Section 3 (1) of the Public Liability Insurance Act, 1991, See Section 3 (1) (ii). 215 “Workman” under the explanation to Section 3, “workman”: has the meaning assigned to it in the Workmen’s Compensation Act 1923. 216 Md. A. M. Nomani, ‘Law Relating to Environmental Liability and Dispute Redressal: Emergence and Dimension’ (1996) XXIII (1 and 2) IBR (1996). 217 The Public Liability Insurance Act 1991, Section 2 (a).

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even a minuscule level of exposure results in after effects.218 Moreover, the term “accident” does not include accidents taking place due to radioactivity.219 Since nuclear power in India is controlled and regulated by governmental bodies,220 it can be inferred that the act has consciously decided to exempt the government of liability in the event of any accidents involving radioactive elements. Hazardous substances The term “hazardous substance” refers to any substance or preparation which has been defned as hazardous substance under the Environment (Protection) Act, 1986.221 Furthermore, the hazardous substance, as defned under the 1986 Act is deemed hazardous as per the Act only if it exceeds the quantity as notifed by the central government.222 Thus, if any form of accident occurs which causes death, injuries to people or damages to a person’s property, as a result of a substance that is hazardous but is not covered under central government’s notifcation, then the affected has no remedy under this act.223 Understanding the diffculty with this interpretation of “hazardous substance,” the Indian courts have taken an equitable route. One of the frst instances of this interpretation came in the case of UP State Electricity Board and ANR. v District Magistrate and ORS., where the court had to decide whether “electricity” fell under the defnition of “hazardous substances” as given under the act.224 The court identifed the need for giving a wide interpretation to the defnition in question as the Act was a benefcial piece of legislation. In pursuance of that, the court went on to hold that the

218 Ibid. 219 Ibid. 220 World Nuclear Association, Nuclear Power in India (January 2017). http://www.world nuclear.org/information-library/country-profles/countries-g-n/india.aspx#ECSArticleL ink1. Accessed 5 January 2017. The Atomic Energy Establishment was set up at Trombay, near Mumbai, in 1957 and renamed as Bhabha Atomic Research Centre (BARC) ten years later. The Indian Atomic Energy Commission is the main policy body. The Nuclear Power Corporation of India Ltd (NPCIL) is responsible for the design, construction, commissioning and operation of thermal nuclear power plants. At the start of 2010, it said it had enough cash on hand for 10,000 MWe of a new plant. The 1962 Atomic Energy Act prohibits private control of nuclear power generation, and 2016 amendments allowing public sector joint ventures do not extend to private sector companies, nor allow direct foreign investment in nuclear power, apart from the supply chain. 221 The Public Liability Insurance Act 1991, Section 2 (d). 222 Ibid. 223 S. N. Singh, ‘Public Liability Insurance Act, 1991—Scope for making Provisions More Effective’ [1991] 5 Corporate L Adv 234. 224 U.P. State Electricity Board and another v District Magistrate, Dehradun and others AIR 1998 All 1.

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defnition included all the substances which were defned as “hazardous” under the Environment (Protection) Act, 1986 and if any such substances were also notifed by the central government under Section 2 (d) of the act, then it was to be deemed as hazardous if it exceeded the quantity specifed in the notifcation.225 With this, the court went on to interpret “electricity” as a “hazardous substance” for the purpose of the Environmental (Protection) Act, 1986.226 As a result of this, electricity was deemed to be a form of “hazardous substance” under the act as well. This equitable proposition of law has been followed by several other judicial decisions.227 Likewise, the term “handling” has included activities such as manufacturing, processing, treatment, packaging, storing, transporting by vehicle, use, collection, destruction, conversion, offering for sale and transfer of such hazardous substances.228 It is interesting to note that the act of transportation has been restricted to transportation by way of vehicles.229 The act has defned the term “vehicle” as any mode of surface transport other than railways.230 This leads to the inevitable conclusion that other modes of transport such as air, water and railways have been excluded from the purview of the act.231 As a natural result of this, the act again falls short of fulflling its objective of being a piece of welfare legislation. Owner’s liability Section 3 of the act mandates that in the event of any death or injury to any person (excluding workmen) or damage to any property arising out of an accident, the owner shall be liable to provide relief as specifed in the schedule for the death, injury or damage.232 Sub-section (2) of Section 3 further

225 Ibid 6. 226 The Environment (Protection) Act, 1986, Section 2(e); Hazard substance means any substance or preparation which, by reasons of its chemical or physicochemical properties of handling, is liable to cause harm to human beings, other living creatures, plants, microorganism, property or the environment. 227 M.P. State Electricity Board and Anr v Collector and Ors. AIR 2003 MP 156; Rahim and Another v Collector and Others 2008 SCC Online All 1172; Mankunwar v Chairman and Anr.\ MANU/MP/0401/2010; Smt. Sunita Tiwari v State of U.P. and Ors. MANU/ UP/2631/2010; Additional Secretary Offcer In-charge of The Case Executive Engineer M.P. Poorv Kshetra Vidhyut Vitr v Siyaram Yadav 2014 SCC Online MP 1438. 228 The Public Liability Insurance Act 1991, Section 2 (d). 229 Vikram Raghavan, Public Liability Insurance Act: Breaking New Ground for Indian Environmental Law, 39 [1997] JILI 108. 230 The Public Liability Insurance Act 1991, Section 2 (h) (ii). 231 Vikram Raghavan, Public Liability Insurance Act: Breaking New Ground for Indian Environmental Law, 39 [1997] JILI 108, ‘Are Industrial Accident Victims Adequately Insured’, The Financial Express (20 June 2010) http://www.fnancialexpress.com/archive/are-indust rial-accident-victims-adequately-insured/635 999/. Accessed 24 December 2016. 232 The Public Liability Insurance Act 1991, Section 3.

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provides that, in the event of such an accident, the claimant shall not be required to plead and establish that the death, injury or damage, in respect of which the claim has been made, was due to the wrongful act, neglect or default of any person.233 It is interesting to note that the act has clearly excluded “workmen” from being compensated, as they can be compensated under the ordinary labor laws which are not as stringent as the act in terms of the no-fault liability rule.234 This defeats the purpose of the act on two fronts. First, it makes a needless distinction between “workmen” and other people who are affected. This forces the affected workmen to claim under the Workmen’s Compensation Act, 1923, which in turn offers certain defenses to the employer.235 This classifcation is at odds with the 1986 Act’s objective of providing immediate compensation to affected victims through the rule of no-fault liability. Second, the defnition of “workmen” has been borrowed from the Workmen’s Compensation Act, 1923.236 After evaluating the defnition of “workmen,” one can deduce that a person is deemed to be a workman by virtue of his employment in the industry. He does not cease to become a “workman” when he is not working during the subsistence of his employment contract. This leads to an absurd situation where a workman, even if he is affected by the accident outside his working hours, still won’t be eligible for any compensation under the act. He will always be required to make a claim through the Workmen’s Compensation Act for any remedy. Therefore, the act has made an unnecessary distinction resulting in depriving the industry’s “workmen” of the benefts of the legislation. Moreover, the act mandates compensatory relief as is specifed in the schedule for any death, injury or damage arising out of the accident.237 The schedule provides a relief of 25,000 rupees per person for fatal accidents, along with a reimbursement of medical expenses incurred up to a limit of 12,500 rupees.238 Further, in the case of permanent disability, a total relief of 25,000 rupees has been mandated by the act.239 The act also provides for relief in the event of loss of wages due to temporary partial disability. A fxed monthly relief, not exceeding 1,000 rupees per month for a period not extending more than three months, is to be provided to the victim in cases where the victim has been hospitalized for a period exceeding three days and

233 Ibid, Section 3 (2). 234 A. K Tiwari, Environmental Laws in India: Contribution of Supreme Court (Deep & Deep Publications, 2006) 159. 235 Vikram Raghavan, Public Liability Insurance Act: Breaking New Ground for Indian Environmental Law, 39 [1997] JILI 108. 236 The Public Liability Insurance Act 1991, Section 3, explanation (i). 237 Ibid, Section 3 (1). 238 Ibid, schedule (ii). 239 Ibid, schedule (iii).

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is above the age of 16.240 This wording of the provision is problematic on two fronts. First, the amount of relief is meager in today’s times and has not been adjusted as per the current infation level. On top of that, it seems absurd that a victim or their legal representatives would have to make an application to claim for relief to the collector241 and then undergo a proceeding, lasting three months, for such a paltry amount.242 Second, the act, while deciding upon the victim’s eligibility for compensation in the event of loss of wages, has unnecessarily mandated the condition of being hospitalized for more than three days. This dilution of the provision again leaves a large number of people in the dark who could not work even though they were medically treated within three. Therefore, this detail needs to be done away with. Insurance structure The act mandates that every owner shall take out, before he starts handling any hazardous substance, one or more insurance policies to meet any potential liability arising out of any accident which takes place.243 Further, the insurance policy so taken shall be for an amount less than the amount paid for undertaking the handling of the hazardous substance or an amount not exceeding 50 crores rupees.244 The liability of the insurer is also restricted to the amount specifed in the contract of insurance in the insurance policy.245 The act then makes an exception to the mandate of this section, where a central government can, by notifcation, exempt an “owner” which can be the central government, state government, any corporation owned or controlled by the central government or a state government and any local authority.246 This raises some concern, as the interests of the government have been placed on a higher pedestal than those of a victim in the event of an accident where the owner(s) is one belonging to the aforementioned categories. In addition to this, the act does not envisage a situation where the insurer refuses to pay the amount insured. No liability has been provided under the act which accrues to the insurer in the event of his non-payment of the sum so insured. Thus, in such a situation a victim can claim compensation in two ways. Either he can fle a suit for non-performance of the insurance contract against the Insurer in the capacity of a third-party benefciary247 or he can wait till a suit is fled 240 Ibid, schedule (iv). 241 Ibid, Section 6. 242 Ibid, Section 7 (7). (There have been conficting interpretations on this topic which have been addressed later in the paper). 243 Ibid, Section 4. 244 Ibid, Section 4 (2A). 245 Ibid, Section 4 (2B). 246 Ibid, Section 4 (3). 247 Priyesh Sharma, ‘India: Treatment of Doctrine of Privity by the Indian Judiciary’ (Vaish Associates Advocates, 11 June 2013) http://www.mondaq.com/india/x/243778/Contract

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by the insured company (“owner”) against the insurer for recovering the insured money. In the former situation, a suit for compensation will require the establishment of a contract and its breach which will likely take a considerable amount of time. This, in turn, fails the objective of the act of providing immediate relief to victims of any such accidents. Likewise, in the latter case, the act does not mandate a time period within which any such claim is to be made against the insurer by the owner. Therefore, the victim again becomes helpless and is left with no option but is at the mercy of the insured owner to fle a suit against the insurer.248 A solution proposed by J. Bhagwati against the backdrop of the Bhopal disaster could be applied to the aforementioned situation. As per J. Bhagwati, the government should provide immediate compensation in events where any ensuing litigation stops the disbursement of relief.249 Once litigation concludes, the government can always reimburse itself in such a situation since the liability in question is a no-fault liability. Thus, one can only hope that the government takes note of the act’s inadequacy immediately before any other major disaster breaks out. Establishment of the Environment Relief Fund Section 7 of the Act provides that the central government may, by a notifcation in the Offcial Gazette, establish a fund to be known as the Environment Relief Fund.250 An owner has to pay an amount, in addition to the amount of premium, to the insurer which will be deposited by the insurer into the Environment Relief Fund.251 This fund is to be utilized in the manner as provided under Section 7 of the Act. Relief redressal mechanism The act mandates that the collector must verify the occurrence of an accident as envisaged in the Act and cause publicity to be given in such a manner he deems ft for inviting applications regarding claims for relief under Section 6.252 An application for relief is to be made by the person who has

248 249

250 251 252

+Law/Treatment+Of+Doctrine+Of+Privity+By +Indian+Judiciary. Accessed 2 March 2018. Once the said suit is fled by the insured owner, the victim will have to wait till a contractual breach is established and thereafter an order regarding compensation is passed. P. N Bhagwati, ‘Supreme Court judgement on Bhopal gas tragedy’ (India Today, 15 March 1989). http://indiatoday.intoday.in/story/supreme-court-judgement-on-bhopal-gas-tragedy /1/323236.html. Accessed 2 March 2017. The Public Liability Insurance Act 1991, Section 7. Ibid, Section 4 (2C). Ibid, Section 5.

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sustained an injury or the owner of the property to which damage has been caused.253 In the event of a death arising from the accident, the claim is to be made by the legal representatives of the deceased.254 The act does not provide any scope for claims being made by social action groups and participation of the public in claiming compensation under the act. 255 Under Section 7 (1) of the Act, the collector is to hold an inquiry into the claim for relief being made after he has given the parties an opportunity of being heard.256 After that, the collector may make an award, specifying the persons to whom such amount of relief is to be made and determining the amount of relief which appears to him just. The act further mandates that the award is to be made by following a summary procedure within three months of fling a claim for relief. Likewise, the payment of the award is also to be made within a set time period.257 These provisions have conferred discretionary powers on the collector which creates a scope for misuse of the power. The discretionary power so conferred goes against the express provision of Section 3, mandating compulsory compensation in the event of an accident.258 Furthermore, Section 3 has not been mentioned under Section 7. As a result of this, there have been inconsistencies in the judicial interpretation of these provisions. While interpreting a question on the collector’s power to grant relief under Section 7 of the Act, the Madhya Pradesh High Court reasoned that once the identity of the deceased’s legal heir was fnalized and the amount was paid as per the schedule mentioned in Section 3, the collector has no further role to play.259 The court here expressed its discontent with the paltry amount given as compensation under the act, but conceded that it was unable to legislate on the same. Recognizing the paltry compensation, an equitable interpretation of Section 7 was given by the Allahabad High Court.260 In this case, the court was faced with the question of whether the competent authority lacked the jurisdiction to award compensation of more than the sum stipulated under Section 3 of the Act. The court went on to hold that compensation to be paid under Section 3 was a mandatory payment where the age, income, number of dependents or other factors were immaterial for awarding compensation, whereas Section 7 gives the collector the power to

253 Ibid, Sections 6 (1) (a) and 6 (1) (b). 254 Ibid, Section 6 (1) (c). 255 A. K Tiwari, Environmental Laws in India: Contribution of Supreme Court (Deep & Deep Publications 2006) 159. 256 Public Liability Insurance Act 1991, Section 7 (7A). 257 Ibid, Section 7 (3). 258 Ali Mehdi, ‘the Public Liability Insurance Act, 1991—A Critical Appraisal’ (1992) AIR Jour. 38. 259 M.P.S.E.B. v The Collector and Ors. MANU/MP/0489/2003. 260 UP Power Corporation Ltd & Anr. v Kaleemullah & Ors. (2010) 4 All LJ 11.

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make an award determining the amount of relief which appears to him to be just and equitable.261 It was further clarifed that compensation paid in pursuance of Section 3’s mandate was independent of the provisions contained in Section 6 and 7 of the Act. This was because Section 3 is refective of the “no-fault liability” principle and, thus, the representatives of the deceased will be entitled to compensation for every relevant accident encapsulated within this act. Lastly, the court also explained that even if an application for compensation, under Section 3, was not made by the deceased’s dependents, the collector can still award compensation under the same with regard to death and injury.262 This interpretation has very well addressed the issue of paltry compensation being provided under the act by interpreting it to meet its true purpose of being a piece of benefcial legislation. One hopes that courts, while addressing future claims made under this act, follow the latter court’s reasoning to fulfll the act’s true purpose. Furthermore, Section 8 provides that the right to claim relief under Section 3 is in addition to any other right of claiming compensation under any other law in force at the time.263 Section 8 is of high relevance, as the remedies under the Act comprise of a paltry compensation being awarded under Section 3. In addition to this, there is an air of confusion relating to the extent of the collector’s discretionary powers of awarding relief. Therefore, the only choice left for a victim is to resort to any other remedy as provided under any other law in force. As a result, the victim or his heir is left without any effective remedy as a claim in any other form would require proving negligence which might end up in unnecessary hardship. On a keen perusal of relief dispensing mechanisms under this act, it will is safe to conclude that the act is severely outdated and may lead to catastrophic results if not immediately overhauled. Accident prevention Section 9 of the Act mandates that, in order to ascertain compliance with the act, any person authorized by the central government may require any owner to submit the necessary information.264 Any person authorized by the central government has a right to enter the premises or place where a hazardous substance is being handled for the purpose of ascertaining that the provisions of this act are being complied with.265 The authorized person

261 262 263 264 265

Ibid 11 Ibid 12 The Public Liability Insurance Act 1991, Section 8. Ibid, Section 9. Ibid, Section 10.

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can exercise this right only in the event of having a reason to believe that a hazardous substance is being handled in contravention of Section 4.266 As a result of the search, if it is found that any handling of a hazardous substance has taken place then the authority may seize the s substance and other things which, in his opinion, will be useful to any potential proceedings under the act.267 The person can also dispose of the hazardous substance if he has a reason to believe that it is expedient to prevent an accident.268 Moreover, the central government has the power to issue directions to any owner or any person, offcer, authority or agency and such owner, person, offcer, authority or agency to direct prohibition or regulation of handling the hazardous substance or regulating the supply of electricity, water or any other service.269 The central government has also been given powers to make an application in a court of law to restrain an owner from handling hazardous substances in contravention of the provisions of this act.270 Penalties Section 14 of the act mandates imprisonment for a term extending up to six years but not less than one-and-a-half years in the event of non-compliance with the requirements under Section 4, and failing to adhere to directions under Section 12 along with a fne of a minimum of a lakh of rupees.271 Moreover, the act also prescribes a penalty for obstructing the right of the person, so authorized by the central government, to carry on his functions under Sections 10 and 11.272 It further includes the concept of corporate criminal liability where companies can be made liable for proceeding against offenses.273 Lastly, the act also envisages the possibility of proceeding against the heads of different government departments for committing an offense under this act.274 Miscellaneous The central government has been authorized, under the act, to delegate its power to any person.275 Further, Section 20 of the Act protects the govern-

266 267 268 269 270 271 272 273 274 275

Ibid, Section 11. Ibid, Section 11 (2). Ibid, Section 11 (3). Ibid, Section 12. Ibid, Section 13. Ibid, Section 14. Ibid, Section 15. Ibid, Section 16. Ibid, Section 17. Ibid, Section 19.

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ment or any agency acting in good faith in relation to the provisions of this act.276 In addition to this, the act also provides that the central government establishes an advisory committee on matters relating to insurance policy under the act, which in turn will include experts of insurance or hazardous substances.277 Lastly, the provisions of this act will have effect notwithstanding anything inconsistent contained in any other law.278 The National Green Tribunal (NGT) Act, 2010279 In 2003, the 186th Report of the Law Commission of India on the “Proposal to Constitute Environmental Courts”280 emphasized the need for the constitution of “environmental courts” in India. It observed that the previous National Environmental Tribunal Act, 1995281 was yet to be notifed and, even several years after its enactment, no tribunal had actually been established under the act.282 The tribunals, thus, remained non-functional and existed solely on paper.283 The commission, after considering observations of the Supreme Court in previous judgments,284 and taking into regard the inadequacies of the existing appellate authorities, which neither contained judges nor had the assistance of experts along with their limited jurisdiction, proposed to review the position with a view to bringing uniformity to the constitution and jurisdiction of bodies known as “environmental courts.”

276 277 278 279 280

281

282

283 284

Ibid, Section 20. Ibid, Section 21. Ibid, Section 22. The National Green Tribunal Act, 2010 (Act 19 of 2010). Law Commission of India, Proposal to Constitute Environmental Courts (186th Report, September 2003) 6. http://lawcommissionofndia.nic.in/reports/186th%20report.pdf. Accessed 14 October 2017. Due to the rising number of environmental problems in India, the National Environmental Tribunal Act 1995 was enacted to adjudicate cases on such matters and provide relief as necessary. It was repealed by the National Green Tribunal Act, 2010. Law Commission of India, Proposal to Constitute Environmental Courts (186th Report, September 2003) 6. http://lawcommissionofndia.nic.in/reports/186th%20report.pdf. Accessed 14 October 2017. Ibid. Environmental courts were previously suggested in two judgments: In M.C Mehta v Union of India 1986 SCC 17, the Supreme Court stated that in as much as environment cases involve assessment of scientifc data, it was desirable to set up environment courts on a regional basis with a professional judge and two experts, keeping in view the expertise required for such adjudication. There should be an appeal to the Supreme Court on the decision of the environment court. In Indian Council for Enviro-Legal Action v Union of India 1996(3) SCC 212, the Supreme Court further stated that environmental courts with civil and criminal jurisdiction must be established to deal with environmental issues promptly. See Law Commission of India, Proposal to Constitute Environmental Courts (186th Report, September 2003) 6 http://lawcommissionofndia.nic.in/reports/186th%2 0report.pdf. Accessed 14 October 2017.

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It was further proposed that these courts should consist of judicial members assisted by technical experts. The preamble to the National Green Tribunal Act, 2010 (hereinafter referred to as the NGT Act) provides for the establishment of a National Green Tribunal. for the 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. Moreover, in view of India’s obligation to several international conferences,285 as well as in recognition of the right to a healthy environment under Article 21 of the Constitution, it was considered expedient to establish such tribunals to deal with the multidisciplinary issues related to the environment.286 The act fnally came into force and repealed two earlier enactments—the National Environment Appellate Authority Act (1997)287 and the National Environmental Tribunal Act (1995). The act enables the tribunal, while passing any order or decision or award, to apply the principles of sustainable development, the precautionary principle and the polluter pays principle.288 Under Section 18 of the Act, an application may be made to the tribunal by: (1) The person, who has sustained the injury. (2) The owner of the property to which the damage has been caused. (3) Where death has resulted from the environmental damage, by all or any of the legal representatives of the deceased.

285 India was a party to the decisions taken at the United Nations Conference on the Human Environment held in Stockholm in June 1972 which called upon the states to take appropriate steps for the protection and improvement of the human environment; India also participated in the United Nations Conference on Environment and Development held at Rio de Janeiro in June 1992, which called upon the states to provide effective access to judicial and administrative proceedings, including redress and remedy and to develop national laws regarding liability and compensation for the victims of pollution and other environmental damage. See the preamble to the National Green Tribunal Act (2010). 286 National Green Tribunal Act (2010), preamble. 287 It was enacted to set up National Environment Appellate Authority to hear cases where environmental clearances were required in certain areas. However, the act was criticized for its limited mandate of providing a forum for reviewing the administrative decisions on environmental impact assessments. Apart from this, judicial members had also not been appointed for the authority for a long time. Hence, the act was subsequently repealed. 288 National Green Tribunal Act 2010, Section 20.

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(4) Any agent duly authorized by such person or owner of such property or all or any of the legal representatives of the deceased. (5) Any person aggrieved, including any representative body or organization. (6) The central government or a state government or a union territory administration or the Central Pollution Control Board or a State Pollution Control Board or a Pollution Control Committee or a local authority, or any environmental authority established under the Environment (Protection) Act, 1986. Tribunals Chapter 2 of the Act contains the provisions for the establishment of the tribunals. Under Section 3 of the Act, the Central Government is empowered to establish a tribunal by way of notifcation. Composition The National Green Tribunal consists289 of a full-time chairperson, who shall be accompanied by not less than ten and not more than 20 full-time judicial members and not less than ten and not more than 20 full-time expert members. The chairperson has the power to invite one or more person,290 for a particular case, with specialized knowledge in the related area to assist the court in the process of administration of justice. The ordinary places of sitting of the tribunal as well its territorial jurisdiction shall be notifed by the central government.291 The central government may also after consulting with the chairperson of the tribunal, make rules regulating the practices and procedure of the tribunal including (1) The rules as to the persons who shall be entitled to appear before the tribunal. (2) The rules as to the procedure for hearing applications and appeals and other matters relating to the applications and appeals, including the circuit procedure for hearing at a place other than the ordinary place of its sitting falling within the jurisdiction. (3) The minimum number of members who shall hear the applications and appeals in respect of any class or classes of applications and appeals.292 289 290 291 292

Ibid, Section 3 (1). Ibid, Section 3 (2). Ibid, Section 3 (3). The number of expert members shall, in hearing an application or appeal, be equal to the number of judicial members hearing the same.

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(4) Rules relating to transfer of cases by the chairperson from one place of sitting including the ordinary place of sitting to any other place of sitting.293 Appointment of members The central government shall appoint a chairperson as well as the judicial members and expert members of the tribunal.294 The chairperson shall be appointed by the central government in consultation with the Chief Justice of India.295 The judicial members and expert members of the tribunal shall be appointed on the recommendations of a selection committee in the prescribed manner.296 Qualifcations for appointment Section 5 lays out the qualifcation requirements for appointment of members. A person is not qualifed to be appointed as a judicial member unless he is, or has been, a judge of a Supreme Court or the Chief Justice of a High Court.297 In order to be an expert member, a person has to have a Master’s degree in Science (in physical sciences or life sciences) with a Doctorate, or a Master’s of Engineering or Master’s of Technology degree. They must also have 15 years’ experience in the relevant feld including fve years of practical experience in the feld of environment and forests (including pollution control, hazardous substance management, environmental impact assessment, climate change management, biological diversity management and forest conservation) in a reputed national-level institution, or have administrative experience of 15 years including experience of fve years in dealing with environmental matters in the central or a state government or in a reputed national- or state-level institution.298 During their tenure, the chairperson, judicial members and expert members of the tribunal shall not hold any other offce.299 The chairperson and other judicial and expert members shall not accept any employment in connection with the management or administration of any person who has been a party to a proceeding before the tribunal under this act, up to a period of two years from the date on which they cease to hold offce.300 293 294 295 296 297

Ibid, Section 4. Ibid, Section 6 (1). Ibid, Section 6 (2). Ibid, Section 6 (3). Ibid, Section 5 (1). A person who is or has been the judge of a high court shall also be qualifed to be appointed as a judicial member. 298 Ibid, Section 5 (2). 299 Ibid, Section 5 (3). 300 Ibid, Section 5 (4). This provision will not apply to any employee under the central or state government, local authority, statutory authority or any corporation established by any central, state or provincial act or a government company.

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Tenure The chairperson, as well as the members of both judicial and expert committees, shall hold their offce for fve years from the date of entering offce but shall not be eligible for reappointment.301 In the case of appointing a person who is or has been a judge of the Supreme Court, they will be required to retire at the age of 70 years. If a person who is or has been the Chief Justice of a high court has been appointed as chairperson or judicial member of the tribunal, he shall retire at the age of 67 years. If a former or present judge of a high court has been appointed as a judicial member of the tribunal, he shall retire at the age of 67 years. An expert member shall also not hold offce after he has attained the age of 65 years. Removal Section 10 lays down the provisions on the removal of members. The central government may, in consultation with the Chief Justice of India, remove a person from the offce of the chairperson or judicial member of the tribunal in the following cases. Namely: (1) Has been adjudged an insolvent; or (2) Has been convicted of an offense which, in the opinion of the central government, involves moral turpitude; or (3) Has become physically or mentally incapable; or (4) Has acquired such fnancial or other interest as is likely to affect prejudicially his functions; or (5) Has so abused his position as to render his continuance in offce prejudicial to the public interest.302 A chairperson or judicial member may only be removed from offce after an inquiry made by a judge of the Supreme Court, in which such chairperson or judicial member has been informed of the charges against him and is given

301 National Green Tribunal Act 2010, Section 7; in case a person, who is or has been a judge of the Supreme Court, has been appointed as chairperson or judicial member of the tribunal, he shall not hold offce after he has attained the age of 70 years. If a person, who is or has been the Chief Justice of a high court, has been appointed as chairperson or judicial member of the tribunal shall not hold offce after he has attained the age of 67 years. If a person, who is or has been a judge of a High Court, has been appointed as a judicial member of the tribunal, shall not hold offce after he has attained the age of 67 years. An expert member shall not hold offce after he has attained the age of 65 years. 302 Under Section 10 (3), the person against whom the inquiry is being made may be suspended from offce by the central government until an order is passed by the same on receipt of the report of such inquiry.

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a reasonable opportunity of being heard in respect of those charges under Section 10 (2). The expert member may be removed from his offce by an order of the central government on the grounds specifed and in accordance with the procedure notifed by the central government.303 Jurisdiction, powers and proceedings of the tribunal The tribunal has jurisdiction304 over all civil cases which involve a substantial question relating to the environment and/or if such question arises out of the implementation of the certain specifed enactments305 which consist of: 1. 2. 3. 4. 5. 6. 7.

The Water (Prevention and Control of Pollution) Act, 1974. The Water (Prevention and Control of Pollution) Cess Act, 1977. The Forest (Conservation) Act, 1980. The Air (Prevention and Control of Pollution) Act, 1981. The Environment (Protection) Act, 1986. The Public Liability Insurance Act, 1991. The Biological Diversity Act, 2002.

The tribunal has the authority to hear and settle such disputes and pass orders.306 An application for adjudication of disputes has to be made within a period of six months from the date on which the cause of action arose.307 It should be noted that the National Green Tribunals are not vested with powers to hear matters regarding the Wildlife (Protection) Act (1972) or laws pertaining to the preservation of forests preservation etc. enacted by several state governments. Any order passed under such laws cannot be challenged before the NGT Section 15 contains provisions regarding relief and compensation. The NGT has the power to grant relief and compensation to persons aggrieved by any orders passed under, or by any violations of the noted enactments. An application for the grant of any compensation has to be made to the tribunal within a period of fve years from the date on which the cause for

303 National Green Tribunal Act 2010, Section 10(5). The expert member shall not be removed unless he has been given an opportunity of being heard in the matter. 304 National Green Tribunal Act 2010, Section 14. 305 These enactments are specifed in Schedule I of the Act. 306 Ibid. 307 Ibid, Section 14 (3); The tribunal may, if it is satisfed that the applicant had suffcient cause for not applying within the given period, allow it to be fled within a further period not exceeding 60 days.

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such compensation or relief frst arose.308 A claim of compensation can be made for: (1) Relief and compensation to the victims of pollution and other environmental damage arising under the enactments specifed. (2) For restitution of property damaged. (3) For restitution of the environment for such area or areas.309 The NGT is not bound by either the procedure in the Code of Civil Procedure (1908) or the rules of evidence under the Indian Evidence Act 1872. It regulates its own procedures and acts under the principles of natural justice. In certain cases, the NGT has the powers of a civil court under the 1908 Code: (1) To summon and enforce the attendance of any person and examining him on oath. (2) To cases requiring the discovery and production of documents. (3) While receiving evidence on affdavits. (4) While requisitioning any public record or document or copy of such record or document from any offce. (5) While issuing commissions for the examination of witnesses or documents. (6) To review its decision. (7) While dismissing an application for default or deciding it ex parte. (8) While setting aside any order of dismissal of any application for default or any order passed by it ex parte. (9) To pass an interim order (including granting an injunction or stay) after providing the parties concerned an opportunity to be heard, on any application made or appeal fled under this act. (10) To pass an order requiring any person to cease and desist from committing or causing any violation of any enactment specifed in Schedule I. (11) In case of any other matter which may be prescribed.310 The NGT has appellate jurisdiction under Section 16 to hear any grievance concerning order, decision or direction passed by the authorities under these powers. An appeal has to be made within a period of 30 days from the date of such order. If the tribunal fnds a claim to be not maintainable, vexatious

308 The tribunal may, if it is satisfed that the applicant was prevented by suffcient cause from applying within the given period, allow a further period not exceeding 60 days. See National Green Tribunal Act 2010, Section 15 (3). 309 National Green Tribunal Act 2010, Section 15 (1). 310 Ibid, Section 19 (4).

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or false and disallows such claim, it may order costs including lost benefts due to any interim injunction.311 The relief awarded under this act is in addition to the amount payable under the Public Liability Insurance Act, 1991.312 Compensation or relief claimed under this act, after consideration of public health, property or environment, may be payable under separate heads.313 An application or appeal shall be dealt with expeditiously and disposed of within a period of six months from the date of fling the application or appeal, after giving an opportunity for a hearing for the parties.314 An award made by the tribunal shall be executable as a decree of a civil court and shall be recoverable as arrears of land revenue or public demand.315 Any person aggrieved by an order of the tribunal may fle an appeal to the Supreme Court within 90 days of the date of communication of such award.316 Liabilities and penalties Under Section 17, where the accident has resulted in the death or injury to any person other than a workman or damage to any property has resulted due to an accident or adverse impact of an activity, operation or process under any of the specifed enactments, the person responsible is liable to pay relief or compensation for the death, injury or damage.317 Moreover, if such injury or damage cannot be attributed to any single person but is the resultant effect of several activities or processes, the liability for relief or compensation may be apportioned on an equitable basis by the tribunal.318 If the offender is a company or government department, the person responsible for conducting business or department head, respectively, shall be liable. However, if the accused shows that the offense was committed without his knowledge or that he exercised due diligence to prevent the offense, then he is not to be held to be liable. The NGT Act penalizes319 offenders with imprisonment that may extend up to three years, or with a fne of ten crore rupees, or with both. In case of failure or continuation of non-compliance, the offender shall be liable to pay an additional fne that may extend up to 25,000 rupees every day until such contravention discontinues. If the offender is a company, then it shall

311 312 313 314 315 316 317 318 319

Ibid, Section 23. Ibid, Section 15 (2). Ibid, Section 15 (4). Such heads are specifed in Schedule II. Ibid, Section 18 (3). Ibid, Section 24. Ibid, Section 22. Ibid, Section 17 (1). Ibid, Section 17 (2). Ibid, Section 26.

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be liable to a fne which extends up to 25 crore rupees and in case of failure or continuation of contravention such company shall be liable to an extra fne of one lakh rupees every day that non-compliance continues. The decision of the majority of members is binding. In case the opinion is equally divided among the members, the issue will be decided by the chairperson.320 All proceedings shall be treated as judicial proceedings and the tribunal shall be deemed a civil court.321 Financial and administrative powers of the chairman The chairperson of the tribunal shall exercise fnancial and administrative powers that are vested in him under the rules made by the central government. The chairperson may delegate his fnancial and administrative powers to any judicial member, expert member or offcer of the tribunal subject to the condition that the member or offcer, while exercising such delegated power, continues to act under the direction, control and supervision of the chairperson.322 All offcials are required to discharge their functions under the chairman. Under Section 35, the central government has the power to make rules. To date, the NGT has passed several landmark verdicts on issues like environmental pollution, forest conservation, wildlife preservation, construction and development violating environmental safeguards. It has adopted a dynamic approach in several cases being critical of the existing policies, rather than having a passive stance. For instance, in M. C Mehta v Union of India,323 the NGT observed the failure of government schemes in the past worth crores of rupees that have not only failed to contain the pollution of the river Ganga but have actually increased it manifold. Remarking that a change in strategy was much needed, it ordered a prohibition of dumping or landfll sites of any kind within 500 meters from the edge of the river or any of its tributaries from the Haridwar to Unnao stretch. It further directed a complete prohibition on disposing of e-waste, biomedical waste and municipal solid waste on the foodplain or into the river Ganga or its tributaries in this stretch. To reinforce its strict view on dumping, it also imposed a fne of 50,000 rupees on anyone guilty of violating the direction. The creation of a special monitoring cell in the Uttarakhand and UP Pollution Control Board for checking water quality was also directed, along with the creation of supervisory and implementation committees having both senior central 320 321 322 323

Ibid, Section 21. Ibid, Section 18 (5). Ibid, Section 13. M.C Mehta v Union of India order dated 13 July 2017, National Green Tribunal, Delhi. http://nmcg.nic.in/writereaddata/fleupload/39_NGTOrder.pdf. Accessed on 23 November 2017.

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and state government offcials as members. The bench also allowed state governments to raise money from people if required to fund the cleaning process of Ganga. The NGT has also dealt with cases regarding the dumping of hazardous waste. In MS Ashok Vihar Mitra Mandel v The Govt. of NCT of Delhi & Others,324 toxic trade effuents (which after treatment also produced hazardous sludge) were received by the CETP. It was alleged that this hazardous waste generated by the CETP was being indiscriminately dumped onto green belts of the areas in question. The NGT, while passing the order, stated that the indiscriminate dumping must stop or it would eventually impact groundwater, the environment and ecology. Taking up the matters of pickling industries in this case, the court also prohibited their operations and stated that such prohibition would reduce effuent load, thus reducing sludge in the process. In November 2016, when the air quality in Delhi began to deteriorate, ultimately resulting in an environmental emergency, the NGT played an important role in effectively managing the situation. It advocated for the phased deregistration of 15-year-old diesel vehicles in Delhi, placed strict rules on incineration plants and formed a committee to inspect gas stations. It also directed a ban on disposable plastics, in effect from January 2017. Construction activity was banned in the peak stages of this emergency.325 All these measures refected the NGT’s stance that economic hindrances should not be prioritized over environmental degradation. This stance was reiterated again in 2017, when smog covered Delhi and the NCT region for days. The orders from the previous year involving construction activities were repeated—while ensuring that daily wages of workers were paid regularly. Disappointed at the lackadaisical attitude of the stakeholders, the NGT observed that Holding meeting and writing letters and shifting the blame to each other for non-performance and non-cooperation can hardly be an excuse for meeting such environmental emergency. No party, statutory bodies or even the citizens can be mere spectators to such environmental crisis and there has to be concerted effort in discharging of constitutional and statutory duty by all concerned to ensure that

324 M/s Ashok Vihar Mitra Mandel v The Govt. of NCT of Delhi & Others order passed on 22 September 2016 National Green Tribunal, Delhi http://admin.indiaenvironmentp ortal.org.in/fles/pickling%20industry%20 Delhi%20NGT%20Order.pdf. Accessed on 23 November 2017. 325 Padampriya Govindarajan ‘How India’s National Green Tribunal Upheld Environmental Protections in 2016’ 3 January 2017, The Diplomat. https://thediplomat.com/2017 /01/how-indias-national-green-tribunal-upheld-environmental-protections-in-2016/. Accessed on 21 November 2017.

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the people do not suffer from health hazards because of non-performance from the concerned quarters. The doctrine of preventive and precautionary principle with greater emphasis on inter-generational equity has been violated, ignored at every relevant stages.326 Failing to fnd a “plausible explanation” for its prior orders not being followed, the NGT lashed out at civic bodies such as Central Pollution Control Board (CPCB) and Delhi Pollution Control Committee (DPCC) for not making any effort to test serious pollutants like carbon monoxide and sulfur dioxide. It also asked authorities to deregister diesel vehicles more than ten years old altogether. Regular cleaning of roads, preferably by manual vacuum along with sprinkling water, was also directed to prevent particulate matter from rising into the air. The scheme of labeling environment-friendly products In a resolution, the Ministry of Environment and Forests introduced a novel scheme that provides accreditation and labeling for household and other consumer products which meet certain environmental criteria, along with the quality requirement of the Indian Standards for that product, to be operated on a national basis327. The label shall be known as an “ECO MARK.” Any product which is made, used or disposed of in a way that signifcantly reduces the harm it would otherwise cause to the environment could be considered an environment-friendly product.328 The scheme was introduced: (1) To provide an incentive for manufacturers and importers to reduce the adverse environmental impact of productivity. (2) To reward genuine initiatives by companies to reduce the adverse environmental impact of their products. (3) To assist consumers to become environmentally responsible in their daily lives by providing information to take account of environmental factors in their purchase decisions. (4) To encourage citizens to purchase products that have less harmful environmental impacts; and

326 Delhi pollution case: multiple petitions were heard together. Order passed on 9 November 2017, National Green Tribunal, by its principal bench at Delhi. http://www.indiaenvi ronmentportal.org.in/fles/ambient%20air%20quality%20NGT%20Order.pdf. Accessed on 21 November 2017. 327 Resolution of 20 February 1991 of the Department of Environment, Forests and Wildlife, Ministry of Environment and Forests, G.S.R. 85(E), Gazette of India Extraordinary; part II, 21 February 1991. 328 Gazette of India Part II (21 February 1991), Section 3 (1).

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(5) To improve the quality of the environment and to encourage sustainable management of resources.329 The environmental criteria for each product category will be notifed by the central government and, thereafter, shall be translated into Indian Standards by the Bureau of Indian Standards. The criteria shall be for broad environmental levels and aspects, but will be specifc at product levels. Under this scheme, all products will be examined in terms of the main following environmental impacts: (1) That they have substantially less potential for pollution than other comparable products in production, usage and disposal. (2) That they are recycled, recyclable and made from recycled products or biodegradable where comparable products are not. (3) That they make a signifcant contribution to saving non-renewable resources, including non-renewable energy sources and natural sources, compared with comparable products. (4) That the product must contribute to a reduction of the adversary primary criteria which has the highest environmental impact associated with the use of the product and which will specifcally set for each of the product categories.330 The Ministry of Environment and Forests recently put forward a proposal to introduce compulsory Environmental Impact Assessments (EIAs) for all industrial projects in both private and public sectors costing ten crores rupees or more. The proposal seeks to integrate environmental aspects at the project formulation stage itself.331 The preceding analysis gives a detailed account of the legislations, its provisions and the several resulting rules adopted on the management of hazardous substances in India. The debates, discussions and cases decided amply demonstrate their role of the legislation in protecting and safeguarding the environment in India.

329 Ibid. 330 P.S Sangal, ‘Some Recent Developments in the Field of Environment; Prospects for the Future’ [1991] 13 Delhi Law Review 59. 331 Ibid 61. See also Ministry of Environment and Forests, ‘Achievements and Initiatives of Ministry of Environment and Forests during last 100 days’ (1991) 2.

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6 THE “PRINCIPLE OF LIABILITY” IN HAZARDOUS SUBSTANCE LITIGATION An overview of the prevailing rules under municipal and international systems In common law, a person injured or suffering property or other losses as a result of exposure to hazardous substances must show that his injury or loss was the result of someone’s “fault,” that is, that someone had acted negligently or without care, causing the injury or loss. Generally, in litigation involving hazardous substances, the plaintiff (victim) must demonstrate a causal connection between the loss or injury and the environmental condition for which the defendant is allegedly responsible.1 In other words, the victim must prove two things before any damage is awarded to him by a court of law: (1) The injury or loss suffered is caused by exposure to a hazardous substance. (2) A particular exposure to the substance is the one that signifcantly contributed to his injury.2 The long latency period associated with injuries from exposure to hazardous substances further complicates the problem as these substances are characterized by fve properties. First, people are exposed to them in a chronic or relatively low-dose process. Second, exposed persons lack awareness of the toxic effect during the initial phase of the exposure. Third, the exposure is followed by a latency period before the disease or injury manifests itself. Fourth, the injury or disease produces chronic defects and is usually irreversible. Fifth, the contaminating body becomes untraceable, weakening the link between the disease or injury with the substance.3

1 J. David Prince, ‘Compensation for Victims of Hazardous Substance Exposure’ [1985] 11 [3] William Mitchell Law Review 688. 2 Ibid. 3 Troyen A. Brennan, ‘Causal Chains and Statistical Links: The Role of Scientifc Uncertainty in Hazardous Substance Litigation’ [1988] 73 [3] Cornell Law Review 502. Substances such

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Added to this, the latest discoveries have revealed that cancer, for example, may take 15 to 20 years to develop. During this period, the plaintiff may have moved to different places and been exposed to a number of other toxic substances, with the result that the injury suffered by the plaintiff may have more than one cause. The other factor is that not all persons exposed to hazardous substances will contract a disease and there is no empirical method that can accurately predict which persons exposed to hazardous substances will develop diseases or other injuries. Most important of all, scientists have been unable to determine an absolutely safe level of human exposure to hazardous substances.4 Another major diffculty facing the court is gathering the large amounts of sophisticated, expensive medical and scientifc evidence to demonstrate the causal connection between disease and environmental exposure. Often, evidence may be required which shows that the kind of exposure, its duration of frequency and its intensity could add to or produce the kind of disease or injury suffered by the plaintiff.5 Moreover, even with the best possible evidence, “most plaintiffs can only show that it is satisfactorily probable that the exposure caused his injury.”6 In other words, a toxicologist appearing before the court to furnish expert evidence for the plaintiff may be able to state that exposure to a particular level of the hazardous substance is capable of causing an increase of disease in the exposed population. But then, in a majority of cases, the expert may not be able to testify that the individual plaintiff’s disease was caused by exposure to a particular hazardous substance release. Wells v Ortho Pharmaceutical Corp.,7 a leading case on the issue, explains the problem. In this case, the parents of a child born with multiple birth defects brought a products liability action on behalf of the child against the manufacturer of a spermicide used by the child’s mother before and after conception. At the request of parties, the case was tried without a jury. The court noted that the decision was diffcult primarily because of the conficting scientifc evidence presented by the parties.8 The court examined the testimony of as many as 14 key expert witnesses in this case and concluded that leading authorities in the feld can disagree about the association between spermicides and certain birth defects.9

4 5 6 7 8 9

as teratogens, certain agents that cause chronic lung disease and heavy metals that produce neurological disease exemplify these fve characteristics of hazardous substances. J. David Prince, ‘Compensation for Victims of Hazardous Substance Exposure’ [1985] 11 [3] William Mitchell Law Review 690. Ibid. Ibid 266. 615 F supp 262 (ND Ga 1985) affd 788 f. 2d 741 (llcir), cert, denied, 107 S ct 437 (1986). Ibid 266. Troyen A. Brennan, ‘Causal Chains and Statistical Links: The Role of Scientifc Uncertainty in Hazardous Substance Litigation’ [1988] 73 [3] Cornell Law Review 497.

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Thus, a plaintiff in order to recover compensation must prove that (1) his injury or loss is caused by a particular release; and (2) the defendant is responsible for that release.10 Furthermore, in a tort litigation process “small” individual claims cannot be handled economically. Added to this, the litigation process might continue for a very long time and the expert witnesses may charge a very high fee to give the latest scientifc evidence. Under these conditions, it will be very diffcult for an ordinary litigant to meet these requirements. These developments will naturally force him to opt for out of court settlement, for an amount far lower than reasonable.

General principle of liability: Manufacturers and sellers Manufacturers and sellers may be liable for injuries that result from three means: (1) defective products, (2) failure to warn adequately against possible harmful effects to humans, animals or plant life that may occur even when directions stated for the use of the substance are followed and (3) fraudulent and misleading claims.11 For example, in cases relating to pesticide use, a duty of care binds manufactures and sellers of pesticides. This duty includes warnings regarding product-related dangers to the consumer, a duty on the part of the

10 Another major diffculty is the problem of identifying carcinogens in hazardous substance litigation, Prof. Troyen A. Brennan has suggested four methods for identifying carcinogens. “They are (a) cluster analysis, which analyses diseases shared by members of a group exposed to a single hazardous substance, was the frst method employed to identify carcinogens. (b) The second method for identifying carcinogens relies on short-term screening assays. Screening assays are designed to test for carcinogenicity prospectively and inexpensively. They are an initial hurdle that substances must clear, those that fail are then targets for further studies. Short-term assays are based on certain molecular theories of carcinogenesis regarding the disruption of deoxyribonucleic acids (DNA). Similar disruption is thought to occur in mutagenesis. Therefore, attention has long been focused on the correlation of carcinogenesis with mutagenesis. (c) A mutation is an abrupt and heritable genetic change. Thus, a mutation is any change in the genetic material of the cell that is passed to following generations (d) The fourth method for identifying carcinogens is epidemiology. Epidemiology applies statistical techniques and probabilistic reasoning to disease incidence. Epidemiologists study groups or populations of people and attempt to demonstrate statistically signifcant correlations or associations between certain clinical outcomes and personal habits, characteristics or exposures to any number of variables. Epidemiological studies are either retrospective or prospective. A retrospective study focuses on a group of people with a given disease and attempts to discern the factors common to the group. A prospective study follows a group of people with a common exposure over a period of time looking for disease incidence. The best example of a retrospective study is the case control study”. See Troyen A. Brennan, ‘Causal Chains and Statistical Links: The Role of Scientifc Uncertainty in Hazardous Substance Litigation’ [1988] 73 [3] Cornell Law Review 502–07. 11 Douglass Rohrman, ‘The Law of Pesticides: Present and Future [1968] 17 Journal of Public Law 368.

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manufacturer to subject the compound to reasonable tests and a duty on the part of the seller to subject the product to reasonable inspection.12 The manufacturers and sellers who fail to adhere to this duty of care may be sued for their negligence. “Negligence” under common law “necessarily involves a foreseeable risk, a threatened danger of injury and conduct unreasonable in proportion to the danger.”13 As a cause of action, negligence has the following elements: (1) “A duty, or obligation … Requiring the person to conform to a certain standard of conduct”; (2) Breach of such duty; (3) A “causal connection between the conduct and the resulting injury … or proximate cause”; and (4) “Actual loss or damages resulting to the interests of another.”14 Generally, risks arising from the use of pesticides may be covered by negligence15 and strict liability. These risks are grouped under three headings: risk to operator or user, risk to the consumer of a treated commodity and risk to others such as workers, passers-by, children, livestock domestic animals and wildlife.16

12 13 14 15

Ibid. W. Prosser, Hand Book of the Law of Torts (5th edn, West Publishing Co 1984) 61–68. Ibid. The leading case on this point is Donoghue v Stevenson (1932). In this case a manufacturer of ginger beer sold to a retailer ginger beer in an opaque bottle. The retailer resold it to A, who treated a young woman of her acquaintance with its contents. These included the decomposed remains of a snail that had found its way into the bottle at the factory. The young woman alleged that she became seriously ill in consequence and sued the manufacturer for negligence. The doctrine of privity of contract prevented her bringing a claim founded upon breach of a warranty in a contract of sale but a majority of the House of Lords held that the manufacturer owed her a duty to take care that the bottle did not contain noxious matter and that he would be liable in tort if that duty was broken. The case came before the House of Lords in Scotland, and Lord Atkin laid down the following principle for both Scots and English law:

“A manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in any injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care”. See Edwin Peel and James Goudkamp (eds), Winfeld and Jolowicz on Tort (Sweet and Maxwell 1990) 74–75, 240 16 E.J. Miller, ‘International Control of Pesticides: Presenting the Problem’ [1964] Report of the Conference on Chemical Science 96.

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The criminal and civil codes of municipal systems attract violations of this kind. The following pages will examine briefy the practice of India and the United States. In India, the manufacturers and sellers in addition to complying with the provisions of laws, rules and regulations discussed in Chapter 5, must also comply with the provisions of other laws that are in force for the time being. Under this exhaustive provision, the parties causing injury are liable to pay damages to victims. Even the public or private citizen is entitled to bring a cause of action against the producers, transporters and disposers of hazardous substances. For example, all acts which seriously interfere with the health, safety, comfort or convenience of the public would attract the provision of public nuisance.17 Public nuisance or common nuisance is an offense against the public either by doing a thing which tends to the annoyance of the whole community in general, or by neglecting to do anything which the common good requires. If it is an act affecting the public at large, or some considerable portion of it, it must not interfere with the rights of the members of the community which they might otherwise enjoy. It depends in great measure upon the number of houses and concourse of people in the vicinity; the annoyance or neglect must be of a real and substantial nature.18 Activities relating to the generation and improper disposal of hazardous substances or wastes in nearby residential areas are a matter of great concern not only to the residents but to the environment of the entire locality. The affected parties can use this provision to bring the culprits to book. In the case of a public nuisance, the Advocate-General or two or more persons having obtained the consent in writing of the Advocate-General, may institute a suit under Section 91 of the Civil Procedure Code, for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case. A suit under this section is permissible both in the case of a public nuisance and other wrongful acts affecting, or likely to affect, the public.19 The executive magistrate under this section has the power to pass an order for removing public nuisance from a public place or way which is injurious to the health or physical comfort of the community.20

17 A public nuisance is defned in Section 268 of the Indian Penal Code as under: “A public nuisance is an act of illegal omission, which causes any common injury, danger, or annoyance to the public or to the people in general who dwell or occupy property in the vicinity or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right”. 18 Ratanlal and Dhirajlal, The Indian Penal Code (26th edn, Wadhwa and Co 1987) 242. 19 Mullah, Code of Civil Procedure (NM Tripathy Pvt Ltd. 1981) 518. 20 CrPC, Section 133(1). In cases of this kind follow up action is taken under Sections 134–143 of CrPC. Under Section 144 of CrPC. the court is empowered to pass an order to prevent any injury or danger to human life, health and safety or disturbance to public tranquility.

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However, under private nuisance21 the alleged action should affect some particular individual or individuals as distinguished from the public at large and the alleged action should not amount to trespass. To claim relief, the aggrieved party may bring a civil action for damages or an injunction or both. In B. Venkatappa v B. Lovis,22 the Andhra Pradesh High Court upheld the lower courts mandatory injunction directing the defendant to close the holes in a chimney facing the plaintiff’s property. The court ensured enforcement of its order by authorizing the plaintiff to seal the holes at the defendant’s cost, if the defendant failed to do so. The court also stated that the smoke and fumes that materially interfered with ordinary comforts were enough to constitute an actionable nuisance and that actual injury to health need not be proved. The Indian Penal Code, in Section 269, prescribes23 punishment for a term which may extend to six months or with fne, or with both, to a person who unlawfully or negligently does any act which he knows or has reason to believe is likely to spread the infection of any disease dangerous to life. This section seeks to prevent acts that are likely to spread infectious diseases. Health hazards associated with hazardous waste disposal/dumping are provided for under this section. If such an incident takes place, or is about to take place, a state can prosecute the persons involved under this section. Similarly, under Section 277 of the Indian Penal Code, anyone who voluntarily corrupts or fouls the water of any public spring or reservoir, so as to render it less ft for the purpose for which it is ordinarily used, shall be punished with imprisonment which may extend to three months, or with fne which may extend to 500 rupees or with both. The water of a public spring or reservoir belongs to every member of the public in common and if a person voluntarily fouls it, he is committing a public nuisance. If generators and disposers of hazardous substances or waste dispose of the waste into a public spring or reservoir, they can be prosecuted under this section.

21 A private nuisance is defned to be anything done to the hurt or annoyance of the lands, tenements or hereditaments of another, and not amounting to trespass. It is an act affecting some particular individual or individuals as distinguished from the public at large. It is in the quantum of annoyance that private nuisance differs from public. It cannot be the subject of an indictment, but may be the ground of a civil action for damages or an injunction or both. See, Chapter XXI in Ratanlal, Law of Torts (frst published 1897, 19th edn, Lexis Nexis). A public nuisance is a crime, while a private nuisance is only a tort. 22 All India Reporter 1986 (AP) 239. 23 Section 269 of IPC provides: “whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend, to six months, or with fne or with both”.

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Provisions of the Constitution of India The Constitution (42nd Amendment) Act, 1976,24 has added Article 48A25 to the Directive Principles26 mandating states to endeavor to protect and improve the environment and to safeguard forests and wildlife. Article 51A (g) in a new chapter entitled “fundamental duties” imposes a similar responsibility on every citizen “to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.” Although the language in the two articles differs, the differences appear to relate to form rather than to content.27 The Supreme Court in Sachidanand Pandey v State of West Bengal,28 declared that, whenever a problem of ecology is brought before the court, the court is bound to bear in mind Art. 48A of the constitution …and Art. 51A (g) … When the court is called upon to give effect to the Directive Principle and the fundamental duty, the court is not to shrug its shoulders and say that priorities are a matter of policy and so it is a matter for the policy-making authority. The least that the court may do is to examine whether appropriate considerations are borne in mind and irrelevancies excluded. The recent trend of the Supreme Court is to recognize the right to clean and hygienic environment as one of the fundamental rights, as part of the right to life29 itself. The observations made by Justice K. N. Singh justifying the closure of polluting tanneries in the Ganga Pollution (Tanneries) case may well support this proposition. “We are conscious that closure of tanneries may bring unemployment, loss of revenue, but life, health and ecology have greater importance to people.”30 Similar expressions were made

24 The Constitution (42nd Amendment) Act, 1976 was signed by the President of India on 16 December 1976 and was published in the Gazette of India of the same date in Part II, Section 1. 25 Article 48A of the Constitution of India provides: The state shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country. 26 The Directive Principles are policy prescriptions that guide the government. Although unenforceable by a court; the Directive Principles are increasingly being cited by judges as complementary to the fundamental rights. 27 Armin Rosencranz, Shyam Divan, Martha L. Noble, Environmental Law and Policy in India (NM Tripathi Pvt Ltd 1991) 53. 28 AIR 1987 SC 1114–15. 29 The right to life is a fundamental right recognized under Article 21 of the Constitution. According to the article, “No person shall be deprived of his life and liberty except according to the procedure established by law.” For details see, Ratlam Municipality v Vardichand and others AIR 1980 SC 1623; R. L. Kendra Dehradun v UP (SC) 408. 30 MC. Mehta v Union of India AIR 1988 (SC) 1037.

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in Subhash Kumar v State of Bihar and others.31 In this case, the Supreme Court declared that, the right to live is a fundamental right under Article 21 of the constitution and includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has a right to have a recourse to Article 32 of the Constitution32 for removing the pollution of water or air which may be detrimental to the quality of life.33

Hazardous substance litigation and the emergence of tort law in India The history of the Bhopal case History The Bhopal gas leak that occurred at midnight on 2 December 1984, with the escape of deadly chemical fumes from the appellant’s pesticide factory, was a horrifying industrial mass disaster—unparalleled in its magnitude and devastation—and remains a ghastly monument to the de-humanizing infuence of inherently dangerous technologies.34 In March 1985, the Parliament of India enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act.35 This act conferred an exclusive right on the Indian Government to represent all claimants both within and outside India, and directed the government to organize a plan for

31 Subhash Kumar v State of Bihar and Others 1991 (SC) 77–82; Writ Petition (c), no 381 of 1988. 32 Article 32 deals with the enforcement of fundamental rights. The provisions of the article are (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred under part three of the constitution, (2) Under this article the Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this part. 33 A petition under Article 32 for the prevention of pollution is maintainable at the instance of affected persons or even by a group of social workers or journalists. See Subhas Kumar v State of Bihar and Others AIR 1991 SC 82. 34 The tragedy took an immediate toll of 2,660 innocent human lives and left tens of thousands of other innocent citizens of Bhopal physically impaired or affected in various degrees. See Chapter 1 also (1989) 2 Judgement Today (SC) 457. 35 Popularly known as the Bhopal Act, which received the assent of the president on 29 March 1985. The act replaced an ordinance that the president had promulgated on 20 February 1985.

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the registration and processing of the victims’ claims.36 Later, the Indian Government sued Union Carbide in the United States. But then, the American Court declined to try the case on the grounds that India was the more appropriate forum. Judge Keenan’s Court in New York expressed the view that to retain litigation in the American forum would be yet another example of imperialism—a situation in which an established sovereign inficted its rules, standards and values on a developing nation. The court declared further that, the Union of India is a world power in 1986 and its courts have the proven capacity to mete out fair and equal justice. To deprive the Indian judiciary of this opportunity to stand tall before the world and pass judgment on behalf of its own people would be to revive a history of subservience and subjugation from which India has emerged.”37 After this decision, the Indian Government sued Union Carbide in the Court of the District Judge, Bhopal, for 3,900 crore rupees. From there, the matter went before the Madhya Pradesh (MP) High Court. In April 1988, Justice Seth of the High Court awarded interim damages of 250 crore rupees (192 million USD). Both the Union Carbide and the Government of India appealed to the Supreme Court, Union Carbide appealed on the ground that the judgment of Judge Seth of the MP High Court was unsustainable because it was delivered without trial. The Indian Government appealed because Judge Seth had reduced 30 percent of District Judge J Deo’s (earlier interim payment award of 350 crores rupees. In February 1989, the Supreme Court induced the Indian Government and Union Carbide to accept its suggestion for an overall settlement of the claims arising from the Bhopal disaster. In the settlement, Union Carbide agreed to pay 470 million USD to the Indian Government to settle the past, present and future claims arising from the Bhopal incident. The Supreme Court, in order to facilitate the settlement, exercised its extraordinary jurisdiction and terminated all civil, criminal and contempt of court proceedings that had arisen from the Bhopal disaster and were fled in lower courts.

36 Armin Rosencranz, Shyam Divan and Martha L. Noble, Environmental Law and Policy in India (NM Tripathi Pvt Ltd 1991) 344–45. 37 Before Judge Keenan's court, the plaintiffs, including the Union of India, have argued that the courts in India are not up to the task of conducting the litigation. They argued that the Indian judiciary has yet to reach full maturity due to the restraints placed upon it by British colonial rulers who shaped the Indian legal system to meet their own ends. Further, the Indian justice system has not yet cast off the burden of colonialism to meet the emerging needs of a democratic people. See Upendra Baxi, Inconvenient Forum and Convenient Catastrophe: The Bhopal Case (NM Tripathi Pvt Ltd 1986) 68–69.

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In December 1989 the Supreme Court of India, in a long-winded judgment,38 upheld the constitutional validity of the Bhopal Act. Before the Bhopal case, Indian tort law had never been confronted with the dilemmas posed by mass disaster situations.39 This is mainly because the Indian common law system was inherited from the British, and thus was designed to serve the interests of the rulers rather than respond to the needs of the people.40 The Indian Supreme Court has addressed only a handful of tort cases since its establishment in 1950. There are only 132 negligence cases reported in the All India Reporter from 1914 to 1965.41 These cases involved neither injuries related to industrial processes, nor the use of any hazardous chemical substances, nor complex technology.42 Perhaps for the frst time, the Supreme Court in Ratlam Municipality v Vardhichand43 sounded a futuristic note towards a new development of tort law when it observed that, “the dynamics of the judicial process has new ‘enforcement’ dimensions not merely through some of the provisions of the code of criminal procedure, but also through activated tort consciousness.”44 The Bhopal disaster raised complex legal questions about the liability of parent companies for the acts of their subsidiaries, the responsibilities of multinational corporations engaged in hazardous activities, the transfer of

38 Charan Lal Sahu v Union of India, Writ petition No. 268 of 1989 (dated 22 December 1989). See Judgements Today (1989) 582–86. This is a 239-page opinion expressed by the Supreme Court, upholding the constitutional validity of the Bhopal Act. 39 The early charters, which established the courts in India under the British rule, required judges to act according to “justice, equity and good conscience,” in deciding civil disputes if no source of law was identifable. The Law of Torts in India, which remained uncodifed, followed the English law for the most part. See Ramaswamy Iyer, The Law of Torts (Lexis Nexis 1975) 221. The law was modifed and departed from the English law only when the peculiar conditions that prevailed in India required this. For example, some aspects of the law of Torts in India have already been codifed in the form of special statutes. Relevant provisions of the Motor Vehicles Act, 1939, Workmen's Compensation Act, 1933, Employers Liability Act 1938, the Indian Railways Act 1890, the Indian Carriage by Air Act 1934, and the carriage of Goods by Sea Act, 1925 are standing examples. See C. M. Abraham and Sushila Abraham, ‘The Bhopal case and the Development of Environmental Law in India’ [1991] 40 [2] International and Comparative Law Quarterly 353. 40 Upendra Baxi, The Crisis of the Indian Legal System (Vikas Publishing House Pvt Ltd 1981); Sharma, ‘The lack of Tort Law in Indian’ [1966] Air Journal 7; See also ‘Some Aspects Indian Law Today’, [1964] 8 International Comparative Law Quarterly. 41 Ratna Kapur, ‘From Human Tragedy to Human Right: The Accountability of Multinational Corporations for Human Rights Violations’ [1990] 10 [1] Boston College Third World Law Journal 80; Ramamoorthy, ‘Diffculties of Tort Litigants in India’ [1970] 12 Journal of the Indian Law Institute 320. 42 Most of the cases that were fled were on subjects like traffc injuries, to claim relief under the provisions of the Motor Vehicles Act. 43 Ratlam Municipality v Vardhichand AIR 1980 SC 1629. 44 Ibid 1631.

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hazardous technologies and the applicable principle of liability.45 The general principles of tortious liability are clear in stating that, “tortious liability arises from a breach of duty primarily fxed by the law, such duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”46 The liability for a tort may arise from intentional wrongdoing, negligence or out of an absolute liability imposed without any fault. It may be a vicarious liability as that of a master for a servant’s tort or a breach of duty under a statute, for example, a duty of an employer under the Factories Act.47 The District Court of Bhopal, presided by Judge Deo in the Union Carbide Case, declared that the substance it was handling at the plant (MIC) was one of the most dangerous substances and that exposure to even small concentrations would pose an immediate danger to living beings and the environment. The purpose, structure, organization, technology, fnances and resources of Union Carbide made it not to submit seriously to the province of local municipal law, wherein the production of MIC was carried out. In addition, the complex corporate structure of the multinational, corporation with a network of subsidiaries and divisions throughout the world, confused the whole issue to pinpoint responsibility for the damage caused by the enterprise. In such a situation, the only way left is to make the monolithic Union Carbide responsible for its conduct. Thus, the District Court of Bhopal ordered Carbide to pay an interim compensation of 350 crore rupees to the Union of India (270 million USD) for distribution to the gas victims on the following grounds: (1) Hence for its part the defendant Union Carbide is absolutely liable for all the damages caused or contributed to by the escape of the lethal MIC from its Bhopal plant. (2) Furthermore, Union Carbide is under a duty to design, construct maintain and operate its Bhopal plant in such a manner as to prevent the escape of the lethal MIC from the plant and to protect persons from unreasonably dangerous and defective conditions and to warn persons of the dangers and risks associated with the plant and its manufacturing processes.48 There was clear and convincing evidence that the Union Carbide breached this duty. (3) Most important of all is a duty to design, construct, maintain and operate the Bhopal plant with reasonable care so as to protect persons from 45 Armin Rosencranz, Shyam Divan and Martha L. Noble, Environmental Law and Policy in India (NM Tripathi Pvt Ltd 1991) 346. 46 Winfeld and Jolowicz on Tort (Sweet and Maxwell 1990) 74–75, 32. 47 M. C. Setalvad, Common Law in India (Hamlyn Lectures 1970) 114. 48 Armin Rosencranz, Shyam Divan and Martha L. Noble, Environmental Law and Policy in India (NM Tripathi Pvt Ltd 1991) 353. This is under the doctrine of strict liability.

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unreasonable dangers, and to use reasonable care to warn persons of the dangers and risks associated with the plant and its manufacturing process.49 Union Carbide breached this duty and the massive escape of lethal MIC gas occurred as the proximate result of this negligence.50 (4) Defendant Union Carbide expressly and impliedly warranted that the design, construction, operation and maintenance of its Bhopal plant were undertaken with the best available information and skill in order to ensure safety. These warranties were untrue but the Bhopal plant was, in fact, defective and unsafe and the technical services and information provided by the defendant Union Carbide and the resulting plant operating practices were defective in numerous respects. Union Carbide fled a petition before the High Court of Madhya Pradesh under Section 115 of the Code of Civil Procedure against the above order of the district court.51 The high court partly allowed the petition by upholding the trial court’s order to make an interim payment to the plaintiff-Union of India representing the gas victims. However, the court declared further that the payment to be made by the Union Carbide is not a payment of interim relief52 without reference to the merits of the case as held by the trial court but is a payment as damages under the substantive law of torts on the basis of more than prima facie case having been made out in favor of the plaintiff—Union of India—to receive such payment. However, the High Court reduced the interim payment from 350 crore rupees to 250 crore rupees.53 Next, the issue came before the Supreme Court.54 The Bhopal settlement55 is elaborated in on in four documents: (1) the Supreme Court’s Principal

49 50 51 52

Ibid 353. Ibid. On 17 December 1987. Regular Civil Suit No. 1113 of 1986. The court gave two months from the date of its order to deposit the amount of Rs.250 crores in the trial court and the commissioner functioning under the scheme is directed through the plaintiff Union of India to have the work of registration of claims in respect of death and personal injuries completed within a period of four months from the date of deposit of the amount by the Union Carbide. 53 Justice Seth rejected the reasoning given by Justice Deo of the District Court that the court had an inherent power to order interim payment. According to the learned judge of the high court the inherent power of the court under Section 151 of the CPC related only to procedures followed by a court, and could not be used to affect the parties’ substantive rights. See Divan and Rosencranz, ‘Bhopal Victims: Twisting Slowly in the Wind’ (1988) 18 Environmental Policy and the Law 221. Another lacuna in the order of the District Court was that it was made without reference to the case's merits and hence could not be enforced as a decree. 54 The Union before the of India fled a special leave petition Supreme Court because Justice Seth of the Madhya Pradesh High Court reduced the District interim award by 100 crore rupees. 55 The Bhopal settlement (14 February 1989).

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Order dated 14 February 1989; (2) a supplemental order of the court issued on 15 February; (3) a consequential memorandum of the terms of settlement signed by Carbide and the Indian Government’s lawyers and tendered to the court on 15 February and (4) an “order” of 4 May 1989, setting forth the Supreme Court’s reasons for urging the settlement.56 The Supreme Court, in its order, observed in particular of the enormity of human suffering occasioned by the Bhopal gas disaster and the pressing urgency to provide immediate and substantial relief to victims of the disaster, we are of the opinion that the case is preeminently ft for an overall settlement between the parties covering all litigations, claims, rights and liabilities related to and arising out of the disaster.57 In Charan Lal Sahu v Union of India,58 while dealing with the constitutional validity of the Bhopal Gas Leak Disaster (processing of claims) Act 1985, relating to the power of the government to represent the victims the Supreme Court observed: In the context of our national dimensions of human rights, right to life, liberty, pollution free air and water is guaranteed by the Constitution under Articles 21, 48A and 51 (g), it is the duty of the state to take effective steps to protect the guaranteed constitutional rights. These rights must be integrated and illumined by the evolving international dimensions and standards, having regard to our sovereignty, as highlighted by clause 9 and 13 of the UN Code on Transnational Corporations. The evolving standards of

56 See Rosencranz (n 36) 384; Union Carbide Corporation v Union of India Civil appeal Nos. 3187 and 3188 of 1988 with special leave petition (Civil) No. 13080 of 1988. See, (1989) 2 Judgements Today 454–65. 57 (1989) 2 Judgements Today 458; Justice Bhagwati (by then retired from the Supreme Court) while commenting on the order of the Supreme Court observed, “the order is, to say the least, breath taking in its sweep. It quashes all criminal proceedings, present as well as future. It defes compensation how criminal proceedings pending against UCC offcers can be quashed without even examining if there is a prima facie case. Can immunity from prosecution be brought by paying compensation? What happened is totally contrary to all principles of criminal jurisprudence. Further, the court order places the value of the Indian life at a ridiculously low fgure. In the US, $2.5 billion was paid by John Manville Corporation to 60,000 claimants for asbestos-related injuries and $520 million by AH Robins Company to settle 9,450 injury claims by users of Dalkon shield contraceptives. In comparison, Bhopal victims have got ‘peanuts’.” See Bhagvati, ‘Travesty of Justice’ India Today (New Delhi, 15 March 1989) 45. 58 Charan Lal Sahu v Union of India (writ petition No. 268 of 1989, dated 22.12.89) See (1989) 4 Judgements Today 586.

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international obligations need to be respected, maintaining dignity and sovereignty of our people, the state must take effective steps to safeguard the constitutional right of citizens by enacting laws.59 The above paragraph underlines the commitment of the apex court to honor and respect the national law as well as the evolving standards of international obligations covering hazardous substances. But then, the application of the principle of strict liability under tort law for abnormally dangerous activities proved totally inadequate. The Shriram Gas Leak case60 On 4 December 1985, a major leakage of oleum gas took place from one of the units of Shriram’s caustic chlorine and sulfuric acid plants of Delhi. The leakage affected a large number of people both amongst the workmen and the public. The petitioner sought to close and relocate the acid plants located in a thickly populated area of Delhi. The Inspector of Factories and the Assistant Commissioner (Factories), in their separate orders,61 asked for the shutting down of the plants.62 Shriram challenged these prohibitory orders issued under the Factories Act of 1948 by a writ petition63 and sought interim permission to reopen the caustic chlorine plant. Shriram complied with the orders of the Supreme Court and deposited money to fnance the court’s exercise of seemingly executive and legislative functions with a view to adducing evidence in the case.64 Later, the Supreme Court decided to permit Shriram to restart its plant temporarily and suspended the operation of the two orders on certain conditions. The court was clear in saying that any non-compliance with the conditions would result in the withdrawal of the permission so granted. Among the many conditions laid out by the Supreme Court, the following needs to be examined for our purpose:

59 Observations made by Justice K. N. Singh. 60 The case came up before the Supreme Court in the form of a writ petition (Nos. 12739 of 1985) fled by M.C. Mehta, as a public interest litigation. The gas leaked out from the sulfuric acid plant one month after fling this petition. 61 Passed on December 7 and 24, 1985. 62 To cease carrying on the occupation of manufacturing and processing hazardous and lethal chemicals and gases including chlorine, oleum, super-chlorine, phosphate, etc. 63 No. 26 of 1986. 64 Two committees were set up by the Supreme Court: The Manmohan Singh committee and Nilay Choudhary committee. In addition, another committee was set up by the government. All three committees were unanimous in emphasizing the danger to the community living in the vicinity of the caustic chlorine plant in the event of an exposure to the chlorine gas through an accidental release which may take place on account of negligence or other unforeseen events.

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a. The management of Shriram was asked to deposit a sum of 20 lakh rupees as and by way of security for compensation claims made by or on behalf of the victims of oleum gas. b. The Supreme Court asked Shriram to ensure that the workers use safety devices like gas masks, safety belts etc. and was directed to provide regular medical check-ups to the workers. c. Shriram was directed to install loudspeakers to alert neighboring populations in the event of a chlorine leak. d. Shriram was directed to instruct and train, its workers in plant safety through special audiovisual programs. e. Shriram was asked to publicize the effects of chlorine and the approximate post-exposure treatment in charts placed at the premise’s gate and within the plant. f. The Chief Inspector of Factories was directed to inspect the caustic chlorine plant at least once a week. g. The Central Pollution Control Board was asked to deploy an inspector to visit the Shriram plants at least once a week to ascertain their compliance with the effuent discharge and emission standards prescribed in the consent orders under the Water and Air Acts. h. The court asked Shriram to designate one operator and make him personally responsible for each safety device in the caustic chlorine plant. i. The court also established an expert committee to monitor Shriram’s compliance with the recommendations of the input committees.65 In addition to the above guidelines, the Supreme Court requested the Government of India evolve a national policy for the location of chemical and other hazardous industries in areas where the population is scarce and hazard or risk to the community is very low. Further, it urged the Government of India to set up an Ecological Sciences Research Group consisting of independent, professionally competent experts in different branches of science and technology, who could act as an information bank for the court and the government departments in the generation of new information according to the particular requirements of the court or the concerned department. Signifcantly, the court suggested setting up environmental courts at regional levels as cases involving issues of environmental pollution, ecological destruction and conficts over natural resources were on the rise. These courts, the Supreme Court opined, should consist of one professional judge and two experts drawn from the Ecological Sciences Research Group, keeping in view the nature of the cases and expertise required for their adjudication.66

65 Ibid. 66 The court’s order of 17 February 1986; AIR 1986 SC 176.

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It is interesting to note that the Kerala High Court, in equally affrmative terms in Nellika Achuthan v Deshabhimani Printing and Publishing House Ltd.,67 advocated for the establishment of special courts and special sections manned by able offcers with specialized skills to tackle problems of this kind. In the second phase,68 Shriram Foods and Fertiliser Industries sought some clarifcation from the Supreme Court in respect of certain conditions set out by it in its order of 17 February 1986.69 The court, having heard this case, slightly modifed two of the conditions,70 stating that no liability shall attach to the Chairman and or Managing Director if he can show that the escape of chlorine gas was due to an act of God or vis major or sabotage. But in all other cases the Chairman or Managing Director must hold himself liable to pay compensation. M.C. Mehta v Union of India71 This writ petition, as part of the litigation process in Shriram, came before the Supreme Court under Article 32 of the Constitution in a reference made by a bench of three judges. The reference was made because certain important questions of constitutional law were raised when the writ petition was originally heard.72

67 Although the case relates to the enforcement of the Wild Life Protection Act and the Forest Act, the observation is interesting: “An effective organization with offcers of proven integrity and well-tested dedication and devotion is indispensable, if the greater objectives underlying the Act are to be achieved, at least in a limited measure. Perhaps the establishment of a special court in relation to offences relating to forest laws and wild life laws could be thought of; and a special section manned by able offcers with specialized skill and guided by an expert head like the Director of Public Prosecutions may be a satisfactory arrangement … The government should consider this aspect with all the seriousness and urgency which the matter demands”. Nellikka Achuthan v Deshabhimani Printing and Publishing House Ltd. AIR 1986 Kerala 41, 47. 68 AIR 1987 SC 982. 69 Application for clarifcation, AIR 1987 SC 965. 70 Condition No. 2 and 6 (in the original order). 71 M.C. Mehta v Union of India AIR 1987 SC 1086. 72 When the original writ petition fled by M. C. Mehta (No. 12739 of 1985) was pending the leakage of oleum gas from one of the units of Shiram took place (4 and 6 December). Later applications were fled by the Delhi Legal Aid and Advice Board and the Delhi Bar Association for the award of compensation to victims who had suffered as a result of leakage of the oleum gas. These applications (compensation) did raise a number of constitutional issues. With the result that the bench of three judges formulated these issues and asked M. C. Mehta and others supporting him as well as Shriram to fle their written submissions. When these applications (for compensation) came up for hearing the Supreme Court felt that since the issues raised involved substantial questions of law relating to the interpreta-

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The Supreme Court, in this case, confronted the problem of attributing intention to a corporate entity by conferring an absolute non-delegable duty on entities engaged in ultra-hazardous activities. It said, an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a 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 activity it has undertaken. Furthermore, such an enterprise “must be held to be under an obligation to provide that the hazardous or inherently dangerous activity” and must be conducted with the highest standards of safety and if any harm results, the enterprise must be absolutely liable to compensate for such harm and there should be no cause for it to claim it had taken all reasonable care and that the harm occurred without any negligence on its part. The Supreme Court set out the following principle of liability to govern enterprises engaged in ultra-hazardous or inherently dangerous activities: We would therefore hold that, where an enterprise is engaged in a hazardous or inherently dangerous activity, and harm results to any one on account of an accident in the operation of such hazardous or, inherently dangerous activity resulting, for example, in the escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-avis the tortious principle of strict liability under the rule in Rylands v Fletcher.73 The court justifed this absolute liability principle on three grounds: (1) Legal authorization or permission to carry out a hazardous or inherently dangerous activity for proft includes the condition that “the enterprise engaged in such activity indemnifes all those who suffer on account of such activity regardless of whether it is carried out carefully or not.” (2) Persons who are harmed as a result of such hazardous or inherently dangerous activity “would not be in a position to isolate the process

tion of Articles 21 and 32 of the Indian Constitution, the case should be referred to a larger bench of fve judges. 73 AIR 1987 (SC) 1099.

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of operation from the hazardous operations of substance or any other related element that caused the harm.” The enterprise must be “held strictly liable for causing such harm as part of the social cost” for carrying out such activity. (3) The enterprise alone “has the resource to discover and guard against such hazardous or inherently dangerous activity.”74 Furthermore, the court found that the rule in Rylands v Fletcher75 was not designed to deal with a modern industrial society. This rule did not contemplate the consequences and was thus inappropriate in a society where hazardous or inherently dangerous industries had become an integral aspect of the process of development. Therefore, the court could not afford any guidance in creating a standard of liability that was consistent with constitutional norms and the needs of present-day socio-economic structure.76 The Supreme Court has also formulated the appropriate standards for the measure of damages. The object of imposing damages by way of compensation is to have a “deterrent effect” on the responsible party. With this in mind, the measure of damages must be “co-related to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect.” While elucidating the point the Supreme Court declared, the large and more prosperous the enterprise, the greater must be the amount of compensation payable by it, for the harm caused on account of accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise.77 A careful analysis of the Shriram Case shows the leading role played by the Supreme Court in providing relief to the victims. To do this, the Supreme Court assumed legislative and executive functions to adduce evidence. Further, the judgment makes it clear that the court’s writ jurisdiction under Article 32 and a demand for compensation can be made only in cases of “gross violation” of fundamental rights where the magnitude was such as to shock the conscience

74 Upendra Baxi, Environment Protection Act: An Agenda for Implementation (NM Tripathi 1987) 48. 75 A decision of the English court 1868. See also W. Prosser, Law of Torts (4th edn, Hornbook Series, 1978) 50–56; See also Chapter VI. 76 AIR 1987 (SC) 1098. For comments See also, M. C. Mehta, Environmental Cases: What the Judiciary can do, The Hindu Survey of the Environment 1992 (Madras) 161–63; Kapur (n 41) 33. 77 Accordingly, entities including industries run for proft, state enterprises, scientifc research institutions, under or outside the auspices of the state are liable to absolute liability.

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of the court.78 Shriram is the frst case wherein a petition under Article 32 was made to seek compensation from a private company.

Fixation of liability under special legislation for the protection of the environment National Green Tribunal Act, 2010 After the National Green Tribunal was established to adjudicate on matters pertaining to the protection of the environment and new developments have taken place where expeditious and effective administration of justice is concerned. One of the landmark judgments asserting the effectiveness of the tribunal was delivered in the case of Aditya N. Prasad v Union of India and Ors.79 In this case, the applicant (Aditya N. Prasad) fled an application under Section 18(a), read with Sections 14, 15 and 17 of the National Green Tribunal Act, praying for various reliefs in relation to environmental issues primarily relating to the de-concretization of trees and their maintenance in accordance to law. The tribunal had ordered the concerned authorities for the de-concretization of the trees all over the National Capital Territory of Delhi. Thereafter, another application was fled in order to pray before the tribunal to further order to carry out the work of de-concretization of trees carefully because in most of the cases the machines coupled with unskilled labor are damaging the trees terribly. The tribunal took note of the same and ordered to take proper care while de-concretizing the trees using machines like JCB which is capable of damaging the trees to the extent of killing them. Further when the Municipal Corporation of Delhi (south) failed to follow the orders of the tribunal they were made liable to a fne of 50,000 rupees under Section 28 read with Section 15. They were also ordered to carry out afforestation by planting 20 trees in a ratio of 1:10 in the affected area and to fle its proof on record. The principle of liability under American Law In the United States, the federal government has enacted several statutes to protect individuals from exposure to toxic and hazardous substances. A study of the American legal system shows that the real avenue of redress for the victims is common law. Traditional state nuisance80 law is enough for direct citizen and local government action against release of hazardous substance/waste problems.

78 M.C. Mehta, ‘Environmental cases: What the Judiciary can do’ (The Hindu Survey of the Environment 1992, Madras) 162. 79 MA No. 706 of 2013. 80 Black’s law dictionary defnes nuisance as “that activity which arises from unreasonable, unwarranted or unlawful use by a person of his own property, working obstruction or injury

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The two basic types of state nuisance law are private and public. A cause of action may occur under private or public nuisance. “A private nuisance is a civil wrong, based on a disturbance of rights in land.” The law provides a remedy for the person whose rights were disturbed.81 A public nuisance, on the other hand, includes criminal offenses that interfere with community rights and public, interference with an individual’s enjoyment of his or her land.82 It protects the general public from the dangers of private activities.83 Under both types of nuisance law, the court must fnd a substantial, unreasonable interference with the plaintiff’s interest either the use and enjoyment of private land or the public welfare.84 The private nuisance cause of action is tied directly to the use and enjoyment of land and is generally an action brought by an individual or group of private citizens. Since private nuisance is not a trespass invasion of an owner’s use and enjoyment of his land, many types of invasion could be actionable under this theory. For example, situations involving seepage of chemicals into groundwater from nearby chemical dumps, toxic fumes escaping from leaking barrels on adjoining property or pollutants discharged into the air by smokestacks of a near-by factory, it appears, can attract nuisance action.85 A public nuisance cause of action, unlike private nuisance action, is not dependent upon ownership of property. Instead, it involves interference with a right “common to the general public.”86 To claim damages, the victim must prove that he has suffered physical injury or pecuniary loss due to a nuisance caused by the defendant. The victims have been granted relief by the American courts on the above grounds. In Village of Wilson Ville VSCA Services, Inc.,87 the court upheld an injunction against a sanitary land fll despite its compliance with applicable environmental permits. The site was found to be a nuisance because it emitted dust and odors, required transport of hazardous materials through town, and posed an ultimate threat to ground water.88

81 82 83 84 85 86 87 88

to right of another, or to the public and producing such material annoyance, inconvenience and discomfort that law will presume resulting damage” Black’s Law Dictionary (5 edn 1979). W. Prosser, Handbook of the Law of Torts (5th edn, West Publishing Co. 1984) 618. Ibid. Ibid. Jeff Belfglio, ‘Hazardous Wastes: Preserving the Nuisance Remedy’ [1981] 33 [4] Stanford Law Review 667. For a learned treatment see Judy A. Johnson, ‘Is there still a Role for Common Law’ [1983] 18 [3] Tulsa Law Journal 452–24. Ibid 455. 1112d 1.426 NE 2d 824 (1981). Catherine S. Knowles, ‘Who is Responsible? An Analysis of Hazardous Waste Liability’ [1985] 6 [1] Hamline Journal of Public Law 12.

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In Mc Castle v Rollins Environmental Services,89 the Lousiana State Court affrmed the injunction brought by the plaintiffs on behalf of themselves and 4,000 other residents of an area located adjacent to a privately owned hazardous waste disposal facility that contained incinerators, ponds and dumping pits. The plaintiffs alleged that the fumes from the defendant’s plant caused them to suffer physical ailments such as upset stomachs, sore throats, and burning eyes. In another interesting case, The City of Philadelphia v Stephen Chem. Co.,90 public nuisance was used as a ground to recover clean-up costs and consequential damages resulting from the illegal dumping of industrial waste on city property. The court permitted the City of Philadelphia to pursue its claim for response costs under the aegis of common law theories.91 Trespass Action can also be brought under trespass against those who release hazardous substances. The tort of trespass involves an intentional physical invasion of property. To claim damages under trespass the plaintiff must prove that his present possessory interest in his land has been invaded, and that has resulted in causing damage to himself, his family or his property.92 So long as the trespass continues, the action is renewed.93 In Curry Cal v Arnoni,94 the plaintiff proved intentional trespass by demonstrating that a sanitary landfll operator continued to dump industrial sludge even after receiving notice of the harm caused.95 Negligence “Negligence” under common law “necessarily involves a foreseeable risk, a threatened danger of injury, and conduct unreasonable in proportion to the danger.”96 As a cause of action, negligence has four elements.97 Under the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response Compensation and Liability Act (CERCLA),98 hazardous waste generators and transporters who fail to 89 514 F. Supp 936 (MD La 1981). 90 City of Philadelphia v Stephen Chem. Co., 544 F. Supp. 1135 (ED pa 1982). 91 The court allowed the city of Philadelphia to pursue its claims under the common law theories of nuisance, trespass, strict liability and negligence. 92 W. Prosser, Handbook of the Law of Torts (5th edn, West Publishing Co. 1984) 63–67. 93 The law recognizes a “continuing” trespass. 94 Curry Coal v Aroni Envit Rep 1 CAS (BNA, 1970) 1428–31. 95 Jane L. Wipf, ‘In Search of Liability for Hazardous Waste Dumping’, (1984) 29 (3) South Dakota Law 485. 96 W. Prosser, Handbook of the Law of Torts (5th edn, West Publishing Co. 1984) 61–68. 97 Ibid. 98 Ibid.

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comply with established standards, when that failure results in injury to a person, are liable for their negligent conduct. To claim protection under this principle the plaintiff must prove that he or she is within the class of persons the statute was designed to protect and hence, the generator is negligent as a matter of law.99 In a promising Louisiana decision, Ewell v Petro Processors of Louisiana Inc.,100 landowners of a tract adjacent to land on which a corporation was conducting industrial waste disposal operation were successful in proving the corporation’s negligence in allowing the toxic wastes to leak on to their property.101 In the light of these developments, common law negligence action cannot be totally discounted as a viable tool in the hazardous substance lawsuit. Strict Liability Strict liability imposes liability without regard to fault upon those individuals who engage in abnormally dangerous activities.102 The factors which a court should take into account before determining whether an activity is abnormally dangerous include the degree of risk, the amount of risk which would result from an accident, the liability to eliminate the risk by reasonable care and uncommon usage of activity, etc. In a case, all the given factors need not be present. Strict liability provisions have been incorporated in the environmental legislations of many countries. The RCRA, as we have seen, especially incorporate this doctrine. These developments in the American tort law regime are incapable of dealing effectively with mass tort situations. This is due, in part, to the lack of development of a unifying federal standard to address such situations.103 In addition, there are certain diffculties in proving certain requirements in mass tort situations. For example, while claiming a negligence standard in mass tort cases, a plaintiff may fnd it diffcult to prove unreasonable conduct of the defendant. Generally, the risks resulting from exposure to hazardous substances are often not known prior to the accident.104

99 Jane L. Wipf, ‘In Search of Liability for Hazardous Waste Dumping’, (1984) 29 (3) South Dakota Law 483. 100 364 So 2d 604 (La Ct. App. 1978). 101 Judy A. Johnson, ‘Is there still a Role for Common Law’ [1983] 18 [3] Tulsa Law Journal 462. 102 Jane L. Wipf, ‘In Search of Liability for Hazardous Waste Dumping’, (1984) 29 (3) South Dakota Law 486-88. 103 Ratna Kapur, ‘From Human Tragedy to Human Right: The Accountability of Multinational Corporations for Human Rights Violations’ [1990] 10 [1] Boston College Third World Law Journal 9. 104 Ibid 10.

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The advantage in applying the principle of strict liability is that it relieves the plaintiff of the burden of proving that the defendant’s activity was negligent. On these grounds, when the activity is abnormally dangerous and causes injury to the plaintiff/public, the defendant will be liable even if his conduct was reasonable. But even in such situations, the principle of strict liability has not been uniformly applied by states. Furthermore, the plaintiff, in cases of strict liability should convince the court that the toxic injury arose from an ultra-hazardous or abnormally dangerous activity. Before delivering the verdict, the courts, as we have seen, have to balance a number of factors in determining this issue. Added to these diffculties, the practice of courts in applying these standards is not consistent. This trend in both the American and the Indian legal systems reveals the inability to deal adequately with the complexities involved in mass tort situations and to effectively compensate victims for the violations of the rights involved.105 The risks produced by the operations of MNCs involve central or mass production, broad distribution and temporarily removes harm and are often outside the individual risk bearer’s direct understanding and control. The effectiveness of tort law consequently diminishes, and it ceases to offer effective deterrence, fair compensation or a mechanism for resolving disputes.106 Despite these inadequacies, developments in the area of tort law have begun through legislative changes. In the US, tort law has instituted procedural innovations, such as class actions, joinder of parties, and the formation of trust funds in settlements to deal with some of the remedial obstacles posed by mass disaster situations.107

Developments in the area of products liability law In the US, workers who are not warned by manufacturers about the dangers of a workplace and of the product marketed by them can sue their manufactures under product liability law. Section 402A to the Restatement (second) of Torts imposes strict liability on anyone who: sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property … The rule … applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from, or entered into any contractual relations with the seller.108

105 106 107 108

Ibid 12. Ibid. Ibid. Section 402A was added. See Restatement (second) of Torts (1965).

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Under this Section, a plaintiff need not prove the existence of a manufacturer’s warranty or negligence. As a result, the plaintiff’s burden of proof is relatively simple. In situations of this kind the plaintiff, according to Dean Prosser, must prove three things: The frst is that he has been injured by the product … The second is that the injury occurred because the product was defective, unreasonably safe … The third is that the defect existed when the product left the hands of the particular defendant. Even here, there are three diffculties (1) many diffculties arise in attempting to prove that a product is defective,109 (2) the plaintiff must show that the product caused his/her disease, and must exclude the possibility of intervening or multiple causes and (3) the defect must have been foreseeable before the manufacturer can be held liable.110 In Borel v Fibreboard Paper Products Corpn.,111 Chief Judge Fischer of the Eastern District of Texas entered judgment following a jury verdict that asbestos manufacturers had breached their duty to the plaintiff Borel by failing to warn him about the dangers of asbestos. On appeal,112 the Fifth Circuit affrmed the District Court’s fndings that asbestos was unreasonably dangerous, that manufacturers of asbestos insulation were aware of the dangers of asbestos in the 1930s and 1940s when the plaintiff was frst exposed, and that they had failed to give any if warnings until 1964 and 1965. These fndings supported the court’s decision to apply the Texas Law on strict product liability, which follows Section 402A of the restatement. The courts in the United States followed this decision in a series of cases. The next question is, can foreign workers and foreign nationals injured by hazardous products bring an action in American court on the grounds that the products are of American origin? For extraterritorial adjudication of this kind, the plaintiffs must fulfll three conditions: (1) They must establish that federal courts have the competence to hear their cases.113

109 ‘Products liability and the problem of proof’ [1969] 21 Stanford Law Review 1777. 110 Troyen A. Brennan and Laurence J. Lucas, ‘A Legal Strategy for Controlling the Export of Hazardous Industries to Developing Countries: The Case of Asbestos’ (1983) 9 (2) The Yale Journal of World Public Order 292. 111 Borel v Fibreboard Paper Products Corp (1972), 493 F. 2d 1076, 1086 (5 cir. 1973), cirt denied, 419 US 869 (1974). 112 493 F. 2d 1076 (5th cir 1973). 113 Section 1332 of Title 28 of the US Code grants original jurisdiction to district courts where the matter in controversy is greater than $ 10,000 and is between “(2) citizens of a state and citizens or subjects of a foreign state (28 USC. Section 1332 (a) (2) (1976).

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(2) The substantive environmental law being applied to cases of this kind must be strong enough to establish liability. (3) Courts must be able to enforce the judgment against the manufacturer/ polluter.114 After establishing that the US court has the competence to hear their claims, foreign plaintiffs then must overcome the doctrine of forum nonconveniens,115 which the Supreme Court of United States announced in Gulf Oil Corpn. v Gilbert116 and elaborated in Piper Aircraft Co. v Reyno.117 This doctrine holds that even when it has jurisdiction over the subject matter and the venue is appropriate, a federal court is empowered to dismiss a suit if the plaintiff’s choice of forum is unreasonably inconvenient for the defendant or if trial in the selected forum would administratively encumber the court.118 With all these obstacles, it can be said that US courts have broad jurisdictional powers that empower them to hear claims concerning environmentally harmful activities that occur in the territory of other states. Due to this advantage, many foreign plaintiffs have brought legal action against American Corporations in the US for activities and harms that have occurred abroad. For instance, in White v Pepsi Co.,119 Pepsi was sued in the US for injuries caused by a bottle that exploded in Jamaica. Similarly, in Dow Chemical v Alfaro120 farmworkers fled a suit in the District Court in Harris court, Texas, in 1984 against Dow and Shell for personal injuries, including 114 ‘Developments in the Law—International Environmental Law’ [1991] 104 [7] Harvard Law Review 1618. 115 Forum non-conveniens is a judicial doctrine that allows a trial judge to dismiss a case, even though parties have met jurisdictional and venue requirements, when trial in another forum is more convenient and just. Gulf Oil Corp. v Gilbert 330 US 501, 507 (1947); “The principle of forum non-conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.” See, Helmy Ismail, ‘Forum Non-Conveniens, United States Multinational Corporations and Personal Injuries in the Third World: Your Place or Mine?’ [1991] 11 [2] Boston College Third World Law Journal 249. 116 330 US 501, 507 (1947). 117 454 US 235 (1981), 455 US 928 (1982). 118 Troyen A. Brennan and Laurence J. Lucas, ‘A Legal Strategy for Controlling the Export of Hazardous Industries to Developing Countries: The Case of Asbestors’ (1983) 9 (2) The Yale Journal of World Public Order 295. 119 White v Pepsi Co. 866 F. 2d 1325 (11 cir. 1989). 120 Dow Chemical v Castro Alfaro 786 S.W. 2d 674 (Tex 1990). This case involves a group of Costa Rican banana plantation workers who allegedly suffered serious personal injuries as a result of exposure to a liquid pesticide, dibromochloropropane (DBCP). The farmworkers worked for Standard Fruit Company and American subsidiary of Dole Fresh Fruit Company. Dow Chemical Company (DOW) and Shell Oil Company (Shell), manufactured DBCP and supplied it to standard Fruit. The EPA banned DBCP in the US in 1977. Before and after the EPA’s ban of DBCP in the US, Shell and Dow apparently shipped several hundred thousand gallons of the pesticide to Costa Rica for use by Standard Fruit.

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sterility. Their cause of action, although it was dismissed by the Harris county court for forum non conveniens, was found sustainable by the Court of Appeals.121 Later, a bitterly divided Texas Supreme Court affrmed the decision of the Court of Appeals.122 In this case, the farmworkers were permitted to bring this action for injuries caused by a pesticide manufactured in the US and exported to Costa Rica.123 Many environmentalists believe that suits of this sort will reduce US corporations’ willingness to export environmentally hazardous pesticides.124 In addition to the above, the US courts may also exercise personal jurisdiction over foreign corporations, if such corporations maintain “continuous and systematic” business contacts within the US. In cases of this kind, courts can exercise jurisdiction over these entities and hear claims for damages brought against them. Where the foreign corporation does not retain suffcient contacts, US courts can exercise jurisdiction over such corporations on grounds of minimum contacts with the US. This is based on the transactional notion of jurisdiction, a principle developed in International Shoe Co. v Washington.125 Under the transactional notion of jurisdiction, American courts can exercise jurisdiction over foreign defendants for a particular claim if it was reasonably foreseeable that the activity giving rise to that claim might cause harm within the US.126 For success with this approach, all judgments rendered are effectively enforced. If this is not done the effectiveness of extraterritorial adjudication is meaningless.

Non-law remedies A non-law remedy is the availability of insurance coverage for injury and damages occurring as a result of hazardous substance exposure. Generally, this coverage falls into two categories—direct and indirect coverage. Direct coverage refers to the situation in which the injured or damaged party is the named insured benefciary of some insurance policy. This policy, in most cases, is a private insurance provided by the injured party himself, his family or his employer, or may be public insurance such as Social Security Disability or Medicare or Medicaid coverage. A person insured in this way

121 122 123 124

Castro Alfaro v Dow Chem. Co., 751 S.W. 2d. 208 (Tex. Ct. 1988). Castro Alfaro v Dow Chem. Co., 786 S.W. 2d 674 (1990). Ibid. ‘Developments in the law–International environmental law’ [1991] 104 [7] Harvard Law Review 1618. 125 International Shoe Co. v Washington 326 US 310 (1945). 126 See ‘Developments in the law–International environmental law’ [1991] 104 [7] Harvard Law Review 1619.

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may be compensated for personal injuries suffered as a result of exposure to hazardous substances up to the limits of the policy’s coverage. Under indirect insurance, the party causing the injury is insured and the person suffering the injury obtains some right or agreement to compensation from the insured party, by which compensation is then paid by the insurer.127

The general principles of liability under international law for damages caused by hazardous substances It is a well-established principle of international law that a state has the sovereign right to exercise its basic functions.128 However, the exercise of this right is subject to certain limitations. One limitation is that a state cannot allow certain activities to interfere with the sovereignty of other states. A state will be found liable under international law if the consequences of activities within its control seriously injure persons or property of other states. According to this principle, a state is answerable even for acts of a private person who is under that state’s control.129 Under the prevailing practice, the principle of state responsibility has been applied to injuries arising out of hazardous activities that are within a state’s control because the risk of consequences posed by such hazardous activities is serious, regardless of their legality within the individual state.130 The element of fault is generally regarded as an essential ingredient before determining state liability. To determine whether a state is at fault for the injuries incurred from hazardous activity, the state’s duty must be defned. A state will be held responsible to a standard of care in order to ensure that any hazardous activity conducted within its control will not infringe upon 127 J. David Prince, ‘Compensation for Victims of Hazardous Substance Exposure’ (1985) 11 (3) William Mitchell Law Review 719–20. 128 Under the Doctrine of Basic Rights and Duties of States, the basic rights are: (1) the power exclusively to control its own domestic affairs; (2) the power to admit and expel aliens; (3) the privileges of its diplomatic envoys in other countries; (4) the sole jurisdiction over crimes committed within its territory. The correlative duties are: (1) the duty not to perform acts of sovereignty on the territory of another state; (2) the duty to abstain and prevent agents and subjects from committing acts, constituting a violation of another state’s independence or territorial supremacy; (iii) the duty not to intervene in the affairs of another state. See the Draft Declaration on the Rights and Duties of States Drawn up by the International Law—Commission of the United Nations in 1949. 129 Handl, G., ‘State Liability for Accidental Transnational Environmental Damage by Private Persons’ [1980] 74 American Journal of International Law 525–27. See also Handl, G., ‘Territorial Sovereignty and the Problem of Transnational Pollution’ [1975] 69 [1] American Journal of International Law 50–55. 130 See Gabriel M. Benrubi, ‘State Responsibility and Hazardous Products Exports: A Solution to an International Problem’ [1983] 13 [1] California Western International Law Journal 135–38.

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other states. Failure to conform to this standard of care amounts to a breach of an international obligation.131 The emergence of this sense of international responsibility for human health and the environment is a natural outgrowth of the principle established in two leading cases, the Trail Smelter Arbitration Case132 and the Corfu Channel.133 In the Trail Smelter Arbitration Case,134 emission of sulfur dioxide fumes from the private consolidated mining and smelting company of Canada limited, in British Columbia, on the Columbia River about 11 miles from the industrial boundary caused harm to timber, crops and fsheries in the state of Washington.135 The International Tribunal, while making Canada liable for the acts of its subjects, declared: Under the principles of international law, as well as the law of [the] United States, no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another state or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.136 In the Corfu Channel Case (UK v Albania),137 the ICJ endorsed the principle that “sovereignty itself embodies the obligation of every state not to allow its territory to be used for acts contrary to the rights of other states.”138 131 Ibid 135. 132 United States v Canada, reprinted in (1939) 33 American Journal of International Law182; [1941] 55 American Journal of International Law 684; Read, ‘The Trail Smelter dispute’ [1963] Canadian Year Book of International Law 213. 133 U.K. Albania (ICJ Reports 1949) 18. 134 The dispute went on for a period of thirteen years from 1928 to 1941. 135 Canada admitted liability and the United States and Canada established an arbitral tribunal to settle the question of damages, authorizing it “to apply the principles of both international law and of the jurisprudence developed by the United States courts in disputes between states of the union.” The award was pronounced in 1941. 136 U.K. Albania (ICJ Reports 1949) 18. Opinion expressed by three jurists. See Sanford E. Gaines, ‘Taking Responsibility for Transboundary Environmental Effects’ [1991] 14 [4] Hastings International and Comparative Law Review 781-809. 137 ICJ Reports 1949, pp. 4–22. As four British warships passed within Albanian territorial waters on their way through the North Corfu Channel, two of them were badly damaged after striking mines. Three weeks later the British swept the channel and cleared it of some 20 mines. The ICJ held that “states in time of peace have a right to send their warships through straits used for navigation between two parts of the high seas without the previous authorization of a coastal state provided that the passage is innocent.” (ICJ Reports, 1949, p. 28). Although the minesweeping operation was not “innocent” and violated Albania's sovereignty, the earlier passages by the British warships were legal. (ICJ Reports, pp. 29–30). Due to Albania's knowledge of the presence of the mines, the court held Albania responsible for the deadly consequences of their presence (ICJ Reports, p 37-39). 138 ICJ Reports, 1949, p. 22. Also Brent Carson, ‘Increased Risk of Disease from Hazardous Waste: A Proposal for Judicial Relief’ [1985] 60 Washington Law Review 546.49.

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Similarly, in the Lake Lanoux Arbitration139 (Spain v France), the tribunal held that a state has an obligation not to use its rights to the extent of ignoring the rights of others.140 These three cases stand for the proposition that a state may not use its resources or property or permit the use of its territory in such a manner as to injure another state. A commentator has suggested that the logical extension of this norm would be to include potentially dangerous exports into the class of such activity that can cause injuries abroad.141 Schulberg’s argument proceeds on the proposition that if a state can be held responsible for “emissions” from its factories that cause harm to another state, then a state which allows “exports” from factories that also cause harm to another state should also be held liable. In addition, the learned author suggests that the result of such a holding could be the establishment of a standard imposing a responsibility on producer nations to provide recipient nations with warnings that it is foreseeable that the products they are about to export could cause serious environmental harm.142 The approach fnds enough support in traditional international law as well. Under traditional law, the power of a state to control exporting activity is essentially based on the principle of territoriality. On the basis of this principle, a state may exercise its authority over any activities within its jurisdiction143 including control over its exports. In the case of a multinational corporation, if it conducts exporting activity, the act of such corporation can be imputed to the state144 on the ground that a multinational corporation is deemed a citizen of the incorporating state.145 The above analysis leads us to the conclusion that when a state arbitrarily

139 Lake Lanoux Arbitration (France v Spain) (1959) 53 American Journal of International Law 156. See also (1957) 12 International Arbitration Awards 281. 140 In this case, France in order to generate hydroelectric power proposed to divert water from the Carol River which ran from France to Spain. Spain objected by stating that such a project violated treaties between the two countries and customary law. The tribunal seemed to accept the principle that an upstream state acts unlawfully if it changes the condition of a river to the serious injury of a downstream state. However, the Tribunal ultimately held that France's efforts to make full restitution to the river were suffcient not to contravene any rule of international law. See (1959) 53 AJIL 170. The case points out limitations on sovereignty by emphasizing that states, in a world with an interdependent environment, must be aware of and take into account the interests of other sovereigns. 141 Schulberg, ‘United States Export of Products Banned for Domestic Use’ (1978) 20 Harvard International Law Journal 331. 142 The argument of Schulberg is endorsed by Patrick B. Seferovich. See Patrick B. Seferovich, ‘United States Export of Banned Products: Legal and Moral Implications’ [1981] 10 [3] Denver Journal of International Law and Policy 549–50. 143 Jurisdiction means internal sovereignty, exclusive control over all persons and things within its territory, [1965] 5 Whiteman Digest of International Law 216. 144 In addition to making them liable. 145 Barcelona Traction Light and Power Co. (Belgium v Spain) ICJ Reports (1970) 3.

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dumps dangerous products/substances or wastes on another and causes injury therein, liability would ensue unless full disclosure was made.146 The recognition of the sic utere tuo ut alienum non laedas maxim under international treaties/declarations etc. International treaties, conventions and declarations signed by members of the international community in the area of the environment147 do recognize the sic utere tuo ut alienum non laedas maxim in emphatic terms. The following pages will examine the expression of this principle under various treaties. The Nuclear Damage Conventions Article III of the 1963 Supplement to the Paris Convention on the Liability of Operators of Nuclear Ships148 and the 1963 Vienna Convention on Civil Liability for Nuclear Damage149 explicitly provide for indemnifcation by the controlling state if the private operator is unable to compensate the victim. Even the 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy150 and the 1962 Brussels Convention on the Liability of Operators of Nuclear Ships151 have similar provision for compensation.

146 Without giving proper disclosure or receiving informed consent from the importing country. The argument of Schulberg is endorsed by Patrick B. Seferovich. See Patrick B. Seferovich, ‘United States Export of Banned Products: Legal and Moral Implications’ [1981] 10 [3] Denver Journal of International Law and Policy 550. 147 In the 17 years that have passed since the Stockholm Conference, about 300 multilateral agreements and about 900 bilateral treaties and similar agreements have been concluded on the environment. In addition, approximately 200 other important instruments have been concluded since 1972. See, Viet Koester, ‘From Stockholm to Brundtland’ [1990] 20 [1] and [2] Environmental Policy and the Law 15. 148 Convention Supplementary to The Paris Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy, signed on 31 January 1963; [1963] 21 International Legal Materials 685–87. 149 Vienna Convention on Civil Liability for Nuclear Damage opened for signature on 21 May 1963 International Legal Materials 727–737. The convention holds the operator of a nuclear installation liable upon proof of causation that the damage complained of is the result of a nuclear accident (Article II) and specifes that this liability “shall be absolute” (Art IV). The treaty also sets forth, in article VI, “statute of limitations” of ten years on the “right of compensation, and in Article V, limits the liability of a nuclear installation operator to fve million dollars for any one accident. Question of jurisdiction is covered under Article XII and it is vested “only with courts of the contracting party within whose territory the nuclear accident occurred.” 150 The Convention on Third Party Liability in the Field of Nuclear Energy, 29 July 1960. This treaty holds operators liable for damage “caused by a nuclear accident” (art 3) and creates a compensation regime comparable to that of the Vienna Convention on civil liability for nuclear damage, 1963, although it does not use the word “absolute” (Articles 8, 9, 10 and 11). 151 The 1962 Brussels Convention on the Liability of Operators of Nuclear Ships of 25 May 1962. Compensation under the Treaty can be claimed by a victim upon proof of causation

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The 1971 Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material152 in its preamble declares that, “the operator of a nuclear installation will be exclusively liable for damage caused by a nuclear incident occurring in the course of maritime carriage of nuclear material.” The Maritime Pollution Conventions The International Convention on Civil Liability for Oil Pollution Damages, 1969,153 holds the owner of the ship involved in a spill “liable for any pollution damage caused by oil which has escaped or been discharged from the ship.” The convention establishes a maximum amount of liability for the owner,154 unless the accident was the result of actual fault of the owner. The convention recognized and endorsed the principle of strict liability rather than the fault-based nature of the obligation. Moreover, the convention requires owners of ships to take suffcient insurance so as to cover their liability under the convention.155 It vests jurisdiction for actions based on its violation in the courts of the contracting states156 and includes a waiver of sovereign immunity for ships owned or operated by a state.157 Two other treaties pertaining to our study are the Convention on International Liability for Damage Caused by Space Objects, 1972158 and the North Sea Convention on Exploration and Exploitation of 1977.159 Of the two, the Space Objects Convention takes the seemingly uncompromising position that, “a launching state shall be absolutely liable to pay compensation for damage” caused by its space object on the surface of the earth or to aircraft in fight.160 Article X of the Convention establishes a oneyear limitation on claims for damages. These treaties support our proposition that upon exporting hazardous products in violation of a multilateral

152 153 154 155 156 157 158 159

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with respect to damage incurred (art II). The treaty states clearly that the operator “shall be absolutely liable” when proof of causation is proved against him. Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material (17 December 1971). The International Convention on Civil Liability for Oil Pollution Damage (29 November 1969). Treaty 1969, Article V. Treaty 1969, Article VII. Convention 1969, Article IX. Convention 1969, Article XI. Convention on International Liability for Damage Caused by Space Objects (29 March 1972, entered into force on 9 October 1973). This convention is known as the Convention on Civil Liability for Oil Pollution Damage Resulting from Exploration for and Exploitation of Seabed Mineral Resources of 1 May 1977, 16 International Legal Materials, 1450. 1972 Convention, Article II.

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convention, the exporting state should be made liable for the injuries incurred by the victims of such products. Development of the sic utere tuo ut alienum non laedas: from Stockholm to Rio The United Nations Conference on the Human Environment recommended that “governments use the best practicable means available to minimize the release to the environment of toxic dangerous substances” and in doing so “take into account the relevant standards proposed…”.161 The Stockholm Declaration, 1972162 broadly refects the Trail Smelter principles. The declaration, containing a preamble163 and 26 general principles, “inspire[s] and guide[s] the peoples of the world in the preservation and enhancement of the human environment.” Principle 6 of the Declaration states that: States have a duty to notify other states when the planned utilization of resources signifcantly affect the territory or environment of other states. Under this principle, the exporting state is duty-bound to notify the recipient of such hazardous substances or products regarding the inherent characteristics and their hazardous potential. Principle 21 of the Declaration provides that: States have … the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction.164 Under the prevailing rules of international law, no one state can claim an absolute right to ruin its environment in order to obtain some transient benefts. It should think not only of the effect on other peoples but also about the future of its own people. Prof. Sohn while commenting on the

161 Declaration of the UN Conference on the Human Environment (Rec 71, UN. Doc A/Conf 48/14 (1972). 162 The Stockholm Declaration of the United Nations Conference on the Human Environment was adopted on 16 June 1972. See Chapter III. The Declaration consists a preamble and 26 principles, Report of the United Nations Conference on the Human Environment, Stockholm, 5-16 June 1972, UNDOC A/CONF 48/14, Rev/Annex III (1973). 163 It declares that, “Man is both creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral and spiritual growth,” [1972] 11 International Legal Materials 1416. 164 [1972] 11 International Legal Materials 1420.

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Stockholm Declaration stated that, “although the Stockholm Declaration is not a binding legal instrument, nonetheless its 26 principles may be considered as ‘common convictions’ which reinforce the principles and purposes of the Charter of the United Nations.”165 The norms laid down by the declaration have been incorporated into national laws and subsequent treaties and truly assign it the status of customary rules of international law. In the discussions within the General Assembly’s Second Committee on Principle 21 of the Stockholm Declaration, the Mexican Delegate166 stated unambiguously that it was the responsibility of all states to avoid activities within their jurisdiction or control which might cause damage to the environment beyond their national frontiers and to repair any damage caused.167 The principle has received considerable support from states and has guided state practice. For example, Principle 21 was expressly recommended by a UN General Assembly Resolution168 as laying down the basic rule governing the international responsibility of states in regard to the environment. The principle is acknowledged forcefully in Article 30 of the Charter of Economic Rights and Duties of States169 and even in Article 194(2) of the 1982 UN Convention on the Law of the Sea, which declares: States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other states and their environment and that pollution arising from incidents or activities under their jurisdiction or control do not spread beyond the area where they exercise sovereign rights in accordance with this convention.170

165 B. Sohn, ‘The Stockholm Declaration on the Human Environment’ [1973] 14 Harvard International Law Journal 423. 166 The Mexican delegate while quoting the statement made by the Minister of Foreign Affairs of Mexico. 167 Statement by Gonzales Martinez, UN Doc A/C.2/SR. 1470, p 7 (1972). Also Gunther Handl, ‘The Case for Mexican Liability for Transnational Pollution Damage Resulting from Ixtoci Oil Spill’ [1979] 2 Houston Journal of International Law 231. 168 International Responsibility of States in Regard to the Environment, G.A. Res. 2996, 30 UN GAOR Supp pp 42–43, UN Doc. A/8901 (1972). 169 Charter of Economic Rights and Duties of States (UN. DOC A/RES/3281, 1974) 50; (1975) 14 International Legal Materials 251. 170 The United Nations Convention on the Law of the Sea opened for signature (December 1982, UN. DOC. A/CONF. 62/122 (1982), reprinted in [1982] 21 International Legal Materials 1261–1308.

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The implications of Principle 21 are further drawn in the “World Charter for Nature.”171 The charter’s general principles recite that: Nature shall be respected and its essential processes shall not be impaired” (Paragraph 1) and that “ecosystems and organisms, as well as the land-resources that are utilized by man, shall be managed to achieve and maintain optimum sustainable productivity, but not in such a way as to endanger the integrity of those other ecosystems of species with which they coexist.172 Paragraph 21(d) of the Charter expressly echoes the sic utere maxim: States … shall ensure that activities within their jurisdiction or control do not cause damage to the national systems located within other states or in areas beyond the limits of national jurisdiction.173 As Mexico’s delegate observed, “the Charter in paragraph 21(d) applies the ‘sic utere’ maxim to individuals, groups and corporations such as forestry enterprises or hydro-electric enterprises.”174 Invoking this principle the European Council of Environmental Law has noted: The charter is certainly intended to contribute to the creation of binding international law rules concerning the conservation of nature. Systematically applied, the rules it sets out are capable of being transformed into rules of customary international law, like principle 21 of the Stockholm Declaration enjoining, environmental harm beyond the national boundary.175

171 The World Charter for Nature was adopted on 29 October 1982 by the United Nations General Assembly with 111 votes in favor and one against (that of the United States) (Resolution A/RES/37/7; UN GAOR Supp (No. 51) 17, UNDOC A/51, 1982). 172 Para IV. 173 G.A. Res. 7, 36 DOC A/51 (1982). UN GAOR Supp. (No. 51), p 17UN. Doc A/51 (1982). 174 See Nicholas A. Robinson, ‘Marshalling Environmental Law to Resolve the HimalayaGanges Problem’, [1991] 13 Delhi Law Review 4; The World Charter for Nature is different from other recommendations in several ways. Firstly, it was not only adopted but solemnly proclaimed. Secondly, it contains principles of a very broad nature. Furthermore, it is aimed at everyone, and fnally as was already the case with the Stockholm Declaration to some extent it employs the form “shall” instead of “should” which is otherwise the normal practice in recommendations etc. 175 Ibid, Viet Koester while commenting on the World Charter for Nature observed, “The World Charter for Nature is of a special nature on par with the World Declaration on Human Rights, 1948, the UN Declaration of 1970 on Principles of Public International Law concerning Friendly Relations and Cooperation Between States in accordance with the UN Charter and the UN Charter of 1974 on the Economic Rights and obligations of

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Further, the Draft of the European Council on Environmental Law in Resolution 21.7 observed176 a commercial undertaking delivered to another country is bound not to deliver substances that carry the risk of causing damage to the natural systems in the country and not to discharge polluting matter on the high seas. The World Commission on Environment and Development177 (WCED) in its report178 reiterates this primary obligation on states in Article 10, to prevent or avoid interference in the environmental integrity of other states or the global commons.179 Article 11 states, States may carry out or permit certain dangerous but benefcial activities provided they take all precautionary measures to limit the risk and ensure that compensation provided is substantial to transboundary harm occurred and provided that states shall ensure that compensation is provided for substantial transboundary harm resulting from activities which were not known to be harmful at the time they were undertaken. It extends the fundamental doctrine sic utere tuo ut alienum non laedes beyond physical harm to signifcant risks of substantial harm.180 In other words, the provision of Article 11 applies to cases in which a party engages in good faith in an activity which at the time appears to be lawful, but which unexpectedly turns out to have unlawful consequences.181 These rules are, to a large extent, based on the Stockholm Declaration as well as on the World Charter for Nature.182 The Vienna Convention for the

176 177

178

179

180

181 182

States”; See Viet Koester, ‘From Stockholm to Brundtland’ [1990] 20 [1] and [2] Environmental Policy and the Law 15. Ibid. Popularly known as the Brundtland Report. The WECD is an independent body, established in 1983, that is linked to, but outside the control of, governments and the UN system published its report in 1987. The Brundtland Report formally titled, ‘Principles for Environmental Protection and Sustainable Development’. An annex to the report comprises 22 articles, with explanatory commentary accompanying each article. The Report was submitted to the General Assembly of the United Nations in 1988. Article 10 provides, “States shall, without prejudice to the principles laid down in Articles 11 and 12 prevent or abate any transboundary environmental interference or signifcant risk thereof which causes substantial harm i.e. harm which is not minor or insignifcant.” Opinion expressed by Sanford E. Gaines, ‘Taking Responsibility for Transboundary Environmental Effects’ [1991] 14 [4] Hastings International and Comparative Law Review 795. Ibid 801. Viet Koester, ‘From Stockholm to Brundtland’ [1990] 20 [1] and [2] Environmental Policy and the Law 16–17.

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Protection of the Ozone Layer183 and the Montreal Protocol on Substances that Deplete the Ozone Layer184 also imposed obligations on signatories to exchange research, cooperate in the formulation of standards, and adopt domestic legal or administrative measures to protect human health and the environment from ozone-depleting chemicals.185 The Montreal Protocol established specifc obligations to limit and reduce the use of chlorofuorocarbons.186 Another major convention adopted soon after the Chernobyl disaster was a convention on Early Notifcation of Nuclear Accident by the International Atomic Energy Agency187 (IAEA). This convention called upon states to give timely warning of accidents or operational diffculties in nuclear facilities that threaten transboundary environmental damage.188 The sic utere tuo ut alienum non laedas maxim has been recognized in the Rio Declaration189 on Environment Protection. Principle 2 of the 1992 Declaration provides: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or areas beyond the limits of national jurisdiction. 183 Vienna Convention for the Protection of the Ozone Layer (22 March 1985); (1987) 26 International Legal Materials 1516. 184 Montreal Protocol on Substances that Deplete the Ozone (Final Act, 16 September 1987); (1987) 26 International Legal, Materials 1541; The protocol has entered into force (1 January 1989) originally binding 46 signatory nations to limits on the production and consumption of chemicals believed to be destroying the protective layer of ozone that encircles the Earth. 185 Pamela Wexler, ‘Protecting the Global Atmosphere: Beyond the Montreal Protocol’ [1990] 14 [1] Maryland Journal of International Law and Trade 6–7. 186 Margot B. Peters, ‘An International Approach to the Greenhouse Effect: The Problem of Increased Atmospheric Carbon dioxide can be Approached by an Innovative International Agreement’ [1989] 20 [1] California Western International Law Journal 81–87. 187 Convention on Early Notifcation of a Nuclear Accident, 1986; [1986] 25 International Legal Materials 137. 188 After the Chernobyl nuclear disaster in 1984, the Soviet Government was strongly criticized by other governments for its failure to give timely notice of the accident and the trans-border injuries likely to occur. 189 The Earth Summit, a $15 million conference, was held at Rio de Janerio from 3 to 15 June 1992. The conference had produced two conventions. One on Climate Change which aimed to protect the atmosphere from global warming and the other on Biological Diversity, whose main aim was to protect disappearing species of animals, plants and even microbes. More than 150 countries signed the two conventions. At the end of the conference the Rio Declaration on Environment and Development a lofty statement of 27 principles aimed at protecting the planet earth were adopted.

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Principle 14 of the Declaration declares that states should effectively cooperate to discourage or prevent the relocation and transfer to other states of any activities and substances that cause severe environmental degradation or are found to be harmful to human health.190 On the basis of this, it can be said that the force with which the sic utere principle was repeatedly asserted shows that it has attained the status of customary international law. State practice supports such a rule. State practice In the United States, the Carriage of Goods by Sea Act191 has some relevance to the transport of dangerous articles in vessels. Any goods of a dangerous character which have been shipped at sea without due notice, to and consent of, the carrier, master or agent of the carrier may at any time before discharge be landed at any place or destroyed or rendered innocuous by the carrier without compensation. 192The shipper is liable for damages and expenses arising or resulting from such shipment when due notice or consent were not given or secured. If, however, such dangerous goods are shipped with notice or consent, such destruction or rendering innocuous without liability is permissible when the articles “become a danger to the ship or cargo.193 We have seen in the Lake Lanoux Arbitration case194 that a riparian state is under a positive duty not to interfere with the fow of, or to pollute, a river to the detriment of other riparian states. The sic utere principle equally applies to the air space above state territory; a state must exercise reasonable control over its own activities and those persons subject to its jurisdiction, so that the air over neighboring states is not polluted by material drifting across the frontiers. The use of pesticides in dust form, applied from an aircraft, may give rise to problems of international pollution in frontier areas.195

190 Representatives of 178 nations participated in the conference. More than 115 heads of states or governments expressed their views. See T. R. Subramanya, ‘the Earth Summit: An Overview’ [1992] 34 [45] Link 4–6. 191 46 US Code s 1300(1964). 192 Ibid, s 1304 (a) (b) (1964). 193 Douglass Rohrman, ‘The Law of Pesticides: Present and Future’ [1968] 17 Journal of Public Law 391. 194 France v Spain (1959) 53 American Journal of International Law 156. 195 G. M. White, ‘Some Aspects of the International Control of Pesticides’ (1964) Report of the Conference on Chemical Science 118.

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The Supreme Court of the United States, in State of Georgia v Tennessee Copper Co.196 recognized this principle. The Supreme Court asserted that, a state (within a federation) has a right to insist that its territory and inhabitants be not harmed by polluted air from activities in another state. It may seek an injunction to stop such activities or to control them so as to diminish the probability of damage.197 A case of a different kind was Ohio v Wyandotte Chemicals Corpn.198 Wherein the state of Ohio brought a claim against a Canadian subsidiary of Dow Chemicals that was dumping mercury into the Canadian streams that fed directly into Lake Erie. The plaintiff argued that the defendant had suffcient connection with the forum because it knew that pollution would harm the territorial waters of the US.199 In what is known as the Cosmos 954 Case, Canada claimed compensation in excess of six million USD from the Soviet Union in the form of damage for the intrusion into Canadian airspace of a Soviet space object, the Cosmos 954 satellite, and the deposition on Canadian territory of hazardous radioactive debris from the satellite.200 Canada stated that its claim was based “jointly and separately on (a) the relevant international agreements and in particular, the 1972 Convention on International Liability for Damage Caused by Space Objects, to which both Canada and USSR are parties and (b) general principles of international law.”201 In addition, Canada also relied on Article VII of the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies202 to which both Canada and USSR were parties.203 Canada also asserted that: 196 206 US 230. 197 The principle laid down in Trail Smelter was recognized. In Trail Smelter Canada assumed liability for the discharge of noxious gases over American territory. Canada agreed to pay the United States $ 350,000 for the damage caused before 1 January 1932. 198 401 US, page 493 (1971). 199 ‘Developments in the Law—International Environment Law’ [1991] 104 [7] Harvard Law Review 1620. 200 [1979] 18 International Legal Materials 899–902. 201 Ibid. [1972] 18 International Legal Materials 905. Article II of this treaty provides: (a) the launching state shall be absolutely liable to pay compensation for damage caused by its space objects on the surface of the earth or to aircraft in fight. 202 Treaty on principles governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature on 27 January 1967. 203 Article VII of the 1967 Space Treaty provides: “Each state party to the Treaty that launches or procures the launching of an object into outer space is internationally liable for damage to another state party to the Treaty or to its natural or juridical persons by such object or its component parts on the earth, in air space or in outer space”.

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The principle of absolute liability applies to felds of activities having in common a high degree of risk. It is repeated in numerous international agreements and is one of “the general principles of law recognized by civilized nations.204 Accordingly, this principle has been accepted as a general principle of international law.205 In the Fukuryu Maru incident the United States conducted a test of a hydrogen bomb on Eniwetok atoll in the Marshall Islands in 1954. Some Japanese fshermen, who were on the high seas, were injured due to this incident. Added to this, the fshing resource customarily exploited by Japan was contaminated by radioactive fallout. The Government of the United States expressed its concern and regret and paid $2 million in damages “on the understanding that the sum would be distributed equitably at the discretion of the Japanese government.”206 Similarly, Israel paid the United States some $7 million compensation for its attack on the intelligence ship the USS Liberty. The Israelis also paid Libya ex gratia compensation for the downing of a Libyan passenger plane in 1973.207 Another case involving Japan arose when Liberian tanker Juliana ran aground and split apart off Niigata on Japan’s west coast. The oil which spilled damaged local fsheries. The Liberian Government offered 200 million yen in compensation, which the Japanese Government accepted.208 At the regional level, the Court of Justice of the European Community in Bier v Mines de Potasse d’Alsace209 1976, decided that within the European

204 Article 38 of the statute of ICJ provides: “The court whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations, (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualifed publicists of the various nations, as subsidiary means for the determination of rules of law. (2) This provision shall not prejudice the power of the court to decide a case exaequo et bono, if the parties agree thereto”. 205 (1979) 18 International Legal Materials 9071 and Constance O'Keefe, ‘Transboundary Pollution and Strict Liability Issue: The Work of the International Law Commission on the Topic of International Liability for Injurious consequences Arising out of Acts Not Prohibited by International Law’ (1990) 18 (2) Denver Journal of International Law and Policy 176-77. 206 Ibid 179. 207 Maier, ‘Ex-Gratia Payments and the Iranian Airline Tragedy in Agora: The Downing of Iran Air Flight’, [1989] 83 American Journal of International Law 28-29. 208 Gunther Handl, ‘State Liability for Accidental Transnational Environmental Damage by Private Persons’ [1980] 74 American Journal of International Law 525–47. Also Constance O'Keefe (n 1486) 178. 209 Bier v Mines de Potasse d’Alsace 1976, European Community Court of Justice Report 1735.

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community the victims of transfrontier pollution may sue either in their own national courts or in the tribunals of the polluter states. Indeed, the 1987 Restatement (Third) of the Foreign Relations Law supports the sic utere tuo ut alienum non laedas principle. The 1987 Restatement specifes in Section 601 that: A state is obligated to take such measures as may be necessary, to the extent practicable under the circumstances, to ensure that activities within its jurisdiction or control: (a) Conform to generally accepted international rules and standards for the prevention, reduction and control of injury to the environment of another state or of areas beyond the limits of national jurisdiction; and (b) Are conducted so as not to cause signifcant injury to the environment of another state or of areas beyond the limits of national jurisdiction. It then declares in Section 601 (3) that, “a state is responsible for any signifcant injury resulting from a violation of its obligations under subSection 1 to the environment of another state ... or to persons and property within that state.” A crucial feature of this Restatement of the law is that “generally accepted rules and standards” are declared to be obligatory. This language, observes Prof. Oscar Schachter, “seems to include not only general rules of customary international law and those derived from binding treaties but also standards adopted by international organizations pursuant to international conventions.” 210 The preceding analysis proves that the Trail Smelter Case and Principle 21 of the Stockholm Declaration together have become customary international law through state practice and the requisite opinio juris.211 When such a rule can be proved to have emerged any breach of that rule would lead to the obligation or liability to make reparation. This obligation has been accepted in Article 1 of the International Law Commissions Draft Articles on State Responsibility.212 On the basis of this principle, we can

210 Oscar Schachter, ‘The Emergence of International Environmental Law’ [1991] 12 Journal of International Affairs 486–87. 211 The psychological aspect involved in the formation of customary rule. Judge Negulesco of the Permanent Court of International Justice has termed Opinio Juris sive necessitatis as “the mutual conviction that the recurrence … is the result of a compulsory rule.” See J. G. Starke, Introduction to International Law (London: Butterworths 1977) 43–44. 212 The “Act of State” according to International Law (1973), UN DOC A/9010/Rev. 1 (1973). For details, “Durwood Zaelke and James Cameron, ‘Global Warming and Climate

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say that similar liability rules could be extended to states which fail to warn importing states of hidden dangers inherent in certain products/substances introduced into international trade. The United States realizing the danger brought an amendment to the Export Administration Act.213 Section 3(13) of the Act declares that: It is the policy of the United States to control the export of goods and substances banned or severely restricted for use in the United States in order to foster public health and safety and to prevent injury to the foreign policy of the United States as well the credibility of the United States as a responsible trading partner. Thus, a good beginning has been made. In the interest of humanity, it would be benefcial if all the exporting nations followed this policy.

Change—An Overview of the International Legal Process’ [1990] 5 [2] The American University Journal of International Law and Policy 264-65. The principle is also refected in the Chorzow Factory Case, (Germany v Poland) 1928, PCIJ. 213 Export Administration Act Amendments of 1985, Pub L. No. 99–164 50 US Code (Supp 1988).

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The growing worldwide concern over hazardous substances, products and technologies has manifested itself in restrictions on international trade. They are (1) the introduction of import restrictions on hazardous goods by importing states and (2) the introduction of regulatory measures by states on their own to restrict the “export of hazard.” The current practice employs three approaches to regulate the export of substances, products, wastes and technologies: (1) A state may ban the export of products that are barred from use in its territory;1 (2) the exporting state may permit the export of those products under regulations2 that require prior informed consent;3 (3) both

1 In the United States, the Drug Exports Amendment Act of 1986 maintains export prohibitions against drugs disapproved or withdrawn from the US market. Similarly Section 3(13) of the Drug Export Administration Act of 1985, declares that: It is the policy of the United States to control the export of goods and substances banned or severely restricted for use in the states in order to foster public health and safety and to prevent injury to the foreign policy of the United States as well as the credibility of the United States as a responsible trading partner. 2 Under the Food, Drug and Cosmetic Act of the United States, food, medical devices, drugs and cosmetics may be exported if they are properly labeled, accorded with the specifcations of the foreign purchaser, and do not violate the laws of the foreign country (Section 381 [d] [1] [A] [D] West Supp. 1984). The Act, as amended in 1976, provides that new drugs may not be exported unless they are approved by the Food and Drug Administration for domestic uses, except under very limited circumstances. New drugs also must comply with domestic labeling requirements prior to exportation. Similarly FIFRA requires the registration of all pesticides sold in interstate or foreign commerce. Manufacturers are required to properly label exports in both English and the language of the importing country. For pesticides not registered in the United States or which are being exported for use which has been canceled or suspended in the United States, the exporter must obtain a signed statement acknowledging an understanding that the pesticide is not registered for use in the United States (360[a] [2] FIFRA). The EPA is then responsible for ensuring that a copy of the statement is sent to the appropriate government offcials of the importing country. These offcials may then request additional information from the EPA, such as information about available substances. Again, FIFRA also requires the EPA to notify foreign governments and international agencies when the registered status of pesticide is canceled or suspended. 3 Export of unregistered pesticides is permitted only under a system of notice that requires prior informed consent. See Thomas J. Schoenbaum, ‘Free International Trade and Protection

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the exporting and importing states may negotiate multilateral approaches to the problem that adopt harmonized or international standards for dealing with the risks involved.4 The investigation has revealed the following loopholes in the legal control of hazardous substances in foods, pesticides, pharmaceuticals and wastes: 1. The existing legislations in the management of hazardous substances are indeed out of touch with market realities. The legislations regulating foods and drugs are not affrmative in dealing with the problems. For example, in instances where a physical injury is sustained during the use of dangerous products which may not look dangerous at the time of purchase, but may prove dangerous later on, what relief a consumer can get is the problem which needs to be solved. As the world population continues to grow, demand from developing countries for foods, pesticides, drugs, chemicals and consumer products increases. Intelligent product assessment often requires the use of scientifc and technological data. Many countries often lack the scientifc and technological capacity to obtain the pertinent data. The budgetary allocations for research and development even in India, in this area, are very meagre. The cost involved in ascertaining the toxic effect of a substance is proportionately high and it takes years to ascertain the truth. 2. The information on pesticide and chemical use and its effects on nature and living beings are almost completely inaccessible to farmers, health workers and other individuals who actually use these chemicals and who need the information most. The inspectors appointed for compliance of the Act, especially in India, are more worried about the sellers of these chemicals than taking care of the users. User training facilities offered at the ground level are totally inadequate. 3. Although the action initiated in this area provides for labeling and in some cases for notifcation, before exporting the substances ordered, there is no guarantee that the notice will reach the foreign government offcial of the importing state in time. In addition, there is no assurance that the concerned offcial of the importing country who has the power to act upon the notice will be informed. Notice is generally sent to embassies of exporting country in the importing countries. The user of the chemical/pesticide is not included in the notifcation process.

of the Environment’ (1992) 86 (4) American Journal of International Law 724; also Carolyn D. Greenwood, ‘Restrictions on the Exploration of Hazardous Products to the Third World: Regulatory Imperialism or Ethical Responsibility’ (1985) 4 (2) Boston College Third World Law Journal 136. 4 See General Assembly Resolution 173, UN GAOR Supp. (No. 46) 189, UNDOC A/34/829, 1979 and G.A. Rs.186, 35 UN. GAOR Supp. (No. 48) 202, and the London Guidelines for the Exchange of Information on Chemicals in International Trade 1989.

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Hence, the information may remain unused.5 In many cases the foreign purchaser will be informed by way of notifcation after the chemical has been shipped. Once the transport of these chemicals commences, the receiving country is often powerless to supervise or regulate the pesticide importation and subsequent use. The control of pollution caused by industrial processes has been one of the most burning problems posing a serious threat to everyone’s life and safety. The legislation passed in India with a view to protecting workers in industrial premises from hazardous processes is not strictly enforced.6 Added to this is the non-serious imposition of the various restrictions and conditions laid down under the Industries (Development and Regulation) Act, 1951, for issuing industrial licenses.7 Workers, when they ask for the release of certain data for their own safety, are not only denied this data but are prevented from enforcing this right against their employer. The previous National Environment Tribunal Act 1992 excluded workers from its purview in claiming compensation and denied them the “right to information.” The Public Insurance Liability Act 1991 also does not include workers under its ambit. Even the Provisions of the Factories (Amendment) Act, 1987, relating to information required to be given by the owner or occupier under Section 4IF, 41C or 4IE, relating to remedial measures to prevent imminent danger have not been invoked much. The legislations of the United States in this area impose binding obligations for manufacturers and employers to disclose information regarding toxic substance exposure both to workers and unions.8

5 See Mark A. Kablack, ‘Pesticide Abuses in Third World Countries and a Model for Reform’ (1991) 11 (2) Boston College Third World Law Journal 295–297. Labeling of the pesticide product upon shipment from the US does not ensure that properly labelled container will reach the farm feld and be available to the farm worker. 6 Factories (Amendment) Act 1987; perhaps not a single case has come before the Supreme Court under Section 41 aim of the Factories Act 1948. 7 Industrial licensing in India is governed by the Industries Development and Regulation Act 1951. Under the Provisions of this Act, industrial licensing will be compulsory for the following industries. (1) Coal and lignite; (2) petroleum (other than crude) and its distillation products; (3) cigars and cigarettes of tobacco and manufactured tobacco substitutes; (4) asbestos and asbestos-based products; (5) hazardous chemicals; (6) drugs and pharmaceuticals. See ‘Text of the New Industrial Policy’ Economic Times (New Delhi, 25 July 1991). 8 In the United States, the Occupational Safety and Health Administration Act (OSHA), is responsible for regulating worker safety and primarily is concerned with preventing hazards that endanger plant personnel. On 25 November 1983 OSHA promulgated Hazard Communication Rules, requiring that workers be given comprehensive information on each hazardous substance to which they may be exposed under normal operating conditions or in a foreseeable emergency. The rules apply to manufacturers that produce, process or use chemicals (Hazard Communication rule, 48 Fed. Reg. [1983] 53340). In general, employers are required to provide workers with a Material Data Safety Sheet (MDSS) or the equivalent, for each toxic or hazardous substance used, manufactured or produced in the work place. The

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Government agencies charged with the protection of public health may also obtain this information.9 There have been no signifcant doctrinal developments in tort law in India.10 The most prominent development was the propagation of the absolute liability principle wherein the judiciary incorporated the tenets of strict liability to suit the environmental scenario of India.11 Tort law is an important tool in ensuring health and safety in a whole range of activities. The scant tort case law that does exist possesses little precedential value to deal with complicated present-day problems. Moreover, in hazardous substance litigation, courts are required to examine statistical and epidemiological evidence presented by plaintiffs and defendants. To prove a case, adequate scientifc data is required. Unfortunately, public health reporting agencies in India have not generated comprehensive statistics of human injury from hazardous substances.12 With regard to doctrinal developments in environmental law, there has been a shift from the assimilative capacity principle to the precautionary principle. Earlier, the concept was based on the “assimilative capacity” rule under Principle 6 of Stockholm Declaration 1972, which presumed that science could provide policymakers with the information necessary to avoid encroaching upon the capacity of the environment to assimilate impacts, and also presumed that relevant technical expertise would be available when environmental harm was predicted and there would be suffcient time to act in order to avoid such harm.13 Later, the emphasis shifted to the “precautionary principle” (11th Principle of UN Resolution on World Charter for Nature, 1982), and this

MDSS must specify the name of the substance, the level at which exposure to the substance is considered hazardous, the acute or chronic effects of exposure and appropriate emergency treatment procedures. Employers are also required to conduct education and training programs in the safe use and handling of toxic substances (OSHA, 10 October 1983). 9 According to Prof. Arline M. Sheehan the thrust of the provisions under the Hazard Communication Rule, however, is merely on disclosure of risks and present measures to abate them. The rules, the learned author observes, “neither establish an affrmative duty for employers to take preventive measures nor require OSHA to evaluate the adequacy of the existing safety measures,” see Arline M. Sheehan, ‘Chemical Plant. Safety Regulation: The European example’ (1984) 16 (2) Law and Policy in International Business 625–626. 10 See Chapter 6. 11 Ibid. 12 In the United States the creation of the Agency for Toxic Substances and Disease Registry under CERCLA is the frst step at the national level towards collecting pertinent information on the health effects of hazardous substances. In India we do not have anything of this type. See J. David Prince, ‘Compensation for Victims of Hazardous Substance Exposure’ (1985) 11 (3) William Mitchell Law Review 662. 13 M/s. DSM Sugar Distillery Division v Shailesh Singh, National Green Tribunal, Order dated 10 December 2015 www.greentribunal.gov.in/Writereaddata/Downloads/13-2015(PBI-Judg)RA-10-12-2015.pdf. Accessed 20 January 2018.

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was reiterated in the Rio Conference of 1992 in its Principle 15 which stated that in order to protect the environment, the precautionary approach shall be widely applied by states according to their capacities. In case of threats of serious or irreversible damage, lack of full scientifc certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. The inadequacy of science is the real basis that has led to the precautionary principle of 1982. Needless to say, with the rising amount of environmental pollution and degradation in India, adherence to the precautionary principle is more necessary than ever.14 Legislations governing hazardous substances are loosely implemented in India, where not even half the states and union territories (UTs) have fulltime drug controllers. There are no special cells to unearth spurious drug rackets. We do not have special cells either to screen the formulations before granting licenses or to conduct in-depth inspections of new and existing manufacturing plants to verify good manufacturing practices. The Drugs and Cosmetics Act, 1940,15 empowers the government to prohibit manufacture, sale and distribution of a drug in the public interest. But there is no specifc provision under which a manufacturer can be directed to recall a drug from the market within a specifc period. The result is that a drug, even if proved contaminated or spurious, can be marketed until the government takes it off the shelves. The National Green Tribunals (NGT) in India has played a signifcant role in upholding environmental safety and public health, and has been a vocal critic of state governments’ failure to do so. However, on numerous occasions the NGT has been criticized. Non-appointment of required personnel remains a chronic issue. Moreover, the NGT has often stepped beyond its jurisdiction and has questioned governments on matters of policy, rather than law.16 The orders of the NGT have also gone unheeded in multiple instances which may show that it has often passed out mandates on areas where it has little jurisdiction or expertise. The law on hazardous substances also contains several loopholes. For instance, the registration process in the Insecticides Act is extremely relaxed and as a result is often taken advantage of. Stricter regulations need to be imposed and the existing legislation should be thoroughly reviewed to control trade in hazardous substances.

14 Ibid. 15 See Chapter 5. 16 The NGT criticized the Delhi governments’ odd-even scheme, which was undertaken to tackle the ongoing pollution problem in the city. In doing so, it had crossed the line dividing judicial intervention from policy-making. See ‘A Lack of Fit’ (12 November 2017) The Indian Express http://indianexpress.com/article/opinion/editorials/delhi-pollution-ngt-pol icy-making-odd-even-scheme-a-lack-of-ft/. Accessed 12 January 2015.

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There is no proper coordination and cooperation between the food inspectors who discharge their duties under the local corporations or municipalities and the health authority of the district. Adequate funds are also not provided for the implementation of the Act. Inspectors are amenable to the pressure tactics of the industries, and they are not provided with security and protection. In such an atmosphere it is diffcult for the inspectors to discharge their duties effectively and fearlessly. We do not have accurate data on the volume of exports. Trade statistics on the export of particular products are either non-existent or incomplete and generally diffcult to obtain. Furthermore, many of the records which are maintained are often considered trade secrets, and these are never disclosed to the public or to the appropriate regulatory body.17 Hazardous substance law-making has been conducted amidst great uncertainty considering the reality, cause and extent of the problem. This is due to the attitude of some in the discussions/conferences, etc. held on this branch of the subject. For example, the United States, as the largest exporter of products and substances, has not ratifed many conventions governing hazardous substances.18 Although there are several international organizations concerned with the global management of hazardous substances, their work has not been a great success until now. For example, the Constitution of the World Health Organization (WHO) under Article 21 gives it the power to adopt regulations concerning “standards” of the safety, purity and potency of biological pharmaceutical and similar products moving in international commerce, and advertising and labeling of biological, pharmaceutical and similar products moving in international commerce. Despite these provisions, WHO’s success in regulating international trade of such products has been very limited. In some instances, a few well-placed drug industry lobbyists have been able to undercut WHO’s proposals for marketing controls.19

17 For example, the Department of Commerce in the US does compile records of all exports, but the department’s method of compilation makes it virtually impossible to ascertain which products were banned and restricted in the US. See Patrick B. Seferovich, ‘United States Export of Banned Products: Legal and Moral Implications,’ Denver (1981) 10 (3) Journal of International Law and Policy 536–537. 18 The United States has not ratifed the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 1989. It has also not ratifed the UN convention on the Law of the Sea, 1982. Similarly, the International Code of Marketing of Breast Milk Substitutes of 1981 was opposed by the United States (see Chapter 3). Even the resolutions adopted by the General Assembly of the United Nations were opposed by the United States. 19 For instance, when the WHO proposed to draw up a code of advertising for pharmaceutical products, the International Federation of Pharmaceutical Manufacturers Associations quickly drew up a voluntary code of its own. This code is unclear, unstructured and weak in the areas of monitoring and enforcement. No steps have since been taken to implement the

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The standards and residue limits set by the Food and Agriculture Organization (FAO) and WHO are not binding on member nations. There is no provision to compel member nations of these organizations to undertake the obligations by way ratifcation or otherwise.20 In other words, international organizations simply lack the authority or capability to enforce compliance with adopted standards or restrictions on recalcitrant members. Decision-makers in both developed and developing countries often lack access to information concerning alternative products and processes and the resultant costs and benefts that would enable them to derive the best estimates. With the result, they have to rely to a large extent upon the data supplied by the industry—data which is always in favor of the industry. We have relied mainly on states for the implementation of legislations governing hazardous substances. Member states within the present set up (federal structure) have their own limitations in implementing these legislations. Some signifcant measures have been taken in India with regard to pest management. The National Policy Statement on Pest Management was inaugurated in 1985. This was followed by the National Policy on Agriculture (2000), as well as the National Policy on Farmers (2007), that have also supported integrated pest management (IPM). Thereafter, in an effort to reduce hazardous chemical pesticides and insect/pest/disease attacks while also increasing crop productivity, the Government of India, Ministry of Agriculture, Department of Agriculture & Co-operation (DAC) launched a scheme, “Strengthening and Modernization of Pest Management (IPM) Approach in India in 1991–1992,” as the primary edifce of their plant protection strategy in the overall crop production program. As part of the IPM program, the Government of India has established 31 central IPM centers in 28 states and one UT. Moreover, in the twelfth fve-year plan EFC Memo, a “National Mission on Agricultural Extension and Technology (NMAET)” was formed under which a “sub-mission on Plant Protection and Plant Quarantine” was introduced from 2014 to 2015. “Strengthening and Modernization of Pest Management Approach in India” has become one of the most important components of this sub-mission with the mandate to popularize adoption of IPM through training and demonstration in crops inter-alia promotion of biological control approaches in crop protection technology.21 However, the two technological developments—Integrated

WHO proposal. See Carolyn D. Greenwood, ‘Restrictions on the Exportation of Hazardous Products to the Third World: Regulatory Imperialism or Ethical Responsibility’ (1982) 5 (2) Boston College Third World Law Journal 145–146. 20 The ILO Convention No. 139 on Occupational Cancer (1974), for example, has not been ratifed by the former USSR, France or Germany. 21 Press Information Bureau Government of India, Ministry of Agriculture & Farmers Welfare. ‘Integrated Pest Management’ (8 October 2014) http://pib.nic.in/newsite/PrintRelease .aspx?relid=110364. Accessed 19 January 2018.

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Pest Management22 and bio-engineering of crop varieties—as alternatives to chemicals have not been pursued seriously. The setting up of the various central IPM centers has taken a signifcant amount of time. Between the 1990s and the present, only fve more centers have been established. Therefore, although India has achieved some progress in this aspect, the pace has been very slow.23 Much of the international legal framework on the regulation of hazardous substances created by the United Nations Environment Program (UNEP), FAO, WHO, United Nations Conference on Trade and Development (UNCTAD), World Commission on Environment and Development (WCED), European Economic Community (EEC) and Organization for Economic Co-operation and Development (OECD) are primarily in the form of recommendations, resolutions, voluntary codes of conduct and guidelines. Hence most of the framework is not clearly accepted as obligatory and is uncertain in application. Most of these constitute the soft law body and thus are not enforceable on member states. The European Community Law governing hazardous substances does not provide a centralized environmental regulatory authority. The only means of control under the existing system is a requirement that member states submit a report to the EC Commission every two years regarding the implementation of the directive and the compliance therewith. In other words, most of the community legislations are in the form of directives which require the independent member states to create national law to implement the directives.24 Since the Stockholm Declaration, little has been done to develop the international law of liability and compensation governing hazardous substances. Even the delegates who attended the conference could not agree on a principle of responsibility for harms caused. Principle 22 of the Declaration deferred the issue with a vague commitment: to cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damages. 22 Integrated pest management calls for carefully timed, selective spraying of pesticides, backed up by the encouragement of natural predators and more use of resistant varieties and crop rotation. Furthermore, it aims at better cost-effective plant protection measures by adopting environmentally safe practices. 23 During 1991 and 1992, only 26 Central Integrated Pest Management Centers have been set up by the Central Directorate of Plant Protection in 22 states and one union territory. Major activities of these centers include crop pest monitoring, promoting biological control and organizing demonstrations on IPM both for extension workers and farmers. See ‘The Economic Survey’ The Economic Times (New Delhi, 24 February 1993). 24 See Chapter 3; see also Patric E. Thiefery and Peter E. Nahmias, ‘The European Community’s Regulation and Control of Waste and the Adoption of Civil Liability’ (1991) 14 (4) Hastings International and Comparative Law Review 961–962.

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Ten years later, the 1982 Law of the Sea Convention simply reiterated the call enunciated in Principle 22 of the Stockholm Declaration to develop further the international law of liability and refrained from codifying any standards. Article 235 of the 1982 Convention declared: States shall cooperate in the implementation of existing international law and further development of international law relating to responsibility and liability for the assessment and compensation of damages and the settlement of related disputes.25 Since 1972, all international organizations, like the ILC, OECD, UNEP and International Union for the Conservation of Nature and Natural Resources, have taken the mandate of Principle 22 casually.26 What is more agonizing is that the Rio Earth Summit 1992 only requested states to develop national law regarding liability and compensation for the victims of pollution and other environmental damage. Principle 13 of the Rio Declaration, 1992, provides: States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction. Although states have realized the importance of this, which is seen in the number of discussions and deliberations, the progress recorded since its adoption in 1992 has not been up to par with the rising environmental concerns.

Recommendations and suggestions A study of the legal mechanisms at the national, regional and international levels governing hazardous substances in foods, pesticides, pharmaceuticals and waste suggests the following recommendations:

25 (1315) 21 International Legal Materials. 26 Even the Basel Convention on The Control of Transboundary Movements of Hazardous Wastes, 1989 has made little progress regarding the liability issue. A liability protocol of the convention was negotiated and agreed upon thereafter. See (1991) 21 (2) Environmental Policy and the Law 49–50.

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The trade in hazardous substances calls for specifc international rules and regulations to protect the interests of both the importing countries and the entire international community. There is a great need to strengthen existing international legal standards to prevent adverse consequences, as existing conventions have proven to be insuffcient in this respect, the substitution of substantive commands for the present procedural duties is the need of the hour. A comprehensive multilateral convention governing hazardous substances could prove to be an effective means of achieving an international solution. Through such a convention, hazardous substances/products could be subjected to standards of universal application. With this in view, all developing countries, including India, must make an earnest attempt to identify the hazardous substances/chemicals from their industries which pose serious threats to the environment. Once such hazardous substances are identifed by an expert committee, the next step would be to specify the allowed permissible limits of each of those substances. The lists, prepared by individual member countries, should thus be the basis for the adoption of a comprehensive convention governing hazardous substances/products. The proposed convention, while defning hazardous substances/products, should harmonize existing product standards among all countries. The drafters of the convention can also derive inspiration from the WHO or FAO Codex Alimentarius Commission’s work in order to establish guidelines for maximum limits on pesticides and food residues. The convention should also provide for strict international notifcation and labeling requirements. Most important of all, it should provide for the compulsory jurisdiction of the International Court of Justice. The convention should be supported by an effective enforcement system. It should help importing countries to receive the necessary information for an intelligent assessment of the product. The convention should provide for the award of adequate compensation to victims of hazardous substance/products which are exported in violation of its provisions. Furthermore, the availability of insurance coverage for victims of such substance/products is also suggested. Under this scheme, the state of export could assure compensation for victims if private business organizations fail to compensate adequately. When permission is given by the government to private persons (industrialists) to invest money in setting up the food processing sector, the government should collect one percent of the capital invested in such industries to develop a Central Food Processing Technology Research Centre. This center must be a research institute like the Central Food and Technological Research Institute, Mysore, or like the National Drug Laboratory, Lucknow. An institution of this kind can effectively take care of the problems of the food processing industry. The main objective of this institute must be for specialists to identify the hazardous content in food and to suggest suitable remedial measures. Before initiating any action to control and regulate the 279

CONCLUSION

food processing sector by way of legislation, the government must make use of the research and data bank, etc. prepared by the Central Food and Technological Research Institute. The Government of India must encourage industry-oriented research. Although, to date, research has been undertaken, it is insuffcient in addressing the dangers associated with this feld—ones which have only increased in the past few decades. Hence, more initiatives need to be made with respect to such matters. This policy must be designed so as to enable the industries themselves—not only to identify the nature of the substance, but also to take precautionary measures at the time of generating hazardous substances. It has been observed that Public Interest Litigation (PIL) has widely gained popularity in India, especially in the feld of environmental law, since the case of the Oleum Gas Leak. Since the 1990s, as a result of the extensive judicial activism on part of a few Supreme Court justices, PILs have empowered the public at large to approach the judiciary for remedies in all felds, especially environmental law. In fact, a majority of environmental concerns have been addressed through the fling of PILs. Information regarding the proper utilization of PILs should be communicated to the general public so as to prevent any misuse or frivolous complaints which could lead to a waste of valuable resources of the courts. In the future, PIL can defnitely serve as an effective tool to combat trade in hazardous substances. There must be increased coordination of work between the concerned ministries, at least at the national level. The industry ministry must consult with the environment, health and labor ministries, and vice-versa, If we fail to do this the country will have great diffculty in reconciling economic growth with its health and environmental concerns. This step, if followed, would help in the preparation and planning of concerted action to overcome the problems. There is a great need to increase the budgetary allocation for research and development governing hazardous substances or products or chemicals in India. Further, it is necessary to strengthen the UNEP so as to give it primacy among international organizations.27 The conventions adopted by it must have binding effect on member states. Developed nations should help the UNEP with the required fnancial help. The Constitution of the UNEP should be amended so as to confer power and authority (1) to declare, promulgate and enforce principles of international environmental law; (2) to appoint “environmental police” to ensure compliance with the conventions adopted by it; and (3) to prosecute the guilty (i.e. states, corporations and individuals).

27 Today the UNEP is chronically underfunded. For instance, in 1989, UN contributions to its environmental fund were below the 1979 level in real terms. Its 1989 budget of 37 million dollars was less than one percent of that of the US Environmental Protective Agency.

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The involvement of non-governmental organizations has increased in the past few decades. For instance, groups such as Pesticide Action Network (PAN), Consumers International and International Group of National Associations of Manufacturers of Agrochemical Products (GIFAP) have undertaken several progressive initiatives.28 These organizations are often well versed in knowledge gained at the grassroots level, which other stakeholders may not be aware of. Thus, collaboration with non-governmental organizations may prove benefcial in forging greater cooperation in this feld. In the event of disputes between states, greater use must be made of the World Court’s capacity under Article 26 of its statute to form special chambers for dealing with particular cases or categories of cases, including cases relating to hazardous substances. There is a great need to introduce an environmental impact assessment (EIA) as compulsory for all projects before they are undertaken.29 International fnancial institutions, when lending money to development projects in developing countries, should make an EIA compulsory, like the EIA that has been introduced by the World Bank since 1989. In India, EIAs are not incorporated into major environment acts. Under the Hazardous Wastes (Management and Handling) Rules of 1989, framed under the Environment Protection Act, 1986, a provision for an environmental impact study, though present, is in a very crude form. The state government, or any person authorized on its behalf, is responsible for the study. However, the procedure for conducting an EIA is not specifed in the rules. Recently, the draft environment impact assessment notifcation, 2020, which will replace the 2006 notifcation, was introduced on March 23, 2020 by the Union Ministry of Environment, Forest and Climate Change. It has been brought into effect with the aim of making a number of changes to environmental governance in the country. However, in India, a lackadaisical attitude is often adopted towards EIAs. Thus, there is a need, specifcally in India, to adopt a more proactive approach in conducting an EIA. There is an urgent need for the adoption of the “sic utere tuo ut alienum non laedes” principle as part of the municipal law by all nations so that they can take necessary measures to prevent activities within its jurisdiction or control from causing signifcant injury to the environment outside their jurisdiction. A formal recognition of this doctrine, if expressed through their constitutions, will go a long way in preventing many environmental problems. 28 See Chapter 2. 29 Even the Rio Declaration in Principle 17 supports the EIA. The principle provides: “Environmental Impact Assessment, as a national instrument, shall be undertaken for the promised activities that are likely to have a signifcant adverse impact on the environment and are subject to a decision of a competent national authority.”

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Furthermore, steps should be taken to inform consumers that in many cases cheap, effective and safe alternatives to chemicals/substances exist. International agencies and non-governmental organizations must urgently increase their stances against abusive marketing practices and careless export policies. Moreover, there is a great need to encourage educational institutions, mainly the agricultural universities, to train native agriculturists in the safe use of pesticides and to give orientations in the introduction of Integrated Pest Management through talks, flm shows, slide shows and exhibitions, etc. Although some steps have been taken, they have not been enough to address the situation at hand. Hence, much more remains to be accomplished to successfully spread public awareness. Additionally, there is a great need for the adoption of strong environmental regimes by states so as to extend the reach of their legal systems to govern conduct in other countries, especially the functioning of their multinational corporations. Transnational corporations should take genuine interest and initiatives in applying the same safety standards in their overseas plants as in their parent plants. They should educate workers in their overseas plants, especially on matters pertaining to occupational health and safety. The safety standards adopted by them to date have been subjective and, thus, they should assume a greater role as much of the responsibility for the harm caused in this regard lies with these TNCs. After industrialization, the surplus hazardous waste produced by industries has been continuous and unavoidable. The need for sustainable development arose as industrial activities began to have a signifcant impact on ecology in the twentieth century. For example, the Rongelap nuclear fallout of 1954, the Torrey Canyon oil spill of 1951, the mercury crisis of Minamata of 1956, the Bhopal disaster of 1984 and the Chernobyl nuclear disaster of 1986, etc. In addition to these incidents, there has been increased global warming, air pollution, depletion of the ozone layer and loss of biodiversity. Sustainable development is not just about the environment. It addresses a much broader issue. It is about meeting the diverse needs of people in different communities, social cohesion and creating equal opportunities to ensure a strong and healthy society. At present, although measures are taken for sustainable use of resources, better waste management systems need to be adopted. Improper treatment and storage of hazardous substances is a major problem in developing countries. One of the main effects is understood to be a potential source of several health and environmental hazards. There is an urgency to ban the manufacture and import of drugs which have been banned or discarded in other countries. It is necessary to compulsorily print health hazard warnings on substance/products’ labels. Moreover, it is necessary to create a consumer ombudsman in India, both at the center and in the states. The primary purpose of the consumer ombudsman should be to deal with cases against business organizations and industries which 282

CONCLUSION

endanger the life and safety of the consumer. The consumer ombudsman should be entrusted with the power to investigate violations of fair marketing practices and improper terms of contract entered into by business organizations and industries with consumers. Waste management programs should become an integral part of industrial planning in all countries. The existing waste management system is not suffcient enough to tackle this problem effectively. The generation of hazardous waste from industries has created problems for sustainable development due to various factors. In N. D. Jayal v. Union of India,30 the Apex Court has declared that “the adherence to sustainable development principle is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development.” This concept is an integral part of right to “life” under Article 21. However, in the Indian context, owing to population explosion, there is a serious need to save our threatened natural resources for use of future generations. The growing technological industry largely depends on natural minerals. The Government of India should give the necessary technical help to establish recycling plants in all industries. The concept of “environmental audit” was incorporated into the Environment (Protection) Rules by an amendment notifcation in 1992. As per these rules, submission of an environmental audit report became mandatory. Every person carrying on an industry, operation or process requiring consent under the Water or Air Act or authorization under the Hazardous Waste (Management and Handling) Rule, 1989, has to submit an audit statement for the regulation of environmental audit, showing that transparency in waste generation and adoption of clean technology to prevent pollution etc. can be achieved. However, sustainable development poses several challenges, both in developed and developing countries. Developed countries may be developed, yet the problems of social inequalities and waste disposal still exist. In developing countries the fnancial resources are insuffcient to develop new concepts for sustainable development. Frequent natural disasters such as tsunamis and earthquakes, etc. pose a danger to sustainable development. War-mongering countries also obstruct sustainable development as their priorities are different. Conficting interests of political parties, corruption and vested interest of stakeholders and business associates and lack of efforts at the municipal level also pose a danger to appropriate hazardous waste management.

30 N. D. Jayal v Union of India, (2004) 9 SCC 362.

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301

INDEX

Aarhus Convention 116 absolute liability 239, 245, 267, 273 access to environmental information 116, 276 accident instructions 103 accident prevention 208, 215 accreditation and labeling 147, 154, 227 actual users 186, 191 adulteration 13, 127, 131, 134, 141, 144, 154 advancements of science and technology 52 advertisement 138–142, 144; misleading 124, 139, 140–142, 145, 153, 157, 170, 231; objectionable 4, 138, 139 African, Caribbean and Pacifc Group of States 115 agricultural pesticides 63 agriculture crop yields 68 agrochemical 17, 37, 39, 90, 92, 281 air pollution 282 Alimentarius Commission 59, 61, 279 American Chemistry Council 27 amphetamine 141 analysts 5, 127, 154, 161, 178, 179; government 131, 132, 178, 179; food 154; insecticide 120, 155–66, 274 annual returns 191 anti-competitive practices 142 appeal 13, 143, 159, 169, 172, 192, 201, 219, 223, 224, 237, 252, 257 approval of new drugs 57 arbitration 7, 257, 265 Arline M. Sheehan 99 authorization 91, 111, 118, 184–189, 191, 192, 245, 283

avoid future crisis 20, 226, 228 Ayurvedic 4, 132, 133, 141 Basel Convention 3, 189, 73, 115, 117 beverage industry 31, 33 Bhopal (gas leak) disaster 208, 213, 236, 237, 238, 241, 282 biodiversity 282 biotechnology 45, 196–199, 200 breast milk substitutes 3, 12, 58–61 budgetary allocation 271, 280 Bureau of Indian Standards 228 captive facility 189, 190 carcinogenic 9, 57 carriers 5, 180, 181 causal connection between the loss or injury 229 cause of action 232, 233, 248, 249, 254 Central Consumer Protection Council 166 Central Drugs Laboratory 132, 135 Central Drugs Standard Control Organization 135; see also Drugs and Cosmetics Act central enforcing agency 72 Central Insecticides Board 157 Central Insecticides Laboratory 160, 163 Central Pollution Control Board 184–186, 188–192, 219, 227, 243 Centre on Transnational Corporations 30, 54 centralized environmental regulatory authority 277 Charter 51, 261, 262, 273 chemical companies 14, 28, 30 chemical industry 26, 27, 93

302

INDEX

chemical information 111 chemical sales 27, 28 chemicals that remain intact in the environment for long periods 77 Chernobyl 23, 264, 282 Chief Controller of Imports and Exports 192 chlorpyrifos 92 civil liability for nuclear damage 258 civil liability for oil pollution damages 259 class label 181 classifcation 56, 83, 97–99, 100, 106, 107 classifcation and packaging requirements 98 clearance process 26, 98 climatic conditions 28, 35 closed cycle shipment tracking system 103 Code of Criminal Procedure 129, 165, 238 codes of conduct 277 Codex Alimentarius Commission 59, 61, 279 collector’s discretionary powers 215 Commissioner 5, 122, 136, 242, 146, 147, 153, 154, 179, 180 common convictions 261 common facility 189, 190 community data bank 105 compensatory relief 211 Competent Authority 97, 102, 214 competition 4, 32, 44, 142, 143 Competition Act, 2002 142 complementary information exchange procedure 109 compliance report 184 comprehensive legislation on hazardous waste disposal 179 compulsory compensation 214 compulsory insurance 208 confdential data exchange 4, 110, 111 confdential information 110, 111, 150 consumer 120, 137, 141–155, 166– 173, 227, 231, 251, 271, 281 Consumer Action Resource Kit 90 Consumer Disputes Redressal Commission 167–168 Consumer Grievance Redressal Commission 171 consumer health 12

consumer protection 5, 13, 63, 64, 120, 127, 166, 168, 170 Consumer Protection Bill 5, 170 consumer protection policies 64 contribution of WHO in regulating infant foods 58 contributory negligence 106 Control of Major Accident Hazards (COMAH) Regulations 2015 100 Convention on Access to Information, Public Participation in DecisionMaking and Access to Justice in Environmental Matters 116 Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes 117 coordination of work 148, 280 cooperative global program 63 copper damage 17 co-processing 183–186, 190 Corfu Channel case 250 corporate entity 245 corporate misconduct 12 cosmetic product 94, 95 cosmetics 94, 123–136, 153; adulterated 125 council directive on civil liability for damages caused by wastes 4, 105 Council Directive on Major Accident Hazards of Certain Industrial Activities 98 Court of Justice 107, 109, 267, 279 customs authorities 187–189 damage limitation 86 damage to health and the environment 54 damage to protected species and natural habitats 118 damages 4, 7, 77, 105, 168, 170, 191, 209, 218, 232, 233, 234, 237, 240, 246, 248, 254, 255, 259, 265, 277 dangerous chemical compound 10 Dangerous Drugs Act, 1930 123 dangerous product 69, 258, 271 dangerous substances 4, 86, 95, 96, 99, 100, 106, 119, 180, 239, 260 DDT 15, 24 Decision and Recommendation for Transfrontier Shipments of Hazardous Wastes 111

303

INDEX

decisions which do not have a binding effect on member countries 114 declaration 150, 233, 258, 260, 261–266, 273, 271 de-concretization of trees 247 defense 4, 106, 164, 211 Department of Environment 120, 175, 197 Depo-Provera 19 designated categories of wastes 183 Destructive Insects and Pests Act, 1914 4, 120 deterrent effect 246 dioxin 20, 21, 23 direct coverage 254 directive controlling dangerous substances 4, 96 directive on toxic and dangerous waste 4, 95, 101, 104, 105 directory of sources on essential drugs from developed and developing countries 87 disability 211, 254; temporary partial 211; permanent 211 disaster control measures 205 disinfectants 37 disposal facilities 20, 46, 111, 190, 191 disposal of cases 6, 218 dispute 6, 166–172, 222, 256, 278, 281 District Emergency Authority 194 draft code of conduct on TNCs 88 drug dumping 55 drug laboratories 19 drugs: and cosmetics 67, 94; dangerous 4, 123; see also Drugs and Cosmetics Act, 1940, penalties Drugs and Cosmetics Act, 1940 123–136; see also drugs Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 138–142 drugs consultative committee 127, 132 Drugs (Control) Act, 1950 136–138 Drugs Technical Advisory Board 123, 127, 132; see also Ayurvedic due diligence 164, 173, 182, 224 dumping sites 96, 175 duty of an occupier of a premises 129, 206 Eco mark 6, 227 ecological legislation 20

economic and social circumstances 63 Economic and Social Council 18, 51, 63, 64 economical packaging 12 educational institutions 282 electricity 209, 210, 216 emergency plan 99, 94, 197, 198, 199, 200, 205 enter and inspect 154 environment and development 174, 263, 277, 283 environment damage 80, 117, 118, 218, 223, 264, 277, 278; see also land damage, water damage Environment for Europe process 116 Environment Impact Assessment 6, 86, 281 Environment Protection Rules 179 Environment Relief Fund 213 Environment Secretary of the State 192 environmental assessment 65, 85, 86, 114 environmental audit 283 environmental courts 217, 243 environmental hazards 35, 56, 66, 76 Environmental Health Criteria Program 62 environmental impact assessment 220, 228, 281 environmental information 116 environmental injury 68, 86, 105 environmental laboratories 177–79 Environmental Liability Directive 117 environmental management 174, 175 environmental pollutants 176, 177, 179 environmental pollution 176, 201, 225, 243, 274 environmental problems 53, 65, 94 environmental protection and improvement 174 European Economic Community 94, 277 European fund for compensation 106 evidence 10, 108, 128, 131, 133, 151, 154, 163, 192, 223, 231, 246, 267, 273 evolving law on the management of hazardous substances 3, 51 e-waste 187, 225 exchange of information on chemicals in international trade 3, 67, 74, 78 exchanging information 68 ex gratia compensation 267

304

INDEX

Expert Group on Information Exchange Related to Export of Hazardous Chemicals 109 export 109–114, 121, 134, 186–199, 254–279 exposure to toxic waste 47 failure of government schemes 225 fatal illness 12 Final Directive 4, 100–105, 111–113 fnancial penalties 191 fammable substances 97 fow of information 66 food affliates 31 Food and Agriculture Organization 3, 51 food analyst 154 Food Authority 146–154; see also food safety food industry 29, 31, 58, 146 food inspectors 5, 275 food safety 4, 143–159, 170 food safety and standards 4, 143–150 food security 37 food trade 32, 150 foreign investment 29, 31 forum 170, 171, 237, 253, 254, 266 forum non conveniens 254 Fukuryu Maru incident 267 fundamental duties 235 fungicide 11, 17, 35, 36, 39, 156 garbage imperialism 22, 115 General Assembly of United Nations resolutions 69 General Assembly session on the world drug problem 55 generators 109, 112, 113, 116, 185, 191, 234, 249, 250 gene-technology 196 genetic changes 14 genetic engineering 45, 197, 198 Genetic Engineering Approval Committee 197, 198 genetically engineered organism 196–201 global environmental monitoring system 66 global plan of action 88 Globally Harmonized System of Classifcation and Labeling of Chemicals 56

globalization 3, 32 government analysts 127, 178–179 Greenpeace 47–50 green police 108 Guidelines for Identifying, Analyzing and Controlling Major Hazard Installations in Developing Countries 83 Guidelines for Multinational Enterprises 114 guidelines of product stewardship 92 handling 98–99, 166, 176–208, 239, 273, 281; hazardous substances 178, 206, 208, 216 Hathi Committee 4, 137 hazardous chemical 2–5, 53, 74, 75, 88, 90, 99, 109, 179, 180, 192, 193, 195, 276 hazardous exported pesticides 2 hazardous foods 2 hazardous industries 2, 22–25, 208, 243, 252 hazardous processes 6, 201, 204, 206, 272 hazardous product 53, 54, 67, 88, 252 hazardous substances 255, 260, 270; see also carcinogens, fammable substances, mutagens, teratogens, toxic substances hazardous technologies 22, 239 hazardous treatment of waste 48 health disorders 1, 10 healthcare 59, 62 heavy metals 21, 146, 152 Helsinki Conference on Security and Cooperation 52 herbicides 35, 39, 156 human poisoning 14 import 270–273, 276–278, 282 import and export of hazardous and other waste 187 importation 21, 67, 79, 80, 117, 120, 122, 123, 197 imprisonment 122–45; poisoning 156, 163 inappropriate marketing efforts 12 inappropriate promotion of food for infants and young children 61, 62 incinerator ash 21, 48

305

INDEX

increase in the generation of domestic, urban and industrial wastes 175 Indian Penal Code 234 indirect coverage 254 industry cooperative program 63 industry-oriented research 280 industrial disasters 23 industrial licenses 272 industrial market 32 industrial waste 175, 249, 250 infant foods 58 information exchange 65, 72, 74, 75, 77–80, 109, 110 inherently dangerous activities 245 insecticide inspector 161–163 insecticides 120, 155–166 insecticides Act 5, 120, 155–166 inspection 82, 84, 121–122, 157, 163, 176, 177, 184–185, 188–189 inspector 205, 207, 243, 271–275; see also insecticides Institutional Biosafety Committee 197 insurance 5,6, 37, 71, 106, 113, 188, 208 insurance policy 212, 254 intergovernmental and nongovernmental organization 79 integrated pest management 276, 282 intelligent product assessment 271 International Code of Marketing of Breast Milk Substitutes 58 international community 24, 258, 279 International Court of Justice 7, 71, 279 International Drug Monitoring Program 57 International Group of National Association of Agrochemical Manufacturers 92 international harmonization of standards and technical regulations 52 International Labour Organization’s Tripartite Declaration of Principles Concerning Multilateral Enterprises and Social Policy 86 International Law Commission 89, 268 International Organisation of Consumer Unions 90, 92 International Register of Potentially Toxic Chemicals 3, 66, 79 international responsibility 256, 261

international safety standards 10 international trade 3, 9, 33, 67, 68, 72, 74, 75, 78 International Trade Centre 33 Inter-Organization Program for the Sound Management of Chemicals 3, 87 inquiry committee 206 jurisdiction 6, 52, 70, 111, 131, 159, 163, 165, 205, 214, 217 kepone 16 label 227, 270; see also class label labeling 59, 76, 83, 95, 97, 103, 190, 227, 271, 275, 279 laboratory 86, 97, 123, 132, 135, 160, 163, 167, 168, 170, 179, 188, 198 laboratory research 97 Lake Lanoux Arbitration case 265 land damage 118 landfll 50, 225, 249 legislations governing hazardous substances 120, 274, 296 leptophos 15 Liability of Operators of Nuclear Ships 258 liability of the occupier 191 liability regime 118 licensing 156, 159–60, 165 liquid substances 1 Lome Agreement 115–116 London Convention 117 London Guidelines of 1989 78 loopholes in the pesticides regulation 6, 271, 274 Maggi controversy 6, 170, 171 major accident hazards 190–100 major hazards 98, 99 management: of hazardous and other wastes 183, 185, 186, 191; of hazardous substances 228, 271, 275; of hazardous wastes 70, 71, 117, 183 manufacturer 6, 54, 57, 59, 62, 92, 95, 97, 98 manufacturing 98, 127, 130, 155, 166, 176, 177, 210 market realities 271 marketing 12, 14, 18, 24, 29, 31, 43, 44, 58, 60, 62, 86, 90

306

INDEX

mass disaster 236, 238, 251 matters relating to confdential data 4, 110 medicare 254; medicaid coverage 254 Medical Stores Organization 138 medical research in biotechnology and genetic engineering 45 member states failing to implement environmental directives 108 Minamata crisis 88, 282 Ministry of Environment, Forest and Climate Change 183, 186–191 misbranded 124–135, 151, 155, 157 monitoring 202, 225, 275, 57, 59, 66, 67, 77 monosodium glutamate (MSG) 170 movement of hazardous waste from developed countries to the developing African continent 115 multinational corporations 238, 282 municipal waste services 47 mutagens 97 mycotoxins 12, 147 narcotic drugs 75 national action on waste management 72 National Committee on Environmental Planning and Coordination 174 National Drug Authority of India 137 National Drug Policy 137 National Environment Policy 175 National Environmental Policy Act 86 National Green Tribunals 222, 274 negligence 168, 215, 232, 238, 240, 245, 249, 250, 252; foreseeable risk 232, 249 negotiation 71 neonicotinoid 91 neurotoxic 92 new chemicals 1, 9 New Drugs Prices Control Order, 1987 137 no-fault liability rule 211 non-governmental organization 79, 85, 90, 116, 148, 281 non-hazardous wastes 48 non-law remedy 254 non-serious imposition 272 notifcation system 68, 98 nuisance 233, 234, 247, 248, 249

objection to the shipment 102 objectionable advertisements 138, 288 obligation on the centre and the states 131 obligations upon waste generators 113 occupational activities 119 occupational hazards 143, 152, 163, 183, 184, 185, 186, 189, 190 occupier 190–207 OECD Action 112, 113, 114 offence 164; see also imprisonment offence committed by a company 224, 225, 247, 256 offsite emergency plan 194, 198, 200 Oleum Gas Leak 208, 280 on-site emergency plan 197, 199 operator 118, 119, 148, 153, 183 organic chemicals 26 organic pollutants 3, 76, 77 organisation of African Unity 4, 115 organization of economic cooperation and development 39 organo-phosphorus 15 other wastes 183–191 ozone layer 264, 282 packaged food 13, 32, 153 patent 25, 40, 44, 123, 126, 127 penalties 4, 5, 129, 133, 152, 164, 172, 192, 205, 207, 216, 224 Persistent Organic Pollutants 3, 76, 77 Pesticide Action Network North America 91 pest control 63, 68, 91, 224 pesticide treadmill 15, 16 pesticides 231, 270, 271, 285 pesticides working group 63 pharmaceutical industry 2, 18, 19, 24, 39, 41, 42, 43, 44, 45, 87 pharmaceutical products 11, 41, 53, 57 pharmaceutical trade 2, 23, 46, 47 pharmaceuticals 2, 11, 18, 26, 39, 41, 43, 44, 50, 51, 64, 75, 78 pharmacopeia 135 Planning Commission of India 174 poison 66, 121, 122, 125, 155 poisonous effect 1, 9 polluter pays principle 109, 117, 218 polluting agents 26 pollution control 26, 27, 31–36, 44 polychlorinated biphenyls 21, 62 port authority 195

307

INDEX

potential liability 212 power to regulate the granting of licenses 122 precautionary principle 218, 227, 273, 274 pre-processing 183–186 primary obligation on states 263 principles of law applicable to transnational environmental damage 89 Prior Informed Consent (PIC) procedure 74 private nuisance 234, 248 problems of the production and disposal of toxic and dangerous waste 95 procedures and safeguards for the handling of hazardous substances 89, 176, 177 product differentiation 29 product liability 7, 171, 252 property damage 105, 172, 223 protecting the public interest 170 protection of the interests of consumers 151, 156 protection to the developing countries 71 provisions for special courts 165 public interest litigation 242, 280 Public Liability Insurance Act 6, 208, 222, 289 public nuisance 233, 248, 249 public participation in environmental decision-making 117 pure ecological damage 117 radioactive substances 20, 97, 180 radioactive wastes 69, 116, 117, 183 recall a drug 274 recognizing and registering workers 183 recommendation adopted by the Council of Europe in 1983 100 recycling 182, 183, 185, 186, 190 regional level 3, 78, 243, 267 Registration Committee 156, 158, 169 regulating the importation and sale of narcotics drug 156 regulation of carriers of dangerous or hazardous goods 181 resolution 3, 12, 51, 53, 54, 55, 60, 64, 91 responsibility of commercial entrepreneurs 141

restricted chemicals 4, 67, 68 Review Committee on Genetic Manipulation 196, 197 right to clean and hygienic environment 235 rights of the consumer 135, 166 riparian state 265 Rome Treaty 107 Rongelap nuclear fallout 282 rules for the regulation of the sale of poison 121 safe disposal 112, 123, 183 safe handling 190, 195 safe management of chemicals 83 safe storage 185 safety audit reports 193 safety committee 197, 207 safety data sheet 195, 56, 76, 98 safety measures 99, 102, 194 safety reports 193 samples 10, 13, 17, 18, 21, 128, 135, 154, 162, 178, 179, 188 Secretary-General 54, 55, 57, 60, 63, 64 seventh amendment 98 Seveso III Directive 100 Seveso incident 94 Scientifc and Technical Advisory Group 61 scientifc committees 149 shipment of hazardous wastes 70 shipper 265 Shriram Gas Leak 6, 242 sic utere tuo ut alienum non laedas 7, 258, 260, 262–265, 268, 281 Site Appraisal Committee 204 sixth amendment 4, 96, 97 social security disability 254 sole representative 98 solid waste 47, 225 sound management of chemicals 3, 78, 87 special court 98, 134, 165, 244 spurious 124–134 standard operating procedures 185, 190 standard purity and quality 135 state biotechnology coordination committee 197–200 State Pollution Control Board 184–200, 219 state responsibility 255, 268

308

INDEX

Stockholm Declaration 7, 260–268, 277, 278 storage 5, 10, 12, 84, 117, 118, 144, 155–157, 183 strict liability 232, 239, 242, 245, 249, 250, 251, 259, 261, 273 stringent measures related to drugs 56 suspected adverse drug reaction 57 sustainable development 6, 74, 88, 263, 282, 283 system of alarm and notifcation procedures 98 technology transfers 72, 73 teratogens 97, 230 testing 10, 18, 19, 84, 87, 92, 97, 128, 132, 142, 154, 170, 172 Torrey Canyon oil spill 282 tort 236, 238 tortious liability 239 toxic 247–251, 271–273 toxic substances 9, 12, 123 toxic terrorism 22, 72 toxic waste 20, 22, 47, 117, 250 toxicity 1, 11, 63, 66, 91, 157 toxicology testing trade barriers 98 trade practice 140–142, 151, 153, 166, 170–172 traditional damage 117 Trail Smelter Arbitration Case 256 trans-boundary 117, 182, 186 trans-boundary movement of hazardous wastes done without notifcation 71 trans-boundary movements 20, 22, 43, 45, 55, 69, 70, 71, 73, 74, 90, 117, 182, 184, 186, 256 transfrontier trade 2 Transfrontier Shipment Directive of 1984 4, 104 transfrontier shipments of hazardous waste 100, 111 transnational corporations 2, 3, 18, 25, 29, 30, 40, 42, 45, 46, 47, 51, 54 transport 20, 30, 36, 70, 95–124, 156, 248, 249, 265, 272 transport emergency card 180 transportation 20, 30, 36, 66, 98, 111, 121, 177 transportation of dangerous/hazardous substances by road 5, 177

treatment facilities 45 treatment of various complex diseases 45 treatment, storage and disposal facility for hazardous and other waste 183, 189–190 trespass 234, 248, 249 trial runs 186 tribunal 217, 218, 221–257, 273 ultra-hazardous 245, 251 Unani Drugs 4, 132, 133; see also Ayurvedic unethical marketing practices 2 unfair 109, 140–43, 166, 170–74, 274; see also trade practice UNIDO Technical Assistance Program 86 uniform consignment note 101 Union Carbide 237, 239, 240 United Nations 29, 30–39, 51–69, 83 United Nations Commission on Transnational Corporations 54 United Nations Committee of Experts on the Transport of Dangerous Goods 180 unliquidated damages 239 unsafe food 144 unsanitary 12, 124 use of crop protection chemicals 37 Waigani Convention 117 Waste Directive of 1975 104 waste disposal 96, 179, 234, 249, 250 waste dumping 20, 47 waste generators 113, 116, 191, 249 waste generation 48, 116, 283 waste liability directive 106 waste management 118, 172, 282, 283 waste proper management 69, 112, 113 waste tracking 101, 103, 105 waste trade 72, 115 water damage 118 WHO certifcation scheme 57 WHO recommendations on the marketing of foods and non-alcoholic beverages to children 62 workers 2, 16, 24, 84, 86, 98, 99, 183, 201, 205, 251–253, 271, 282 workmen 208, 210, 211, 218, 242 wonder cures 141

309

INDEX

workmen’s compensation 211, 238 World Bank 83–90, 281 World Charter for Nature 262, 263, 273

World Court 281 World Health Assembly 12, 56–62 World Health Organisation 10–13, 51, 60, 62, 275

310