“The government is opposed to the NGT”, Dr. Armin Rosencranz (Part II)

“The government is opposed to the NGT”, Dr. Armin Rosencranz (Part II)

Anuj Agrawal

In part II, Dr. Armin Rosencranz talks about the Bhopal Gas tragedy, the Supreme Court’s role in protecting the environment, the National Green Tribunal, and more.

Anuj Agrawal: Your Indian connection goes back several decades.

Dr. Armin Rosencranz: I first visited India in 1975. I got a Fulbright in 1983 for India. By that time, I had already started publishing on environmental law. In 1975, I wrote something on the future of environmental defence. I thought that this was an area that I was developing an expertise in.

And then this guy from Cochin University, the head of the law department, asks me to join a national seminar on a weekend. Well, twelve thousand miles for a weekend sounded difficult. If they could arrange funds for a semester, then I could do that. So he contacted the Fulbright foundation, and that is how it began.

AA: In the 1980’s, environmental law was just developing.

AR: To put it plainly, I taught the first course on environmental law in India. And then the Ford Foundation said they liked this idea and asked me to create a textbook, which they would pay for. This took time, because my first co-author turned out to be a complete bounder. He would say, “You have not received it? I put in the mail two weeks ago!”

It turned out that he had a reputation for saying this. So eventually, I fired him and got another co-author, Shyam Diwan.

AA: What was the general impression people had of environmental law back then?

AR: Well, Indira Gandhi had already represented India at the Stockholm Convention in 1972. She was assassinated in 1984, and shortly after that the Bhopal tragedy happened. Bhopal changed the consciousness of India; the average person began thinking of environmental consequences.

People realised that this is happening all over, public sector institutions were having disasters as well; it was not just about a company that had American origins.

So, 1984 was a threshold year.

AA: You have written about Bhopal quite a bit. For instance, the column titled “Who is to blame.”

AR: My main point was [questioning] the idea that you should target Warren Anderson, who was for a few months the head of Union Carbide. And 30 years later, at the very end of his life, he is living in a tiny community in Connecticut.

He actually came to India to distribute money, to provide instant relief to the most affected victims. And then people started hanging his effigies, so the federal government whisked him away. They certainly did not want an American captain of industry [to be hurt].

AA: What did you think about the Supreme Court’s role in the tragedy?

AR: It seemed to me that the Supreme Court brokered a very low settlement; it should have been three to five times the amount. Maybe more. The face value of the claim was 3 billion USD. The actual settlement was $470 million – that is one-seventh of the claim.

I could not attend the hearings but I did read about them.

The Supreme Court of India did what it did because they saw that as the case was winding its way very slowly through, the Indian courts were completely outclassed by Carbide’s lawyers including Shyam Diwan’s father, Anil Diwan, and others of that level of competence.

So you had these sub-competent lawyers from the government confronting these very skilled, imaginative, creative people whose mission, I gather with Carbide’s blessing, was to delay as long as possible, maybe forever, the litigation.

And they would offer various reasons, go through multiple appeals and processes. At one time, a division bench said that there should be interim damages, a concept developed in England. But interim damages would only apply in a watertight case. So interim damages did not work in India, and the Carbide lawyers opposed it – that took more than a year to develop at the appellate level.

But it wasn’t just at the Supreme Court level.

I ran into a guy named Qureshi in the Bhopal district court in 1994, five years after the settlement. And he said, “I have just disposed of 300 cases today.”

How do you do that so quickly? He replied,

“Well I have in front of me, a chart saying so many rupees for loss of limb, for loss of eyesight, for life of life. In thirty seconds, I bang the gavel, and that is how I do 300 cases in one day.”

AA: Did you think that this is what would happen?

AR: We knew that there would be genetic harm, it could be anticipated. Many things went wrong. Amongst other things, the Bhopal Trust was headed by a former law officer of England, Sir Ian Percival. He took the money, and essentially bought a car, decorated his office.

It turns out that there were enough hospital beds in Bhopal already, but people were contributing money for a new hospital. What was needed was mental health facilities, retraining and re-education of people for different jobs.

The Supreme Court did not say a word about this, nor did any of the courts. The courts did not say that we should devote the money for social purposes, rehabilitation of people, mental health institutions.

I think they failed to anticipate the real needs: work, retraining, and mental health recovery.

An interesting thing that is not well known, is that a German doctor heard about this [tragedy] on the radio. He realised that it was cyanide [poisoning] and that he could use sodium trisulphate as an antidote. He brought 50,000 antidotes but was told to go back home because it would create panic.

AA: You are saying it is a failure of the state including the judiciary.

AR: See, the government is to blame. First of all, they located this quite close to the city. Then they have a duty to inspect, every week, the facilities. I think they did that twice in the whole time they had the factory.

Mrs. Gandhi was against computers because she thought they would make people redundant. While the Bhopal factory was exactly the same design as a sister factory in West Virginia, it did not have computers as a backup safety measure.

Those are the things that are important to think about.

And Justice Bhagwati’s decision in the Bhopal case – well first of all he told his two judges, “Sign the order before I write it. Trust me. I am about to reach the age of 65, I will have to retire.” This is all happening in October and November of 1986.

The judgment came out the day before his retirement. And they had already pre-signed. The Carbide lawyers had put out a theory of the saboteur, which defeats the presumption of strict liability. So Bhagwati said that in India, there is no such thing as strict liability. From now on, it would be absolute liability with no defence.

Second, he had this theory of multinational liability – if an MNC is involved, then its measure of damages should be calculated by its ability to pay. The deeper the pocket, the more you pay.

Those two theories subsequently got eliminated but for a while they continued to govern the Bhopal litigation.

AA: You have also been critical of the apex court in the Godavarman judgment.

AR: Godavarman involved basically taking over a small case involving forest cover in a particular neighbourhood. They decided that they should use this case to take over forest cover in India! Including all protected lands, tribal lands, wildlife, rangers – all came under their authority. And in addition, they said that there would be no felling of trees.

So what does that do to the north-eastern region, which is mainly reliant on wood products? So if you have no felling of trees, you lose a tremendous number of jobs. I think the unemployment numbers were rampant as a result of this judgment.

AA: For a lot of people, public interest litigation is seen as a good thing.

AR: Until 2000. From 2000 to present, it has been a reactionary measure. The Supreme Court has actually said, “We don’t welcome public interest litigation. We think that it is used for self-serving purposes. And we are going to be very skeptical.”

Whereas from 1980 to 2000, they were willing to stop Narmada, they entertained the case that eventually led to the introduction of CNG buses in Delhi.

AA: Do you think that this is a good move?

AR: I actually don’t think that taking over the air pollution in the country was a good thing to do. They happened to be lucky and they found CNG. There were other technologies, like low sulphur diesel for example – but they did not look at that.

And just the same way, recently, you heard about interlinking of rivers. The Supreme Court, on its own motion for the second time in two decades, orders the Executive to come up with a plan to interlink rivers. That had the same origin of the case as the CNG case – one person got the idea from somebody, say his son-in-law, and he told his two bench-mates, eventually they were all in agreement.

Interlinking rivers is a ridiculous idea. No state in India wants to give up any of its water. They don’t talk about it, they don’t talk about transboundary implications.

AA: Are you afraid, that this is going to become worse?

AR: They should be reining themselves in, they should be. But of course the personnel changes quite frequently.

AA: Do you think it goes back to judicial appointments?

AR: I think it’s absolutely outrageous that the Supreme Court judges appoints its own members; it is the only court in the world that does that. When Parliament tried to make a modest attempt to change the way judges are appointed, they declare it unconstitutional!

AA: What do you think of the National Green Tribunal?

AR: It’s wonderful. They make mistakes, but the good thing is that they award large damages. The Supreme Court doesn’t do that. The Supreme Court typically sides with the government, which is often in collusion with the industry.

Only in the Vedanta case was this not done, when the Supreme Court decided that the Forest Rights Act required a referendum. I think this is the first time in the world where a referendum of local people was required before a development project could take place.

The Modi government is opposed to the NGT and they have tried to dilute its powers to the point of nothing.

AA: On the need for sustainable development, you wrote, “What is the point of development if the next generations will not be healthy enough to enjoy them?”

AR: I think it is likely that my grandchildren will not have a very harmonious life because of climate change and biodiversity loss. The problem is not enough people are concerned. I spoke to an environmental teacher in Varanasi and I asked, ‘Aren’t you worried about all this pollution and the flow of the Ganges?’ But he wasn’t worried about it and told me that the world has a way of adjusting. That nature will step in and somehow make the problem go away.

To be concerned about it means the next step is to do something about it. For that to happen, we have to oppose the belligerency community, which runs the automobiles, industry, defence, energy, weapons. Those people are going to be very, very resistant to the climate change mitigation that is required.

So it is much easier to shove it under the rug and say, ‘Nature will accommodate the problem’. That is not going to happen; it’s only going to get worse. We might reach a point where everything starts cascading and pollution levels go from 400 PPM to 900 PPM to 1300 PPM, at which point the planet will not be liveable.

AA: Why teach law? Why study law?

AR: Well, if anyone is interested in studying law, you need to have people to teach them! You want to study because it helps the society observe basic rules of order. You study law to become a lawyer, typically, and you become a lawyer to help society organise themselves. Without law or lawyers, that would be difficult to do.

Bar and Bench - Indian Legal news