Published February 10, 2021
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Ecocentric Approaches of the Restorative Justice Theory Vis-à-vis the Legal Issues of Civil and Criminal Liability of the Baghjan Blowout Case in Assam
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The Restorative Justice Theory, in the context of an environmental crime or conflict, is a sustainable, as well as, an ecocentric approach to resolve the dispute to regenerate the damaged environment for the benefit of both present and future generations. This jurisprudential concept can be applied to the recent Baghjan Oil Well Disaster Case in the Tinsukia district of Assam for a peaceful extra-judicial resolution involving the State-owned company, the Oil India Limited, the Victims, and the Community. The blowout of Oil Well-5 caused long-term environmental damage and technically speaking, to both the ecology and economy of the region. This extensive damage needs to be looked into from an ecocentric rather than mere anthropocentric point of view for the blowout caused irreparable damage to both flora and fauna of the region. The blowout also evacuated more than 2000 families from the village of Baghjan, near the Dibru-Saikhowa National Park. Many villagers lost their livestock. The Baghjan Oil Well blowout which caught fire subsequently spread rapidly and alongwith destroying a lot of wild flora and fauna also resulted in the death of two persons. The leak from Baghjan Oil Well-5 contaminated water bodies that flow into the MaguriMotapung Beel, a large wetland, and the Dibru-Saikhowa National Parkboth of which lie in the immediate vicinity. The massive fire destroyed more than 50 houses in the Baghjan area. It also caused serious air and water pollution. This paper aims to resolve the issues of human rights violations of the inhabitants of Baghjan village and loss of biodiversity in the Dibru-Saikhowa National Park and MaguriMotapung Wetland involving the Offender (OIL), the Victims (Human and non-human) and the Community and, thereby, applying the restorative justice theory to meet the ends of justice.
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- Ratanlal and Dhirajlal, The Indian Penal Code (36th Edition). Loreley Fortuny, Impact Assessment, International Association for Impact Assessment, Sep. 2020, 12, 3:30 pm. https://www.iaia.org/wiki-details.php?ID=4 Ibid -"It is an approach to justice in which one of the responses to a crime is to organize a meeting between the victims and the offender, sometimes with the representatives of the wider community." earthrestorativejustice.org War. Crime. Regulation, John Braithwaite, Sep. 2020, 12, 5:25 pm. johnbraithwaite.com -"Restorative justice is a fast-growing social movement and set of practices that aim to redirect society's retributive (punishment-oriented) response to crime. Restorative justice views crime not as a depersonalized breaking of the law but as a wrong against other members of the community." Supra n.4 -"(where the victim is human), ecological justice (where the victim is specific environments)" -"where the victims are animals and plants" Rob D White, Green Victimology and Non-Human Victims (2018) Sep. 2020, 14, 12:12 pm. journals.sagepub.com Ibid Ibid Ibid Maneka Gandhi series of reports: Animal Rights Violations, Asomya Pratidin 2011. Environmental Social Sciences, Nature, Sep. 2020, 20, 7:12 pm. www.nature.com MaguriMotapung : An Asset Lost to Flames, Wetlands International, Sep. 2020, 21, 8:00 pm. south-asia.wetlands.org. Thehindu.com Economy Policy, ET Energyworld.com, Sep. 2020, 21, 9:13 pm. energy.economictimes.indiatimes.com Delhi Doordarshan Telecast : 26th of November, 2018. Sri Ramnath Kovind, His Excellency, the President of India, while inaugurating the Constitution Day Celebration organized by the Supreme Court Bar Association. In the year 1983, the United Nations General Assembly constituted a Commission called the World Commission on Environment and Development (WCED) with Mrs. G.H. Brundtland, the then Prime Minister of Norway as its Chairperson to examine the state of world environment and development beyond 2000. The Commission submitted its Report in 1987 which noted that human future was at a risk if we continue the current modes of unsustainable development. The WCED Report 1987 defined "sustainable development" as the development that meets the need of the present without compromising the ability of the future generations to meet their own needs. Andrew Dobson, Justice and the Environment : Conceptions of Environmental Sustainability and Theories of Distributive Justice, (1998) p.17. -"The fact that poor people live in poor environments is a starting point not only for environmental justice but environmentalism itself, as far as, much of the developing world is concerned." Klaus Bosselmann and Benjamin J. Richardson (Editors), Environmental Justice and Market Mechanisms : Key Challenges for Environmental Law and Policy, (1999), p. 9. Supra n. 19. Ibid at p. 20. U.S. Environmental Protection Agency (EPA) has begun to take environmental justice complaints seriously. EPA derives its authority from title VI of the 1964 Civil Rights Act, Section 601. U.S. Environmental Protection Agency, EPA United States Environmental Protection Agency, Sep. 2020, 25, 11:24 pm. www.epa.gov. Ibid -"Fair Treatment means that no group of people, including a racial, ethnic or a socio-economic group should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations" Ibid -" Meaningful Involvement means that potentially affected community residents have an appropriate opportunity to participate in decisions about a proposed activity that will affect their environment and health." Ibid -"Environmental justice is achieved when everyone regardless of race, culture, or income, enjoys the same degree of protection from environmental and health hazards and equal access to the decision-making process to have a healthy environment in which to live, learn and work". Supra n. 20 at p. 33 "Principles of Environmental Justice" at the First National People of Color Environmental Leadership Summit adopted on 27th October, 1991 in Washington DC. -" Environmental justice affirms the sacredness of Mother Earth, ecological unity and the interdependence of all species, and the right to be free from ecological destruction". Ibid Directive Principle of State Policy in PART-IV of the Constitution, inserted by the Constitution (42nd Amendment) Act, 1976. Subhash Kr. –Vs- State of Bihar, AIR 1991 SC 420; Chhatriya Pradushan Mukti Sangarsh Samiti –Vs- State of UP, AIR 1990 SC 2060. M.C. Mehta –Vs- Union of India, 1997 SC 734. The United Nations Conference on the Human Environment was held at Stockholm, Sweden in the year 1972 from 5th to 16th June. Indian delegation was led by Mrs. Indira Gandhi the late Prime Minister of India. -"The Acts Include- The Water (Prevention and Control of Pollution) Act, 1974; The Constitution (42nd Amendment) Act, 1976; 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. Incidentally the enactment of The Wild Life (Protection) Act, 1972, was coincidental with the Stockholm Conference. All these Acts drew their immense inspiration from the proclamation adopted by the U.N. Conference on the Human Environment, 1972. In the recent years, the Parliament also enacted- The Public Liability Insurance Act, 1991; The Protection of Human Rights Act, 1993; The National Environment Tribunal Act, 1995; The National Environment Appellate Authority Act, 1997; subsequently repealed by the National Green Tribunal Act, 2010; The Information Technology Act, 2000; The Protection of Plant Varieties and Farmer's Rights Act, 2001; The Freedom of Information Act, 2002; repealed by the Right to Information Act, 2005; The Biological Diversity Act, 2002; and The Disaster Management Act, 2005." Popularly known as "Rio Earth Summit" was held at Rio de Janeiro in Brazil from 3rd to 14th June,1992. Indian delegation was led by Mr. Narshimha Rao, the late Prime Minister of India. The Constitution (42nd Amendment) Act, 1976. Directive Principle of State Policy vis-à-vis the fundamental duty of the State to protect and improve the environment. Fundamental duty of every citizen of India incorporated into the Constitution by the Constitution (42nd Amendment) Act, 1976. -"By the said Amendment Act, the subject of "Forests and Wildlife" was also transferred from State List to Concurrent List so that the Central Government may also play a meaningful role in this increasingly significant area." -"Baghjan Oil Field can also be traced near the famous Dibru-Saikhowa National Park in Assam and it is also in proximity to MaguriMotapungBeel, a natural wetland. Dibru-Saikhowa National Park is the only riverine island wildlife reserve globally. The Dibru-Saikhowa National Park is also connected to Namdapha National Park in Arunachal Pradesh via the DehingPatkai Wildlife Sanctuary. These regions are the part of the Indo-Burma Biodiversity Hotspot", Sep. 2020, 26, 9:00 pm. indianexpress.com; www.ndtv.com; thenortheasttoday.com Ibid Ibid Ibid Ibid DownToEarth, Sep. 2020, 26, 11:46 pm. www.downtoearth.org.in Ibid Ibid Ibid Ibid Ibid Ibid www.pratidintime.com; energy.economictimes.indiantimes.com -"These include the cause of oil and gas leak, extent and loss of damage to human life, wildlife, environment, damage and health hazard caused to the public, whether any contamination has been caused to water, air and soil of the area of the oil well and its vicinity, extent of contamination of waters of nearby rivers due to oil spil, impact on eco-sensitive zone of the Dibru-Saikhowa National Park and MaguriMotapung Wetland, impact on agriculture, fishery, whether any mitigation measure have been put in place by OIL, fix responsibility i.e., person responsible for the blowout and the cause of failure to prevent the mishap, assessment of compensation for the victims and the cost of restoration of the damage to property and the environment, preventive and remedial measures etc." Ibid Ibid Polluter Pays Principle is a sustainable approach to ensure compensation of the victims and restoration of the damaged ecology as an integral part of the process of sustainable development. -"In other words, environmental liability insurance covers the cost of restoring damage caused by environmental accidents, such as, pollution of air, water and land and biodiversity damage". Sep. 2020, 28, 4:55 pm. www.argyllenvironmental.co.uk. M.C. Mehta v. Union of India, AIR 1987 SC 1086. Ibid -"It also lays down that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also to the extent of restoring the damaged environment. Because remediation or regeneration of the damaged environment is the part of the process of sustainable development". Supra n.17. The then Prime Minister of Norway, to study the world environment and development beyond 2000. Supra n.18. Union Carbide Corporation (USA) v. Union of India, AIR 1990 SC 273. Supra n.63. Ibid Preamble to the Act of 1991. Upendra Baxi, "A New Initiative", The Illustrated Weekly of India, January 28 – February 3 (1990), p. 30. Ibid Ibid Supra n.63. M.C. Mehta v. Union of India AIR 1987 SC 1086. -"The different categories of reliefs include- Reimbursement of medical expenses incurred up to amaximum of Rs.12,500.00 in each case; For fatal accidents, the relief will be Rs.25,000.00 per person in addition to reimbursement of medical expenses, if any, incurred on the victim upto a maximum of Rs.12,500.00; For permanent total or permanent partial disability or other injury or sickness, the relief will be: (i) reimbursement of medical expenses incurred if any, upto a maximum of Rs. 12,500.00 in each case; andCash relief on the basis of percentage of disablement as certified by an authorized physician. The relief of total permanent disability will be Rs.25,000.00. Ibid Ibid Ibid