Loopholes in legislation

Though there is an obligation on the part of the State to provide to the people the right to health and the right to a clean environment, the reality is otherwise, says GEETA RAMASESHAN.

THE right to health and the right to a clean environment have been clearly established as a fundamental right under Article 21 of the Constitution by a plethora of judicial decisions from the Supreme Court. Thus, there is an obligation on the part of the State to provide to the people these rights.

However, the reality is otherwise. And the most telling example is the Bhopal gas disaster where the claims of compensation are still being processed 17 years after the tragedy and the guilty have gone scotfree. And as more and more non-State actors step in as transnational corporations, the challenges become multifold.

As regards pesticides, the Centre has set up the Pesticides Environment Pollution Advisory committee under the Department of Agriculture, but the Supreme Court was constrained to observe in a Public Interest Litigation (PIL) that pesticides considered hazardous in rich countries remain in use in developing countries.

The PIL arose on the basis of a letter written by Dr. Ashok to the Chief Justice of India where he stated that several insecticides, colour and food additives that were banned in other countries were used freely in India. The letter contained a list of 40 insecticides and additives, which the petitioner said, should be banned in the country. The Government of India produced various notifications before the court under which many of the insecticides were banned.

Another notification indicated that an experts committee was set up by the Government to review the continuous use of pesticides that are banned or have a restricted use in other countries. However the apex court observed, "though sufficient steps have been taken to either ban or allow restrictive use of these insecticides, there is no coordinate effort and different ministries involved (sic). It also transpires that there has been no continuous effort to research or have minimum information about the adverse effects of the use of such pesticides or other chemicals as a result of which people suffer".

The court was satisfied with the measures that the Government had taken regarding the 40 pesticides in the petition. The judges however directed that a committee of four senior officers of the four different ministries involved must be constituted; it should meet at least once in three months and take suitable measures in future in respect of other insecticides and chemicals found hazardous to health (AIR, 1997, SC 2298).

The Insecticides Act was enacted as a response to deaths in Kerala and Tamil Nadu in 1958 that were caused as a result of food poisoning due to the use of "Parthion" (Falidol). An enquiry commission was constituted under the chairmanship of Justice J.C. Shah and the recommendations were accepted by the Government.

The act regulates the import, manufacture, sale, transport, distribution and the use of insecticides with a view to preventing risk to people, animals and for other matters connected therewith. Under the act, there is a Central Insecticides Board to advise governments on matters under the act. The Registration Committee under the act registers insecticides after scrutinising the formula and verifying claims made by the importer or manufacturer about the safety and efficacy of the pesticides vis-a-vis people and animals. There is little scope for third parties to intervene at this stage.

A major flaw in the act is that once a substance is specified in the schedule of the act, there is no power to cancel the Registration Certificate issued in respect of the same substance even if in a scientific study it appears that the substance in question is grossly detrimental to health.

As observed by the Supreme Court, in the case mentioned above, "this is a lacuna in this legislation itself, and, therefore, steps should be taken for appropriate amendment to the legislation". The ball is now in the court of the lawmakers.

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