National law relating to corporate human rights and

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National law relating to corporate human rights and environmental responsibility: the case of India

National law relating to corporate human rights and environmental responsibility: the case of India 13 May 2011 Rebecca Faugno Assistant Professor Faculty of Law

Introduction • Introductory remarks • Presentation outline: 1. 2. 3. 4. 5. 6. 7.

Introduction • Introductory remarks • Presentation outline: 1. 2. 3. 4. 5. 6. 7. The Indian legal system Treaty participation Human rights law Environmental law Corporate liability in tort Corporate criminal liability Concluding remarks

1. The Indian Legal System • Nature of the Indian legal system • Relevant

1. The Indian Legal System • Nature of the Indian legal system • Relevant sources of law in India – The Constitution of India 1950 – Written statutes – Case law • Division of law-making power between the Union and the states • Relationship between statute and common law • The Indian Court system • Focus of the presentation

2. Treaty Participation Key multilateral treaties ratified by India Key Human Rights Treaties Key

2. Treaty Participation Key multilateral treaties ratified by India Key Human Rights Treaties Key Environmental Treaties International Convention on Civil and Political Rights (New York, 16 December 1966) Vienna Convention for the Protection of the Ozone Layer (Vienna, 22 March 1985) International Convention on Economic, Social and Cultural Rights (New York, 16 December 1966) Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal, 16 Sept ember 1987) (and key amendments) International Convention on the Elimination of All Forms of Racial Discrimination (New York, 7 March 1966) Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel, 22 March 1989) Convention on the Elimination of Discrimination Against Women (New York, 18 December 1979) Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto, 11 December 1997 Convention on the Rights of the Child (New York, 20 November 1989) Convention on Biological Diversity (Rio di Janeiro, 5 June 1992) Convention on the Prevention and Punishment of the Crime of Genocide (New York, 9 December 1950) Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Montreal, 29 January 2000) Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (New York, 21 March 1950) United Nations Framework Convention on Climate Change (New York, 9 May 1992) Slavery Convention (Geneva, 25 September 1926) United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (Paris, 14 October 1994) Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Rotterdam, 10 September 1998) Stockholm Convention on Persistent Organic Pollutants (Stockholm, 22 May 2001) Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington DC, 3 March 1973)

2. Treaty Participation (cont. ) • Key human rights treaties India has signed but

2. Treaty Participation (cont. ) • Key human rights treaties India has signed but not ratified: – Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (New York, 10 December 1984) – United Nations Convention Against Corruption (New York, 31 October 2003) – International Convention for the Protection of All Persons from Enforced Disappearance (New York, 20 Dec 2006) • Key human rights treaties India has not signed • Key environmental treaties India has not signed: – Protocol on Pollutant Release and Transfer Registers to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Kiev, 21 May 2001) • Incorporation of treaties into domestic law

3. Human rights law 3. 1 Human rights in the Constitution 3. 1(a) The

3. Human rights law 3. 1 Human rights in the Constitution 3. 1(a) The Fundamental Rights • What are the ‘Fundamental Rights’? (Constitution, Part III) • Examples of Fundamental Rights: – – – The right to equality before the law (Article 14) The right to freedom of speech and expression (Article 19) Prohibition on employment of a child under 14 in any factory, mine or ‘other hazardous employment’ (Article 24) The right to protection of life and personal liberty (Article 21) The right to apply to the Supreme Court for enforcement (Article 32)

3. Human rights law (Cont. ) 3. 1(b) Enforcement of the Fundamental Rights •

3. Human rights law (Cont. ) 3. 1(b) Enforcement of the Fundamental Rights • By the Supreme Court: Article 32, Constitution – – – • Remedies include directions, orders, writs ‘including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari’. Examples Monetary compensation? By State High Courts: Article 226, Constitution

3. Human rights law (Cont. ) 3. 1(c) Applicability to corporations • Do the

3. Human rights law (Cont. ) 3. 1(c) Applicability to corporations • Do the Fundamental Rights apply to corporations? – Express application? – Supreme Court dicta: where the private corporation is engaged in ‘an activity which is hazardous to the health and safety of the community and is imbued with public interest’: MC Mehta v Union of India [1987] 1 SCC 395 • Can a corporation fall within the definition of ‘State’? … ‘the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. ’ (Article 12, Constitution)

3. Human rights law (Cont. ) 3. 1(c) Applicability to corporations (cont. ) •

3. Human rights law (Cont. ) 3. 1(c) Applicability to corporations (cont. ) • When is a corporation an ‘other authority’ within the meaning of Article 12 of the Constitution? – Relevant factors – ‘The question in each case is whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government … If this is found then the body is a State within Article 12. ’ (Pradeep Kumar Biswas v Indian Institute of Chemical Biology & Ors (2002) 5 SCC 111. )

3. Human rights law (Cont. ) 3. 1(c) Applicability to corporations (cont. ) •

3. Human rights law (Cont. ) 3. 1(c) Applicability to corporations (cont. ) • Enforcement against corporations under Article 226 – Each High Court has ‘power … to issue to any person or authority … within [its] territories, directions, orders or writs … for the enforcement of any of the rights conferred by Part III and for any other purpose. (Article 226, Constitution) – ‘any other [non-State] person or body performing public duty’ or operating as an extended arm of the state, or a body regulated by the state: Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Truest & Ors v VR Rudini & Ors (1989) 2 SCC 691. • Indirect relief for corporate violation of Fundamental Rights

3. Human rights law (Cont. ) 3. 2 Human rights in other Union legislation

3. Human rights law (Cont. ) 3. 2 Human rights in other Union legislation 3. 2(a) Protection of Human Rights Act 1993 – – National Human Rights Commission • Powers include power of inquiry; intervention in court proceedings; recommendations for implementation of international human rights instruments; research. • Complaint investigation powers. • Power to ask a court to issue directions. • Corporations may be indirectly affected by NHRC activities. State Human Rights Commissions

3. Human rights law (Cont. ) 3. 2 Human rights in other Union legislation

3. Human rights law (Cont. ) 3. 2 Human rights in other Union legislation (cont. ) 3. 2(b) Labour-related legislation • Factories Act 1948 – Factory occupiers to ‘ensure, so far as is reasonably practicable, the health, safety and welfare of all workers while they are at work in the factory…’ (section 3) – ‘Occupier’: the person who has ultimate control over the affairs of the factory’ (section 2(n)). – Failure to comply => factory occupier and manager guilty of an offence punishable with up to two years’ imprisonment and/or a fine (section 2(k)). – – – Requirement for licence to operate Monitoring of factory premises and inquiry into accidents More onerous obligations for factories involving a hazardous process

3. Human rights law (Cont. ) 3. 2 Human rights in other Union legislation

3. Human rights law (Cont. ) 3. 2 Human rights in other Union legislation (cont. ) 3. 2(b) Labour-related legislation (cont. ) • Wages and benefit laws – – – • Minimum Wages Act 1948 Payment of Bonus Act 1965 Maternity Benefit Act 1961; Maternity Benefit (Amendment) Act 2008 Laws concerning discrimination, child labour, forced labour – – – Equal Remuneration Act 1976 Child Labour (Prohibition and Regulation) Act 1986 Bonded Labour System (Abolition) Act 1976

3. Human rights law (Cont. ) 3. 2 Human rights in other Union legislation

3. Human rights law (Cont. ) 3. 2 Human rights in other Union legislation (cont. ) 3. 2(b) Labour-related legislation (cont. ) • Laws relating to freedom of association and industrial disputes – – • Trade Unions Act 1926; Trade Unions Amendment Act 2001 Industrial Disputes Act 1947 Social security and workers’ compensation laws – – – Employees’ Provident Funds & Miscellaneous Provisions Act 1952 Employees’ State Insurance Act 1948 Payment of Gratuity Act 1972

3. Human rights law (Cont. ) 3. 2 Human rights in other Union legislation

3. Human rights law (Cont. ) 3. 2 Human rights in other Union legislation (cont. ) 3. 2(c) Special Economic Zones • Special Economic Zone (SEZ): a delimited geographical region offering benefits and incentives to businesses with a view to encouraging investment, boosting employment, generating additional ecoomic activity and fostering the development of exports and infrastructure. • Incentives for businesses operating in a SEZ • Human rights and environmental law applicable in SEZs

4. Environmental law 4. 1 Relevant environmental legislation 4. 1(a) Key Institutions – –

4. Environmental law 4. 1 Relevant environmental legislation 4. 1(a) Key Institutions – – – Ministry of Environment and Forests Central Pollution Control Board State Pollution Control Boards 4. 1(b) Environment protection generally • Environment (Protection) Act 1986 – – Standards for polluting emissions and handling of hazardous substances Penalties for contravention Central government rules and notifications Environmental approvals and impact assessment

4. Environmental law (cont. ) 4. 1 Relevant environmental legislation (cont. ) 4. 1(c)

4. Environmental law (cont. ) 4. 1 Relevant environmental legislation (cont. ) 4. 1(c) Water pollution • Water (Prevention and Control of Pollution) Act 1974 – – Central and State Pollution Control Boards ‘to promote cleanliness of streams and wells…’ (s 16(1)) Monitoring, enforcement and directions Authorisations and operating conditions Criminal offences and penalties, eg: • – an offence for any person to ‘knowingly cause or permit any poisonous, noxious or polluting matter … to enter (whether directly or indirectly) into any stream or well or sewer or on land’: section 24. Duties and emergency measures in case of pollution

4. Environmental law (cont. ) 4. 1 Relevant environmental legislation (cont. ) 4. 1(c)

4. Environmental law (cont. ) 4. 1 Relevant environmental legislation (cont. ) 4. 1(c) Water pollution (cont. ) • Water (Prevention & Control of Pollution) Cess Act 1977 4. 1(d) Air pollution • Air (Pollution and Control of Pollution) Act 1981 – – – Authorisation and operating conditions Monitoring, enforcement and directions Emergency measures, offences and penalties

4. Environmental law (cont. ) 4. 1 Relevant environmental legislation (cont. ) 4. 1(e)

4. Environmental law (cont. ) 4. 1 Relevant environmental legislation (cont. ) 4. 1(e) Hazardous substances • Public Liability Insurance Act 1991 – – – • Strict liability for death or injury to persons or damage to property resulting from an accident connected with the handling of hazardous substances. Liability attaches to ‘a person who owns, or has control over handling, any hazardous substance at the time of accident, ’ including company directors and officers: 2(g). Insurance requirement Nuclear industry: Civil Liability for Nuclear Damage Act 2010

4. Environmental law (cont. ) 4. 1 Relevant environmental legislation (cont. ) 4. 1(f)

4. Environmental law (cont. ) 4. 1 Relevant environmental legislation (cont. ) 4. 1(f) Law relating to wildlife, forests and biodiversity • Wild Life (Protection) Act 1972 • Forest (Conservation) act 1980 • Indian Forest Act 1927 • Biological Diversity Act 2002

4. Environmental law (cont. ) 4. 1 Relevant environmental legislation (cont. ) 4. 1(g)

4. Environmental law (cont. ) 4. 1 Relevant environmental legislation (cont. ) 4. 1(g) Environmental tribunals • Former regime: National Environment Tribunal and National Environment Appellate Authority • New National Green Tribunal (National Green Tribunal Act 2010) A single national tribunal ‘for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources … and giving [of] relief and compensation for damages to persons and property. ’ – Jurisdiction – Relief

4. Environmental law (cont. ) 4. 2 Environmental liability at common law 4. 2(a)

4. Environmental law (cont. ) 4. 2 Environmental liability at common law 4. 2(a) Public Interest Litigation – What is PIL? – Expansive interpretation of the Article 21 right to life. 4. 2(b) Incorporation into Indian common law of certain international environmental law principles: – – – Polluter pays Precautionary principle Sustainable development principle

5. Corporate liability in tort • The tort of negligence – Bhopal gas disaster

5. Corporate liability in tort • The tort of negligence – Bhopal gas disaster case • The tort of public nuisance – Extended principle of absolute liability – MC Mehta v Union of India [1987] 1 SCR 819: An enterprise which is engaged in a hazardous or inherently dangerous industry … owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of the hazardous or inherently dangerous nature of the activity which it is has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity … 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 it should be no answer for the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part.

6. Corporate criminal liability • Criminal liability arising under environmental legislation – – Environment

6. Corporate criminal liability • Criminal liability arising under environmental legislation – – Environment (Protection) Act Water Act Air Act Public Liability Insurance Act • Criminal liability under the Indian Penal Code 1860 – – Section 304: Culpable homicide not amounting to murder Section 304 A: Causing death by negligence Section 336: Acts endangering life or personal safety of others Section 337: Acts rashly or negligently endangering life or personal safety – Sections 338 – 9: Causing hurt or grievous hurt by endangering life or personal safety – Eg Bhopal case