Role by the Supreme Court of India
The Role Played By The Supreme Court Of India
As per statutory laws in India it is permissible to import hazardous material for recycling. Therefore prima facie shipbreaking is a legal activity, but environmental and occupational repercussions are inevitably associated with shipbreaking activities, so the whole industry needs thorough regulation. French aircraft carrier Clemenceau was not allowed to be dismantled and was sent back to France as it had high levels of hazardous materials. In Research Foundation for Science Technology National Resource Policy v Union of India & Anr. the Supreme Court referred back to its order dated 17/2/2006 and reiterated that sending back Clemenceau is only a temporary solution to a recurring problem. The same order also directed constitution of a committee comprising of experts who would scrutinize whether Alang has infrastructural stability and adequacy and whether the same is operational in a way so as to minimise environmental hazards. A committee was formed in accordance with the order and it submitted its report which contained recommendations on several aspects of ship breaking from anchoring, beaching to dismantling. The Supreme Court accepted and upheld the recommendations and in its judgment on 6/09/2007 the division bench of Prasayat J. and Kapadia J. held that a comprehensive code needs to be formulated incorporating the recommendation of the committee and till then the recommendations shall be operative.
However, again in Research Foundation for Science Technology National Resource Policy v Union of India & Anr. in a judgement five days later i.e. on 11/09/2007 the same division bench allowed dismantling of SS Blue Lady, a ship which was sent back by Bangladesh following several protests by environmentalists . In this case it was held that “Dismantling of ships can be allowed if it conforms to the standards prescribed.”
There has been strong protest by several NGOs following that. Previously in a report by NGO Platform on shipbreaking concerns were raised over conclusions of the committee on the basis of whose report ‘Blue Lady' was given a green signal. It was contended that mere visual inspection is not enough to detect toxins like airborne asbestos and PCBs. It was further alleged that the committee ignored reports on inspection of ‘Blue Lady' which was conducted in 2004 by a French company Tecnitas and also in 2005 in a German port.
The judgement of 6/09/2007(hereinafter referred to as the first judgment) reiterates recommendations of a committee as discussed above. Among other things the judgement features description of ‘beaching' and ‘anchoring' as recommended by the committee. The definition of beaching as per the judgement is “Beaching refers to running aground on the beach a ship meant for breaking by the beaching method. This ship is sailed into the beach under its own power or is towed by barges. A beached ship is rendered immobile, and cannot usually be refloated. Beaching is thus irreversible.” And anchoring was defined as “Upon entry into the Port area, a ship is allowed to be anchored by dropping one or more anchors to the seabed. This prevents drifting of the ship, tethers it to one spot, and enables boarding from boats. A ship at anchor may lift its anchors, and sail away. Anchoring of ships is thus fully reversible.” In the same judgment it was upheld by the Supreme Court that when a ship is anchored it shall be inspected for hazardous material and beaching can follow if only the inspection indicates absence of substantial amount of pollutants. However in the judgement of 11/09/2007(hereinafter referred to as the second judgment) the division bench pointed out that ‘Blue Lady' was beached, indicating that it cannot be sent back, however it remained silent on the fact the it was beached without any inspection during anchoring which is the normal procedure.
In the second judgment division bench mentioned that if the ship is dismantled then around several 700 workers would be employed and approximately 4100 metric tonne steel will be generated. The court also mentioned that shipbreaking is a competitive industry and India is facing competition from countries like Bangladesh and Pakistan. However the authors believe that honourable court should not be swayed by points like these as employment opportunities which would expose the workers to inevitable and severe health risks should not be considered as employment opportunities at all. It can be concluded threats associated with dismantling of Blue Lady was apparent as it was not allowed to be dismantled in Bangladesh, India's prime competitor in shipbreaking.
However the role played by the Supreme Court so far is of paramount importance. The first judgment has laid down the foundation for beginning the law making process. The division bench ordered a committee to be formed and also accepted their recommendations which lays down a line of action and specifies what is to be done both at the domestic and international level. So clearly the judgement has provided a firm and adequate platform for the lawmakers to begin the process of law making.
Further in the second judgement the division bench took a very realistic approach by applying“the concept of balance under the principle of proportionality applicable in the case of sustainable development”. The concept says that adverse affect on the ecology and environment and is an inevitable consequence of development, but development cannot be stopped, so a balance has to be struck keeping in mind the larger interest and welfare.