The Supreme Court, on August 31, imposed a fine of Re. 1 on Prashant Bhushan for criminal contempt of court and if he failed to pay the amount, he would have to undergo 3 months imprisonment and will be debarred from practicing in the Supreme Court for 3 years. While this was the operative part of the judgment and widely reported, the reading of the entire judgment gives the whole picture behind how the bench came to decide upon the penalty. It clearly shows how the bench, comprising Justices Arun Mishra, BR Gavai and Krishna Murari, reasoned the seemingly nominal penalty it imposed. It also raises the question; is the SC also trying to put the ball in the Bar Councils’ court?

Reference to Bhushan’s affidavit in response

Throughout the proceedings, the sentencing judgement is the first time, the bench quoted from Bhushan’s affidavit in response while holding that “it is more derogatory to the reputation of this Court and would amount to further scandalizing and bringing administration of justice in disrepute”.

The court referred to Bhushan averments about the court surrendering to the majoritarian executive, formation of benches by Chief Justice, withdrawal of the case which was filed questioning the decision of rejection of impeachment motion moved against the then Chief Justice, blaming the court for Ayodhya verdict and so on. The Court said that the averments are neither in the public interest nor bona fide one and are just reckless allegations against the institution of administration of justice.

In defence of judges

Coming to the defence of judges, the court observed, “The Judges have to express their opinion by their judgments, and they cannot enter into public debate or go to the press. It   is   very   easy   to   make   any   allegation   against   the   Judges   in   the newspaper and media.   Judges have to be the silent sufferer of such allegations, and they cannot counter such allegations publicly by going on public platforms, newspapers or media… Thus, it is necessary that when they cannot speak out, they cannot be made to suffer the loss of their reputation and prestige, which is essential part of the right to live with   dignity.”

About duty of the Bar

About the duty of the members of the Bar, the court stated, “The   Bar   is   supposed   to   be   the   spokesperson   for   the protection of the judicial system… The Bar and Bench are part of the same system i.e. the judicial system, and enjoy equal reputation.  If a scathing attack is made on the judges, it would   become   difficult   for   them   to   work   fearlessly   and   with   the objectivity of approach to the issues. The judgment can be criticized. However, motives to the Judges need not be attributed, as it brings the administration of justice into disrepute.”

Speaking about scandalising the court, the court held, “Hostile criticism of the judges or judiciary is definitely   an   act   of   scandalizing   the   Court.     Defamatory   publication concerning the Judge or institution brings impediment to justice”.

Purging for contempt

The court held that merely undergoing the penalty imposed on a contemnor is not sufficient to complete the process of purging himself for contempt. It held that in order to purge criminal contempt something more than an apology is needed; the Court has to be satisfied as to the genuineness of the apology to make an order that contemnor has purged himself of the contempt.

But before the contempt is purged, the advocate could suffer the consequences of Rule 11 of the Rules which postulates that in case the advocate has been found guilty of contempt of court, his authority to act or plead in any court stands snapped.

The court referred to Pravin C. Shah   v.   K.A.  Mohd   Ali and Anr which upheld Rule 11 of the Rules framed by the High Court of Kerala under Section 34(1) of the Advocates Act, 1961 which states that, “No advocate who has been found guilty of contempt of Court shall be permitted to appear, act or plead in any Court unless he has purged himself of the contempt”.

The court also referred to the press conference held by former senior most judges of the Supreme Court on January 12, 2018. Bhushan had justified his averments basis this press conference. The court opined, “We hope it was the first and the last occasion that the Judges have gone to press, and God gives wisdom to protect its dignity by internal mechanism, particularly, when   allegations   made,   if   any,   publicly   cannot   be   met   by   sufferer Judges.  It would cause suffering to them till eternity.”

About the tweets

The court, while making a final reference to the two tweets, the court stated, “It is not expected of a person who is a part of the system of administration of justice and who owes a duty to the said system, to make such tweets which are capable of shaking the confidence of general public and further making wild allegations in the affidavit thereby further attempting to malign the said institution.”

The court further held that “Fair criticism is not to be silenced, but an advocate has to remind himself/herself, where he/she crosses the zone of propriety, and the Court cannot continuously ignore it, and the system cannot be made to suffer.  When the criticism turns into malicious and scandalous allegations thereby tending to undermine the confidence of the public and the institution as a whole, such a criticism cannot be ignored.”

About going to press in a subjudice matter

The court held that, “In a sub judice matter, releasing such statement to the press in advance is an act of impropriety and has the effect of interfering with the judicial process”. The court held that the fact that Bhushan went to press after being convicted for contempt means the tolerance of the court was being tested by resorting to unscrupulous methods.

Decision on sentencing

Firstly, the court refused to recall its judgement convicting Bhushan of contempt, as suggested by Senior Advocate Rajiv Dhavan, the counsel for Bhushan. “While sentencing, we have to act with objectivity in relation to the person and the actual effect,” the court observed.

The court held that while the public has the right to criticize, they are “required to abstain from imputing improper motives to those taking part in the administration of justice.”

The court was also perturbed that Bhushan mentioned in his supplementary statement dated August 24 that the court asked him to take 2-3 days to reconsider his statements while the court’s order states  that time was given to the “contemnor to submit unconditional apology, if he so desires”.

The court held, “Virtual exchange during the course of the proceedings is not what is the order of the Court but it could be a tentative expression of that exchange during the course of hearing.  However, ultimately what is final is the order of the Court.”

“It would have been better if the aforesaid part was not mentioned in the supplementary statement, but we cannot stop anybody from making any statement, but we consider it not to be a proper statement as to what should have been the words in the order of the Court.   We have not coerced the contemnor to submit the apology and have clearly mentioned that time was given to submit unconditional apology, “if he so desires”.

Thereafter, referring to Attorney General’s submission that Bhushan may retract his statement and submit an apology, the court stated, “When senior­most functionary in the legal profession of the stature of the learned Attorney General was giving an advice to express regret and withdraw the wild allegations a lawyer of such a long standing was expected to give due respect to it.”

The court further, categorically stated about debarring Bhushan from practicing law, “Pursuant to the conviction in a criminal case, the Bar Council of India can suspend the enrolment, if it so desires.  It is also open to this Court to debar from practicing in a Court”.

Declaring the sentence

In its finality, the judgment states that the court is not “afraid of sentencing the contemnor either with imprisonment or from debarring him from the practice”. The court further stated that Bhushan’s conduct reflects adamance and ego, which has no place to exist in the system of   administration   of   justice.

While considering the penalty to be imposed, the court observed, “we   cannot   retaliate   merely   because   the contemnor   has   made   a   statement   that   he   is   neither   invoking   the magnanimity or the mercy of this Court and he is ready to submit to the penalty that can be lawfully be inflicted upon him for what the Court has determined to be an offence.”

The court said that despite giving him several chances to apologize and save the grace of the institution as well as himself as the officer of the court, he has shown no regret and hence the court is imposing an appropriate sentence upon him.

The court stated that it is showing magnanimity and imposing a nominal fine of Re. 1 to be deposited by September 15 by Bhushan failing which he shall undergo a simple imprisonment for a period of three months and further be debarred from practising in this Court for a period of three years.

The complete judgment may be read here.

Related:

Grateful and humbled by the solidarity and support: Prashant Bhushan
Breaking: Prashant Bhushan fined Re.1 for ‘committing contempt’
Prashant Bhushan 2009 contempt case to be heard by another bench

The post Prashant Bhushan contempt case: The judgment behind the Re. 1 penalty appeared first on SabrangIndia.

The National Green Tribunal (NGT) has imposed an interim penalty of Rs. 25 crore on Oil India Limited (OIL) due to its failure in stopping the fire in Assam’s Baghjan 5 gas well that has adversely impacted the people and ecology in the area, Live Law reported.

In an order passed in two original applications – one moved by environmentalist Bonani Kakkar and the other by Assam-based NGO Wild Life & Environmental Conservation Organisation, a bench comprising Justices SP Wangdi and Siddhanta Das directed, “In view of the prima facie case made out against OIL on the extent of damage caused to the environment and biodiversity, damage to both human and wildlife, public health and, having regard to the financial worth of the Company and the extent of damage, we direct the OIL to deposit an initial amount of Rs 25 Crores with the District Magistrate, Tinsukia District, Assam and shall abide by further orders of the Tribunal.”

The applicants invoked the precautionary principle and the Polluters Pay Principle under Sections 20 of the NG Act, 2010 as well as the “Public Trust” doctrine, the order stated.

Apart from this, the bench constituted an eight-member committee to look into the matter and submit its preliminary report within 30 days. It has asked the committee to look at the cause of gas and oil leak, extent of loss and damage caused to human life, wildlife and environment, whether any contamination has been caused to the water, air and soil of the area, contamination of the water of the Dibru river, impact on the Dibru-Saikhowa National Park and Maguri-Motapung Wetland and assessment of compensation for the victims and cost of restitution among other aspects.

The complete order by NGT may be read below.

Last week, the Pollution Control Board, Assam issued a closure notice to OIL asking it to stop its production and drilling operations at the Baghjan oilfield, alleging that it hadn’t taken prior consent to operate. However, the notice was subsequently withdrawn in pursuance of the affidavit submitted by OIL under some conditions.

The BGN 5 oil well at the Baghjan oilfield in Assam saw a massive blowout on May 27 and on June 9, the well caught fire, increasingly compromising the safety of the people and flora and fauna in the vicinity. It was reported that OIL had subverted laws and extended its drilling and testing to seven new locations at the Dibru-Saikhowa National Park, bypassing the rule for public hearings to be undertaken for operations inside protected forests. It had instead asked the environment ministry to take into account the hearings that had taken place on July 8 and August 26, 2011, The Wire had reported.

In an exclusive for Sabrang India, Dr. Hiren Gohain through his article, The Price of Profit, OIL’s misadventure threatens Tinsukhia’s reserve forests & wild life sanctuaries highlighted the Government of India’s sinister ploy to use the lockdown for granting environmental clearances to OIL’s drilling in Assam which endangered human and natural life. The very next day, Sabrang India had also reported of Pradip Saikia, a retired scientist, telling TV Channel Asomiya Pratidin about how political executives ignored the red flags raised in the matter.

Meanwhile, OIL in its daily update on Twitter has said that it has suspended the day’s operations due to heavy floods in the state. It said that floodwater has entered the debris area and has inundated a large area. The Kill pump area is flooded too and the OIL CMT Water Pump area is submerged with flood water. The bioremediation and environment impact studies too have been put on hold due to the floods in the state.

Update on blowout in Gas Well of Oil India Limited at Baghjan, Tinsukia District, Assam (27.06.2020). pic.twitter.com/qTCKONYI5H

— Oil India Limited (@OilIndiaLimited) June 27, 2020

The company also denied claims of oil flowing into water bodies from the gas well saying that the claims were false as all hydrocarbon coming out of the well is completely burnt at the well head.

False video:There is a video clip in circulation in social media wherein it has been claimed that lot of oil is flowing into nearby water bodies/river frm Baghjan blowout well.
This is totally false since all hydrocarbon cming out of the well is completely burnt at the well head. pic.twitter.com/aX0FuaTJUB

— Oil India Limited (@OilIndiaLimited) June 26, 2020

Related:

Assam Pollution Control Board withdraws closure notice served to Oil India Limited
Pollution Control Board Assam issues closure notice to Oil India Limited over Baghjan fire
Baghjan oil well continues to spew fire; affected families yet to receive compensation
Assam: Fourteen days later massive fire breaks out at oil well in Baghjan oilfield
More on Assam’s Ecological Disaster, retd scientist Saikia speaks of Govt ignoring scientific advice against drilling at Tinsukhia
High-level probe into OIL’s Baghjan well tragedy: CM Sonowal

The post National Green Tribunal slaps Rs. 25 crore fine on Oil India Limited for gas well blowout appeared first on SabrangIndia.

The National Green Tribunal (NGT) bench headed by Chairperson Justice Adarsh Kumar Goel has, on June 8, directed to make an interim deposit of Rs. 25 crore as penalty. Other members of the NGT presently include Justice SP Wangdi and Dr Satyawan Singh Garbyal (expert member)

On June 3, a mysterious explosion took place in Yashashvi Rasayan Private Ltd (YRPL) chemical factory at Dahej in Bharuch, Gujarat.  Reportedly, the blast was caused due to a reaction between two containers on account of some chemical process. The blast has led to deaths of 10 persons

The order is to deposit an amount minus the statutory compensation/ex gratia payments already made to the victims, if any, with the District Magistrate, Bharuch within 10 days from the date of order. The NGT has held the company strictly and absolutely liable for the loss caused due to the blast.The company has been asked to pay Rs 15 lakh to family members of each deceased, Rs 5 lakh each to those grievously injured, Rs 2.5 lakh each to the injured, and Rs 25,000 each to those displaced from their homes due to the incident.

The Tribunal has also constituted a 6 members committee headed by former High Court judge Justice BC Patel and the report is expected in a month.The panel will examine the sequence of events, causes of failure and those responsible for it; the extent of damage to human and non-human life and public health and environment; steps to be taken for compensation; and restoration of damaged property and remedial measures.

“The amount may be disbursed by the District Magistrate by making disbursement plan. Disbursement plan may consider safeguards to ensure that amount reaches the beneficiaries and is not misappropriated by any intermediary,” the bench said.

The order further reads, “If the company fails to make the deposit, the State will be at liberty to recover the same by coercive methods but the disbursement may in such case be made out of the State funds within one month with right of the State to recover the amount from the company.”

The bench also pointed out that since a similar incident took place in Vishakhapatnam, “it may be necessary to ensure that risk studies are duly undertaken by all industries in the country dealing with the hazardous chemicals and their on-site and off-site plans are operational and mock drills are carried out for testing the same. The State PCBs, concerned District Magistrates, CIFs of the Industries Departments may ensure the same and the nodal agency for the purpose will be the State PCBs, which may be monitored by the CPCB in an appropriate manner.”

The order was passed on a complaint filed by a Surat based NGO called Aryavrat Foundation which sought urgent hearing on June 5. In the complaint it was stated that the company had failed to follow requisite precautions and safety protocols.The matter has been transferred to the Principal bench of NGT, with the next date of hearing on November 3, 2020.

Background

The detailed Order of the NGT narrates the facts: “ On account of a fire in the storage tank of the factory, manufacturing several chemicals including Methanol and Xylene which find mention

in the Schedule to the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 (The 1989 Rules). On account of the saidincident, eight (08) workers were killed and atleast 50 injured. Bodies of some of the workers inside the factory were charred beyond recognition. We have seen some of the telling photographs during the hearing. About 4800 inhabitants of the nearby villages had to be moved to safer place1 on account of the incident. The company has revenue in the range of Rs. 100 crores for the year ending March 31, 2018. According to Mr. Panjwani, learned Senior Counsel appearing the applicant, the Company is owned by the Patel Group having large financial resources.”

The application before the NGT that was heard through Video Conferencing was filed by a NGO located at Surat mentioning the above facts based on newspaper reports (Indian Express, June 4). The applicant has also referred to another recent shocking incident of May 7, 2020 in the factory of L.G. Polymers India at Vishakhapatnam where 12 persons died and several others were injured.

The NGT Order relies upon the fact that, on May 8, 2020, the Central Pollution Control Board (CPCB)issued a circular requiring all the State PCBs to undertake safety audit of industries before they reopened after the COVID-19 situation. The industries dealing with hazardous chemicals were required to ensure that all safety protocols are followed and requisite equipment is operationalised and manpower is duly trained for handling such chemicals. On May 11, 2020, Maharashtra State PCB issued an identical circular specifically requiring the hazardous and chemical handling units to provide information with regard to onsite and offs it emergency plans, safety audit reports and action taken in pursuance of such report. It is stated that the company failed to follow requisite precautions and safety protocols. “The company is thus strictly and absolutely liable for the damage caused to the human lives, human health, property and the environment in violation of environmental norms, particularly the mandate of the1989 Rules, the Chemical Accidents (Emergency, Planning, Preparedness and Response) Rules, 1996(the 1996 Rules) and the circular issued by the CPCB,” held the NGT.

The NGT Order further held that it is undisputed during the hearing that the company is engaged in the manufacture of hazardous chemicals and is covered by the 1989Rules and the 1996 Rules. It has to prepare and follow onsite and off site emergency plan which is required to be duly audited and overseen by the statutory authorities including the Chief Inspector of Factories(CIFs), Department of Industries, the District Magistrate, the State PCB and the Petroleum and Explosives Safety Organization (PESO). The overall regulatory framework is under the Ministry of Environment,

Forest and Climate Change (MoEF&CC). Liability of the Company is strict and absolute for the loss caused by its activities. “Dependents/heirs of the deceased as well as the injured persons, the persons displaced on account of the incident have to be duly compensated. The company has also to bear the cost of restoration of the environment.”

Failure of Statutory Authorities

A significant aspect of the NGT Order is that it also looks at the failure of the concerned statutory authorities in taking necessary preventive and safety measures in general.

Specifically in the case of the Yashashvi Rasayan Private Ltd (YRPL) chemical factory at Dahej in Bharuch, Gujarat, the NGT has issued the following directions:

a) The Company may deposit an amount of Rs. 25 crores,minus the statutory compensation/ex gratia payments already made to the victims, if any, with the District Magistrate, Bharuch within 10 days from today.The amount may be disbursed by the District Magistrate by making disbursement plan in the manner already indicated above (Para 6). Disbursement plan may consider safeguards to ensure that amount reaches the beneficiaries and is not misappropriated by any intermediary.

b) The NGT constituted a 6-member Committee comprising:

(i) Justice B.C. Patel, former Chief Justice, Delhi High Court and former Judge of the Gujarat High Court presently stationed at Ahmedabad – Chairman

(ii) Representative of MoEF&CC – Member

(iii) Representative of CPCB – Member

(iv) Head of the Chemical Engineering Department of the IIT

Gandhinagar – Member

(v) Representative of NEERI – Member

(vi) Representative of National Institute of Disaster

Management, IIPA Campus, New Delhi – Member

The District Magistrate, Bharuch and GPCB will provide logistic support to the Committee to enable their fact-finding and reporting. The Committee will be at liberty to take assistance of such experts, individuals and institutions as may be considered necessary

c) The Committee may visit and inspect the site within 7 days and give its report within one month thereafter via emailjudicial-ngt@gov.in, (preferably in the form of searchable/OCR PDF and not image PDF).

The Committee may specifically report:

i. The sequence of events;

ii. Causes of failure and persons and authorities responsible therefor;

iii. Extent of damage to life, human and non-human; public health; and environment – including, water, soil, air;

iv. Steps to be taken for compensation of victims and restitution of the damaged property and environment, and the cost involved;

v. Remedial measures to prevent recurrence;

vi. Any other incidental or allied issues found relevant.

CPCB will be the nodal agency for coordination.

If any member is unable to visit physically, he may be associated online with the permission of the Chairman. The Committee may provide opportunity of being heard to the Company as well as any other member of the public.

A copy of the report may be uploaded on the website of the CPCB and also provided to the Company for its response.

d) It will be open to the concerned authorities to act on there commendations of the Committee to the extent the authorities find viable in exercise of their statutory powers pending further orders of this Tribunal.

e) The Committee may as far as possible make final quantification of compensation and also prepare a restoration plan in association with the District Magistrate, Bharuch. For the restoration plan, the nodal agency will be the representative of MoEF & CC.

f) The Chief Secretary, Gujarat may identify and take appropriate action against persons responsible for failure of law in permitting the Company to operate without statutory clearances within two months and give a report to this Tribunal.

g) In view of the stand of the State PCB that the order of closure has been passed, before re-commencing any operations, the Company may bring it to the notice of this Tribunal, so that it can be ensured that there is no violation of statutory provisions and safety measures.

The order is without prejudice to any criminal or other statutor proceedings in accordance with law.

Finally, the NGT has also held substantively that, since this tragedy follows so close on the heels of a similar one (in Vizag), “it may be necessary to ensure that risk studies are duly undertaken by all industries in the country dealing with the hazardous chemicals and their on-site and off-site plans are operational and mock drills are carried out for testing the same. The State PCBs, concerned District Magistrates, CIFs of the Industries Departments may ensure the same and the nodal agency for the purpose will be the State PCBs, which may be monitored by the CPC Bin an appropriate manner.

A direction (by the NGT in the same Order) “has already been issued to the MoEF &CC to constitute an Expert Committee on the subject of revamping the monitoring mechanism to check and prevent violation of environmental norms and occurrence of such incidents in future particularly in establishments dealing with hazardous chemicals anda special drive may be initiated, no separate direction is necessary but this incident may also be kept in mind by the Expert Committee constituted in pursuance of order dated June 1, 2020.

A copy of this order was ordered to be sent to Justice B.C. Patel, former Chief Justice, Delhi High Court and former Judge of the Gujarat High Court, MoEF&CC, CPCB, Head of the Chemical Engineering Department of the IIT Gandhinagar, NEERI, National Institute of Disaster Management, IIPA Campus, New Delhi, GPCB and District Magistrate, Bharuch by e-mail.

The NGT, in a suo moto case,has also recently held, in a similar incident of gas leak in Vishakhapatnam, that LG Polymers has absolute liability and had ordered interim penalty of Rs. 50 crore.

Meanwhile, a similar incident has also taken place in Assam where Oil India Limited (OIL) reported a blowout during workover operations at the Baghjan oil well leading to an uncontrolled release of natural gas which had not been controlled. The gas is leaking since May 27 and on June 9 it eventually led to an explosion engulfing nearby areas, burning houses and trees. OIL has said that it could be at least four more weeks till the fire and the blowout were brought under control. The NGT has not taken cognizance of this incident yet.

The complete order can be read here.

Related:

Assam: Fourteen days later massive fire breaks out at oil well in Baghjan oilfield
LG Polymers India has Absolute Liability: NGT on Vizag Gas Leak
Assam gas -well blowout: 11 days on, threat to humans and animals remains high

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