- Almas Shaikh*
In early May, a plastic plant owned by South Korea’s LG corporation started leaking styrene into the surrounding residential area in Vishakhapatnam.[1] The leakage of the gas spread over a 5-km radius, affecting people in as many as 4 villages. It was estimated that eleven people were killed, and hundreds more had to be taken to the hospital.
In another event in May, a boiler explosion took place at the NLC plant in Tamil Nadu, injuring 8 people. Subsequently, 6 men were killed and seventeen others injured when a boiler exploded again, at the same plant, a couple of months later.[2] In another incident, a blast occurred in another corporation in Gujarat and caused injuries to forty workers.[3]
On June 6, 2020, H&M, a global clothing brand informed around thirteen hundred garment workers that, effective immediately, their services were no longer required, and that the factory was being closed down.[4] As a result of this sudden announcement, scores of women garment workers had to travel for 10 kms daily to protest at the Karnataka factory.
More than thirty years later, while the Bhopal gas tragedy victims are still fighting for justice, similar human rights violations continue to take place in India. The lack of a specific, comprehensive, and adequate system of legal liability for human rights violations or abuses, specifically in the context of business activities, has complicated the means to redress said violations.
This article traces the human rights obligations of India under the UN Guiding Principles on Business and Human Rights (the ‘UNGPs’). The UNGPs provide a framework to make corporations and States liable for human rights violations due to business activities. I specifically focus on the 3rd pillar of the business and human rights regime, that is, access to effective remedy – which is the least developed of the 3 pillars. Understanding India’s obligations under the international and domestic legal system would allow us to address the gaps in the current legal framework, which hinder access to justice by victims of corporate human rights violations. A specific need for an accessible framework will be highlighted, especially in the context of COVID-19.
I. UNGPs and Access to Remedy
John Ruggie’s UNGPs are an inter-related and dynamic system of preventative and remedial measures for human rights abuses by business enterprises, and rest on 3 pillars:[5]
i. The State Duty to Protect Human Rights: The first pillar deals with the State’s obligations. There is a compulsory “duty” on the State to protect the possible victims of human rights abuses, and thereby the human rights itself. [6] States have a dual binding obligation to “develop a mechanism to prevent, investigate, punish and redress the violations of human rights” and “to regulate the conduct of the business enterprises domiciled in its territory or jurisdiction”.[7]
ii. The Corporate Responsibility to Respect Human Rights: The second pillar of the principles focus on the corporate responsibility to respect human rights. This pillar puts an obligation on corporations/business-enterprises, which is of a lesser standard than that of States. Unlike States, corporations only have a negative obligation to avoid infringing on the human rights of others.[8]
iii. Access to Remedy: The third pillar provides for remedial mechanisms that must be available. These refer to judicial, administrative, legislative, or other measures.[9] They could be either State-based mechanisms,[10] or non-state-based mechanisms.[11] The non-State-based mechanisms include company-based grievance mechanisms, grievance mechanisms developed by industry, multi-stakeholder, or other collaborative initiatives, and mechanisms associated with development finance institutions.
All victims of human rights violations are entitled to an effective remedy. The right to an effective remedy, enshrined under the general principles of international law,[12] and international human rights law,[13] includes - “a. equal and effective access to justice; b. adequate, effective, and prompt reparation for harm suffered, and c. access to relevant information concerning violations and reparation mechanisms.”[14] The right to justice is seen as a human right, including reparations, damages, and punitive measures.
The right to an effective remedy has both procedural and substantive elements. For a remedy to be effective, a victim must have practical and meaningful access to a procedure that is capable of ending and repairing the effects of the violation.[15] Where a violation has been established, the individual must actually receive the relief needed to repair the harm.[16] The remedy should also be affordable and timely.[17]
It is doubly imperative that an effective remedy is available in times of crisis. When there is a global pandemic affecting human life, violations caused by businesses bring in another layer of difficulties. As mentioned in the examples provided above, losing jobs, danger to life due to unregulated working conditions, lack of or insufficient salary/wages, and no compensation in cases of harm are some of the issues that victims may face. The mass migrant crisis in India due to the COVID-19 lockdowns only amplified the challenges faced by workers due to business decisions.
The COVID-19 situation has led to an invisible atmosphere of fear. The differing practices in various legal systems create barriers while accessing remedy. These barriers include the inability to bring a claim when harm occurs outside the home State, the doctrine of forum non-conveniens, which prevents a case from moving forward in any jurisdiction, non-recognition of corporate criminal liability, time limitations, and a dearth of legislation to make corporations liable.[18] Due to these barriers, the third pillar of the UNGPs is the least developed and the least well-understood. Thus, the lack of access to justice/remedy is already adversely affecting the victims.[19] Additionally, victims in India were inconvenienced further by the initial closure of courts and judicial and quasi-judicial institutions due to COVID-19 lockdowns. Subsequently, the Central and state governments, along with the judiciary, have taken steps to hear urgent matters through video conferencing.[20] This leaves out a substantial portion of cases, which cannot be classified as ‘urgent’, due to the subjective nature of such classification. Additionally, the lack of digital infrastructure in India, specifically in rural areas, with respect to internet, technology, and other facilities required for online hearing, limits access to justice.
Due to lockdown measures imposed in India, the ability to gather and protest is also reduced significantly. The lack of legal and financial aid is a major obstacle for those seeking access to remedy. Legal liability will succeed only if barriers to accessing remedy are reduced, such as those relating to access to information, class actions, the protection of witnesses, and legal costs, etc.[21]
II. India’s Obligations: Domestic and International
India has endorsed the UNGPs. On June 26, 2014, the Human Rights Council-mandated an open-ended intergovernmental Working Group on transnational corporations and other business enterprises.[22] The Working Party was formulated to capture the 2011 guiding principles in a legally binding instrument. In October 2019, the Working Group convened for its 5th session, to which India was a party.[23]
Under domestic law, India has an array of remedies, such as compensation, damages, restitution, rehabilitation, and resettlement under specific laws. There is no overarching legislation, which deals specifically with human rights violation by businesses. The application of relevant laws in case of business-related human rights violations is dependent on the judge, making the entire process arbitrary.
Moreover, India released a draft National Action Plan on Business and Human Rights (‘NAP’) in 2019 through the Ministry of Corporate Affairs.[24] The NAP of a country demonstrates how the UNGPs are being implemented, what the gaps are, and how they shall be addressed. This continuous interaction with the international dialogue on business and human rights, coupled with the development of a NAP, shows India’s commitment to the UNGPs. India’s NAP only highlights the implementation of the 3rd pillar in the Indian legal framework through existing mechanisms. These mechanisms shed light on State-based-judicial/quasi-judicial institutions, including the Supreme Court, High Courts, Labour Courts, National Green Tribunal (‘NGT’), specialized commissions, such as the National Human Rights Commission, the National Commission for Women, and the National Commission for Protection of Child Rights, as well as the availability of legal aid. There is no advancement of the current framework to include specialized bodies/mechanisms for addressing business and human rights violations in India. The future course of action included in the NAP does not mention any specific mandate to draft laws or to set up judicial/quasi-judicial bodies for addressing business-related human rights violations.
India’s obligations under the Access to Remedy pillar pose an implementational challenge. The NHRC is limited in the complaints it accepts, as non-State actors are not covered.[25] Operational level grievance redressal mechanisms and setting up of multi-stakeholder committees within industrial clusters would help in establishing a mechanism at the grassroots level, making remedies easily available to those wronged. The NAP can serve as an important guiding tool for Indian businesses to redefine their purpose and emerge out of this pandemic more humane, if they proactively address the issues related to the 3rd pillar.[26]
The NAP is proof that India has acknowledged its obligations under the UNGPs. However, it only enumerates the existing legal framework. A specific body to look into the aspects of corporate violations, from environmental to life and health-based, is still lacking. Without adequate access to legal remedy, it will be difficult to penetrate beyond a superficial and theoretical acknowledgement of the principles. A robust grievance redressal mechanism is the need of the hour and should be addressed in India’s next National Action Plan.
III. Remedy during COVID-19
A criminal case has been filed under relevant provisions of the IPC for the gas leak in Vishakhapatnam. Twelve employees of LG Polymers, including two South Korean nationals, have been arrested.[27] These arrests are the result of an official investigation, conducted to ascertain the cause of the leak. The investigation revealed evidence of negligence and poor safety standards. A case was filed in the NGT on May 7, 2020, which is ongoing. In an order dated May 8, 2020, it has been observed that the corporation has deposited ₹ 50 crores with the NGT, after prima facie assessment of the extent of damage to life, public health, and the environment.[28]
In the NLC plant blast in Tamil Nadu, the Chief Minister has announced ₹ 3,00,000/- for the next of kin of each dead worker, besides also announcing ₹ 1,00,000/- for each victim with severe injuries and ₹ 50,000/- for those who suffered minor burns.[29] Following the blast, NLC announced a high-level inquiry into the accident, headed by a retired director of the National Thermal Power Corporation Limited (‘NTPC’) along with an internal inquiry.[30] Any other information regarding the action taken is not easily available.
With regard to the violations by H&M, it has been alleged that the unit was targeted and shut down as it was the only unit to have been unionized.[31] H&M denied this and stated that they are fulfilling payments under contracts on time and at the originally agreed price.[32] There have been no known cases filed against H&M regarding this issue while the workers continue to protest.
It is conspicuous that, due to the lack of any framework regarding business-related human rights violations, the remedy accessed by the victims has differed in the three cases. The differing outcomes are a result of a lack of guidelines on business-related human rights violations.
If specific grievance-redressal mechanisms for business-related human rights violations are set up, victims will be better equipped to approach the said institution and avail effective remedy. There are proposals to make arbitration proceedings accessible for human rights violations,[33] or a case for a world court for corporate impunity.[34] India should consider moving past the existing legal framework and adopting a similar outlook to address the particular needs arising out of State liability and corporate responsibility, thus, fulfilling its obligation of ensuring access to remedy under the 3rd pillar of the UNGPs.
*Almas Shaikh is a Research Associate at the Centre for Law and Policy Research, Bengaluru (CLPR). Almas is interested in the interaction of human rights with the protection of vulnerable groups. This includes research and litigation experience in constitutional/fundamental rights, gender rights, business and human rights, and disability rights.
[1] Hannah Ellis-Peterson and others, ‘Hundreds Exposed to Gas after Deadly Leak at Indian Chemical Factory’ (The Guardian, 7 May 2020) <https://www.theguardian.com/world/2020/may/07/gas-leak-at-chemical-factory-in-india-kills-hospitalises-lg-polymers> accessed 19 September 2020. [2] Dia Rekhi, ‘6 Dead, 17 Injured in Boiler Explosion at Tamil Nadu’s Neyveli Lignite Power Plant’ (Economic Times, 1 July 2019) <https://economictimes.indiatimes.com/news/politics-and-nation/two-killed-in-boiler-explosion-in-tamil-nadu/articleshow/76725471.cms#:~:text=NEYVELI%3A%20At%20least%20six%20men,Tamil%20Nadu's%20Cuddalore%20district.> accessed 19 September 2020. [3] ANI, ‘Massive Blast in Gujarat Chemical Factory, around 40 Workers Injured’ (Livemint, 3 June 2020) <https://www.livemint.com/news/india/massive-blast-in-gujarat-chemical-factory-around-40-workers-injured-11591181036204.html> accessed 19 September 2020. [4] Arpita Raj, ‘Why Garment Workers Making H&M Clothes Are Protesting Mass Layoffs’ (The Quint, 26 June 2020) <https://www.thequint.com/coronavirus/why-scores-of-garment-workers-are-protesting-layoffs-in-karnataka> accessed 19 September 2020. [5] Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework 2011. [6] ibid, Principle 1, 2. [7] ibid, Principle 5, 6. [8] ibid, Principle 11. [9] ibid, Principle 25. [10] ibid, Principle 26, 27. [11] ibid, Principles 28-30. [12] Chorzów Factory (Germany v Poland), 1928 PCIJ (ser A) No. 17, at para 73. [13] Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR) art 5, art 8; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art 2; International Convention on the Elimination of All Forms of Racial Discrimination (adopted 4 January 1969) 660 UNTS 195, art 6; United Nations Convention Against Torture (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85, art 14; Convention on the Rights of the Child (opened for signature 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3, art 39. In addition, both international humanitarian law and international criminal law are relevant in this context, including, in particular: the Hague Convention respecting the Laws and Customs of War on Land, art 3; the Protocol Additional to the Geneva Conventions relating to the Protection of Victims of International Armed Conflicts, art 91; and the Rome Statute of the International Criminal Court, art 68 and 75. [14] United Nations Office of the High Commissioner for Human Rights, UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (UN Doc A/RES/60/147, 2006). [15] UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Principle 2(b), 3(c), 11(a), 12, 19. [16] ibid 2(c), 3(d), 11(b), 15–23. [17] Committee on Economic, Social and Cultural Rights, General Comment 9: The Domestic Application of the Covenant (UN Doc E/C.12/1998/24, 1998), para 9. [18] Gwynne Skinner, Robert McCorquodale, and Olivier de Schutter, ‘The Third Pillar: Access to Judicial Remedies for Human Rights Violations by Transnational Business’ (ECCJ, December 2013) <http://www.bhrinlaw.org/the-third-pillar-final1.pdf> accessed 9 September 2020. [19] Ouida Chichester, ‘Access to Grievance Mechanisms and Remedy during the COVID-19 Crisis’ (BSR, 23 June 2020) <https://www.bsr.org/en/our-insights/blog-view/access-to-grievance-mechanisms-and-remedy-during-the-covid-19-crisis> accessed 23 June 2020. [20] Rajdev Singh and Pathik Choudhury, ‘COVID-19 And Indian Courts’ (Mondaq, 2 April 2020) <https://www.mondaq.com/india/litigation-contracts-and-force-majeure/911550/covid-19-and-indian-courts> accessed 17 August 2020. [21] United Nations Office of the High Commissioner for Human Rights, Report on the Fifth Session of the Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights (UNHRC A/HRC/43/55, 2020) <https://ap.ohchr.org/documents/E/HRC/other/A_HRC_43_55%20E.pdf> accessed 24 September 2020. [22] United Nations Office of the High Commissioner for Human Rights, Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights (UNHRC A/HRC/RES/26/9, 2014). [23] United Nations Office of the High Commissioner for Human Rights, Report on the fourth session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (UNHRC A/HRC/40/48, 2019). [24] Ministry of Corporate Affairs, National Action Plan on Business and Human Rights: Zero Draft (2019). [25] NHRC (Procedure) Amendment Regulations 1997, Regulation 2(c). – “complaint” means all petitions/communications received in the Commission from a victim or any other person on his behalf, in person, by post, by telegram, by fax, or by any other means whatsoever, alleging violation or abetment thereof or negligence in the prevention of such violation, by a public servant, of all or any of the huma rights defined in section 2(d) of the Act. [26] Namit Agarwal, ‘India’s Business & Human Rights National Action Plan’ (IHRB, 14 April 2020) <https://www.ihrb.org/other/governments-role/commentary-indias-national-action-plan> accessed 19 September 2020. [27] ‘LG Polymers: South Korean CEO Held over Fatal India Gas Leak’ (BBC, 8 July 2020) <https://www.bbc.com/news/world-asia-india-53330370> accessed 17 August 2020. [28] In re: Gas Leak at LG Polymers Chemical Plant in RR Venkatapuram Village Visakhapatnam in Andhra Pradesh (2020) National Green Tribunal Original Application No. 73/2020. [29] Gladwin Emmanuel, ‘Death Toll Rises to 11 in Boiler Explosion at NLC Power Plant in Tamil Nadu’ (Bangalore Mirror, 6 July 2020) <https://bangaloremirror.indiatimes.com/news/india/neyveli-lignite-corporation-boiler-blast-death-toll-rises-to-11-in-boiler-explosion-at-nlc-power-plant-in-tamil-nadu/articleshow/76813094.cms> accessed 17 August 2020. [30] Sibi Arasu, ‘With Boiler Blast, the Neyveli Power Station Becomes a Fiery Grave’ (Mongabay, 8 July 2020) <https://india.mongabay.com/2020/07/with-boiler-blast-the-neyveli-power-station-becomes-a-fiery-grave/> accessed 17 August 2020. [31] Pallavi Pundir, ‘International Fashion Houses Are Leaving Millions of Asians Jobless. The Workers Are Now Protesting’ (Vice, 29 June 2020) <https://www.vice.com/en_au/article/akzkvp/fast-fashion-labels-laying-off-millions-of-asian-garment-workers> accessed 19 September 2020. [32] ‘India: Unions Accuse Factory Producing for H&M of Union Busting after Dismissal of 1,200 Garment Workers during COVID-19; Incl. Comments by H&M’ (Business & Human Rights Resource Centre, July 2020) <https://www.business-humanrights.org/en/india-unions-accuse-factory-producing-for-hm-of-union-busting-after-dismissal-of-1200-garment-workers-during-covid-19-incl-comments-by-hm> accessed 17 August 2020. [33] Antoine Duval, Catherine Dunmore, ‘The Case for a Court of Arbitration for Business and Human Rights’, (2018) ASSER Policy Brief No. 2018-02 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3188102> accessed 9 September 2020. [34] Luis Gallegos, Daniel Uribe, ‘The Next Step aganst Corporate Impunity: A World Court on Business and Human Rights?’ (2016) 57 Harv Int L J (Online Symposium).