NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW, RANCHI

ENVIRONMENT LAW RESEARCH PAPER

TOPIC: A STUDY OF THE BAGHJAN OIL FIELD DISASTER : A WILFUL VIOLATION OF THE
PRECAUTIONARY PRINCPLE, RIGHT TO LIFE AND THE ENVIRONMENT PROTECTION ACT, 1986

SUBMITTED BY: SUBMITTED TO:

SHREYA SRIVASTAVA DR. SUBIR KUMAR
ROLL NO. 891 ASSISTANT PROFESSOR, LAW
SEMESTER- VI “A” NUSRL, RANCHI
 ENVIRONMENT LAW RESEARCH PROJECT

1.INTRODUCTION

The recent blowout at Baghjan Oil field is one of the many instances which shows that
development outweighs environment. The conflict between environment and ecological
development is not a new one. It is the nature that has to always sacrifice itself in the name of
development. Drilling in a biological diverse area brings detrimental consequences for the
ecology and the human lives. Due to this fire at the oilfield, a lot of people had to leave their
home and seek a shelter elsewhere in search of a safer environment. It not only caused the
people to evacuate their homes but also deprived them of their livelihood by severely affecting
the ecology of the place, agriculture, polluting river and air. It also had devastating effect on
the nearby Dibru Saikhowa national park which is adjacent to the Baghjan oilfield. Such a
blowout has severely taken away the right to life of the people that is guaranteed under Article
21 of the constitution. It has also violated the right to a wholesome environment which is again
a fundamental right. The author in this paper has tried to analyse that legal implications of such
a blowout on the fundamental rights of the people. The author has also tried to show that OIL
has violated the provisions of Air Act, Water Act and the Environmental Protection Act, 1986.

The author has also showed that such oil corporations act in blatant disregard to environmental
law principles and must be fixed with absolute liability. India has seen many oil field disasters
including this one but the question that arises is that where the stakeholders have learnt
anything from their past experience. It always for the people and the environment that suffers
because of lack of preventive measures and safeguards on the part of such industries that are
operating in hazardous substances. The Baghjan blowout exemplifies how we have failed to
cope up with the spirit of the Indian constitution to protect and improve the environment. The
tragedy also highlights the need of strict enforcement mechanism and stringent regulations for
compliance with the environmental norm.
2.BACKGROUND

The "blowout" occurred on May 27 at gas well number 5 at Baghjan oil field in Assam's
Tinsukia district, situated near to the Dibru-Saikhowa National Park famous for migratory birds
Maguri-Motapung Beel. The blast occurred when work-over operations for extracting gas from
new sand (oil and gas-bearing reservoir) at a depth of 3,729 metres was on, leaving natural gas
and condensate oil to gush out and spill beyond a couple of km, turning the entire area of more
than 1.5 km into the gas chamber. After two weeks of continuous and ruthless release of toxic
substances, a fire erupted on 9th June 2020, thereby causing the death of two employees of the
OIL. On 19th June, the Pollution control board of assam a notice of closure to OIL for its

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operations at Baghjan Oil Field and to take steps to extinguish the fire. 1 On 22nd July, another
explosion occurred at the site of leakage and it injured three foreign experts employed by OIL
to mitigate the harm that was being caused by the continuous fire and leakage. 2

A slew of petitions has been filed by students, NGOs and environmental activists at the High
court, Supreme Court and NGT for the same.

3.IMPACT ON HUMAN LIFE & FLORA FAUNA

The Major fire at baghjan oil field took almost six months for totally dousing the blazes. The
Baghjan oil field is sharing its borders with the ecologically sensitive Dibru Saikhowa National
park. The Wildlife Institute of India, stated that the fire will have a long term impact on the
environment with pollutants reaching into the grounds and contaminating water. According to
them, the toxins released will have long term persistence in soils and sediments, which will not
only affect the current life conditions but will also pose a serious health risk in the long term. 3

The primary effects include degradation of air, water, and soil quality. The fumes created heat
waves, released toxic gaseous substances like carbon monoxide, carbon dioxide, oxides of
sulphur and nitrogen and toxic hydrocarbons. Smoke emitted by the flames is reducing
visibility and adding particulate matter of different size range, which is affecting the airborne
microorganisms, avian fauna (birds) and respiratory health of nearby residents. The heatwaves
are massively impacting the vegetation and agricultural crops and imposing severe burns,
challenging water and soil health by elevating their ambient temperature, adding toxic oil
residues and rendering them unfit for biophysiological processes.Oil spills are forming a layer
in nearby water bodies which will reduce the penetration of sunlight and oxygen, and make it
difficult for the survival of aquatic organisms. 4

The blowout has also led to accumulation of large volume of toxic gases which is harmful for
both land and vegetation. In addition to the health impacts, it has also stripped thousand in that

1
Avik Chakraborty, OIL to approach Gauhati High Court challenging Baghjan Oil field shut down order, NORTH
EAST NOW ( Aug.12, 2020, 10:37 pm), link.
2
Amit Chaturvedi, Huge explosion near baghjan oil well in Assam, 3 foreign experts injured, HINDUSTAN
TIMES (Aug. 12, 2020, 7:35 pm), link.
3
Jayashree Nandi, Long lasting toxicity for humans, animals and birds at Baghjan Oil spill region: Wildlife
Institute, HINDUSTAN TIMES ( Jul. 31, 2020, 6:06 pm), https://www.hindustantimes.com/india-news/long-
lasting-toxicity-for-humans-animals-and-birds-at-baghjan-oilspill-region-wildlife-institute/story-
sY8pXpMnRz5wMPjPKeUJHJ.html.
4
Simantik Dowerah, Baghjan fire: Oil India’s failure to stand by local community after blaze, protect ecology
ruins its image in Assam, FIRST POST (Jun. 12, 2020, 12:06 pm), https://www.firstpost.com/india/baghjan-fire-
oil-indias-failure-to-stand-by-local-community-after-blaze-protect-ecology-ruins-its-image-in-assam-
8464251.html.

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area of their means of livelihood especially those engaged in agriculture, fishing and animal
rearing. More than nine thousand people were evacuated from the nearby villages. This oil
disaster has created serious environmental repercussions for the people living in assam
including the flora and fauna as the field was about 1km to Dibru Saikhowa national park that
is home to several species of endangered birds, mammals and reptiles.

4.VIOLATION UNDER THE AIR ACT AND WATER ACT

Section 25 of the water act states that “the previous consent of the PCB should be obtained
before establishing or seeking to establish any industry, operation, process, or any treatment
and disposal system or any extension or addition thereto that may discharge sewage or trade
effluent into a water body such as a stream or sewer or land”.5 This Section deals with the prior
consent wherein restrictions are imposed on new outlets and discharges. It was also observed
by the Supreme Court in A.P. Pollution Control Board II v. Prof. M.V. Nayadu (Retd).6, “that
after the amendment of Section 25, it was mandatory to obtain consent for even the
establishment of an industry or taking of steps towards that process.”

Further in the case of Oil Country Tubular Ltd. v. A.P. Pollution Control Board &Ors7, the
same position was reiterated and it was stated that the consent must be observed at three stages:
(i) Before establishment; (ii) at the time of operation; and (iii) in the event of any extension or
addition. In this case, it is alleged that the OIL was conducting its oil operations in serious
violation of Section 25 of the water act as they have failed to obtain a proper permission for
consent to establish. If this is proved true, then OIL can be severely punished under section 44
of the water act.

Under Section 21 of the Air Act, no person shall, without the previous consent of the PCB,
establish or operate any industrial facility in an air pollution control area.8 However, the PCB’s
notice specifies that OIL had neither obtained CTE nor CTO under the Air Act. Therefore,
coupled with violations under the Water Act, if this is proved to be true, OIL would have
engaged in serious violations of the Air Act and could be subjected to the penalties prescribed
under Section 37 of the Act.

5.BREACH OF DUTY UNDER THE ENVIRONMENT PROTECTION ACT, 1986

5
Water Prevention and control of Pollution Act, 1974, §25(India).
6
(2001) 2 SCC 62.
7
2005 (3) ALT 715.
8
Air (Prevention and Control of Pollution) Act, 1981, §21(India)

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The Environment Protection Act, 1986 was enacted under Article 253 of the constitution.
Section 3 of the Environment Protection Act empowers the central government to take steps to
protect and improve the environment. These provisions clearly states that the Central
government can restrict areas where any kind of industrial work won't be carried out to protect
the environment. Also, if it is necessary to carry out work, it mandates to take adequate safety
measures. It also asks the central government to lay down procedure and safeguards for the
prevention of accidents which will be detrimental to the environment. Keeping in view the rich
biodiversity of the region, the government could have disallowed the OIL in drilling in that
area but it has failed to do so. In fact, no such safety measures were taken beforehand. They
not only permitted drilling but they didn’t take any preventive measures to avert any accident.
In Assam, this is not the first time a huge blowout has happened. Prior to this incident, in 2005,
also a major oil well incident took place. This shows how recklessly the environment laws are
disregarded.

The Environment Protection Act, 1986 and the Environment Impact Assessment notification
,2006 makes it mandatory to obtain the environmental clearance for any offshore drilling
projects before the commencement of activities on 20.11.2006.9 A few months prior to this
disaster in January, 2020, the Environment Ministry had waived off the necessity to obtain
prior environmental clearances for oil and natural gas exploration on both offshore and on shore
sites, thereby putting a great risk to the environment. The Baghjan oilfield and many other
oilfield was benefitted from such a move as they did not have any environmental clearance. A
committee was appointed by the NGT which reported that these oil field along with 26 oil
fields in assam were working without mandatory environmental clearance. This again raises
questions on the viability of giving preference to economic development but flouting or
ignoring the existing environmental law obligations.

Oil India Limited (OIL)’s gas well number 5 at Baghjan in Assam’s Tinsukia, where a blowout
on May 27 triggered a continuing oil and gas leakage near the Maguri Motapung Wetland and
Dibru Saikhowa Biosphere Reserve, was not assessed for its wildlife and biodiversity impact,
according to Union environment ministry’s documents. 10 In fact, no wildlife clearance was
obtained for the wells in the regions including well no. 5 which is located barely a kilometer

9
Notification, MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE (Aug. 2015),
http://environmentclearance.nic.in/writereaddata/public_display/circulars/56_UniEIANoti2006.pdf.
10
Jayashree Nandi, Assam gas field may have flouted green guidelines, HINDUSTAN TIMES ( Jun. 26, 2020,
4:48 am), https://www.hindustantimes.com/india-news/assam-gas-field-may-have-flouted-green-
guidelines/storyuhmEbSU6w7NUSCqdJmpVLJ.html.

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away from the Dibru Saikhowa National Park. The blowout led to the uncontrollable flow of
oil from gas well number 5 and caused extensive damage to biodiversity and wildlife the region,
which includes endangered hoolock gibbons and the Gangetic dolphins.

6. A DISREGARD TO THE PRECAUTIONARY PRINCIPLE AND PUBLIC TRUST DOCTRINE

Precautionary principle is the fundamental tool to promote sustainable development and is

widely recognized both at the international and national levels. When an activity raises threats
of harm to human health or the environment, precautionary measures should be taken even if
some cause and effect relationships are not fully established scientifically. Principle 15 of RIO
declaration, 1992, declares that Where there are threats of serious or irreversible damage, lack
of full scientific certainty shall not be used as a reason for postponing cost-effective measures
to prevent environmental degradation. Thus, the precautionary principle states that if there is
risk of severe damage to the humans and to the environment, the absence of definite scientific
proof is not a reason for inaction. It is a better safe than sorry approach.

The court observed in Vellore citizen welfare forum v union of India11, that this is a part of
the “law of the land” and is applicable in cases where there are threats of “serious and
irreversible damage” and in such cases lack of scientific certainty will not be used as a reason
for postponing measures to prevent environment degradation.” In MC Mehta v Union of
India12, also known as Badhkal & Surajkund Lake case, the court relied on the precautionary
principle and made it mandatory for the state government to anticipate, prevent and attack the
causes of environmental degradation. The court in this case, found it necessary to protect the
lakes from environmental degradation and limited the construction activity in the close vicinity
of the lakes. However, in this oil tragedy no such precautionary principle was adopted. Despite
of having a wetland, sanctuaries, national parks, rivers just within 1 km of the oil field, it was
not deemed necessary to take precautionary measures to protect them rather the OIL acted
negligently by not following the due standard procedure and the leak out happened causing a
potential harm to the people and the environment. It was a blatant disregard to the precautionary
principle. There was a great potential threat of serious and irreversible damage to environment
and surrounding involved here as the OIL was working in dangerous substances. Therefore, it
ought to take all the measures to anticipate and prevent any environmental degradation that

11
1996 5 SCR 241.
12
(1997) 3 SCC 715, 720.

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could happen due to their industry. The OIL should not have carried out its operation within
such close vicinity of national parks, rivers and wetland.

The gas blowout has leaked out into the mainstream of river lohit polluting the river reservoir
and the wetland. In the case of A.P Pollution control board case13, the supreme court dealt with
the issue of whether a hazardous industry should be set up within the vicinity of a reservoir
used for drinking for drinking water. The court observed that this is where the precautionary
principle comes into picture and the chance of an accident within such close proximity cannot
be ruled out.

Additionally, in Alembic Pharmeuticals v Rohit Prajapati14, the court has held that the
precautionary principle precludes granting ex post facto environment clearances. In this case,
the operation of certain activities was disallowed as there was an environment impact
assessment pending to ascertain their impacts on environment and human health. The OIL did
not take adequate measures to prevent the blowout. They have also contaminated the air and
water bodies in the area. They were operating the baghjan oil field without following due
procedure and they have miserably failed in balancing the environmental concerns with
ecological development.

The public trust doctrine was recognized by Supreme Court in MC Mehta v. Kamal Nath15
wherein, it was stated that natural resources such as rivers, forest are held by the government
in trusteeship for the common use of the public. OIL is a public sector undertaking which falls
within the meaning of state under Article 12 of the Indian Constitution. Applying this doctrine
to a PSU, it should result in a stricter standard of liability than for private companies because
of the fact that state has a higher responsibility as trustee of these resources. Any breach will
not only violate the environment law but also the public trust which places a strict duty of care
on PSU to avoid harm to the environment.

7.VIOLATION OF FUNDAMENTAL RIGHTS OF PEOPLE

13
A.P. Pollution Control Board vs. Prof. M.V. Nayudu, 1994 (3) SCC 1.
14
2020 SCC OnLine SC 347.
15
(1997) 1 SCC 388.

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Without an environment, life cannot sustain and therefore there exists a healthy correlation
between human and environment that cannot be ignored. For a healthy and productive life, it
is necessary that there should be a harmony between life and nature.

Protection and conservation of environment is a mandate established by constitutional

provisions. The court observed in Subash Kumar v State of Bihar & ors16 that right to life
under Article 21 includes the right to live in an unpolluted environment i.e., the right to a
wholesome environment (unpolluted water and enjoyment of air for life). The oil tragedy like
the baghjan field disaster has clearly violated one of the fundamental rights of a person i.e., the
right to life. The fundamental right to life of the people residing in that area was violated. Due
to the negligence of the OIL, the nearby area got polluted of natural gas in its raw form and the
pollution also extended to the nearby water bodies. Many people of that area used the Maguri
Motapung wetland to catch fish and water for household works. By polluting this, the people
there were deprived of their means of livelihood. The word right to life is not restricted to mere
animal existence but it also extends to more than just physical survival and includes the right
to livelihood.17

Under the directive principles of the state policy, Article 48A, states that “the state shall
endeavour to protect and improve the environment and safeguard the forests and wildlife of the
country18, this places a direct responsibility on the state to protect the environment. In the case
of Kinkari Devi v. State of Himachal Pradesh19, it was observed: “There is both a
constitutional pointer to the state and a constitutional duty of the citizen not only to protect but
also to improve the environment and to preserve and safeguard the forest, the flora and fauna,
the rivers and the lakes and all other water resources of the country. The neglect or failure to
abide by the pointer or to perform the duty is nothing short of betrayal of the fundamental law
which the state and indeed every Indian is bound to uphold and maintain.

Further, Article 51A imposes fundamental duty on its citizens to protect the environment and
improve the natural environment that includes forest, lakes, water bodies, etc. In T.N. Damodar
Rao v. Special officer municipal corporation20, it is clearly laid down that the protection of
environment is not only the duty of every citizen but it is also the obligation of the state and all
other state organs including courts. However, the baghjan oil field disaster shows that the state

16
(1998) 9 SCC 589.
17
Francis Caroline Mallin v. Delhi Administration, AIR 1981 SC 746.
18
INDIA CONST. Art.48A.
19
AIR 1988 HP 4.
20
AIR 1987 Andhra Pradesh 171.

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has failed in performing its duty and it has only to do with “development” at the cost of
environment and human lives.

8.FIXING TORTIOUS LIABILITY IN LIGHT OF THE DISASTER

Under tort laws, an employer is vicariously liable for the wrong doing of the employee. OIL is
a government owned public sector undertaking and it can be said to fall within the ambit of
state as specified in Article 12 of the Indian Constitution. The preamble of Annual Report of
the legal department of Oil India clearly states that OIL is a state under Art. 12. Hence for any
negligent act of any company which OIL is hiring, the state will be held liable.

In the present situation, the concept of absolute liability applies more aptly than strict liability.
According to the concept of absolute liability, an enterprise which is engaged in hazardous or
inherently dangerous industry owes an absolute duty to the community. The concept of
absolute liability was discussed for the first time in M.C Mehta v Union of India21, also known
as oelum gas leak case. Those enterprises that are related to hazardous and dangerous activity
fall within the concept of absolute liability. Justice Bhagwati remarked in this case: “We are
of the view that an enterprise which is engaged in hazardous or inherently dangerous industry
which poses a potential threat to the health and safety of the persons working in the factory and
residing in the surrounding areas owes an Absolute and non-delegable duty to the community
to ensure that no harm results to anyone on account of hazardous or inherently dangerous
activity which it has undertaken. The enterprise must be held to be under an obligation to
provide that the hazardous or inherently dangerous activity in which it is engaged must be
conducted with the highest standards of safety and if any harm results on account of such
activity the enterprise must be absolutely liable to compensate for such harm and it should be
no answer to enterprise to say that it has taken all reasonable care and that the harm occurred
without any negligence on its part.”22

Further, in Indian Council for Enviro-Legal Action v. Union of India23, it was proclaimed by
the court that if an activity carried on is hazardous or inherently dangerous, the person carrying
on such activity is liable to make good the loss caused to any other person by his activity
irrespective of the fact whether he took reasonable care while carrying on his activity. In the
present situation, OIL was dealing with dangerous substances which had a great potential to

21
M.C Mehta v. Union of India &Ors., 1987 AIR 1086.
22
Id.
23
1996(3) SCC 212.

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harm the environment and its surrounding. Therefore, OIL is absolutely liable and a proper
compensation must be provided to the victims. The amount of damages that is to be paid must
have a correlation to the magnitude of damage occurred and the capacity of the enterprise and
it must set a deterrent effect to the industries so that they are extra cautious while dealing with
such dangerous substances.

9.CONCLUSION

The Baghjan oil field tragedy has shown that the corporate negligence and the indifferent
attitude of the state can cause disaster for both the environment and the man. The OIL has
completely neglected the legal obligations in pursuance of the profit and the state turned a blind
eye while these obstructions were being committed. All this resulted in a havoc that badly
impacted the lives and the environment in the region. The OIL was operating without the
requisite clearance from the state pollution control board as well as the mandated EIA. The
oilfield operated without any care for flora and fauna, for life and livelihood. This disaster was
an extensive disaster that polluted the river waters and when the river waters are polluted the
damage extends to million of inhabitants who have little idea of the nauseous activity. We
have failed to adequately defend the real wealth of the ecosystems, their biodiversity, the
wildlife it nurtured and the people it sustained and that was at stake here. This wealth is both
priceless and perpetual, and its loss utterly irrevocable.

Subsequent to a fire incident in Jaipur’s oil depot, the MB lal committee was constituted and it
recommended for setting up of emergency response centres to handle major oil fires but the
government failed to do so. Such instances are so common in India, that we need a specific
legislation in this regard, which provide a rule to not only fix liability but also ensure
compliance to the environmental norms.

Environmentalists are often seen as taking extreme positions, standing against to the projects
that are purported to have great economic potential. But these extreme positions are almost a
result of experiences like ours, where reasonable middle ground as well as essential safeguards
are entirely disregarded, paving the way for disasters like Baghjan. No monetary amount can
bring back the great ecology like ours but still imposing huge amount of fine may act as a
deterrent. We need greater accountability and corporate liability against such major industrial
disasters. A more efficient framework with stringent application of present norms can pave a
way to guarantee safety to both humans and environment. Greater enforceability of the

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environmental norms is the need of the hour to prevent such big disasters from happening in
future.

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