This Essay is submitted by –
- Anushka Ukrani; Law graduate, Campus Law Centre, Delhi University.
On 7th May at around 2:30 am, the gas leak incident took place at LG Polymers plant at Gopalapatnam near Visakhapatnam, Tamil Nadu. The incident bears a stark resemblance to the Bhopal gas leak of 1984 and forces us to look back. Thus, this article attempts to do two things- first, analyze the Bhopal gas leak case in detail and secondly, compare it with the actions so far taken by authorities in the Vizag case.
Bhopal Gas Leak
On the night of 2nd December 1984, 3787 people died and 574366 were injured in Bhopal due to the spillage of Methyl Isocyanate (MIC) from Union Carbide India Ltd’s (UCIL’s) pesticide factory. Since it was the first such industrial disaster in India, there was a lack of a framework to deal with such a crisis. Soon after the incident, Bhopal Gas Leak Act, 1986 was passed which empowered the government to represent the victims in legal proceedings and make settlement on their behalf. This act was enacted based on the doctrine of necessity to ensure that all the victims got proper representation. But it violated the principles of natural justice, in the sense that the lower courts had held the company, the state government and the central government responsible for the tragic accident. This act meant that the government got to play both plaintiff and the defendant in the same proceeding hence leading to a conflict between the principles of natural justice and the doctrine of necessity.
Initially, the lawsuit was filed in the US, as the Indian government believed that Indian courts were not equipped to handle such a claim. However, the litigation was later on transferred to Indian courts in 1987 in the direction of judge Keenan. The Indian government had initially claimed US$ 3.3 billion while litigating in the New York courts, however, it ended up eventually settling for a meager US$ 470 million on behalf of the victims. This settlement was upheld by the Supreme Court. The Supreme Court had set up two separate committees for monitoring the functioning of the medical system set up for victims and another to advise on what needed to be done for the betterment of the victims. The State Government also set up a department. However, all that these committees ended up doing was shifting the blame. It became very difficult as a result to hold anyone institution accountable for cleaning of the site. As a result, the question as to whose responsibility it is to decontaminate the site still exists.
Also on the criminal side, the victims were largely let down as even though in Warren Anderson was charged with culpable homicide not amounting to murder, however, he failed to appear at his court hearing and was declared a fugitive. Unsuccessful attempts were made by the Indian government over the years to extradite him. He eventually died in 2005 at the age of 92 before conviction. In 2010 seven employees of UCIL were convicted however the charges were diluted and they were convicted of criminal negligence and sentenced to 2 years imprisonment. However, they were released on bail shortly after the verdict. In this way, we failed the victims both on the Civil as well as Criminal front.
So, in conclusion, the institutional response to the Bhopal gas leak is largely disappointing. However, it did manage to provide a framework and context for how future such incidents should be handled.
Vizag Tragedy and intake from past incident:
The gas leak took place on 7th May and the national green tribunal took sun moto cognizance of the accident: “In Re: Gas Leak at LG Polymers Chemical Plant in RR Venkatapuram Village Visakhapatnam in Andhra Pradesh”. In its order dated 8th May 2020 it stated that “Leakage of hazardous gas at such a scale adversely affecting public health and environment, clearly attracts the principle of ‘Strict Liability’ against the enterprise engaged in a hazardous or inherently dangerous industry.” It also constituted a 5 member committee to look into the accident, its impact on the environment, and make recommendations regarding compensation to victims. It also ordered LG Polymers to deposit Rs. 50 crores with the DM, Vishakhapatnam. It was also observed that the gas leak had occurred as a consequence of non-compliance of manufacture, storage and import of Hazardous Chemical Rules, 1989.
Now the problem is that NGT has applied the principle of strict liability here. The principle of strict liability was developed in Ryland vs. Fletcher (1868). It laid down that if a person brings onto his land and keeps any hazardous substance which is likely to cause injury if it escapes, then in case it does escape the person will be liable irrespective of the fact that there is no mens rea on his part or that he had taken all reasonable precautions to prevent its escape. However, there are three defenses available to the defendant:
- Act of God
- Consent of the plaintiff
- Fault/negligence on part of the plaintiff
Thus, if the defendant can prove any of the above then he can escape liability. Hence, this principle may not be suited to the challenges posed by technological and industrial advancements of the present day as has been held in MC Mehta vs. Union of India (1987) or more popularly known as the Oleum Gas Leak case. In the case, PN Bhagwati J. evolved the principle of absolute liability which is ‘stricter than strict liability’. It was held:
“an enterprise which is engaged in a 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 nature of the activity which it has undertaken“
The court refused to recognize the exceptions given in strict liability since when the industry engages in hazardous activities it is presumed that the permission given to it is subject to the fact that it compensates in case of an accident. The Supreme Court evolved this doctrine keeping in mind the technological advancement that had taken place since Ryland vs. Fletcher.
The fact is that the world has changed a lot. Foreign companies coming to India and setting up their operations here, do mean significant economic growth, however, at the same time, they also pose a huge risk to the people and the environment. This risk needs to be taken into account. If in the present case the principle of strict liability is applied it will inevitably give the defendants a chance to escape liability by claiming one of the defenses.
On 7th May, the Andhra Pradesh High Court also took suo moto cognizance of the incident and directed the state government to seize the plant and ensure that no one should be allowed to enter the premises. Also, they restricted the Directors of the Company from leaving the country without the leave of the court and directed them to surrender their passports to the court. It also noted that various committees had been appointed in this matter by the NGT, central government, and state government which can be a cause of grievance. It thus directed the various committees to appraise the court on their findings. All these directions do reflect a change in Indian jurisprudence since Bhopal Gas Leak. It feels like a step in the right direction, especially the restriction on traveling abroad, in the sense that it can help avoid extradition related problems similar to the ones that arose in Bhopal Gas Leak case.
Subsequently, LG Polymers had filed a review petition in NGT, stating that it did not have jurisdiction to take suo moto cognizance of the accident once cognizance had been taken by the High Court. However, this was dismissed by NGT on 3rd June and it was held that the tribunal has the power to institute proceedings against environmental law defaulter, and therefore the order dated 8th May is legal. It said that such power was necessary to ensure that justice is not denied to people in remote locations. The company had pleaded that it will face inconvenience in dealing with multiple proceedings. This plea was rejected as it is “absurd and untenable in the face of clear and absolute liability of the company for the loss of life, public health, and the environment by its hazardous activities in violation of the law.” It was also observed that the company had been operating without Environmental Clearance which is a clear violation of Manufacture, Storage and Import of Hazardous Chemical Rules, 1989. The liability of the company is thus strict and absolute. And the burden of proving that it isn’t liable is on the company.
The Vizag gas leak will in a lot of ways to be a test to see how the principle of absolute liability has evolved. It the coming months the importance of economic development will have to be weighed against environment protection and it will require balancing which the courts and the government failed to do in Bhopal Gas Leak. In conclusion, whether or not we have learned anything from our past is a question that is yet to be answered and it is a question that needs to be answered affirmatively.
Approved & Published – Sakshi Raje