Vizag Gas Leak: Reevaluating Environmental Laws with respect to Absolute Liability

Background

While the country was battling to adapt to the new normal amidst the COVID-19 crisis, it was hit by one of the worst gas leak accidents faced by modern India. Even though the Vizag gas leak was not as catastrophic as the Bhopal gas tragedy, it surely opened some old yet fresh wounds from the 35-year-old tragedy. This disaster has yet again brought spotlight on the poor and unchecked safety regime followed by industries in the country. It has also raised questions regarding the efficacy of the compensatory policy followed for reimbursement and rehabilitation of the victims of such accidents.

Timeline of Vizag gas leak and the legal procedure followed

May 7– At around 3:35 AM Styrene, a toxic gas, leaked from a storage unit of a plastics manufacturing plant owned by L G Polymers in Vizag in Andhra Pradesh. 12 people have died in the same while around 3,000 people have been injured. The gas leak which spread to a radius of about 3 km seriously affected the flora and fauna of the place killing nearly 32 animals apart from other environmental damage.

May 8– NGT took Suo Moto cognizance of the Vizag Gas Leak case and directed L G Polymers to pay an initial amount of 50 crore as compensation by invoking the principle of strict liability. It also constituted a 5-member committee to look into the matter. 

May 15– NGT panel visit the Vizag gas leak plant site to inspect the plant.

May 24– Andhra Pradesh High Court passes order directing seizure of the plant and barring the directors for leaving the country without court leave.

May 30– 5 member NGT panel submitted a report stating that the L G Polymers had not complied with the basic safety norms which was the probable cause for the Vizag gas leak.

Comparative analysis of major gas leaks in India and Vizag gas leak tragedy- looking into the Principles of Strict and Absolute Liability in India

Evolution of rule of Absolute Liability in India

M. C. Mehta v. Union of India, popularly known as the Oleum Gas Tragedy was a landmark case in the history of environmental laws in India as it was after this case that the court took proactive steps towards the development of effective remedial platforms. These include formation of a National Green Tribunal for the speedier and exclusive disposal of environmental law cases, introduction of various provisions including the Environment Protection Act, 1986, Public Liability Act, 1991 amongst others.

In this article the evolution of principle of Absolute Liability shall be explained with the assistance of various case laws.

1. K Nagireddi v. Union of India (1982)^[1]

This was the very first case where the Indian courts had hinted towards modifying the strict liability rule according to the Indian conditions

2. Union Carbide Corporation v. Union of India (Bhopal Gas Tragedy Case) (1990)^[2]

Due to the already prolonged delay incidental to the normal courts and inadequate legal procedure for compensation in such cases, the Supreme Court decided to terminate legal proceedings by concluding settlement of claims for 470 million US dollars. The court observed that the urgent need for monetary relief overshadowed the necessities of legal principle.

3. M C Mehta & Anr v. Union of India & Ors (Oleum Gas Tragedy) (1987)^[3]

This case became the pivotal ground for environmental jurisprudence in India. It was in this very case that Hon’ble Justice P N Bhagwati took it upon himself to expand the ambit of the no fault liability principle. He was strictly of the view that India needed a law to keep pace with the changing socio-economic norms. He hence laid down that inherently dangerous industries had a non-delegable duty to ensure that no harm results from the activity undertaken. Further such industries would be absolutely liable to compensate for such harm. By doing so the court had basically rigidified the principle of strict liability so as to exclude any exceptions to escape the liability.

4. Indian Council for Enviro-Legal Action v. Union of India (1996)^[4]

The precedent of absolute liability and polluter pays principle were yet again upheld in this case. Here the Sulphuric Acid plant and other industries were made liable to compensate the victims for not following proper safety measures while disposing of toxic waste from the industries.

5. Srinagar Bandh Aapda Sangharsh Samiti & Anr. v. Alaknanda hydro Power Co. Ltd. & Ors (2014)^[5]

This was another revolutionary case in which the National Green Tribunal augmented the scope of no fault liability principle. Section 17(3) of the NGT Act was yet again given a broad interpretation as to extend to cases which did not involve hazardous industries. In this case the involvement of muck in the damage caused could not be overlooked. The respondent was not allowed to escape liability by pleading floods as an act of god and was made absolutely liable to pay compensation.

Vizag Gas Leak Tragedy and Absolute Liability

One of the main criticisms faced by the courts in deciding the legal provisions for compensation of victims of the Vizag Gas Leak Tragedy has been invocation of principle of strict liability instead of absolute liability.

This article with the help of comparative analysis of various case laws explains as to why the rule of absolute liability should have been preferred over the former

One of the main arguments for introducing absolute liability was that the industry was permitted to undertake inherently dangerous activities conditional to absorbing the costs to indemnify all those who suffer on account of the same^[6]. The main argument for preferring absolute liability over principle of strict liability was that while the latter looked into the causes of the accident to determine the liability, the damages to be paid are exemplary in nature and depend on nature of the activities of the firm case of absolute liability and hence this principle was more efficient when it came to the question of compensating the victims.

Another argument to favour the principle of Absolute liability is to make the parent company liable for payment of damages. The rule of strict liability always leaves rules for exceptions which works in favor of the multinational companies who tend to escape liability due to the technicalities of law.

Another reason which advances the above argument is that as pointed by Justice Bhagwati, the enterprise undertaking hazardous activity must ensure that ‘highest standard of safety’ or ‘highest degree of care’ is ensured. According to the report submitted by NGT panel comprising of Justice B. Seshasayana Reddy, Former Judge, A.P. High Court; Prof. Ch V Rama Chandra Murthy, Former Vice Chancellor, Andhra University, Vizag; Professor Pulipati King, Head of Chemical Engineering Department, Andhra University, Vizag; Member Secretary, CPCB; Director, CSIR-Indian Institute of Chemical Technology; and Head, NEERI, due to the gross safety lapses about 800 tonnes of styrene had escaped into the surroundings. Some of these include- 

1. negligence in maintenance of storage tank,
2. no provision for monitoring the temperature on the top of the storage,
3. Lack of on-site r off-site emergency plans,etc.

Further adding to the above the company had submitted an affidavit to State Environmental Impact Assessment Authority (SEIAA) that it did not have an environmental clearance for continuing operations. As the industry failed to comply with the safety norms, absolute liability is a more appropriate principle in the present case.

Compensatory regime for rehabilitation of employees affected by such accidents

Herein all the legal reforms that were introduced in the wake of the Bhopal Gas Tragedy will be discussed along with an analysis whether they are sufficient in the present times or not

Environment Protection Act, 1986

The environment protection act,1986 is an umbrella legislation which empowers the central and state authorities to make necessary provisions for the protection of the environment.

Some important provisions of this act are-

1. Section 2(a) & (e)– this act not only defined but also expanded the scope of the environment. As per this act environment includes air, water, land, human beings, other living creatures etc.

It also defined hazardous substances as those substances which due to their chemical or physio-chemical properties may cause harm to the environment.

2. Section 3– powers of the government to protect and improve the environment. These include organizing nationwide programs, laying down standards of safety to be followed by various establishments, restricting areas for the setting up of industries etc.
3. Section 10– persons authorized by the government are allowed to inspect the premises of any industry or establishments to see if the provisions under this act are complied with.
4. Section 15– non-compliance of provisions under this act invite penalty including imprisonment upto 5 years and fine which may extend to 1 lakh rupees.

Public Liability Insurance Act, 1991

One of the most successful compensatory provisions it follows the principle of ‘No Fault Liability’. This act provided that all owners of any hazardous industry had to mandatorily get insurance policies so as to cover the relief or compensation to be given to victims of any accident.

Some of the important features of this act are-

1. Section 3– relief to be given on the principle of no fault. This provision provides that the claimants under this act do not need to establish death or any personal injury to be eligible for compensation.
2. Section 7– Award for relief under the act has to be provided within 30 days from the date of the award.
3. Section 14– penalty for contravention of provisions of this act extend from imprisonment up to 6 years or fine not less than 1 lakh rupees.

National Green Tribunal Act, 2010

One of the biggest achievements in the environmental jurisprudence of the country has been setting up a court having exclusive jurisdiction for hearing matters pertaining to environment protection. This has not only solved the problem of the already overburdened judiciary but has also helped in establishing a specialized body for more efficient disposal of cases.

Some of the main provisions peculiar to this court are-

1. Section 18(3)– the court shall dispose of any application within 6 months from its filing.
2. Section 4– the tribunal shall consist of expert members, having minimum 15 years’ experience in dealing with environmental matters, apart from judicial officers.
3. Section 15(2)– the compensation provided by the tribunal shall be in addition to relief payable under Public Liability Insurance Act.
4. Section 19– the tribunal shall not be bound by procedure laid down in Civil Procedure Code but to be guided by principles of natural justice.
5. Section 17(2) & Section 20– lays down certain important principles to be followed by the tribunal while deciding cases. These include no fault liability principle; polluter pays principle precautionary principle and principles of sustainable development.

There are some other legislations too including Hazardous Waste (Management, Handling and Transboundary Movement) Act, 2008, The Chemical Accident Rules, 1996 etc. Some of these provisions however seem to have failed the test of time. Some provisions of these acts need to be amended in order to keep up with an increasingly industrializing society. For instance, under the Public Liability Insurance Act the maximum insurance policy limit for all companies big and small alike has been capped at Rs. 50 crore. The individual compensations are still limited to about Rs. 25,000 in case of fatal accidents. With such low immediate relief policies, the labourers are left to the mercy of the state governments. The implementation of even the existing system is so abysmal that most victims of the Bhopal Gas Tragedy are still stuck in lawsuits fighting for their share.

If we look at the international standards for protection against employment injury, the International Labor Organization (ILO) through various conventions has suggested that an integrated approach should be followed for improving workmen’s conditions. It calls for the combination of preventive, promotional and active measures including preventing employment injuries, providing rehabilitation services and ensuring re-employment of displaced workers.

The Vizag Gas Leak Tragedy has been an eye-opener for the country and has forced the policy makers to ponder over the legislative measures related to such disasters. The NDMA has also been compelled to reconsider and reiterate the safety protocol followed by such industrial establishments. Even though India has come a long way in terms of evolving its environmental laws, the legislative regime needs to change in order to meet the demands of the present circumstances. Incorporation of such international measures as mentioned above in the Indian Rehabilitation program will certainly go a long way in improving the conditions of the workers.

^[1]  AIR 1982 AP 119.

^[2] 1990 AIR 273.

^[3] 1987 AIR 1086

^[4] AIR 1996 SC 1446

^[5] Original Application No. 03 of 2014: MANU/GT/0101/2016

^[6] Supra Note 2.