On 7th May, the country woke up to the appalling news of major Styrene leakage from LG Polymers’ factory in the outskirts of Vishakhapatnam. The sequence of events was evocative of the 1984 Bhopal gas tragedy which had rendered thousands dead and an even higher number completely or partially disabled for life. This mishap in Vishakhapatnam affected more than 2000 people and resulted in the death of 15. The National Green Tribunal rapidly came into action and constituted a five-member committee to look into the matter. The committee soon put out an order directing LG Polymers to deposit Rs. 50 Crores with the District Magistrate, Vishakhapatnam.
In addition to this, the NGT order also maintained that the scenario at hand called for the application of “strict liability”:
“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 hazardous or inherently dangerous industry”
The usage of the term “strict liability” has come under the scanner of legal fraternity which believes the appropriate term supposed to be used was “absolute liability”. Some even contended that post the MC Mehta v. UOI case (Oleum gas case) the concept of strict liability had become obsolete in India and thus the NGT was, in reality, mentioning a superseded law. The people opposing believe the application of strict liability would provide LG Polymers an easy way out on account of the exceptions available under the rule of strict liability. The subsequent pointers will try to analyze if the concept of strict liability is actually defunct in India and whether the NGT was correct in calling for the application of strict liability rule to the case at hand.
1. Whether the rule of strict liability is obsolete in India:
The rule of strict liability was propounded in the year 1868 in the case of Rylands v. Fletcher. In this case, it was laid down that any individual who enjoys “non-natural” utilization of land and who keeps “dangerous” substances/objects on his premises would be held “strictly liable” if such substances/objects “escape” the premises and bring in any “damage”. But this rule allowed for certain exceptions like “act of god” and “plaintiff’s default” which came to the defendant’s rescue.
It was for this very reason that the Supreme Court of India, in MC Mehta v. UOI, decided to let go of this principle and evolved its own no-fault liability called “absolute liability” which was devoid of any exceptions that were provided under the earlier rule. The apex court applied this rule for the first time in MC Mehta v. UOI with success and its decision was highly-lauded. But here, it needs to be noted that the Supreme Court didn’t substitute the strict liability rule with the newly evolved rule of absolute liability, instead the earlier rule stayed intact but with a narrower extent of operation.
From thenceforth, the concept of strict liability was put into use for comparatively lesser severe cases. A few cases which attracted the rule of strict liability, post the Oleum gas case decision were Charan Lal Sahu v. UOI, Gujrat Road Transport Corporation v. Ramanbhai Prabhatbhai, and Gittan Ram v. State of Jammu and Kashmir. The sustained application of strict liability rule even after the coming up of its successor doctrine makes it fairly evident that the rule of strict liability never went out of use, thus the contention of it being an obsolete law is highly erroneous.
2. Whether the Vizag disaster attracts strict liability or absolute liability:
The Supreme Court, in MC Mehta v. UOI, found the existing strict liability rule to be highly inadequate for protecting the rights of people in an industrialized economy like India. Thus, it formulated the principle of absolute liability which laid down that any enterprise undertaking an inherently dangerous activity will have an absolute and non-delegable duty to avert any harm stemming from the very activity, and this duty will not be subject to any exceptions whatsoever.
Post this particular case, one notices that the subsequent usage of strict liability rule was in cases involving rather smaller public or private entities (see the cases mentioned above). Contrary to this trend, the rule of absolute liability started to come into picture whenever a case involved some high-profile enterprise. For example, cases like Indian Council for Enviro-Legal Action v. Union of India and Union Carbide Corporation v. Union of India (Bhopal gas tragedy) involved big enterprises and the application of absolute liability rule. These trends give us an inkling of absolute liability being applied in every industrial disaster involving a big industrial corporation. Thus, LG Polymers seem to attract absolute liability as opposed to strict liability as alleged by NGT.
3. Whether the National Green Tribunal Act, 2010 recognizes the strict liability rule:
Environmental Lawyer Ritwick Dutta alleges that “The NGT statute recognizes only absolute or non-fault liability. That is, a hazardous enterprise is liable even if the disaster is an accident and not caused by the negligence of the company. The Act of 2010 fully incorporated the principle of 1986 Oleum gas leak judgment”. Section 17 of the NGT Act, 2010 deals with liability in cases involving no fault. It doesn’t expressly mention the terms “Absolute liability” or “Oleum gas case” but instead uses the phrase “Principle of no-fault”. The Section in frame calls for compensation for harms resulting from “an accident or adverse impact of an activity” and also calls for application of “principle of no-fault” even in case of an accident. This strict call for compensation even in scenarios involving an unexpected and unintentional accident gives off compelling undertones of the absolute liability rule. Thus, the NGT is found to have only the absolute liability concept incorporated within its parent act.
The position that the strict liability rule is obsolete in India is unequivocally wrong since the rule’s application has continued even after the development and coming up of the rule of absolute liability. The 19th-century rule today can be applied to a somewhat narrower array of cases but isn’t completely defunct. Regardless of this, the contention of NGT that the Vishakhapatnam disaster attracts the rule of strict liability does seem puzzling on a thorough analysis of the order. An enterprise like LG Polymers is supposed to have an absolute and non-delegable duty towards everyone who got affected due to the mishap. The NGT Act itself advocates for the application of absolute liability rule in such industrial mishaps. Thus, all the relevant legal provisions and recent legal trends direct towards the application of the rule of absolute liability. But, the NGT has gone ahead with the usage of the term “strict liability” in its order which provides the company with a fair chance to get away with their responsibility by showing the absence of any negligence on their part.
ABOUT THE AUTHOR
Sanket Khandelwal is a first-year student at Dr. Ram Manohar Lohiya National Law University, Lucknow. He takes a keen interest in legal issues relating to environment and climate change.