“Damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments.”
– Judge Weeramantry, the International Court of Justice.
On 7th May 2020, a major gas leak tragedy took place in LG Polymers Chemical Plant in Vishakhapatnam, Andhra Pradesh. The incident evoked the unpleasant memories of the 1984 Bhopal Gas Tragedy. The National Human Rights Commission took suo moto cognizance of the matter and issued a notice to the Central and Andhra Pradesh government. It also acknowledged that the disaster was a “serious violation of Human Rights.” Eleven people, including a child, have passed away, 25 are in a critical condition, and as many as 1000 are affected by the gas leak. The disaster that took place in Vishakhapatnam is not only an environmental tragedy but also a human right disaster.
VIOLATION OF HUMAN RIGHTS
A group of UN experts have said that the Visakhapatnam gas leak has drawn attention to what they asserted were “human rights infringements” due to the proliferation of plastics. Right to Life is a fundamental human right guaranteed in Article 21 of the Indian Constitution. In the case of Virendra Gaur vs. the State of Haryana, the Hon’ble Supreme Court of India held that the Right to Life of a person to live with dignity, guaranteed in Article 21, also encompasses the right to a healthy and safe environment. Any environmental, ecological, air or water pollution is considered to be a violation of Article 21.
The right to life also forms a part of Article 25 of the Universal Declaration of Human Rights. Furthermore, Part III Article 6 of the International Covenant on Civil and Political Rights (ICCPR), which India ratified in 1979 also, states that “no one shall be arbitrarily deprived of his life.” In the case of EHP vs. Canada, the UNHRC established that the large scale dumping of nuclear waste that threatened the lives of residents amounted to a clear violation of the right to life.
The right to health of workers, too, is part of the right to a healthy environment protected under Article 21. In Consumer Education & Research Centre vs. Union of India, the Supreme Court enunciated that workers’ right to a healthy environment consists of working in a hygienic working condition in the workplace, and leisure to workers which comprised a better standard of life, connoting the traditional and cultural heritage of a person. At the time of styrene gas leak in the Chemical plant, at least 15 factory workers were present in the factory for maintenance. Additionally, a few more workers had arrived to restart the operations after lockdown. Baskut Tuncak of Turkey, The Special Rapporteur on hazardous substances and wastes said that styrene is a substance used to make plastics that can cause cancer, neurologic damage, and harm reproduction. Furthermore, there are many effects which may not be apparent for years after the exposure. This statement issued from the Office of the High Commissioner for Human Rights in Geneva.
Another right that was blatantly encroached by the Vishakhapatnam Gas Tragedy is the right to highest attainable standard of health. This right is incorporated in Article 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR), which India also acceded to in 1979. Article 12 (2) (b) of ICESCR requires all its member parties to prevent and reduce the population’s exposure to harmful substances and other toxic chemicals. Article 47 of the Indian Constitution also runs along the same lines and expounds that the improvement of public health and standard of living is the primary duty of the state.
The Special Rapporteur of UN also said in a statement that the gas leak from the multinational LG Polymers Plant at a village near Visakhapatnam is similar to the Bhopal Gas Leak Tragedy.
This disaster further transgressed the victims’ Right to a Safe Environment. Destruction of Environment at any scale violates every fundamental human right. ‘Caring for the Earth 1991′ and the ‘Earth Summit‘ of 1992 had also promulgated that human beings are entitled to a healthy and productive life in harmony with nature.
WHY THE PRINCIPLE OF ABSOLUTE LIABILITY SHOULD HAVE BEEN APPLIED INSTEAD OF STRICT LIABILITY
In its order, the National Green Tribunal (NGT) ordered the application of a strict liability principle for the damage caused to the people and environment due to the gas leak. The rule of strict liability evolved from the case of Rylands v. Fletcher in 1868. In this case, Justice Blackburn defined strict liability which states that “a person who, for his purpose, brings on his land and collects and keeps anything likely to cause mischief if it escapes, must keep it in at his peril; and if he does not do so he is prima facie answerable for all the damage which is a consequence of the escape.” The problem with the application of strict liability is that it provides certain exceptions such as an act of stranger, act of god, when it happens with the consent of the person injured or statutory authority. These exceptions may help the LG Polymers Plant escape liability.
The principle of Absolute Liability evolved in the case of MC Mehta v. Union of India. In the city of Delhi, there was a severe leakage of Oleum gas. This leak took place in Shriram Foods Industry belonging to Delhi Cloth Mill Ltd. Due to the gas leak, several people got injured, and many even died. The Supreme Court laid down a new rule in this case- the Absolute Liability rule, which was not subject to any exception under the rule of Strict Liability laid down in Rylands v. Fletcher.
Styrene gas is a ‘hazardous chemical’ under Rule 2(e) plus Entry 583 of Schedule I of the Manufacture, Storage and Import of Hazardous Chemical Rules 1989. Still the tribunal has chosen to invoke the principle of strict liability when it should have invoked the principle of absolute liability. The present case demands the application of absolute liability because employees working in the factory area should be compensated for their loss. It is the company’s duty to ensure its employees have a safe working environment, primarily when the company deals with a hazardous substance. Strict liability loosens this agreement.
At a time when human lives are already at stake due to COVID 19, news of such disasters drops like a bombshell. Although the authorities claim that the situation is under control, the main question arising from this accident is that how many more such accidents would take place before any strict action is taken against these MNC’s? After Bhopal Gas Tragedy and Oleum Gas Leak, the Vishakhapatnam Gas Leak shows India’s path to industrialization, is fraught with human, environmental and economic perils.
ABOUT THE AUTHOR
Prajakta Pradhan is a first-year BA LLB (Hons) student at Dr. Ram Manohar Lohia National Law University, Lucknow. She is also a student member of the Internship and Placement Committee of RMLNLU. Her interest lies in Human Rights Law and International Criminal Law.