Amid the corona outbreak, India witnessed another havoc. 7th May, 2020 was a dreadful day as a deadly styrene gas leaked from the storage of LG Polymers in Vishakhapatnam. Gruesome pictures and videos emerged, showing people having collapsed by the wayside. Another gas leak at a paper mill in the industrial town of Raigarh in Chhattisgarh sent seven workers to the hospital, and a boiler blast at a thermal power station in Tamil Nadu injured three. But the incident at Vishakhapatnam was alarming as it claimed 12 lives and several hundreds were admitted to the hospitals after inhaling the fatal gas. Reports suggest that the incident took place because of human negligence. National Green Tribunal (herein referred as NGT) has accounted LG Polymers for the mishap and has claimed Rs 50 Crore for damages.
A REMINISCENCE OF THE “BHOPAL GAS TRAGEDY”
On one calm night of December, due to negligence of the staff at the Union Carbide India Limited (UCIL), methyl isocyanate was mixed with water used for cooling the plant and caused exothermic reactions and numerous gases. Half of the population was seen running towards hospitals with breathing issues and itchiness.
The incident that took place in Vishakhapatnam is not of such intensity but of same nature. Due to the human negligence, the temperature of the gas was not maintained and hence culminated the leakage of gas in the area.
It can be seen as the resurfacing of the ‘Bhopal gas tragedy’ as in both the cases, the accident happened at night and the gas plume escaping from the plant affected the nearby community. Both plants were resuming production after a period of downtime, and it is clear that errors occurred in the protocols.
WHO IS LIABLE?
According to The Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989, styrene is classified as a toxic and hazardous chemical. The act further in its Section 4(2) asks for preventive measures to avoid the accidents.
The Environment (Protection) Rule,1986 under Environment Protection Act, 1986 sets discharge and product standards for regulating quality of life and environmental protection. In the present case, the storage unit was ought to be operated after a period of time due to the lockdown. The leakage of gas insinuates the non-adherence of such measures hence breaching their duty of care and gaining the liability for the mishap.
Moreover, Factories Amendment Act, 1987 specifies the responsibility of the occupier in relation to hazardous processes under its Section 41C whereas Public Liability Insurance Act, 1991 under Section 3 imposes a no-fault liability on the owner of hazardous substance and requires the owner to compensate victims of accident irrespective of any neglect or default hence making the owner of the substance liable for any neglect and injury, either directly or vicariously.
The unit in question as an ISO certified facility which confirms that it has protocols for everything. However, in the case, it is quite evident that in a haste to reopen the unit, the protocols for maintenance were ignored which resulted in the haphazard.
In the light of the events, a case has been registered under IPC sections 278 (making atmosphere noxious to breath), 284 (negligent conduct with respect to poisonous substance), 285 (negligent conduct with respect to fire and combustible matter), 337 (endangering human life by rashness or negligence), 338 (causing grievous hurt by act of endangering human life or personal safety) and must be punished under 304 (Punishment for culpable homicide not amounting to murder).
NGT has taken suo moto cognizance and directed LG Polymers to deposit Rs 50 crore with the district magistrate of Vishakhapatnam. The NGT order states, “Such an entity is liable to restore the damage caused under the Environment Law, apart from other statutory liability.” It has applied the Strict Liability principle instead of Absolute Liability.
Strict Liability was first evolved in the 1868 British case Rylands vs Fletcher. But many jurists criticised the wide variety of exceptions that allowed defendants to escape accruing strict liability. The defences against the rule include among others– consent, common benefit, an act of a stranger, an act of God, and contributory negligence. Moreover, the nature of the substance is similar to that of Bhopal Gas tragedy case and therefore Absolute Liability can be applied in the present case as well.
The principle of absolute liability is rooted in a 1987 case in the Supreme Court, M.C. Mehta Union Of India & Ors. . It was an evolved principle that whenever an enterprise is engaged in any dangerous or hazardous activity that threatens the people working in the enterprise and those living nearby, it owes an absolute and non-delegable duty to the community that no harm will be caused. If harm is indeed caused, the enterprise will have to compensate for damages, and can’t use exceptions provided in the case of strict liability. The enterprise can’t claim that the harm has not been caused due to negligence (absence of due care) or that it had taken all reasonable precautions.
The apex court affirmed this principle in Charan Lal Sahu v Union of India (1990), in which the constitutionality of the Bhopal Gas Disaster (Processing of Claims) Act, 1985, had been challenged.
NEED OF THE HOUR
India is a country of industrialization, and it is supposed to get bigger in the near future. Bhopal Gas tragedy did initiate the legislation and rules for the prevention of such chemical disasters but they are in a scattered form. In 2016, Ministry of Environment and Forest (MoEF) proposed to upgrade the rules to keep pace with time. A draft of amendments was made but the rules could not be finalised back then.
There is no robust legislation yet to qualify the liabilities of such big ventures. There are no rules as to how any liability is to be framed and the current case is the example of it. Invoking Strict liability may dilute the extent of guilt and damages sought. For the current scenario, India needs a stringent legislation that makes the owner strictly and absolutely liable for such hazardous act. This very incident is spark for what may happen in near future when the lockdown will be lifted and many such companies will be re-opening again and will bring the lives of people as well as flora and fauna in peril.
Though the state is taking steps to pacify the fatal effects of the leak, yet the only drawback of invoking ‘Strick Liability’ will be accredited to the fact that it is obsolete and there are several defences with which the accused is able to get away with the liabilities. The scope of proving the guilt is thus nominal and hence this concept of strict liability is frowned upon. Therefore, there was a dire need of introducing the concept of ‘Absolute liability’. In the present case too, the accused must be made absolutely liable as the nature of the property was toxic (styrene gas) and it escaped and it could have been more fatal if people around were not cautious and alert. The lack of any robust legislation too owns the burden of vague liabilities that are being formed. There is a dire need of a structured law and legislation that will help prevent such chemical accidents and that too in a short period of time to save the people and the environment.
ABOUT THE AUTHOR
Aishwarya Srivastava is a sophomore of Dr Ram Manohar Lohiya National Law University, Lucknow. She is an avid reader but never touches her textbooks.