India: Visakhapatnam Gas Leak Debacle: A Rejuvenation Of ‘No-Fault Liability' Conundrum

When the whole world was suffering from an unprecedented outbreak of the novel Corona Virus, the city of destiny 'Visakhapatnam' was about to face something more lethal and catastrophic. On 7th May 2020, a major leakage of Styrene gas was reported from the plastics-manufacturing plant 'LG Polymers' located on the outskirts of the Visakhapatnam city. The accident took place when the cooling system of a polymers plant got clogged due to the mismanagement of factory workers and resulted in turning the city into a gas chamber. The series of events were quite similar to that of the 1984 Bhopal Gas Tragedy and affected the lives of more than 5000 people with 11 deaths. After the leakage in Visakhapatnam, the National Green Tribunal (NGT) took an instantaneous action and set up a five-member committee to look into the whole fiasco. The committee immediately proclaimed an order directing the LG Polymers factory to deposit a compensatory amount of Rs. 50 Crores with the District Magistrate of Visakhapatnam. Apart from that, the interim-order of NGT has also declared the imposition of 'strict liability' towards this appalling event of a major gas leak which affected the health of the public on a very large scale. However, this decision of the NGT faced criticism as it was believed that the principle of 'absolute liability' should have been imposed by the NGT on the negligent act of the polymers' plant.

DOCTRINE OF POLLUTER PAYS

The 'Doctrine of Polluter Pays' is a well-established principle of environmental law, which places an obligation of compensating the damage to the people who ought to reimburse it and also have the capacity to disburse it. The principle explicitly affirms that the person who damages or destructs the environment has the absolute obligation to bear the cost of ameliorating the environment.¹

The 'Doctrine of Polluter Pays' was laid out for the first time in the case of Indian Council for Enviro Legal Action v. Union of India². In this case, the Apex Court of India held that the rejuvenation of the vitiated ecology is important for its sustainable development and as such the polluter is legally responsible to reimburse the individual sufferers as well as pay for the revitalization of the damaged environment.

Therefore, in the instant case, the gas leakage from the polymers plant had an adverse impact on the environment and it deteriorated its quality to a larger extent through a massive outbreak of 3 tonnes of the styrene gas. For this reason, the negligent act of LG Polymers' Plant shall attract the doctrine of Polluter Pays and sanction the company for damaging the ecology.

WHETHER THE PRINCIPLE OF STRICT LIABILITY IS DEFUNCT IN INDIA?

The principle of strict liability was established in the year 1968 in the case of Rylands v. Fletcher³. In this case, the court of law held that any person who uses his/her land in an 'unnatural manner' and who keeps any 'hazardous substance' on such premises would be held liable under the principle of strict liability for any 'damage' occurred on the 'escape' of such perilous substance. However, this principle had certain exceptions like 'act of god' and 'default of plaintiff' which always waived off the liability of the defendant.⁴ Therefore, due to this reason, the Apex Court of India came up with its own no-fault liability called absolute liability in the case of MC Mehta v. UOI⁵.

The absolute liability is a stringent form of strict liability as it is devoid of any exceptions that were mentioned under the earlier principle. The Supreme Court of India imposed this principle of absolute liability for the first time in the case of MC Mehta v. UOI⁶with success and its judicial pronouncement was also highly praised throughout the country. However, the Apex Court didn't obsolete the principle of strict liability with the newly developed principle of absolute liability; instead, the former principle remained intact but with a lesser functionality in the matters.

WHETHER THE 'NO-FAULT' LIABILITY IMPOSED BY THE NATIONAL GREEN TRIBUNAL IS JUSTIFIED?

The Apex Court of India, in the case of MC Mehta v. UOI⁷, affirmed that the principle of strict liability is not sufficient for safeguarding the rights of people living in an industrialised economy like India. Thus, it developed the doctrine of absolute liability which asserted that any industry performing a hazardous activity will have an absolute obligation to prevent any peril arising out of the very activity, and this obligation will not be excused in whatsoever conditions.

Post this landmark case, it was noticed that the judiciary has ruled out the imposition of strict liability on the big industrial corporation and subjected it to only smaller entities. It was also perceived in many enviro-legal cases like Indian Council for Enviro-Legal Action v. Union of India⁸ and Union Carbide Corporation v. Union of India⁹, wherein the principle of absolute liability was imposed on the negligent act of big Industrial corporations. Hence, considering this well-established trend, the imposition of absolute liability as a deterrent principle would have been much more viable and reasonable retribution for committing such a reckless act.

CONCLUSION

The assertion that the strict liability rule is completely defunct in India is erroneous since the application of the rule has continued even after the establishment of the absolute liability principle. Although the implication of the strict liability principle has been reduced to a narrower set of cases, the principle itself isn't completely inoperative in the country. The order of imposing the strict liability rule on the Vizag Gas leak cataclysm by the NGT has perplexed the legal fraternity and raised several questions over the scope of its implication. It was reported that the recklessness of the polymers factory has caused the demise of 11 citizens, more than 100 being hospitalized, along with many flora and fauna being succumbed to death. Therefore, this implies that the Vizag Gas leak was a severe industrial tragedy and its severity shouldn't be determined by the number of fatalities, and LG Polymers factory should be sanctioned for the mischief caused to the citizens and ecological system.

Footnotes

1 What is the polluter pays principle?, LONDON SCHOOL OF ECONOMICS (May 11, 2020), http://www.lse.ac.uk/GranthamInstitute/faqs/what-is-the-polluter-pays-principle/

2 1996 SCC (3) 212.

3 (1868) LR 3 HL 330.

4 The Rule of Strict Liability, TOPPR, https://www.toppr.com/guides/legal-aptitude/law-of-torts/the-rule-of-strict-liability/

5 1987 SCR (1) 819.

6 Id.

7 Supra Note 11.

8 Supra Note 7.

9 1992 AIR 248.