The Vizag Gas Leak and Absolute Liability: What did the NGT do?

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Brief Background on the Incident 

On the early morning of 7th May, the entire nation woke up to see yet another tragic event. The leak occurred at the LG Polymers chemical plant. The location of the plant is in a small village on the outskirts of Visakhapatnam. The toxic styrene, stored in the facility, rapidly vaporized causing harm. There were about 1000 affected people and the initial death toll was around 13. A FIR was filed against LG. It included sections 278, 284, and 337 of the IPC.

One set of laws become very relevant in this case. This area of law is not codified like the Criminal law or the Law of Contracts. It is the law of Torts. Absolute liability under the Law of Tort is an invention of the Indian Judiciary itself. 

What is Strict Liability?

The Apex Court developed the concept of Absolute Liability. It was first explained and understood in the oleum gas leak case back in 1986. However, before this came the concept of Strict Liability. Though, to understand this concept completely, we should go back to 1868 first. 

In the famous Rylands v. Fletcher case in 1868, the House of Lords in the UK first laid down the concept of strict liability. This makes a defendant liable even if he was not negligent or had no intention to cause harm. The rule of Strict liability states few points. First, that a person brings something dangerous on his land. Second, this thing has the potential to cause harm, and/or it does cause harm. Third, that despite, not being at fault, the liability will lie upon the person who brought it.

However, there are some exceptions to this liability. For example, the Act of God, consent or fault of the Plaintiff, Statutory Authority, and an act of the third party. If any of these situations are present in the matter, then the Defendant is not liable.

What is Absolute Liability?

The Apex Court first considered this concept in the case of M.C. Mehta v. Union of India, as mentioned above. This was on the backdrop of the oleum gas leak in the Sriram fertilizer case in Delhi. There, the Apex Court had held that the old rule of Strict liability is not suitable for India. The reason behind such a thought was the exceptions available in Strict liability.

The Supreme Court was uncertain about the concept of strict liability being upheld. It believed that many corporations will cause damages, and escape from any liability through the exceptions. So, the Apex Court took a bold decision. It adopted the rule of Absolute Liability. In this case, no exceptions laid down under the Strict liability rule will apply. This huge step was taken keeping the erstwhile conditions of India in mind. It was also to make up for the Bhopal tragedy. 

There is no doubt that the rule of Absolute liability is harsh in nature. It makes the Corporation liable even though they take safety measures or precautions. A Corporation undertaking hazardous activities is Absolutely Liable. They have to compensate under the law of tort. They cannot plead that there was no negligence or bad intention on their part. In legal language, in an offence of absolute liability, mens rea is not relevant.

Why was it necessary to move away from strict liability?

The main reason to move away from the rule of strict liability is contemporary relevance. Let us take an example where the Strict liability rule is applied in India. Corporations undertaking hazardous business here can make a blunder that could cost lives. They will still manage to escape by citing the exceptions available in Rylands v. Fletcher.

“We do not feel inhibited by this rule which has evolved in the context of a different kind of economy. Law has to grow to meet the needs of the fast-changing society. It needs to keep abreast of the economic developments taking place in this country. As a new situation arises, the law has to evolve. This is necessary to meet the challenges of such new situations”- The Apex Court held.

Industrial mishaps and Absolute liability: A perfect match?

After Globalisation, India opened its market to a huge number of foreign corporations. The majority of them were associated with industries hazardous in nature. This list included mining, petrochemical, fertilizers, etc.

From there, the chance of a large-scale industrial mishap became a real possibility. It was imperative that we adopted a strict mechanism. A mechanism, that would make those corporations liable with no exceptions and defence.

Industrial disasters can have long term consequences, such as, Chernobyl, Fukushima, and in our own backyard (Bhopal). Defective babies are still being born as a result of that gas leak. That scar has been transmitting from generation to generation. Hence, the standard of liability should be absolute. 

Vizag gas leak under Strict liability: Did NGT take a step backwards?

The Vizag gas leak happened because the liable company failed to follow the guidelines. They were careless in the following of the chemical rules of 1989. The rules required them to adopt preventive mechanisms in case of any mishap. The NGT took cognizance of the matter and passed an interim order. But what seemed odd was the mention of the term “Strict liability”. Rather, it should have been “absolute liability.”

The Supreme Court of India evolved from the rule of strict liability. It moved towards the implementation of absolute liability. This happened because they felt that the strict liability rule was not appropriate. Especially in the Indian context. India was a developing economy, unlike Britain, with the potential of economic boom. While the industries played a pivotal part in the economy, it was necessary to keep them in check. In the oleum case, the Supreme Court felt that the rule of Strict liability is inadequate and doesn’t entirely protect the constitutional right of its citizens.

This might very well give LG a chance to build their defence around Strict liability. It will not be surprising if they manage to escape from all liabilities. Section 17 of the NGT Act of 2010, states the application of no-fault liability by the tribunal. Hence, as the NGT mentioned, strict liability is confusing and deserves more attention. 

The rule of Strict liability has certain loopholes. The big MNCs may be able to exploit it if given the chance to exploit. Did we learn from the Bhopal gas leak? Only time will tell. However, if LG manages to escape through these loopholes, it will indeed be a dark day for environmental justice.


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