By Vaagmi Trivedi
Three tonnes of toxic styrene monomer gas leaked from a South Korean company’s plant on May 6, 2020, resulting in a fatal accident in Vizag, Andhra Pradesh.
LG Polymers Pvt. Ltd. is a company. The facility in question was ISO certified, so everything had a protocol. It appears the management disregarded the protocol pertaining to plant maintenance before resuming operations in haste to restart the plant following the lockdown. Styrene levels on the day of the leak were found to be 2500 times higher than the regulators’ established limits.
Investigations have shown that because of the lockdown, styrene was not stored at the proper temperature, which caused pressure to build up in the storage chamber and the valve to break.
One of the worst industrial leak disasters in India, following the Bhopal gas leak in 1984, the Oleum gas leak in 1986, and the Mayapuri radiation leak in 2010, it resulted in the death of 11 people and the illness of over 1000 others.
Over the years, these other unfortunate incidents have made a significant contribution to India’s development of environmental law.
The National Green Tribunal (NGT) Principal Bench at New Delhi took suo motu cognizance of the Vizag leak shortly after it occurred on May 8, 2020, based on media reports. In its order, the NGT noted: “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.”
Following this statement, there was a sizable uproar in the environmentalist and legal communities, who saw the NGT order as backwards and incorrect. The NGT should have applied the “Absolute Liability Principle rather than the “Strict Liability” Principle, according to critics.
The Supreme Court’s landmark decision in the Oleum gas leak case, where Justice Bhagwati established the idea of “Absolute Liability,” supported the argument.
Therefore, it was believed that the NGT was wrong in applying a principle that has already been rejected by the Supreme Court.
Subsequently on June 1, 2020, the NGT passed another order in the Vizag case, and this time remarked: “We find the company has strict and absolute liability for the environmental damage and consequential loss including to life and public health in this case.”
The NGT gave no specific justification for switching from its previous position of “strict liability” to “strict and absolute liability” in the subsequent order. Regarding the methodology used by the NGT to arrive at these conclusions, no queries were raised. However, when they noticed that the NGT used the word “absolute” in its order, the critics exhaled a sigh of relief.
However, contrary to popular belief, India’s legal framework for strict and absolute liability is not as clear-cut. As shown by the NGT’s actions above, the two concepts are highly overlapping and actually offer a more extreme than balanced approach.
The application of these aspects is hardly clear.
Absolute Liability in India
However, by clearly rejecting the idea that fault is necessary for liability, Indian environmental law has actually moved in direct opposition to the aforementioned fundamental doctrines of contemporary common law of torts.
Up until the early 1980s, the Rylands v. Fletcher rule was consistently applied with all of its exceptions. However, after the Bhopal gas leak in 1984 and the Oleum gas leak in 1986, things began to change.
Unfortunately, India did not have specific laws and courts in place to provide an appropriate legal framework for environmental issues at the time these disasters struck. The Water (Prevention and Control of Pollution) Act came into existence in 1992 and the Air (Prevention and Control of Pollution) Act of 1981 needed substantial amendments in 1987.
The apex court was then tasked with filling in this gap, which led to the issuance of numerous significant rulings through Public Interest Litigations. One of these highly regarded decisions, M.C. Mehta v. Union of India in December 1986, was responsible for the introduction of “Absolute Liability” to Indian environmental law.
Then Chief Justice of India Justice PN Bhagwati authored the decision for the five-judge Supreme Court bench which made a significant contribution to India’s progressive jurisprudence. The case facts concerned the leak of oleum gas from a Shriram Foods and Fertilisers plant in Delhi.
A three-judge bench had referred the case to the Supreme Court “because certain questions of seminal importance and high constitutional significance were raised in the course of arguments when the writ petition was originally heard.” One such questions was “the measure of liability of an enterprise which is engaged in a hazardous or inherently dangerous industry, if by reason of an accident occurring in such industry, persons die or are injured” and was brought up for discussion by the top court.
The court stumbled upon the question of whether the rule in Rylands vs Fletcher or something else could be applied to the facts of the case, and altogether rejected the applicability of the rule on the present day circumstances by observing as follows: “This rule evolved in the 19th Century at a time when all these developments of science and technology had not taken place and could not afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure… Law cannot afford to remain static. We have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialised economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter in any other foreign country. We no longer need the crutches of a foreign legal order. We are certainly prepared to receive light from whatever source it comes but we have to build up our own jurisprudence.”
After this rejection of the Strict Liability principle, Justice Bhagwati proceeded to lay down a new principle for fixing liability on hazardous industries: “We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict liability under the rule in Rylands vs Fletcher.”
Therefore, in situations where a dangerous thing escapes from an industry that is inherently dangerous, that enterprise would be held absolutely liable to pay for all damages caused by it and would have no recourse to an exceptions defence. Consequently, the responsibility imposed is absolute to the point where even common law defences like acts of God and proper use of the land have been disregarded.
In order to impose the no-fault liability, Indian courts have thus taken many steps back with the so-called neoteric judgment. Although environmentalists have consistently praised it for sending a clear message to industrialists that India cannot be subjected to rash development at the expense of environmental degradation and human deaths in the name of carelessness, legally, the overly simplistic approach only complicates the scenario of a developing country like ours where development and the environment are to proceed hand-in-hand without any of them taking precedence.
Criticism of absolute liability in India
The application of this judgment to the Vizag gas leak, or to any future similar situation in India seems impractical and problematic due to a number of reasons:
a) It contradicts contemporary tort law principles, which support and accept the imposition of liability only upon the defendant’s fault. The law has returned to the earlier era when judges relied on the straightforward Acting at Risk doctrine, and the law governing negligence and nuisance was still in its infancy. As was already mentioned, common law nations are now applying the concept of “negligence” to such cases, mirroring the approach taken by American courts over the years.There doesn’t seem to be any justification for not adopting the criteria of “foreseeability of risk” and “reasonable care” as the requirements for determining whether the person should be held accountable for the accident. Certainly, the apparent responsibility could be corrected.
The burden of establishing that the defendant exercised all due diligence to avoid the accident is on him as well. But eventually, the defendant ought to be given a fair chance to refute the initial inferences and demonstrate that all necessary precautions were taken to avert the catastrophe.
It’s interesting to note that even after the MC Mehta ruling, Indian statutes and regulations have adopted this approach. The Central Government drafted the Manufacture, Storage, and Import of Hazardous Chemical Rules, 1989, in accordance with its originated in the 1086 Environment Protection Act. These regulations place a number of obligations on the “occupier” to ensure that the dangerous chemicals used in industrial activities do not result in any harm during and before the occurrence of a major accident.
As a result, in the unfortunate event of any “major accident,” it will be necessary to determine whether the obligations set forth in the Rules were followed; in that case, the owners would be held accountable. These rules are consistent with the concepts of “foreseeability of risk” and “reasonable care,” which are a part of the negligence principle. What purpose do all these mandatory obligations and safety precautions that have been established by the Rules serve if the courts must hold the defendant entirely responsible in the event of an accident?
If the owner’s liability is decided to be strict, absolute, and devoid of any exceptions or explanations, the owner may very well continue operating his plant without adhering to any of the rules.
b) National Green Tribunals were set up across the country under the NGT Act[13] of 2010 to deal particularly with matters related to the environment. Now Section 17 of the NGT Act talks about ‘Liability to pay relief or compensation in certain cases’. First of all, Sub-section (1) of Section 17 says: “Where death of, or injury to, any person (other than a workman) or damage to any property or environment has resulted from an accident or the adverse impact of an activity or operation or process… the person responsible shall be liable to pay such relief or compensation for such death, injury or damage… as may be determined by the Tribunal.”
The phrase “shall be liable to pay” used above is qualified by the phrase “as may be determined by the Tribunal”. So it might be an incomplete reading to say that the Section imposes an absolute liability on the defendant to compensate for all damage caused by the accident. The Tribunal has been given power to adjudicate and decide
the extent of liability of the wrongdoer, and whatever is decided by the Tribunal, the defendant would be obligated to pay that amount.
Secondly and more importantly, sub-section (3) of Section 17 says: “The Tribunal shall, in case of an accident, apply the principle of no fault.” Now, the term “principle of no-fault” is not defined in the NGT Act. Another piece of environmental legislation, the Public Liability Insurance Act of 1991, used a similar phrase. The phrase “liability to give relief in certain cases on” appears in Section 3 of that Act, principle of innocence. However, not even the Public Liability Insurance Act clarifies what the no-fault principle entail.
Now, the term “principle of no-fault” is not defined in the NGT Act. Another piece of environmental legislation, the Public Liability Insurance Act of 1991, used a similar phrase. The phrase “liability to give relief in certain cases on principle of no fault” appears in Section 3 of that Act. However, not even the Public Liability Insurance Act clarifies what the no-fault principle entails. Along with the common law principle of Res Ipsa Loquitur, the Manufacture, Storage, and Import of Hazardous Chemical Rules of 1989 automatically place the burden of proof on the defendant to demonstrate lack of negligence.
Without these clauses, it is unclear whether the “principle of no-fault” refers to strict liability or absolute liability. The MC Mehta decision was rendered in 1986, while the aforementioned laws were passed in 1991 and 2010. The NGT Act and the Public Liability Insurance Act should have specifically referenced the “principle of absolute liability” if the legislature had intended to follow the rule established in MC Mehta. The lack of such specificity suggests that the NGT should have discretion when granting relief in accident cases, taking the accused’s negligence into account and applying strict liability, absolute liability, vicarious liability, or a combination of any of these principles with all of their exceptions and limitations.
c) Although Justice Bhagwati may have established a clear and strong line of law in the MC Mehta case, the Supreme Court was unable to determine whether Shriram, the defaulting company, fell “within the meaning of ‘State’ in Article 12 so as to be liable to the discipline of Article 21 and to be subjected to a proceeding under Article 32 of the Constitution.” As a result, judges and solicitors will now be uncertain as to whether Justice Bhagwati’s absolute liability principle was the ratio or merely an obiter. In Union Carbide Corporation Etc. vs. Union of India, Chief Justice Ranganath Misra stated in a concurring opinion that the oleum gas leak case’s ruling on absolute liability may in fact be a useful guide for determining compensation in the cases it was intended for, but that it was “essentially obiter”.
However, Justice B. Jeevan Reddy later disagreed with Justice Misra’s interpretation of the MC Mehta principle in the case of Indian Council For Enviro-Legal Action v. Union Of India, finding that the law declared in the oleum gas leak case was “not unnecessary for the purposes of that case.”
In that case, Justice Reddy determined that Hindustan Agro Chemicals Limited was absolutely liable to pay damages to villagers in the affected area, the soil, and the underground water. He also noted that the MC Mehta on that division bench, Mehta’s absence as an obiter was conclusive.
We can therefore conclude that the “Absolute Liability” rule established in MC Mehta, which is hailed by environmentalists and lawyers as a ground-breaking decision, is neither consistent with the development of tort law in common law countries nor specifically acknowledged by the legislature when crafting statutes. It is also not clear to the judges how to apply it. The judgment in MC Mehta frequently appears to be imposed by external forces.
The fact that India had experienced two significant gas leak accidents within just two years, both of which resulted in numerous fatalities and significant property damage, as well as the absence of strict environmental laws in India and the ensuing failure led to Justice Bhagwati writing the “Absolute Liability” rule to eliminate all possibility of another similar catastrophe in the future to bring justice for the victims of these two tragedies due to purely technical reasons each time. Although Justice Bhagwati’s brilliance and contribution to Indian law are undeniable, this ruling appeared to be an attempt at atonement by a highly liberal judge who couldn’t help but see wrongdoers escape the reach of the law in a developing nation like India.
The establishment of such an extreme legal framework must have resulted from the disappointment of not being able to fully secure justice for the victims and claimants. Additionally, judges have frequently been hesitant to modify such ostensibly pro-victim judgements, even if a different viewpoint appeals to their legal senses more. Irrespective of all the circumstances surrounding the decision back then, a more practical approach needs to be taken in the present times. While it is not at all argued that Indian courts should blindly follow Western jurisprudence at every juncture, it is no major feat to take a distinct road only for the sake of standing out.
Inspiration for law should be taken from whichever source it comes from. Justice Shapiro of the Appellate Division of the Supreme Court of New York, Second Department once suggested a more practical approach for fixing strict liability while writing his dissenting opinion in Doundoulakis v. Town of Hempstead, where he advocated for an approach provided in ‘Restatement of Torts, 2d’, which is as follows: “General Principle: (1) One who carries on an ‘abnormally dangerous’ activity is subject to liability for harm resulting from the activity, although he has exercised the utmost care to prevent such harm. (2) Such strict liability is limited to the kind of harm, the risk of which makes the activity abnormally dangerous.”
Further, to determine what is ‘abnormally dangerous’, a host of factors were suggested in the treatise, which the court should consider while determining the liability. “In determining whether an activity is ‘abnormally dangerous’, the following factors are to be considered:
(a) Whether the activity involves a high degree of risk of some harm
(b) Whether the gravity of the harm which may result from it is likely to be great;
(c) Whether the risk cannot be eliminated by the exercise of reasonable care;
(d) Whether the activity is not a matter of common usage;
(e) Whether the activity is inappropriate to the place where it is carried on; and
(f) The value of the activity to the community.”
Even if we continue to ignore this issue’s recommendations from American law, as we have done for years, we should still acknowledge that India lacks a reliable system for determining fault and no-fault liability in environmental matters. Such legal ambiguity is unfavourable for a healthy business environment and must be prevented so that industries do not take the nation’s environmental laws for granted and are subject to the statutory principles of sustainable development and polluter pays.
—Vaagmi Trivedi is a first year law student from Calcutta University.