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VIZAG GAS LEAK: SPEEDY JUSTICE FOR THE VICTIMS.

Updated: Jul 29

[Authored by Abhishek Naharia, a 4th year B.A. LL.B. (Hons) student at Rajiv Gandhi National University of Law, Punjab]

Visakhapatnam faced the burnt on 7th May when the rest of the Country was fighting COVID-19. There was a gas leakage reported from Andhra Pradesh’s Vishakhapatnam in LG Polymers chemical plant which resulted in at least 11 deaths[1] and at least 800 affected taken to the hospital. The leakage was caused by Styrene[2], which is an organic compound and which when leaked results in respiratory problems, irritation in eyes, and unconsciousness among other severe damages to the body. In times like these, when the National Green Tribunal (NGT) has taken suo-moto cognizance of the case and ordered Rs. 50 crores to be deposited by the Company, let us revisit the environmental laws which this gas leak has flouted and related landmark rulings.[3]


Principle of Strict Liability


The principle of Strict Liability has been into place in Indian laws since the British advent, following from Rylands v. Fletcher.[4] As per the Strict liability principle[5], whosoever keeps any hazardous substance in his premise would be liable for the damage caused as a result of the escape of that substance. Thus, the 3 essentials[6] of the principle are non-natural use of land, keeping the dangerous thing on land, and damage caused to aggrieved as a result of the damage. Howsoever, the law also provides for exceptions to this rule, viz. Plaintiff’s own fault, the act of god, the plaintiff’s own consent, and the act of 3rd party.[7]


Absolute Liability


There is less relevance of the principle of strict liability in Environmental law because of the fact that the damages caused in Environmental law are large scale damages and can be given no exceptions. The principle involved in these cases is known as the principle of Absolute liability. Propounded for the 1st time in M.C. Mehta v. UOI [8] (popularly known as, Oleum Gas Leakage Case), this rule is applicable for the person(s) causing damage as a result of his engagement in any hazardous activity. The rule of absolute liability was followed in a plethora of judgments by the Apex Court including Charan Lal Sahu case[9], Bhopal Gas Leak Case[10], Indian Council for Enviro Legal Action.[11]


Protection by the State


In case of a gas leak such as this, the State has an important role to play. Post the 42nd Amendment, 1976, the word “environment” was added in the Constitution. Art. 48A[12] was added in the Directive Principles of State Policy, which talks about the obligation of the State to protect the environment. In Rural Litigation and Entitlement Kendra Case[13], the Apex Court while focusing on Art. 48A held that the State has a responsibility to protect the Environment and this responsibility shall also be attributed to the citizens as their fundamental duty under Art. 51A(g). Further, the SC pointed out in M.C. Mehta v. State of Orissa[14] that any insanitation of the environment which severely affects the life of the citizens is a violation of the fundamental rights of citizens. Further, in M.C. Mehta v. UOI & Ors.[15], the SC held that right to live in a pollution-free environment is a fundamental right under Art. 21 of the Constitution.


Rules and Legislations


In India, the damages accorded in cases of Absolute liability are civil in nature and it is high time that the law is amended to invoke criminal liability also in such environmental matters affecting the public at large. Chapter X of the CrPC, 1973 provided remedies for public nuisance, although the nature of the remedy still remains civil. Section 133[16] of the Criminal Procedure Code, 1973 talks about the conditional order that might be passed by the District Magistrate or Sub-divisional Magistrate. The Magistrate is also empowered to issue an Injunction order under Section 142[17] of CrPC pending the inquiry which he may order under Section 139[18] CrPC. Coming to the rules and legislation for the protection of incidences such as this, we have into place Environment (Protection) Act, 1986, Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989 (MSIHC Rules), Public Liability Insurance Act, 1991, Hazardous Wastes (Management, Handling and Trans boundary Movement) Rules, 2008 and the National Green Tribunal Act, 2010.


Remedies


Under Section 15(1)[19] of the NGT Act, the Tribunal can grant order relief, compensation, and restitution to be provided to the victims, the property damaged, and the environment. A person who fails to comply with the order/award of the Tribunal is punishable with imprisonment (up to 3 years) and fine (up to 10 crores) or both as per Section 26(1)[20] of the Act. Other aforementioned laws do not have major penalties in the Act thus ineffective most of the time. It is high time that the current laws must be amended and shaped on the lines of the NGT Act so that they find relevance in times like these for the aggrieved. For instance, there are provisions in the Public Liability Insurance Act, 1991[21] wherein the aggrieved ought to get compensation by the law flouter, but then that is not sufficient as a remedy. We need stricter provisions as those of NGT Act.


June 1st Hearing


The NGT appointed Committee gave its findings recently on 1st June relating to the matter and amongst other findings it primarily held that the Styrene tanks and LG Polymers plant were outdated and lacked temperature sensors.[22] As per the 5-member committee report submitted in the 3rd week of May, human negligence and security lapses were the primary reasons that were found to lead to the horrific mishap.[23] As per a detailed analysis of the report, we find that the company was working without a valid environmental clearance for more than 2 decades from now. Looks like lessons have not been learnt from the 1984 Bhopal Gas tragedy.

Loopholes to be cured


Around 10 years ago, the then leader of opposition Late Shri Arun Jaitley had said that there is a void in place when it comes to compensation being granted to the aggrieved in case of a nuclear incident. Reference was made to the Civil Nuclear Liability Act, 2010[24]. His argument back then that mere negligence in mishandling the hazardous material shall result in civil as well as criminal liability seems to be sound enough. After all, the negligent acts must not be spared by a promise to pay compensation to the aggrieved. Hoping for the best, we expect the 5 member Committee[25] constituted by NGT to thoughtfully delve into the matter and submit its report in the given time frame so that the distressed strata of the society affected by this horrific gas leakage may be brought to justice.

Suggestions; to be Immediately Implemented


Amongst a number of general measures that could be taken for prevention of any such event in the near future, fixing loud alarm systems as a precautionary measure looks a good choice. Keeping a check on the licenses and certifications by the Industry is indeed another brilliant method. Further, it should be kept in mind by the NGT while deciding this case that as the case was a prima facie incident of human errors and gross negligence, let the principle of absolute liability take over. After all, setting deterrents all the way has become essential in cases like these when the affected population is way too much.

[1] India gas leak: At least 11 dead after Visakhapatnam incident, BBC NEWS, (May 7, 2020), https://www.bbc.com/news/world-asia-india-52569636. [2] Sreenivas Janyala, Vizag gas leak: What styrene is for, and how it behaves, (May 9, 2020), https://indianexpress.com/article/explained/vizag-gas-leak-what-styrene-is-for-and-how-it-behaves-6399198/. [3] NGT issues notices to Centre, LG Polymers; orders to pay Rs 50 crore after Vizag gas leak, THE PRINT (May 8, 2020), https://theprint.in/india/ngt-issues-notices-to-centre-lg-polymers-orders-to-pay-rs-50-crore-after-vizag-gas-leak/417043/. [4] Rylands v. Fletcher, 1868 L.R. 3 H.L. 330. [5] Negligence Theory, Strict Liability, JUSTIA (April, 2018), https://www.justia.com/injury/negligence-theory/strict-liability/. [6] Sakshi Raje, Rules of Strict and Absolute Liability, LAW TIMES JOURNAL, (September 20, 2018), http://lawtimesjournal.in/rules-of-strict-and-absolute-liability/ [7] Box v. Fubb, (1879) 4 Ex D 76. [8] M.C. Mehta v. UOI, 1987 AIR 1086. [9] Charan Lal Sahu v. Union Of India And Ors., 1990 AIR 1480. [10] Union Carbide Corporation and Ors. v. Union Of India, 1992 AIR 248. [11] Indian Council For Enviro Legal Action v. Union Of India And Ors., 1996 SCC (3) 212. [12] INDIA CONST. art. 48A. [13] Rural Litigation and Entitlement Kendra Case, 1987 AIR 359. [14] M.C. Mehta v. State of Orissa, AIR 1992 Ori. 225. [15] M.C. Mehta v. UOI & Ors., 1987 AIR 1086. [16] Criminal Procedure Code, §133 (1973). [17] Id, §142. [18] Id, §139. [19] National Green Tribunal Act, §15(1) (2010). [20] Id, § 26(1). [21] The Public Liability Insurance Act, 1991, No. 6, Acts of Parliament, 1992 (India). [22] The Associated press, Vizag gas leak: Styrene tanks at LG Polymers plant were outdated, lacked temperature sensors, finds NGT-appointed committee, FIRSTPOST, (June 01, 2020, https://www.firstpost.com/india/vizag-gas-leak-styrene-tanks-at-lg-polymers-plant-were-outdated-lacked-temperature-sensors-finds-ngt-appointed-committee-8432311.html. [23] Express News Service, Vizag gas leak: Panel for prosecution of LG Polymers under CrPC, THE NEW INDIAN EXPRESS (June 2, 2020), https://www.newindianexpress.com/states/andhra-pradesh/2020/jun/02/vizag-gas-leak-panel-for-prosecution-of-lg-polymers-under-crpc-2151092.html. [24] The Civil Liability For Nuclear Damage Act, 2010, No. 38, Acts of Parliament, 2010 (India). [25] Akshita Saxena, Vizag Gas Leak: NGT Directs LG Polymers to Deposit Rs 50 Crores; Constitutes 5 Member Committee For Probe, LIVELAW (May 8, 2020), https://livelaw.in/environment/breaking-vigaz-gas-leak-ngt-directs-lg-polymers-to-deposit-rs-50-crores-constitutes-5-member-committee-for-proberead-order-156436.

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