Bhopal Gas Tragedy to the Vizag Gas Leak: Reducing Liability on Enterprises in India

By Filzah Belal
Filzah Belal is a final year undergraduate law student at National Law University and Judicial Academy, Assam.

​Tort law stands on three basic components – a wrongful act or omission, damage to someone else, and a remedy for the damage that occurred. When applied to the tort of negligence, these components point towards the importance of identifying who is at fault. In other words, tort law aims to establish ‘fault-based liability’ wherein the party at fault for damage to another due to wrongful act or omission pays damage. However, tort law also includes a concept of no-fault liability, especially through strict liability and absolute liability. This means that even if one had not committed the wrongful act or omission themselves, they could be held liable.

Strict Liability is a theory that imposes legal responsibility for damages on a person even if they are not at fault or even if there was no negligent behaviour on their part. This rule was laid down in the famous case of Rylands v. Fletcher [(1868) LR 3 HL 330]. In this case, the defendant hired independent contractors to construct a reservoir on his land to provide water to his mills. For this purpose, he appointed an independent contractor who failed to take into account several mine shafts that were present in the defendant’s land. This led to water being redirected to the adjacent land of the plaintiff once the reservoirs reached its full capacity. This water caused damage to the coal mines, so he sued the defendant. Although the defendant argued that the fault was of the independent contractor, the House of Lords decided the case in favour of the plaintiff by establishing the concept of no-fault liability. Justice Blackburn explained this concept as:
“We think that the rule of the law is that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.” [1].

In the context of this case, ‘anything’ refers to the reservoir which is an uncommon or non-natural use of land; ‘mischief’ which refers to the possibility of water from the reservoir escaping from the plaintiff’s land and causing damage to someone else; and, makes the plaintiff ‘prima-facie answerable’ because it all happened in his land.

At the same time, the Court also laid down certain exceptions to strict liability. They are – the plaintiff’s own fault, acts of God, acts done voluntarily, mutual benefit, acts by a stranger, and statutory authority. These exceptions became a set of defences which was making it difficult for the Courts in India to impose liability on a person for causing harm to others. This led to the evolution of the concept of absolute liability.
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Evolution of Absolute Liability in India
In December 1984, when a hazardous chemical called methyl isocyanate leaked out from the Union Carbide India Ltd.’s pesticide factory, the entire city of Bhopal turned into a gas chamber. With more than 15,000 people killed, the Bhopal Gas Leak tragedy became one of the most devastating industrial disasters in India. When the matter came before the Court it was found that all safety systems in the premises of the enterprise were non-functional. Then Chief Justice PN Bhagabati, while delivering the judgement in MC Mehta v. Union of India [1987 SCR (1) 819], evolved the concept of absolute liability for the first time in India. 

Absolute liability can be imposed on an enterprise for conducting any activity that involves any dangerous or hazardous substance, even if at first glance it seems like there is no chance for the escape of the hazardous substance. As opposed to strict liability, which can be invoked against a person, absolute liability is a remedy against an enterprise. In addition to this, there is no exception under absolute liability, meaning the offending party has no opportunity to defend itself. Therefore, it becomes more difficult for companies to escape from their liability and easier for the Courts to provide relief to the one who has suffered a loss. 
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This liability on enterprises has been construed as absolute and non-delegable due to which such a stern position has been taken, especially in this case where a dangerous threat loomed on the public leading to large-scale damage. This nature of absolute liability was reaffirmed by the Supreme Court of India in Charan Lal Sahu v. Union of India [AIR 1990 SC 1480].

Aftermath of Bhopal Gas Leak Tragedy
After this incident, not only was a strict approach of absolute liability developed by the judiciary, but also the legislature played its part. Two important legislations drew attention, namely the Bhopal Gas Leak Disaster (Processing of Claim) Act of 1985 and the Public Liability Insurance Act of 1991. The former was enacted by the Central Government to ensure that the claims arising out of the disaster were dealt with effectively whereas the latter mandated all enterprises that dealt with any hazardous substances to have a public liability insurance policy cover.

Vizag Gas Leak Case
History repeated itself, although on a smaller scale, when the Venkatapuram village witnessed a major leak of the styrene gas in May 2020. Numerous videos of people fainting on the streets went viral over social media and attracted a lot of attention. However, this time, when a case similar in nature to the Bhopal Gas Leak came before the National Green Tribunal (NGT), the Tribunal held it to be a case of strict liability instead of absolute liability and ordered LG Polymers to pay 50 Crore Rupees as damages [1].
The shift from absolute to strict liability marks a step taken backwards by the judiciary. In the Bhopal Gas Leak Case, the number of deaths was much higher than that of the Vizag Gas Leak Case, however, all the essential components laid down in MC Mehta v. Union of India were fulfilled in this case in the following manner: 
Enterprise: LG Polymers is the identified enterprise in this case against whom action has been raised for affecting public health in the Venkatapuram village
Hazardous substance and its Escape: the escape of deadly styrene monomer vapour from the LG Polymers Plant had led to a huge number of health cases which is a sign of the degree of damage caused by the escape of the hazardous gas.

At the same time, there are differences in both the cases which might have led to this decision by the Tribunal. First is the vast difference in the number of cases as well as the number of deaths. Moreover, the plant in the Vizag Gas Leak Case was situated in a village which had a lesser population in comparison to a major city like Bhopal. Further, the gases in both cases, being different in nature led to a difference in how far it travelled. In other words, in the Vizag Gas Leak Case, the hazardous gas being heavier did not spread beyond 1.5 KM of the plant [3]. However, in the Bhopal Gas Leak Case, a larger area had turned into a gas chamber.

Keeping all differences and similarities in mind, applying strict liability instead of absolute liability is still a step backwards. Absolute liability was evolved to ensure that enterprises do not take permission to use a hazardous substance for their business for granted. This principle was evolved to make enterprises more responsible and to compel them to take up due reasonable care while dealing with hazardous substances. However, going back to a more lenient concept of strict liability opens a window for enterprises to escape liability by proving any of the exceptions (defences), which in some cases might even be done by manipulating facts. This is also likely to facilitate the infringement of the right to health of citizens as companies would have higher chances of escaping charges leveled against them. 

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

References
[1] Parmar, Bharat and Goyal, Aayush. “Absolute Liability: The Rule of Strict Liability in Indian Perspective”. Manupatra.
[2] Saxena, Akshita. 2020. “Vizag Gas Leak: ‘Strict Liability’ or ‘Absolute Liability’?”. Live Law. May 9, 2020.
[3] Bhattacharjee, Sumit. 2020.  “Vizag Gas Leak: An Avoidable Tragedy”. The Hindu. May 17, 2020.

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