This Article is written by Shreya Tripathi of Banasthali Vidyapith, Jaipur. Here, she discussed Bhopal Gas Tragedy with Development of Environmental Law along with the concept of Absolute Liability.
Background of the Case
Bhopal Gas Tragedy was a deadly disaster which took place in Bhopal, India leaving behind thousands dead and thousands other maimed for life. This is considered as one of the most horrific and lethal industrial disasters.
On a 1984 winter night, the lethal Methyl isocyanate Gas (MIC) which leaked from the Union Carbide factory making it the worst industrial disaster which the world has ever seen. In the 1970s, the Indian government was encouraging foreign investment in local industries and for the same Union Carbide Corporation (UCC) was asked to build a plant in Bhopal for the manufacture of Sevin, which is a pesticide used commonly throughout Asia. The Government of India itself had a 22% stake in the company’s subsidiary Union Carbide India Ltd. (UCIL).
Due to its central location and transport infrastructure Bhopal was chosen for the establishment of the plant. Bhopal was the area zoned for light industrial use and not the heavy and hazardous ones. This plant was initially approved for just formulation of pesticides but due to the increasing competition, it started manufacturing other products under the same facility which involved more hazardous processes.
On Dec 2, 1984, a small leak of MIC gas was noticed. On the morning of 3rd Dec 1984, a plume of MIC gas was there in the air leading to deaths of thousands of people. According to an estimate, 3,800 people died immediately, out of which most were in poor slums adjacent to the plant. Estimated number of deaths in the first few days was more than 10,000 and reported 15,000 – 20,000 premature deaths in the next 2 decades. After the incident, UCC tried to deny being responsible for the incident by shifting the matter towards UCIL (Union Carbide India Ltd) by trying to make the point that the plant was fully built and operated by the Indian subsidiary that is UCIL.
In March 1985, the government enacted the Bhopal Gas Leak Disaster Act to ensure the dealing of claims arising after the incident speedily and equitably. This made the government as the only representative of the victims in the legal processes in and outside the country.
The settlement was made by Supreme Court of India with UCC in which UCC agreed to take the moral responsibility and paid a claim of $470 million to the government which was negligible compared to a multi-billion dollar lawsuit which was filed by an American lawyer in a U.S court. This amount of $470 million was based on the disputed claim that only 3,000 people died and 1,02,000 suffered permanent disabilities. According to Bhopal Gas Tragedy Relief and Rehabilitation Department, by the end of October 2003, compensation was awarded to 5,54,895 people for injuries received and 15,310 survivors of those killed.
After this settlement, the matter was placed entirely under Indian jurisdiction. The government was blamed for not having appropriate laws for environmental safety and for settlement of claims through the establishment of liability. If this kind of proper laws would have prevailed then the victims of the incident would have got better compensation and it would have been difficult for UCC to get off the matter.
As after the breathtaking tragedy, the Indian government passed and implemented The Environment Protection Act (E.P.A) of 1986 under Article 253 of the Indian constitution. Its purpose was to implement the decisions of the UN Conference on the Human Environment of 1972 to provide protection to an improvement of environment and prevention of hazards for humans, plants, other living creatures. This act strengthens the regulations on pollution control and environment protection by hazardous industries.
The act provides the Centre with a lot of power to take all necessary actions required for the protection of the environment. It enables the executive wing to issue notifications and orders which becomes guidelines for the administrative agencies. Basically, it provides the Centre with the power to make rules for environment protection. The act has 7 schedules specifically laying down the rules for emission or discharge of pollutants from industries, prescribing emission of smoke, etc. from vehicles, provides a list of authorities to be approached in case of any discharge outside the prescribed levels and standards.
Under the provision of Section 25 of EPA, 1986 another set of rules was passed “Hazardous Waste(Management and Handling) Rules, 1989”. It includes the management of 18 categories of waste basically all toxic chemicals which could be stored in industries and used for different purposes. Some categories of waste which are included in this are-metal finishing waste, waste containing water-soluble compounds of lead, copper, zinc, etc. It issues the notification that the one generating this type of wastes or the one operating the facility which generates this type of wastes is responsible for the proper management and handling of the waste.
The Environmental Impact Assessment Notification of 1994 includes almost all kinds of activities which could harm the environment in any way. Through this notification, an impact assessment of any project became mandatory. The Central Government is required to carry out an environmental impact assessment on a large scale before passing any project listed under the notification. It also established a “Right to Know”, that is, public hearing through which the common man who would get affected by the project is given the chance to speak out and is made aware of the project. Basically, a lot of transparency was included in the system for the validation of any developmental project.
The journey begins of legal principle cannot be easily understood through a case study of a very landmark case M.C. Mehta vs. Union of India.
The principle of “Absolute Liability” was established by Supreme Court after one more gas leak (though not a major one like Bhopal Gas Tragedy) in Shriram Fertilizer Factory in New Delhi on 4th Dec 1985, where the oleum gas was leaked from the bursting of the tank containing oleum gas which was caused by human and mechanical errors and not by any third party. This concept is of utmost importance today.
Bhopal Gas Tragedy was an incident which opened the eyes of the legislature and made their attention available to the environment and its protection. Even before this tragedy, laws such as Water Act of 1974 and Air Act of 1981 existed but EPA provides an umbrella to the Central Government for the coordination of various state and central authorities established under these previous laws. Therefore it would not be wrong to state that had the proper legislative framework would have existed then either this tragedy would not have occurred or the sufferings of the people could have been made less. The CEO of the accused UCC has died and the lawsuit against him has been shut down forever. Lack of proper and sufficient laws resulted in the loss of life of thousands of people and leaving behind many to suffer and live in pain of the after-effects of the tragedy.
Principle of Strict Liability
This principle was to develop from a well-known case of Ryland vs. Fletcher (1868 LR 3 HL 330). This case was decided by Lord Chancellor, Lord Cranworth and Lord Cairns.
Ryland was the plaintiff and Fletcher was the defendant in the case. Plaintiff was the occupier of the mine and defendant owes a mill in neighbour to the mine and they propose to make a reservoir to store water for the purpose to use in a mill and another adjacent land near to it. Defendant took the help of agents to construct the reservoir while making it.
They did not take reasonable care and precaution and due to the heavy weight of water, the shaft broke and the water passed into the mine of the plaintiff which cause damage to the plaintiff. While giving the final decision Lord Cairns distinguished between the natural and non-natural use of land.
Under Ryland case, the court declares it’s as Principle of “Strict Liability” rule. The Supreme Court got the chance to make this principle when a petition filed under Article 32 of the Constitution of India emerged into the form of PIL (Public Interest Litigation).
A very famous case of M.C. Mehta vs. Union of India was filed in the Court of law as a PIL for the incident which took place on 4th December to 6th December 1985, where Oleum gas was leaked from one of the Units of Shriram Food and Fertilizers in the area of Delhi and become famous by the name of Oleum Gas Leakage Case. During this accident, one of the advocates of Tis Hazari Court died and many others were also affected by it at a large number.
So, an environmental activist Mr M.C. Mehta approached Supreme Court of India and filed a PIL, so the court may take action on the matter and decide the liability and responsibility of the person for the incident.
During that period, the court was going across the most activist stage and denied to follow the ruling of Ryland vs. Fletcher case. Justice Bhagwati said that he cannot afford to evolve any type of guidance and any standard liability under constitutional norms. Law has been made to satisfy the needs of the rapid changing society and keep aside the development of the economy of the country.
All the industries which are set up in the residential locality and engaged in a hazardous toxic chemical which will affect the health and safety of the people of locality owe an absolute responsibility for the community to ensure them no harm or damage will be caused to them. The industries are under obligation to use the highest standard amount of equipment and machines to avoid damages to a large number of the population residing nearby. They should use a filter to avoid pollution.
Certain guidelines are given under Environmental law which needs to be followed by every industry which is engaged with the toxic and hazardous substances to avoid pollution. If they do not follow the guideline then their licence will be cancelled by the inspection team.
So, now we can easily distinguish between both the principles of Strict liability and Absolute Liability Strict liability is applicable to all the things which exist in a place but for absolute liability, things causing harm or damages and it must be in relation to Hazardous and toxic substance. So, on this note, the court has narrowed down the principle of strict liability.
But the more exciting and happening part of it is that the liability of the defendant become absolute in every manner. No matter what the damages will be caused due to the negligence on the part of the defendant, no matter how the hazardous item escaped, what the reason is but the consequences are to be faced by defendant only, once it is proved by the plaintiff side that the damage was caused by the defendant through hazardous item, no excuse will be applicable to it except the case of Act of God. Court laid down that measure will be taken to finalize the amount of compensation should be within the capacity of the enterprise.
The rule laid down under this case was approved by Court in Charan Lal Sahu Vs. Union of India, AIR 1990 SC 1480 where the court held that defendant has absolute liability for the act he cannot escape by saying that he took all the reasonable care on behalf of his part.
Yet in another case of Indian Council for Environmental Legal Action vs. Union of India AIR 1996 SC 1446 the court held that “Once the event is carried related to hazardous substance then is liable to take all the loss caused to another person irrespective of taking reasonable care while carrying out the activity.
After this act, the principle of absolute liability is given more emphasis and the Indian Judicial system took an affirmative step by adopting this principle. Bhopal Gas Tragedy was an event whose effect can still be seen in many newborn children who were born with abnormalities and it was very important to give direction to all the industries established near the residential area to take all the precaution and not to play with the precious lives of people.
Edward Broughton. The Bhopal disaster and its aftermath: a review.
Sunita Narain, Chandra Bhushan. 30 years of Bhopal gas tragedy: a continuing disaster. Down to Earth