This article is written by Anushka Yadav, from Faculty of Law, Aligarh Muslim University. This is an exhaustive article dealing with legal issues of negligence and the harsh impact of it on mankind.

Introduction 

Industrial disaster in Bhopal was one of the worst disasters in the world. It still has its impact on the health and lives of the people in Bhopal. Such disasters took place because of the negligence of the industries in conducting their management. Their small negligence may create a threat to the existence of common human beings. It may take away the lives of many and may leave many with the unhealable injuries. The measures of safety that should be taken by these industries are not followed properly. 

Such negligence once again makes us remember the pain of the Bhopal industrial disaster by the incident of a gas leak in Visakhapatnam recently. The reason was negligence again. The question of the strict application of safety rules is raised by the incident. How these industries could put the lives of common people at stake? Does it not raise the need for strict action to be taken by the Government in this case? What actions might be taken against the industry? What may be the consequences of this disaster? These are many such questions that are needed to be addressed. This article focuses on such questions and the possible ways to prevent the mistakes done in history. 

Bhopal gas leak tragedy 

In 1960, a plant was set up by the Union Carbide India Ltd. (UCIL) in Bhopal, Madhya Pradesh. Union Carbide India Ltd. (UCIL) is a subsidiary of the Union Carbide Corporation (UCC) which is a Multinational Company (MNC) registered in the U.S.A. The plant was engaged in making chemical pesticides. The use of harmful chemicals was done in the plant to make these pesticides. 

The harsh incident took place on the night of the 2nd of December, 1984. Water was leaked from a pipe into a tank of hazardous chemical Methyl Isocyanide (MIC) and consequent of a reaction with it the chemical was changed into a gas. That gas of Methyl Isocyanide was leaked from the factory. 

Consequences

The consequences of the Bhopal gas leak tragedy were heart-breaking. It had a hazardous effect on health and the environment. The results of such negligence were shocking. 

• The official report declared the number of dead persons ranged from 2,259 to 3,787. But the actual count was more than this. 
• Over 6 lacs persons were injured. Many people were chemically burned on skin and eyes. The fetuses of many pregnant women were destroyed. The respiratory system of many was damaged as the gas was filled in their lungs. 
• The after disaster consequences were no less. Many children were born stillborn and many of them died in infancy. Many diseases occurred due to the effect of this hazardous gas. Respiratory, genetic, reproductive, neurological, and many other types of disease emerged due to its consequence. 
• The environmental effects were dangerous. 

1. The cattle, on which many persons were dependent, were lost in the disaster. Over 2,000 cattle were put in the mouth of death. 
2. The air, as well as water pollution, reached its high. The gas was dissolved into the rivers making the water poisonous. The gas was so heavy that it did not rise upward and formed the clouds in the air above the ground. The air was filled with poisonous gas and many people died of suffocation. 
3. The crops were destroyed by the gas. The human was left without any drink and food. 

Proceedings

The disaster needed serious justice to its victims. Most of the victims of the disaster were poor and did not have the money to go through the long proceedings. Justice for them was not an easy task. However, many people filed the suits on behalf of the victims. It flooded the court in Bhopal and the U.S.A. with the cases. The UCC also tried to make an out of court settlement with the Government of India. But the effort of the UCC to make a settlement failed. 

Bhopal Gas Leak Disaster (Proceeding Of Claims) Act, 1985

The Government took the step on behalf of the victims by passing an Ordinance called “The Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985”, which was published in Gaz. of India on 29th of March, 1985.

Section 3 of the Ordinance empowered the Central Government with the right to file suit on behalf of every victim who was entitled to file suit in the Bhopal gas leak tragedy.

Section 9 of the Ordinance empowered the Government to frame a scheme for the effectiveness of the Ordinance. The Government, empowered by virtue of this Section, framed a scheme “The Bhopal Gas Leak Disaster (Registration and Processing of Claims) Scheme, 1985.

The Government filed a suit on behalf of all of the victims of the tragedy in a District Court of New York, U.S.A. This made it easy for the court because the earlier-filed suits on the case were consolidated with the suit filed by the Government of India. The UCC pleaded the dismissal of the case from the American Court on the grounds of forum non-conveniens. Forum non-conveniens mean that the court has the power to dismiss the case on the ground that any other court is much better suited for the hearing of the case. The American Judge Keenon dismissed the case of the Government of India on this ground stating that the Indian Court was a better place for the hearing of the case. 

Union Carbide Corporation v. Union of India

On the dismissal of the case from the American District Court, a case was filed by the Government of India in the District Court of Bhopal. The case called Union Carbide Corporation v. Union of India, AIR 1990 SC 73, was filed by the Government. The District and Session Court Judge M.N. Deo held the UCC liable and ordered it to pay a compensation of 350 crores. An appeal was filed by the UCC for the revision of the petition in the Madras High Court. On the appeal, Mr Justice S.K. Seth reduced the compensation to be paid by the UCC from Rs 350 crore to 250 crores.

The Supreme Court in 1989, raised the amount of payment to be paid by the UCC to 470 million US dollars, equal to Rs. 750 crores. The Court held the UCC liable of absolute liability and not strict liability.

Vizag gas leak tragedy

The Bhopal gas leak tragedy still has its impact in Bhopal. But it does not stop here. Another industrial tragedy took place in Visakhapatnam, Andhra Pradesh. The LG Polymers industrial plant was established in 1961 at R.R. Venkatapuram village, in Visakhapatnam. It was named as Hindustan Polymers. But it was acquired by a South Korean firm called LG Chem in 1997. The firm renamed it as LG Polymers then. It is indulged in making polystyrene from styrene. Styrene is used in making many parts of electronic appliances, food packaging, etc. The incident took place on the 7th of May, 2020 when the styrene reached more than its ideal temperature (the ideal temperature for styrene storage is 15-18 degrees celsius). The increase in the temperature reached the boiling point of the styrene and led to the self-polymerization of chemicals. This changed the chemical into gas. This gas burst into the area from the plant to about 3 km far. The villages near the plant got affected and had a harsh impact.

Consequences

The consequences of the Vizag gas leak tragedy were similar to the Bhopal gas leak tragedy. The impact was seen on humans, the environment, and animals. 

• The officials confirmed 11 deaths of human beings due to the disaster. 
• The effects of the chemical on skin, eyes, brain, and respiratory system were seen. About thousands of people were hospitalized due to the gas leak.
• About 32 animals were killed in the disaster.
• The impact of the chemical on the air, water, and crops could not be ignored. It forced the people to inhale toxic inside. The air, water, and crops were not left good for consumption. 

Negligence 

Report of the National Green Tribunal (NGT)

The National Green Tribunal (NGT) took suo moto cognizance (an action taken by the authority without any formal proceeding) in the case of Vizag gas leak. The Tribunal set up a Joint Monitoring Committee (JMC) for investigating the case on the 8th of May, 2020. The JMC was constituted of the following members:

1. Justice B Sheshasayana Reddy, former Andhra Pradesh High Court Judge;
2. Rama Chandra Murthy, former Vice-Chancellor of Andhra University, Vizag;
3. Prof. Pulipati King, head of Chemical Engineering Department of the Andhra University;
4. CPCB Member-Secretary;
5. CSIR-Indian Institute of Chemical Technology director;
6. Head of NEERI in Visakhapatnam.

The Committee submitted its report on the 28th of May, 2020. It found many flaws on the part of the LG Polymers that lead to the cause of the incident. The NGT accused the LG Polymers of the gross negligence that took away the lives of human beings. The report found the Plant even not applying the basic standards of safety. Some of the facts that showed negligence on the part of the plant are mentioned below:

• An increase in temperature in the place where styrene was stored was the main reason that leads to self-polymerization and leak of gas. It is very necessary to keep the temperature to its ideal state (15-18 degrees Celsius) in the place of storing styrene. 

The main flaw on the part of the Plant was the lack of temperature measuring gauges at the upper level of the tank in which styrene was stored. The tank was having a temperature gauge at the bottom only. 

• The rise of temperature at the storage of styrene needs to be cooled down by refrigeration. For immediate action, it needs an interlocking between the temperature gauge and refrigeration system. This could maintain temperature better. But there was no interlocking system between the temperature measurement gauge and refrigeration system. 
• The Plant was lacking many automatic systems that help in better management. The automatic water sprinkler system and automatic alarm system were two of them. The automatic water sprinkler was needed for maintaining the temperature of the storage of the styrene. And the automatic alarm system was needed for getting the alarm of any danger on the increase of temperature that could prevent the mishappening from being caused.
• The Tertiary Butyl Catechol (TBC) is an inhibitor chemical that helps in slowing down the reactions. The use of TBC is done to slow down the process of polymerization that can prevent any danger. 

The Plant was however not using any TBC from the 1st of April, 2020 as it has not done any storage of TBC from that date.

• It was found that the process of sprinkling chemicals for the stabilization of the tank was started after one and a half hours after the incident took place. Till then, the gas was continuously leaking.
• There was also a lack of trained officials in the plant who might know how to deal with such a situation.
• One of the administrative flaws was that the Plant was operating without a valid environmental clearance as per The Environmental Impact Assessment (EIA) notifications, 2006. It has only gained the consent of the Andhra Pradesh Pollution Control Board (APPCB) for its establishment and operation. It was found that the Plant had applied for environmental clearance in 2018 only.

An order was passed by the Supreme Court in the case of Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors. disapproving of the process of post facto environmental clearance by the industries. The industries which are set up without getting the environmental clearance before are a threat to the environment. The Supreme Court observed the gravity of the situation. 

There was a draft of the Amendment Bill prepared in 2020 that seeks to replace the Environmental Impact Assessment (EIA). The Bill seeks to legitimize the establishment of the industries without the pre environmental clearance permission. But the incident of the Vizag gas leak raised questions on the goodness of the Bill. Is it fine to have liberal administration on such a serious matter?

The Committee on the 1st of June, 2020, ordered the LG Polymers to pay interim relief of Rs. 50 crores. However, the Supreme Court passed a stay on the order of the NGT on the plea of the Plant. 

Order of the Andhra Pradesh High Court

The Andhra Pradesh High Court constituting a bench of Chief Justice JK Maheshwari and Justice Lalitha Kanneganti passed an order on the PILs in the Vizag case on the 22nd May 2020. The High Court passed for the seizure of the premises of the Plant. The order also barred the company directors from going out of India. Their passports were ordered for suspension. The Authorities were ordered not to release their surrendered passports.

Legal actions 

Such cases like Bhopal and Vizag gas leak tragedy cause great harm to mankind. The common people are punished without any mistake. Many of these industries are established in densely populated areas. The people near these industries are not safe. The negligence of these industries is a serious crime against mankind. The legal actions that are to be taken in such cases are discussed below.

1. Criminal negligence

The report of the National Green Tribunal (NGT) found the LG Polymers negligent in conducting its business. Many such facts showing negligence on the part of the Plant given in the report are discussed above. There is no doubt that the stupidity in handling such a hazardous chemical on the part of the Plant was the reason for the death of many. It is a crime of homicide by negligence. 

Section 304A of the IPC

Along with the punishment for culpable homicide in the Indian Penal Code of 1860, the provisions for the punishment of homicide by negligence are also in it (Section 304A).

Section 304A provides the provisions for the offence of homicide by negligence. It was not originally present in the IPC from its introduction. It was introduced in 1870 through the IPC (Amendment) Act, 1870. The other two types of homicide are also covered in it on the ground of negligence. This means that if a person’s rash or negligent act causes homicide, then it would cover both, culpable homicide amounting to murder and culpable homicide not amounting to murder, under it. 

Essentials and the LG Polymers 

The essential ingredients of the offence under Section 304A are as follows: 

1. Any rash or negligent act must take place; 
2. There shall be a lack of intention and knowledge on the part of the person doing that negligent act; 
3. The death or injury must have been caused due to the direct result of such an act. 

Now analyzing the position of the Vizag gas leak incident with the essential ingredients of the Section shall be done to establish the liability of the Plant. 

• According to the report of the NGT, the Plant was negligent on its part and thus fulfilling the first ingredients of the offence under this Section; 
• It was never the intention of the Plant to cause such harm to the general public. It was of no profit for it. Thus, there was an absence of intention and knowledge on the part of it. This fulfils the second requirement of the Section; 
• The third is the proximity of the incident and its consequences. There is no doubt that the harm caused by the Plant directly affected the people. This leads to the death of many people and leaves many with injuries. This fulfils the third requirement of the Section. 

Thus, a deterrent action against the Plant shall be taken to punish it for the offence it has done. 

Punishment 

Section 304A itself provides the punishment for the offence of homicide by negligence. The punishment provided according to the Section is imprisonment of either simple or rigorous in nature, or with fine, or with both. The term of imprisonment prescribed is up to two years. 

2. Imposing absolute liability 

The rule of absolute liability should be applied in the case of LG Polymers. What the rule of absolute liability lays down? Why only the rule of absolute liability and not a strict liability? These are some questions that are discussed below. 

Strict liability to absolute liability 

In some cases, when harm is caused even without the intention or negligence of the person, the law recognizes his liability. This is called the concept of ‘no-fault liability’ where a person can be held liable without the fault of a person. The no-fault liability consists of two rules, one is the rule of ‘Strict liability’ and the other one is the rule of ‘Absolute liability’. Any of the two rules may be applied by the Courts depending on the facts of each case. 

Rylands v. Fletcher, 1868 

In the case of Rylands v. Fletcher, 1868, the rule of “Strict Liability” was established. The rule of strict liability lays down for the liability in the case where even no intention or negligence on the part of the person. 

Blackburn, J, lays down in the case that “the person who keeps something for his own purpose and such thing if escaped may cause harm or mischief, then such person shall keep it on his own peril”. This makes such a person liable if the thing escapes from his control. It does not matter whether he was negligent or not. He would be liable for all the natural consequences of the escape. 

However, Blackburn, J, applied two exceptions to the rule of strict liability. According to him, if the escape takes place due to the plaintiff’s own fault or act of God (i.e., natural disasters), then the rule of strict liability shall not be applied. 

The essentials required for the application of the rule of strict liability are as follows:

• A person brings or keeps some dangerous thing on his premises; 
• Such a dangerous thing must escape out of the control of him; 
• Non-natural use of land. This requirement was added by the Court when the case comes before it. 

The rule of strict liability is not without exceptions. There are five exceptions to the rule of strict liability which means if anyone of them is proved by the prosecution then the rule would not apply. Two of the exceptions were given by Blackburn J in the case of Ryland v. Fletcher and others were propounded later. The exceptions are as follows: 

• Plaintiff’s own fault 
• Act of God 
• With the consent of the plaintiff 
• Act of the third party 
• Statutory authority 

M.C. Mehta v. Union of India, 1985 

In the case of M.C. Mehta v. Union of India, AIR 1987 SC 1086, the Supreme Court of India established the rule of ‘absolute liability’. It was a case of an industrial disaster. One of the units of Shriram Foods and Fertilizers Industries was situated in the city of Delhi. It was a subsidiary of Delhi Cloth Mills Ltd. 

It was the second case after the Bhopal Gas Leak tragedy in the year 1985. The incident took place on 4th and 6th December 1985. The industry was indulged in the manufacture of hazardous chemicals. Oleum gas was leaked from the industry affecting many persons in Delhi. 

PILs were filed against the industry in the Supreme Court under Article 32. The Supreme Court was well-known for the intensity of the situation. It was another case after a serious industrial disaster in Bhopal. Some of the points that the SC observed were: 

• These industries are economically well and able to defend themselves. The victims, on the other hand, are not economically well. This is the reason why these industries are able to hire good lawyers for defending them and have the power of money to prove any of the exceptions in the rule of strict liability. 
• The rule of strict liability was evolved in an English Court and not in India. Thus, the economic and social conditions of the place where it evolved were different from India. The economic condition of the people in India is much lower than in Europe. Thus, the rule is not very suitable in every case in India. It needed a strong consideration. 
• These industries are indulged in dangerous activities for their own personal profit. The permission given to them for indulging in these activities and earning profit is always conditional. The condition is to compensate in case their personal profit turns into harm to other people. 
• These industries are in no way economically less. They have the capacity to pay compensation for the harm done by them. Thus, the payment of relief shall be according to the capacity of these industries. It is able to have a deterrent effect on them for the harm they caused. 

By keeping these points in mind, the Supreme Court took the steps to evolve a new rule of ‘Absolute Liability’. The Court made it absolute in nature. That means, unlike the rule of strict liability, this rule does not have any exceptions to it. The obligation to pay is made absolutely according to the rule and there is no way left to escape the liability. No single ground was provided as an exception. And the Court cleared the measure of compensation is to be imposed based on the capacity and magnitude of the enterprise. 

Indian Council for Enviro-Legal Action v. Union of India 

In the case of Indian Council For Enviro-Legal v. Union of India, AIR 1996 SC 1446, the Supreme Court again applied the principle of MC Mehta v. Union of India, AIR 1987 SC 1086. There was a sulphuric acid plant in Bichhri village which was indulged in the production of ‘H’ acid. The discharge from the plant was causing pollution in the village. A writ petition was filed in the Supreme Court on the account of violation of Article 21 of the Indian Constitution. 

The Supreme Court ordered the Central Government to probe into the situation and perform their duties. The Ministry of Environment and Forests found that the industry was continuously polluting the environment of the village and ordered a payment of Rs. 50,000/- for the improvement of the condition of the soil, water sources, and environment. 

The principle of absolute liability which is also known as the principle of “polluter pays” was applied in the case. The right to clean the environment is a part of fundamental rights under Article 21 of the Indian Constitution and the violation of which calls for absolute liability. 

Absolute liability in Vizag gas leak tragedy 

The Vizag gas leak tragedy has caused harm to human life, environment, and animals. It is not a matter of less concern. The NGT has accused the LG Polymers of absolute liability. The principle of “polluter pays” is also applicable in this case. 

In the case of strict liability, the Plant may escape from its liability by proving any of the exceptions in its defence. It is necessary to take compensation from them to use it in the improvement of the environment. 

Conclusion 

Industrial disasters are a serious threat to mankind. Small negligence may turn into a big disaster. It is very necessary for the administration to take serious steps in such cases. Deterrence shall be applied in such cases to avoid any such kind of disaster in the future and set up fear in the minds of the owners of these industries to make them more aware. The need to make them feel their responsibility more seriously is felt. No such industry shall be allowed to be established without any environmental clearance. The rule of absolute liability should be applied in every such case with the view of deterrence. The negligence conducted by these industries in their business that causes harm to innocent people should be punished as a crime. The need for a strict administrative system is felt to prevent any such incident in the future. 

References

1. R.K. Bangia; Law of Torts; LexisNexis, Gurgaon, Haryana (2016)  
2. Can a Case Be Both Criminal and Civil?; available at – www.askadamskutner.com (Last visited at July 1, 2020)
3. Vizag Gas Leak: ‘Strict Liability’ or ‘Absolute Liability’?; available at – www.insightsonindia.com (Last visited at July 1, 2020)
4. The Bhopal disaster and its aftermath: a review; available at – journal.biomedcentral.com (Last visited at July 2, 2020)
5. 30 years of Bhopal gas tragedy: a continuing disaster; available at – https://www.downtoearth.org.in (Last visited at July 2, 2020) 
6. Visakhapatnam: What were the Health Effects of the Styrene Gas Leak?; available at – https://science.thewire.in (Last visited at July 2, 2020)

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