Introduction

Seventh day of May, 2020 witnessed a sad start where early in the morning a dangerous gas leak brutally affected the people. Styrene gas leak from the LG Polymers chemical plant took place in the thickly populated village of Gopalapatnam in Andra Pradesh which was a declared red zone for COVID-19. This pre- dawn disaster took away around 11 human lives[1] and 32 animal lives.[2] It affected around 1000 humans and 200 animals who were later treated. Not only did it harm the humans and animals, but also killed a large number of plants and trees. This accident is the largest environmental and chemical disaster after the two landmark cases of Bhopal gas tragedy[3] and the Oleum gas leak case.[4] But the commonality between the aforementioned cases is the heedless and inattentive attitude of the occupiers which further lead to the devastating impacts of taking away hundreds of lives and destroying thousands of plants and trees. ‘Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.’[5] According to this principle of negligence a normal prudent person who owes a duty of care on arrival of such duty when breaches it, is liable under the law of Torts. As laid down in Rylands vs Fletcher[6], a person who for his own purpose brings on to his land and collects and keeps there anything which is likely to do mischief after being escaped, must keep such article at his peril and if he fails to do so, he will, be prima facie liable for the damage which is the natural consequence of its escape.[7] Anybody who stores or deals in a dangerously harmful substance must take complete liability in case of any damage or disaster caused due to the escape of the same. These principles are guiding measures to prevent any damage which could arise while handling lethal substances which are a threat to environment. Indian laws are not just restricted to these measures rather there exist a variety of legislations protecting individuals and environment from lethal chemical outbreaks caused by reckless acts of corporate entities. Be it the Bhopal gas tragedy[8] or the Oleum gas leak case[9], both the accidents played an essential role in strengthening the legal vigor of India. Today, our country is blessed with plethora of legislations dealing in the same. This research paper will throw light on the existing legislations that play a vital role in preventing hazards like toxic gas leaks by making corporate entities liable not merely towards the victim but the whole mother earth. Following are the guidelines and remedies available to victims and their families in cases of toxic chemical outbreaks.

 

No-Fault Liability or Absolute Liability

As laid down in the landmark case of Ryland’s vs. Fletchers[10], there are three main ingredients of no-fault liability, dangerous thing, escape, and non- natural use of land. This means, that to be liable absolutely, the defendant must keep, store, produce, or manufacture a dangerous thing in his premises. The word ‘dangerous’ here denotes a thing capable of creating mischief if it escapes from the land of the defendant. This incorporates materials like deleterious chemical products, toxic gases, vapor, effluvium, acid solutions, and various other lethal substances which can cause harm to the environment and civilization around. The liability arises only when such a dangerous thing breaks out from the defendants' premise. Mere storing and keeping a life-threatening substance do not make the person liable. Also, the land must be used for a non- natural purpose, different from the daily business which a reasonable prudent man carries on. It must be related to a special task that requires utmost care and caution. According to Justice Blackburn, ‘The person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it 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.’ In M.C. Mehta vs. Union of India[11], the Apex court introduced an extensive concept of ‘no- fault’ liability standard or absolute liability according to which, any industry engaged in perilous activities which pose a potential hazard to health and safety of the employees and nearby neighbors owes an outright and non-delegable duty to the community to ensure that no injury results to anyone. These industries must conduct its activities with the highest standards of safety and if any harm results, the industry must be absolutely liable to compensate for such harm. No defense of having taken reasonable care would apply in such cases. Since the harm caused would be irreversible, the industry must be charged and punished for causing such harm as a part of the social cost of carrying on hazardous activities. This principle is also imperishable on the ground that the industry alone has the resource and means to discover and protect against hazards or dangers and to provide warning against potential risks.

It was further dictated in the Bhopal Gas Tragedy case[12], that wherever any enterprise is engaged in a precarious or inherently dangerous activity whose operation can put others life on risk, that enterprise is strictly and absolutely liable to compensate to all those who are affected by the accident. No exceptions as mentioned in Rylands vs Fletcher[13] are valid in these cases. In the Indian Council for Environment Legal Action V Union of India[14], reinstating the principle of MC Mehta vs Union of India[15], the Supreme Court increased the liability on the occupier of the premise. Even if the person took all reasonable care and installed methods of precaution, no law can save him from paying damages.

Statutory Protection to the Victims

The Public Liability Insurance Act, 1991[16] gives de jure acknowledgment to the principle of strict liability. As laid down in section 3 of the aforementioned act, whenever any person suffers an injury to person or property or death due to a fortuitous and unintending occurrence, the owner handling such hazardous equipment must completely pay the damages either to the injured person or to the legal heirs of the deceased. The person claiming such compensation does not need to plead and establish the commission of any wrongful act which further caused the accident. The legal representatives, property owners, and survivors can claim relief by filing an application under Section 6 of the same act. After this submission, the collector concerned must hold a hearing in front of both the parties after sending a notice regarding the same to the owner. After hearing claims from both sides, he must declare an equitable amount to be paid in form of relief to the affected party. Both the parties must get the copies of this award within 15 days of passing of the same. The insurer must pay the amount within 30 days of the announcement of the award. And the collector must pay the victim from the relief fund as specified in section 7A and obtain the same from the owner. This relief fund is especially to compensate post hazardous accidents to the affected persons and families. Section 8 acts as a savior for the owner of the hazard causing premise. In case such an owner is charged under some other law also, the compensation amount under the present statute can be lowered.

The National Green Tribunal Act, 2010[17] acts as a prophylactic for the rights of the victims who became prey to the forced environmental hazards caused by body corporate. According      to section 27, whenever any offense is committed by a corporate entity and its negligence is thereby proved, such director, manager, secretary or another officer of the company, shall be liable to be proceeded against and punished accordingly. Section 17 says that wherever death of, or injury to, any person (other than a workman) or damage to any property or environment is caused from an accident or the adverse impact of an activity or operation or process, under any enactment specified in Schedule I, such a person shall be liable as per schedule II of the act. And when similar squandering is caused not due to any single activity but a combination of activities, the Tribunal may order to pay compensation on an equitable basis. Section 17(3) of the aforementioned act mandates the application of no-fault liability in cases of accidents, thereby taking away all available remedies. According to The Air (Prevention and Control of Pollution) Act 1981[18], section 22, the persons carrying on the industry are not allowed to emit or discharge or permit to discharge pollutants in the air in excess of the standard laid down by State Board. And whoever contravenes this provision shall be punishable with imprisonment for up to three months or with fine which may extend to ten thousand rupees or with both as specified in section 39. In case the contravention continues, an additional fine up to five thousand rupees for each day may be imposed. And when such discharge is caused by a company, section 40 comes into the picture. According to this section, all the persons in charge and responsible for negligence including the director, manager, secretary, etc. which led to the happening of a misadventure must pay for the sustenance of victims. Not just this, Manufacture, Storage and Import of Hazardous Chemical (Amendment) Rules, 1989[19] provides a plethora of guidelines regarding safe handling of hazardous substances and owner’s liability. As stated in section 4, the occupier has general responsibility while carrying out an industrial activity. Such an occupier must identify major accident hazards and take preventive measures to intercept environmental ignominy and precautionary methods by providing adequate training required for emergency purposes. Section 10 also mentions the constitution of safety reports and its further updating. According to section 5, whenever an accident occurs on the site or in a pipeline, it’s the responsibility of the occupier to inform the concerned authority within 48 hours of such occurrence. The authorities are further responsible for sending reports to the Ministry of Environment and forests within 90 days. Section 15 mandates the occupier to intimate the persons possible of getting affected by the accident of its details. They must be elucidated about the nature of the catastrophe and the ways to tackle the same. Providing further relief, Major Accident Hazard Control Rules, 1997[20] through section 4(2) directs an occupier who has the offialdom and control over industrial activities to furnish evidence of identification of existence of a major accident hazard. They must prove the commission of adequate precautionary steps to limit its harmful impact on persons and the environment. Section 15 gives the persons likely to be affected by such accident a right to be informed about the same either directly by the occupier or through the District Emergency Authority. Information here includes the nature and grade of hazard, do’s and don’ts, and further course of action required to be followed. Similar provisions are provided under The Factories Act, 1948[21] and the U.P. Factories (Control of Industrial Accident Hazards) Rules, 1996[22] also. Even the Environmental Protection Act of 1986[23] prohibits excessive discharge of environmental pollutants under section 7. In fact, section 8 puts heavy liability on persons handling hazardous substances to be very careful and act in accordance with the prescribed procedures and safeguards. And whoever acts recklessly thereby violating such provisions gets penalized by getting imprisoned for up to five years with fine which may extend to one lakh rupees. Corporate sector is put under scrutiny through section 16 the National Green Tribunal Act, 2010[24] which makes the company completely liable in case of occurrence of any accident which is hazardous in nature causing environmental damage and putting human lives on risk. There must be a duty on the shoulders of the company to keep its neighbors secure. Environmental hazards like toxic gas leakages cause a lot of causalities and are at times fatal. To rescue the families of the dead from further suffering, Fatal Accidents Act, 1855[25] comes as a savior. According to section 1 (A) whenever due to a wrongful act, neglect or default, a person dies, the suffering party has a right to claim damages and compensation. Further, section 5 assures that every such action or suit shall be for the benefit of the wife, husband, parent and child of the deceased, and shall be brought by and in the name of the executor, administrator or representative of the person deceased. Provisions of the Indian Penal Code, 1860[26], the backbone of our criminal justice system also provides laws for remedies and punishments. Section 278 makes voluntary vitiation of environment which makes it noxious to the persons dwelling nearby, carrying on business in neighborhood or simply passing in a public way, a criminal offense punishable with a fine of up to five hundred rupees. In fact, section 284 makes a person’s negligent conduct with respect to poisonous substances punishable. Anybody who while handling a poisonous substance acts rashly or negligently as to endanger life or cause harm to human life shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. These actions are also covered under sections 337 and 338 since these endanger life and personal well-being causing hurt and grievous hurt due to negligence. Constitutional Remedies Professor Baxi always favored the importance of environmental protection. According to him if provisions regarding the same had been incorporated in the Constitution then, India would have set a very worthwhile model of environment protection not just for herself but for the many other nations which modeled their Constitutions on the Indian Constitution[27]. And this dream of professor came true the moment Article 21 spread its limits and included right to pollution free environment under right to life in the case of Subhash Kumar v.  State of Bihar[28] .The judgement protected the citizens from dangers of environmental hazard by providing recourse through Article 32 of the Indian Constitution. Not only this, court also distributed the liability of undertaking preservation and pollution control methods between the Government the citizens both. According to the court, maintenance of ecological balance is a responsibility and duty of each and every Indian under Article 51-A which everyone should protect and improve the natural environment including forests, lakes, rivers and wild life, and have compassion for all the living creatures which includes all plants and trees. Whereas in T. Damodar Rao v SO Municipal Corporation[29], Hyderabad , the court pointed out that it is not merely the effort of citizens which is required in form of duty, but there also lies an ‘obligation’ on the part of the State and all other State organs including the Courts must protect the environment. According to Justice P.D. Desai[30] there exists a constitutional pointer to the state along with a constitutional duty of the voters not merely to guard but also to boost the surroundings and to preserve and safeguard the forest, the flora and fauna and every natural resource of the country. Anybody who fails to abide by this duty, betrays the very fundamental law of the nation. Moving further, in the case of Shri Sachidanand Pandey v State of West Bengal[31], the Supreme Court gave extra importance to Articles 48-A and 51-A (g) of the Constitution by considering them as quintessential provisions catering to the problems of ecology. Article 48-A talks about safeguarding and protecting the environment and the wildlife.

Conclusion

 It can be deduced from the research that the Indian legal system has a plenitude of acts and legislations which not only propels the corporate entities to work properly with utmost care but also provides the victim adequate remedies. The LG polymers company acted negligently in not taking adequate precautionary measures in dealing with the harmful styrene gas leading to polymerization. This entity owed a duty of care towards all the neighbors. Neighbors here include all the persons likely to be affected by the discharge of the toxic gas contained and the members residing in and near Gopalapatnam or passing through the same. And the moment styrene escaped the unit, the duty got breached which lead to commission of a venturesome negligent act. The occupier is not strictly rather absolutely liable in the present case. Styrene is listed as a hazardous chemical in statutes explicitly. Not only this, the private entity is criminally liable under The Indian Penal Code. All the victims can get recourse and their due compensation under the above-mentioned statutory provisions. They can also move to the supreme court directly as their fundamental right was violated. These can challenge the method of state control as well.



[1] Siva G, Vizag Gas Leak: Death Toll mounts to 11; AP govt announces Rs 1 crore each to kin of those killed, The Times of India, (May 7, 2020, 17:01), https://timesofindia.indiatimes.com/city/visakhapatnam/vizag-over-1000-fall- sick-after-gas-leak-from-chemical-plant/articleshow/75590112.cms.

 [2]  Ritika Arun Vaishali, Vishakhapatnam gas leak kills 32 animals, 199 treated, says Animal Husbandry

Department, The New Indian Express, (May 9, 2020, 08:59 AM), https://www.newindianexpress.com/states/andhra- pradesh/2020/may/09/visakhapatnam-gas-leak-kills-32-animals-199-treated-says-animal-husbandry-department- 2141035.html.

 [3] Union Carbide Corporation v. Union of India, 1992 AIR 248.

 

[4] M.C. Mehta and Anr. v. Union of India and Ors, 1987 AIR 1086.

[5] Blyth v. Birmingham Waterworks Company, (1856) 11 Ex Ch 781.

[6]  Rylands v. Fletcher, [1868] UKHL 1.

[7] Id.

 [8] See supra note 3.

 

[9] See supra note 4.

 [10] See supra note 6.

 

[11] See supra note 4.

[12] See supra note3.

[13] See supra note 10.

[14] Indian Council for Environment Legal Action v. Union Of India, 1996 AIR 1446.

[15] See supra note 11.

[16] The Public Liability Insurance Act, Legislative Department, (1991), http://legislative.gov.in/actsofparliamentfromtheyear/public-liability-insurance-act-1991.

[17] The National Green Tribunal Act, National Green Tribunal, (2010),

https://greentribunal.gov.in/sites/default/files/act_rules/National_Green_Tribunal_Act,_2010.pdf.

[18] The Air (Prevention and Control of Pollution) Act, Legislative Department, (1981), http://legislative.gov.in/sites/default/files/A1981-14.pdf.

[19] Manufacture, Storage And Import Of Hazardous Chemical (Amendment) Rules, Ministry of Environment and Forests, (1989), https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/96640/114246/F-1994432325/IND96640.pdf.

 [20] Major Accident Hazard Control Rules, (1997), http://www.hrdpidrm.in/live/hrdpmp/hrdpmaster/idrm/content/e7388/e7801/e7789/infoboxContent26935/THEMAJORACCIDENT HAZARDCONTROLRULES,1997.pdf.

 

[21] The Factories Act, Ministry of Labor, (1948), https://labour.gov.in/sites/default/files/TheFactoriesAct1948.pdf.

[22] U.P. Factories (Control of Industrial Accident Hazards) Rules, Ministry of Labor, (1996), http://www.bareactslive.com/ALL/up654.htm.

[23] Environmental Protection Act, Legislative Department, (1986), http://legislative.gov.in/actsofparliamentfromtheyear/environment-protection-act-1986.

[24] National Green Tribunal Act, National Green Tribunal, (2010), https://greentribunal.gov.in/ngt-act.

[25] Fatal Accidents Act, Legislative Department, (1855),http://legislative.gov.in/actsofparliamentfromtheyear/fatal- accidents-act-1855

 [26] Indian Penal Code, Legislative Department, (1860),http://legislative.gov.in/actsofparliamentfromtheyear/indian- penal-code.

 

[27] Is there a right to environment in the Indian Context? https://sg.inflibnet.ac.in/bitstream/10603/139529/12/12_chapter%204.pdf .

[28] Subhash Kumar v. State of Bihar, 1991 AIR 420.

[29] T. Damodar Rao v SO Municipal Corporation, AIR 1987 ANDHRA, PRA 171.

[30] S.S. Rattan, Management Of Anti-Pollution Laws, Pg 81, https://books.google.co.in/books?id=kis_OocOutwC&pg=PA81&lpg=PA81&dq=justice+pd+desai+on+constit utional+pointer&source=bl&ots=HHeu7KTd8q&sig=ACfU3U29DZUVyEDZGe619xjnF4YYS0ZUBQ&hl=e n&sa=X&ved=2ahUKEwiIq6umisvpAhU44zgGHSBLAS0Q6AEwAHoECAoQAQ#v=onepage&q=constitutio nal%20pointer&f=false.

[31] Sachidanand Pandey v. State of West Bengal, (1987) 2 SCC 295