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CASE ANALYSIS OF BHOPAL GAS TRAGEDY WITH REFERENCE TO ABSOLUTE LIABILITY AND POLLUTER PAAYS PRINCIPLE.
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CASE ANALYSIS OF BHOPAL GAS TRAGEDY
WITH REFERENCE TO ABSOLUTE LIABILITY AND POLLUTER PAAYS PRINCIPLE.
AUTHORED BY - UDITANSHU PRATAP SINGH
(20191BCL0023)
SECTION: 2, B. COM LL.B.
COURSE INSTRUCTOR: PROF. DEVI PRABHA
DATE OF SUBMISSION: 12-12-2022
Statement Of Academic Integrity:
·
I
Am Aware Of The University Policy On Academic Integrity And Understand That If
Plagiarise, I Will Be Subject To Disciplinary Procedures.
·
I
Declare This Piece Of Work Is My Own And Any Facts, Words Or Ideas From Others
Have Been Properly Acknowledged.
Signature:
Date:
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Acknowledgement
I would like to express my sincere
gratitude to my mentor Prof. Devi Prabha for guiding us in making this research
paper on the topic Case Analysis of Bhopal Gas
Tragedy with Reference to Absolute Liability and Polluter Pays Principle and
for providing me the knowledge during
my research. It has been a privilege for me to be her students and this project
would not have been practically possible without her indispensable support. I
cherish the motivation that she has brought in me to work harder and think more
vividly. Special mention of her patience with which she gave enough time to me
every time I approached her for guidance. It has been an enlightening
experience under her guidance and we take immense proud in being called
students.
With
Regards
Uditanshu
Pratap Singh
ID
NO.: 20191BCL0023
SECTION
2 B.COM LL.B. 7th SEMESTER
Since the dreadful night of December
3, 1984, when a gas leak caused thousands to perish and left survivors permanently
crippled, more than thirty years have passed. Those who survived the Bhopal gas
tragedy and took on their ancestors' continued agony do not forget it easily.
3,787 people died as a direct result of the gas leak, while thousands more were
harmed in the years that followed. Many people believe that the $470 million in
compensation the government received from Union Carbide Corporation on behalf
of the victims is insufficient considering the severity of the harm. The
government passed a number of laws in response to the incident, including the
Public Liability Insurance Act of 1991 and the EPA of 1986. Judicial actions
have closed legal gaps and established "absolute liability" and
"polluter pays" as constitutional principles. Because it is our
obligation to stop future environmental damage, it is the responsibility of
citizens to become familiar with environmental legislation. Some industrial
catastrophes are still having effects today. Even though tougher laws have been
put in place, it is still difficult to police them even if the situation has
improved since the accident. Even while economic growth is obvious, unregulated
enterprises continue to endanger public security and ecological balance.
This research paper talks about the topic
analysis of Bhopal gas leak disaster case in reference to absolute liability
and polluter pays principles. This research paper also deals with what is
absolute liability and polluter pays principles with reference to Indian
perspective.
The research problem of this research
paper talks about whether the judgement given was satisfactory or not. What is
the role of absolute liability and polluter pays principle in the problem.
1.
What
is Bhopal gas disaster?
2.
What
are the liabilities of a firm running such a business?
3.
What
is principle of absolute liability?
4.
What
is polluter pays principle?
5.
How
principle of absolute liability and polluter pays principle make firm running
such business liable?
Was the judgment satisfactory, were
the victims and other critical legal representatives satisfied. The Union
Carbide Corporation had an absolute liability towards the victims, which has
not been brought into the light due to defective legal proceedings. In India,
the polluter pays principle was first applied and was defined in the Indian
Council of Enviro-Legal Action v. Union of India case in 1996. It was engaged
in a hazardous activity and thus, was strictly liable for any direct harms
being caused by that activity and to pay compensation accordingly.
This research paper tells us about
the Bhopal gas leak disaster. This research paper also tells us about principle
of absolute liability and polluter pays principle. This research paper also
tells how organisation running the factory was made liable and what were the
judgement given.
Descriptive and analytical
methodology has been followed by the researcher throughout the research paper.
Secondary sources like books, articles and websites have been referred by the
researcher for the accomplishment of the research paper.
There were thousands of fatalities as
a result of the Bhopal gas tragedy in Bhopal, India. Most people agree that it
was one of the most horrifying and fatal industrial accidents in history.
Methyl
isocyanate (MIC) gas leaked at a Union Carbide factory during a cold night in
1984, resulting in unprecedented destruction. In the 1970s, the Indian
government promoted foreign investment in the regional economy, which prompted
the Union Carbide Corporation (UCC) to build a factory in Bhopal to produce
Sevin, an insecticide that is widely used in Asia. A subsidiary of UCC called
Union Carbide India Limited (UCIL) was owned by the Indian government to the
tune of 22%.
Because of its
geographic location and transportation capabilities, Bhopal was selected as the
site for the plant. However, light industrial rather than risky or heavy tasks
were its intended use. Initially, the plant was only permitted to formulate
pesticides, but as competition mounted, additional items were manufactured
there using a riskier approach.
A tiny leak of
MIC gas was found on December 2, 1984. A cloud of MIC gas expanded by the
morning of December 3, 1984, killing a large number of people. 3,800 people
were suddenly murdered, mostly residents of the slums next to the plant. Within
the first few days, preliminary estimates projected that the death toll might
reach 10,000; over the following 20 years, it was reported that 15,000–20,000
premature fatalities took place. In an effort to absolve itself of culpability
for the catastrophe, UCC made the factory's construction and operation totally
under the authority of UCIL, its Indian subsidiary, in the wake of the
incident.
Judgment
A.I.R. 1989 SC 248
UNION CARBIDE CORPORATION (UCC)
VS.
UNION OF INDIA & OTHERS
(DT. 04.05.1989)
·
The
Supreme Court has ordered Union Carbide to pay $470 million for all destruction
caused by an MIC gas leak from an industrial site.
·
In
a reasonable order, Justice Pathak said it was the court's duty to provide
immediate relief to MIC leak victims, and the court was not breaking new ground
in doing so.
·
Pathak
J. Applying the polluter pays principle, the compensation amount he set at $470
million. The court found counter offers ranging from He's $426 million to He's
$500 million. Therefore, the average meter reading was calculated at USD 470
million.
·
But
his $470 million settlement fell far short of what the government had promised,
and various legal experts also felt it was an inadequate compensation. After
analyzing the ratio, it appears that the amount delivered to each victim was
less than INR 50,000.
Absolute liability refers to
instances involving potentially dangerous materials or things, when the parties
concerned are already liable just by using those materials. It is not necessary
for these hazards to escape or be released for it to take place. Whether a
personal injury occurs on or off the defendant's property, this premise still
holds true. In cases of absolute culpability, the defendant is entirely
responsible for any harm done, without any exceptions or defences. Both natural
and artificial uses of land are covered by this rule. Due to the defendant's
responsibility for protecting both human life and the environment, victims in
these cases are usually awarded compensation that is exceptional and greater
than average. Absolute liability laws were adopted in India as a result of an
understanding of the limitations of strict liability, making it essentially a
stricter version.
The British idea of strict responsibility,
which was drawn from Rylands v. Fletcher, was established in an Indian context
through the precedent-setting decision of M.C. Mehta v. Union of India.
According to the Supreme Court, businesses that participate in dangerous
activities have an absolute, unassignable responsibility to guarantee others'
safety and must compensate victims of harm. Because Justice Bhagwati emphasised
the necessity for India to create its own laws and principles to meet dangerous
or unusual situations that have already occurred or may do so in the future,
the Court did not give the strict liability exception from English case law.
He asserts that the fact that such a
responsibility concept did not exist in Britain should not be used as
justification for delaying the development of such a liability principle for
enterprises supporting an industrial economy. Due to the Supreme Court's
establishment of effective regulations within the Indian context to manage
industrial growth without ignoring the required legal changes, this decision is
extremely significant.
India passed the Environmental Protection
Act in 1986 to control and protect the environment. The central government is
given the authority to take any measures it deems necessary or appropriate for
the protection and improvement of environmental quality, as well as the
prevention, control, and reduction of pollution, under the terms defined in
this statute. The central government has the power to issue written orders,
including those that shut down, forbid, or regulate certain businesses,
professions, or procedures, as well as those that halt or control the provision
of necessities like water and electricity. The Stockholm Declaration of 1972's
commitments are in conformity with this law.
Essentials
of Principle of absolute liability
Absolute liability and strict liability are
comparable in that they both call for the presence of risks, their avoidance,
and the ensuing damage. As a result, the following constitute the fundamental
components of absolute liability:
1.
Hazardous
Items or Substances
2.
These
Items or Substances' Escape
3.
Materials
that are dangerous or necessarily dangerous
The presence of hazardous or
inherently dangerous substances on the premises makes a significant difference
in the basis for absolute liability. This implies that a defendant is totally
liable if such substances escape from their property if they are in possession
of them, regardless of their intended use. Liability is centred on the
fundamental characteristics of things rather than how they are used.
The
definition of dangerous goods in Section 2 of the Public Liability Insurance
Act of 1991 is "any specified quantity defined as a hazardous substance
under the Environment (Protection) Act 1986 (29th of 1986) and notified by the
Government, any substance or preparation exceeding the limits set by the Central
government." The use of absolute liability is legitimately justified by
this important distinction.
Polluter Pays Principle
The
"polluter pays" theory essentially states that individuals who
pollute are liable for the environmental harm that results. They must help
restore the impacted environment in addition to compensating the victims of
pollution. The OECD Recommendations from 1972 and 1974 state that authorities
must decide what steps must be taken to reduce pollution and maintain a livable
post-industrial environment. By upholding the polluter pays concept, those who
endanger public health are made responsible for paying for environmental
repair. This implies that the costs incurred should take into account the
expenses related to the production and use of goods and services that cause
pollution. Subsidies should not be used to finance these policies as they have
the potential to stifle international trade and investment One of the many
guiding concepts for sustainable development around the world, the Polluter
Pays Principle is also included in Indian environmental law.
Polluter Pays Principle In The Context Of India
The 1996
case of Indian Environmental Legislative Council v. Union of India led to the
implementation of the polluter pays principle in India. In this case, Justice
Dalveer Bhandari emphasised the significance of redressing ecological
imbalances brought on by industrial activity. Therefore, rather than the
government, the industry in charge of causing pollution is in charge of
managing and avoiding it. Because several requests for warnings, corrections,
and relief were denied by the court, Justice Bhandari declared that those in
positions of power and responsibility ought to find it simpler to follow or
disregard court orders.
In the
cases of Vellore Citizen Welfare Forum v. Union of India and Ors. and Research
Foundation For Science Technology National Recourse Policy, the justices came
to the following conclusions: the Polluter Pays Principle and the Precautionary
Principle are the fundamental tenets of Indian environmental law. The judge
believed that as the polluter pays principle is already recognised by international
environmental law, it should also be included in Indian environmental
legislation.
The judge
enlarged the applicability of these ideas in A.P. Pollution Control Commission
v. Professor M.V. Nayudu (retd.) and his Ors. This decision made it possible
for tribunals, courts, and other environmental bodies to apply these guidelines
when filing complaints with them.
Landmark Judgements
1.
PETITIONER:
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION ETC.
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.ETC.
DATE OF JUDGMENT: 13/02/1996
There was a chemical
manufacturing-focused industrial park in the village of Bichhri. The lives of
the villagers have been severely interrupted by the discharge of concentrated
sulfuric acid and aluminium sulphate from one of the enterprises, Hindustan
Agro Chemical Limited. These substances contaminated the groundwater and
underground aquifers by permeating the soil in significant quantities. As a
result, it was decided to hold individuals responsible for actions involving
the use of intrinsically dangerous substances accountable and make them pay for
the harms done to both people and the environment. The polluter pays principle
assures that those who pollute will be held financially liable for restoring
the environment to its pre-pollution state.
2.
PETITIONER:
VELLORE CITIZENS WELFARE FORUM
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT: 28/08/1996
The untreated sewage discharged into
the river by tanneries and other enterprises in Tamil Nadu caused alarm among
the locals. Each litre of water used by the tanneries alone to produce each
kilogramme of leather included 176 dangerous acids and resulted in the
production of about 200 tonnes of leather every day. The drinking water supply
has been contaminated as a result of the hazardous effluent. Moreover, the
river overflowed over the adjoining lands, which were primarily used for
agriculture and farming, as a result of excessive rain and floods in the local
towns. The sewage has thus poisoned the farmland. As a result, it is crucial
for the industrialist to respond appropriately in this situation to repair the
ecosystem.
3.
PETITIONER:
M.C. MEHTA
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT: 30/12/1996
The Supreme Court reiterated its
support for the 'polluter pays' doctrine in the case of MC Mehta v. Indian
Union and Ors and emphasised the significance of its implementation. The
foundry, chemical industry, and oil refineries located in Mathura were deemed
to be the main causes of pollution impacting the Taj Mahal, according to the
1990 National Environmental Engineering Reporting Society report and the 1995
Varadarajan Commission report. As a result, the court ordered these industries
to transfer their operations or switch from utilising gasoline to petrol. It
was accepted that the workers in these industries would suffer as a result of
the closure or relocation. It is important to note that subsequent court
decisions have continually emphasised the need of defending workers' rights and
making sure that their commitments are upheld.
·
Incorporating
the idea of absolute liability into environmental law entails not only taking
action to reduce environmental risks, but also adopting a number of compliance
procedures to guarantee that these risks are under control and that the
responsible party is held accountable.
·
The
employment of insurance services is a way to satisfy this legal requirement.
Since environmental legislation includes absolute liability, every party is
required to address environmental risks by assessing them.
·
Environmental
management is used to put into practise the idea of absolute obligation by
assigning duties, guaranteeing compliance, and controlling finances in order to
foresee diverse environmental problems.
·
The
polluter pays approach has reduced some environmental harm, but it is still
insufficient because it is still difficult to establish who is the true
polluter.
·
Long-term
benefits would result from creating a more precise and effective mechanism for
applying the polluter pays principle.
By adopting the notion of absolute
liability, which is given greater prominence, the Indian legal system has made
strides in the right direction. The Bhopal gas tragedy emphasises the need for
industries near residential areas to take all required safeguards to preserve
human life. This incident continues to have an influence on new-born babies
with anomalies. It is essential to give these industries the go-ahead to act right
away.
Even when the polluter is not
required by law to pay, it is more difficult to familiarise people with these
concepts than to impose them. In the twenty-first century, the old idea of
ecologically balanced development is out of date. But destroying nature for the
sake of development is no longer acceptable. Our perspective on nature has
changed significantly during the last twenty years. The 'polluter pays'
principle, 'precautionary principle,' and ‘sustainable development' principles
should ideally be embedded in our practises. In order to promote sustainable
growth, many institutions and universities have started planting trees on
holidays like Independence Day and Environment Day. We must achieve a balanced
development if we want to live in harmony with nature.
It's interesting to note that the
worldwide quarantines imposed during the coronavirus outbreak have given nature
a chance to recover. During the lockdown, it's common to see wild creatures
prowling the streets, which is similar to the condition of captive people and
guests from other animals. In the past, we have behaved inhumanely towards
nature. Our interaction with nature has been revaluated in the last twenty
years. It is time to give protecting Mother Nature top priority.
Article Information
CASE ANALYSIS OF BHOPAL GAS TRAGEDY WITH REFERENCE TO ABSOLUTE LIABILITY AND POLLUTER PAAYS PRINCIPLE.
Authors: UDITANSHU PRATAP SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/11/16
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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