Open Access Research Article
Critical Analysis Of Bhopal Gas Tragedy In Relation To Evolution Of Absolute Liability
Published Paper
Article Details
Critical Analysis Of Bhopal Gas
Tragedy In Relation To Evolution
Of Absolute Liability
Authored By- Shreyansh
Dumawat
SCHOOL OF LAW, NARSEE MONJEE
INSTITUTE OF MANAGEMENT STUDIES, BENGALURU
BATCH 2022-2027
SUBMITTED TO: SUBMITTED
BY:
Prof. Alisha Thomas
Shreyansh
Dumawat
Assistant Professor 81012200135
NMIMS (SOL), Bengaluru BA.LL.B. 1stYear
TABLE OF CONTENTS
ABSTRACT…………………………………………………………………………………......7
INTRODUCTION…........................................................……………........................................7
LITERATURE
REVIEW…………………………………………………………………...….8
STATEMENT
OF PROBLEM…………………………………………………………….......9
RATIONALE
OF STUDY ……………………………………………………………...…......10
RESEARCH
OBJECTIVES ……………………………………………………………….…10
RESEARCH
QUESTIONS………………………………………………………………..…..10
CHAPTER
1: BHOPAL GAS TRAGEDY………………………………………………...….11
CHAPTER
2: THE PRINCIPLE OF STRUCT AND ABSOLUTE LIABILITY ….……….17
CHAPTER
3: JUDICIAL PRECEDENTS……………………………...………….…………25
CHAPTER
4: CRITICAL ANALYSIS …………………………………...………………….30
CHAPTER
5: SUGGESTIONS AND CONCLUSION …………………………….………33
BIBLIOGRAPHY
…………………………………………………………………………….33
ABSTRACT
It has been more than three decades since the tragic night of December 3,
1984, when a gas leak caused the deaths of thousands of people and left others
who survived with lasting disabilities. All of those who survived the Bhopal
gas leak disaster and took on the sorrow of their forebears carry a vivid
memory of the tragedy with them to this day. 3787 persons were killed as a
direct result of the gas's acute effects, and several thousand more died as a
result of its long-term consequences during the following decade. As the
representative of the victims, the government was successful in negotiating a
compensation package with the Union Carbide Corporation in the amount of 470
million USD. When weighed against the scope of the harm done, many people feel
that the sum in question is insufficiently compensatory. As a direct result of
the event, the state government passed a number of pieces of legislation, such
as the Environmental Protection Agency Act of 1986[1] and
the Public Liability Insurance Act of 1991[2], amongst
others. The idea of "absolute liability" was developed as a result of
judicial activism, which closed any loopholes that had previously existed. Even
if the situation has significantly improved in comparison to the time before
the tragedy, implementation of the new, more stringent laws continues to be a
challenge despite the fact that the restrictions themselves have been made more
stringent. Despite the fact that a boom in the economy is being witnessed,
unregulated companies continue to pose a risk to public safety and the
ecological equilibrium. The road forward lies in achieving sustainable growth
while also addressing the issue of corporate culpability.
Keywords: Bhopal Gas Tragedy, Absolute
Liability, Tort , strict liability, damages
INTRODUCTION
Absolute liability, in its most fundamental definition,
refers to no-fault liability, in which the wrongdoer is not granted exceptions
similar to those granted under the concept of strict liability. The rule that
laid the foundation for absolute liability was laid by Rylands v. Fletcher[3]
and was acknowledged by the Supreme Court of India in M. C. Mehta v. Union of
India[4].
Absolute liability is a more stringent kind of strict liability.
An abundance of books, articles, documentaries, discussions,
and debates have been dedicated to the Bhopal Gas Tragedy, sometimes called the
world's largest industrial tragedy. Because the Bhopal Gas Tragedy is often
considered the worst industrial accident ever. The goal of this work is to
report on and assess the progress of environmental policy in India in the wake
of the Bhopal gas disaster. Includes an analysis of the accident's possible
causes and an explanation of the roles performed by the corporation and the
state, a brief discussion of the standards in place previous to the disaster,
and a detailed account of the reforms put in place in the wake of the tragedy.
Recounts the several remedial measures taken after the catastrophe. In Chapter
I, we'll go into the court cases that went into figuring out who should get
what, what caused the tragedy, and how the government and business responded to
the aftermath. Details of the disaster and its immediate aftermath are included
as well. Chapter I1 covers the concepts of absolute liability and strict
liability. Judgments are discussed in Chapter III, and a critical evaluation is
provided in Chapter IV. This project concludes by emphasising the key learnings
that were gleaned from the misfortune that occurred.
LITERATURE REVIEW
Articles
1) Government
Responsibility for Bhopal Gas Tragedy[5]
This article talks about how and what is the
responsibility of the government for Bhopal gas tragedy. How the government
could have avoided this accident and what steps have been taken and should be
taken in the future to avoid.
2) Statutory
Strict Liability[6]
Changes to common law rules that are made by
laws are often overlooked, except in cases like workers' compensation, where
almost the whole body of law is changed. In the next article, Professor Foster
talks about important changes to the law that make strict liability apply to
more situations and explains the philosophy behind the changes.
3) Tort:
Blasting: Absolute Liability[7]
It talks about various cases about blasting and
how absolute liability is imposed.
Books
The author of this book discusses both absolute
culpability and strict liability throughout its pages. Also covers how both the
liabilities and the aligation play a role in the conviction of the wrongdoer,
while at the same time providing information on how the aligation might be
removed.
The fundamentals of strict and absolute
liability, as well as the various avenues open to a person seeking to avoid
strict liability, are covered in this book. In addition to this, it analyzes
the development of absolute liability in India as well as the legal concept of
strict liability in India.
This book discusses ten judgments, or cases,
that necessitated making tough decisions. These cases are considered to be
"landmark" instances. One of the important case was Union Carbide
Corporation vs Union of India, (1991) 4 SCC 548[11]
it talks about the Bhopal gas tragedy and its effects to the Indian society and
the evolution of strict liability and various acts
STATEMENT OF PROBLEM
What is strict liability and absolute liability? How can a
person escape them? How did Bhopal gas tragedy led to evolution of absolute
liability? The intention of this article is to determine the loopholes,
problems faced by companies and person and how can the government improve.
RATIONALE OF STUDY
The current legislation concerning
strict and absolute liability is very complex, as a person who has absolutely
no fault can also be liable. The first step is to figure the evolution of
absolute gas tragedy. The purpose of this research is to analyse and suggest
ways and make amendments for the betterment of the society.
RESEARCH METHODOLOGY
To do this research, doctrinal, analytical, and comparative
research methods would be used. The main sources of information used in this
investigation are the Indian Penal Code, the Code of Civil Procedure, the
Criminal Procedureal Code, the Law Commission Report, the Delhi Police Act,
judicial precedents, and reports from different committees. Some examples of
secondary sources of information are published books and journals, scholarly
articles, press releases, print media, online journals, and a few other types
of publications.
RESEARCH OBJECTIVES
1.
To
analyse the Bhopal gas tragedy Case Union
Carbide Corporation vs Union of India, (1991) 4 SCC 548[12]
2.
To understand the evolution of strict liability
3.
To understand the concept of absolute and
strict liability.
4.
To understand and analyse old and new case laws
RESEARCH QUESTIONS
1.
What is the meaning and
scope of absolute liability and strict liability?
2.
What were the judicial
precedents of Strict and absolute liability?
3.
What are the principles
of strict and absolute liability?
4.
What were the Acts that
formed after the Bhopal gas tragedy and how absolute liability evolved in
India?
CHAPTER 1:
BHOPAL GAS TRAGEDY
The Tragedy
The
American company Union Carbide Corporation (UCC) decided to locate a pesticide
facility in the densely populated area of Bhopal in 1970 because of the city's
central position and extensive transit network. The particular location inside
the city was intended to be exploited for commercial and light industrial
activities, rather than for hazardous industrial activity.[13]
Because there was less demand for the pesticide in 1984, the factory was only
able to produce Selvin at a rate that was one-quarter of its capacity. As a
result of the decline in productivity, UCIL devised a plan to relocate the
primary production units to another nation after they were dismantled. In the
meantime, production at the facility remained constant, but because earnings
were so low, meeting safety regulations was not a top priority. Even while the
local government was aware of the lower standards, it was hesitant to put
stringent controls on an industry that was not just failing but was also a
significant employer.
On December
3, 1984, at approximately one o'clock in the night, huge volumes of methyl
isocyanide swiftly covered the city. As a result of breathing in the deadly
gas, a great number of people and animals passed away within a few short hours.
A rough estimate places the number of deaths in the immediate aftermath at
3,787.[14]
The region's medical facilities were overrun with patients and staff members
who lacked basic knowledge. The number of premature deaths in the subsequent
decade ranged from 15,000 to 20,000, with 10,000 occurring within the first few
days of the outbreak.[15]
The eyes and lungs were the primary organs that were affected in the survivors,
and acute multi-system morbidities were common among those who made it through
the ordeal. According to estimates provided by the ICMR, approximately 62.58%
of the people living in Bhopal were affected by inhalational poisoning.[16]
During the subsequent 25 years, those members of the population who had
survived developed morbidity to varied degrees.[17]
When the
hospitals first started taking in patients, the medical staff had no idea what
was ailing the patients or what kind of therapy would be required for them. The
physicians are still unaware of either the antidote for the toxin or the toxin
itself. If the government had more knowledge, they may have been able to tackle
the problem in a manner that was more effective. As a result of UCC's refusal
to reveal any information on the precise chemical make-up of the leaking gases,
symptomatic therapy was the only option available. They cited trade secrecy as
their justification for this refusal. UCC declined to disclose any
information regarding the actual composition of the leaking gases, alleging
trade secrecy as a pretext,[18]
hence requiring symptomatic treatment.
Consequences: Following the tragedy, UCC began to
put more distance between itself and its Indian subsidiary in the hope of
evading responsibility for the disaster by shifting the blame to UCIL. The
factory shut down.
The gas
leak was responsible for the deaths of thousands of people as well as animals,
and its destructive effects have been passed down to subsequent generations.
People were affected by a wide variety of illnesses related to their eyes,
respiratory systems, digestive systems, reproductive systems, and neurological
systems.[19] Some
of the people who were hurt were pregnant women who went through miscarriages,
had early deliveries, or gave birth to children who had fetal abnormalities.
The damage
was also done to the surrounding natural ecosystem. Even after so many people
had been killed, the firm continued to refuse to take any active responsibility
and to restore the ecosystem to a healthy state. During the years when the
corporation was actively producing goods, it discharged enormous quantities of
toxic waste both within and outside of the factory location. There is still
around 350 tons of hazardous garbage and lingering residue from outdated
chemicals at the factory site[20].
These wastes have a very sluggish decomposition rate and damage the land as
well as the groundwater. If this is not dealt with in an appropriate manner, it
poses a risk to a greater number of individuals and will continue to spread.
Greenpeace conducted a survey of the location in May 1999, collecting soil and
water samples. A scientific investigation conducted by Greenpeace in 1999,
along with a few others conducted by government authorities, has proven the
existence of a number of life-threatening chemicals, such as mercury and other
heavy metals, chlorinated insecticides, and pollutants, in the debris that has
been strewn.[21]
Aftermath: Litigation
Union
Carbide Corporation vs Union of India, (1991) 4 SCC 548[22].
As a result of the increasing backlog of lawsuits being handled in the courts, the Bhopal Gas Leak Disaster (Processing of Claims) Act,
1985 (commonly known as the Bhopal Act[23])
was passed into law on March 29, 1985. The Central government has been given
the exclusive authority to represent and act (in India or abroad) on behalf of
claimants in regard to the Bhopal gas leak under the Bhopal Act. By virtue of
this provision, the Central Government was able to represent and take legal
action on behalf of claimants. The Central Government was able to act as the
"parent of the nation," or "parens patriae," and advocate
for those who had been harmed by the gas spill. The government may be partially
liable for the accident because it owns a stake in UCIL. The government's
actions were deemed an attempt to avoid responsibility by blocking victims from
taking legal action.[24]
The Supreme Court was asked to rule on the constitutionality of this law, and
it agreed that it should be allowed to remain in effect.
UCC was
sued by the federal government in the United States' Southern District Court in
New York. The complaint claimed that the Indian courts were powerless to handle
the case and that the subject should instead be heard in American courts.
Still, the company made a concerted effort to have the lawsuit handled in
Indian Courts, despite the fact that it knew the compensation would be far
higher if the case were heard in American Courts. Because the claims were filed
in the wrong court, the judge dismissed them.
At
September 1986, the Indian government filed a complaint in a district court in
Bhopal, demanding 3.5 billion rupees in interim compensation. Later, the Madhya
Pradesh High Court reduced the amount to 2.5 billion Indian rupees. UCC has
asked the Supreme Court to review their case. After the Bhopal gas disaster,
the court ordered UCC to pay 470 million dollars, which is equivalent to around
750 crore rupees. This was to satisfy all claims, rights, and liabilities
related to and originating from the disaster. All civil actions were closed and
criminal proceedings were dismissed per the terms of the settlement.
Compensation
from the government was initially requested at the three billion US dollar
mark; however, the company eventually settled for only $470.5 million. Those
who have lost a loved one or are permanently disabled will find the sum to be
grossly inadequate.
Since the
criminal procedures were dropped and an excessive amount of compensation was
paid, this settlement was widely panned. The Supreme Court merged numerous
petitions, revived the criminal proceedings, and ruled that the state must make
up any deficiency in compensation in 1989.
For the
victims' economic, social, and environmental recovery, the central government
approved a budget of 258 crore rupees in 1990, the first year of the first
five-year plan.[25]
Seven
ex-employees, including UCIL's former chairman, were found guilty of causing
death by carelessness in a Bhopal court in June 2010 and sentenced to two years
in prison and fines totaling $2,000 USD.
Causes
It would
appear that the UCIL was attempting to reduce costs as much as possible by
making concessions with regard to health and safety regulations. There is zero
regard for either the health of the people living in the area around the
facility or the state of the surrounding ecosystem. If only UCC had a crisis
management plan, the amount of money lost could have been drastically cut in
half. Instead, the plant concentrated on avoiding accountability by concealing
facts and ignoring the harm it had on the environment. It admitted to having a
moral duty but denied having a legal liability.[26]
UCC
revealed in its own research report that on the night of December 3, 1984, the
majority of the safety systems were not operational:[27]
·
Tank temperatures were not logged;
·
Vent gas scrubber (VGS) was not in operation;
·
There was no cooling system in operation;
·
Tank 610 had an unsafe level of chloroform;
·
Cleaning the pipes did not involve the use of a slip
bound;
·
There was no pressure building up inside of the tank;
·
Corrosion was the reason of the presence of iron;
·
The warning for a high temperature in the tank was not
functioning properly;
·
The evacuation tank, which was designated as Tank 619,
was not empty.
This
demonstrates how offhandedly both the safety of the workers and the safety of
the city were treated. Due to the fact that the facility was already losing
money, the corporation was hesitant to make more investments in the safety
requirements. In addition, it would appear that the absence of pressure and
surveillance from the government did not incite any sense of urgency on the
part of the corporation.
Although
the firm has the majority of responsibility for what happened, the state is
also to blame because it failed to play its part in preventing the tragedy.
It is
unequivocally stated in the document that governs India, the Constitution of
India, that it is the responsibility of the state to "protect and improve
the environment as well as to safeguard the forests and animals of the
country." The Directive Principles of State Policy also included a
discussion on the subject of the environment. In India, the Department of
Environment was first founded in 1980 with the purpose of preserving and
protecting the natural environment of the nation.
The state
did not perform an adequate level of surveillance of the industry. It was
negligent of them to allow such a potentially dangerous plant to operate in
such a densely populated region in the first place. It is the responsibility of
the state to keep a close eye on the activities of the plant, regardless of
whether or not it is located inside the city limits, in order to guarantee that
it complies with all applicable safety regulations. In the event of a
catastrophic event, the state ought to have a plan ready to implement. A gas
leak is an event that can be anticipated with some level of accuracy. The
government ought to have gathered information on the many kinds of gases that
are utilized by the organization. It need to have conducted simulated drills
and made sure that the general public is aware of the potential risks. In the
event that any of the requirements weren't met, severe action should have been
taken.
Standards in place
The Water
(Prevention and Control of Pollution) Act, 1974[28],
and the Air (Prevention and Control of Pollution) Act, 1981[29],
were the two pieces of legislation that were in effect at the time. These
actions did not prove to be very effective in enforcing compliance with the
law. Companies who do not adhere to the standards governing pollution control
will be subject to a monetary penalty, as stipulated by the acts. [30]Companies
concluded that it was economically beneficial to avoid compliance with the
legislation and pay the penalty rather than complying with it. If the
allegations are founded on torts, the organizations will simply pay the damages
and keep on violating the law. The legal proceedings were complicated and
fraught with doubt. Without conducting an Environmental Impact Assessment, the businesses
were permitted to unrestrictedly discharge their effluents into the water. The
creation of an Energy Information Administration was not mandated by any
authority.
Steps taken after the disaster
It is a sad
reality that such a terrible event had to take place for us to comprehend the
need of adhering to all of the safety regulations.
In the wake
of the catastrophe, the government introduced a number of different pieces of
legislation. This ushered in a transformation in people's consciousness with
regard to problems affecting the environment. The recent advancements in
legislation are summarised in the following paragraphs.
CHAPTER 2:
THE PRINCIPLE OF STRUCT
AND ABSOLUTE LIABILITY
Strict liability
The case of
Rylands vs. Fletcher[31],
which took place in 1868, is credited with being the catalyst for the
development of the rule of strict liability.
If someone
(the defendant) maintains or takes dangerous substances onto his premises, then
that person will be held accountable under this principle if the substances
leave the premises and cause harm to another individual (plaintiff). The
defendant does not want to cause harm to another person, despite the fact that
there is no evidence of negligence on his part. This indicates that the primary
responsibility for culpability is with the individual who stores the
potentially dangerous chemicals.
Even the
excuse that it was an accident that could not have been avoided is not a valid
defense in these kinds of scenarios. The legal concept for this idea is the
"principle of strict liability."
In
addition, the defendant always has the responsibility of bearing the burden of
proof in cases involving strict liability. This indicates that the defendant
needs to present evidence to justify why he should not be required to pay for
the damages. In addition, it is not necessary to provide evidence of blame,
negligence, or intent. The burden of proof lies with the claimant, who must
demonstrate both the existence of the tort and the defendant's liability for it.
Principles of Strict Liability:
1.Unnatural use of land: Taking
into consideration the case of Ryland v. Fletcher[32],
the storage of water for commercial use, namely for the purpose of providing
power to a mill, is not a natural use; nevertheless, the collecting of water
for residential use is considered to be a natural use. When we talk about land,
what we really mean is either natural resources or inputs.
2.Harmful substance: A harmful substance can be
defined as any substance that, upon leaving the premises, results in some sort
of damage or causes injury to other people. This can refer to any type of
explosive, as well as hazardous gases, electricity, and other similar things.
3.Escape: It should be able to flee the
defendant's property and should be out of the defendant's reach.
Exceptions:
1.
Act of god or vis major[33]- The notion of strict liability does
not apply in situations in which damages are produced by actions that are
beyond human control and incomprehension, such as when they are brought about
by more powerful natural forces. The term "Act of God" refers to the
circumstances in which natural disasters, such as storms, hurricanes,
lightning, or unusually heavy rainfall, cause property damage. It is not
essential that this be a one-of-a-kind occurrence, nor is it essential that it
be a first of its kind. It is sufficient to demonstrate that it is exceptional
and could not have been expected in any reasonable way.
2.Plaintiff’s Own Fault- In the event that the plaintiff sustains harm as a direct result of his
own actions, he is not eligible to collect compensation for such losses.
3.
Mutual benefit- The defendant will not be held
responsible for the conduct if it was done or the harmful thing that has
escaped since it was kept for the common advantage of the defendant and the
plaintiff.
4.
Act of stranger- Under these conditions, the
defendant will not be held liable for the damage that was produced because of
an unlawful act that was undertaken by a third party or any stranger over whom
the defendant had no influence.
5.
Statutory act- As long as the action in question
wasn't carried out carelessly, there won't be any legal repercussions for
carrying out a legislatively sanctioned activity. If an act is carried out by a
government of a country or a state government with the permission of the law or
statute, and if that act causes any kind of damage to a person, then the
statutory authority acts as a defense to an action for tort that may be brought
against that government.
6.
Damage caused due to natural use of
land- The rule of
strict liability will not be imposed on the defendant if he is able to
demonstrate to the court that he made natural use of his land. In this case,
the defendant will be free from the rule of strict liability.
7.
Consent of the plaintiff (Volenti Non Fit Injuria)- If the plaintiff has either
explicitly or implicitly accepted to the presence of a source of danger, and
the defendant has not been negligent in any way, then the plaintiff will not be
able to hold the defendant accountable for any damages that result from the
incident. It boils down to the defendant arguing that "Volenti non fit
injuria" should be accepted as a valid defense in court.
Strict
Liability in India
In India,
the law of strict liability does apply, albeit with a few tweaks here and
there.
The Motor
Vehicles Act of 1988 [34]accepts
the culpability of the owner or insurer of the vehicle, referred to as "no
fault liability," even in the absence of any indication that the owner or
insurer was negligent.
Even if
there was no fault on either party's part, the Indian Railways Act of 1961 [35]and
the Carriers Act of 1865 [36]allow
for the possibility that both parties could be held accountable for damages.
Both the
National Environmental Tribunal Act of 1995 [37]and
the Public Liability Insurance Act of 1991 acknowledge no-fault liability
(strict liability).[38]
Absolute Liability
The
amendments to the strict liability doctrine that were established in Rylands
vs. Fletcher[39]
contributed to the establishment of the absolute liability doctrine in India,
which precluded defendants from raising any defense against the payment of
compensation. These amendments are as follows to the strict liability doctrine
that was established in Rylands vs. Fletcher[40]:
·
If an industry or company is engaging in any activity
that is inherently harmful, then the defendants (the owners of the industry)
will not have any defense or exception, and they will be totally liable to pay
compensation to the person that was damaged as a result of the action.
·
The business sector or industry will be held
accountable for any and all potential harms or repercussions that may be a
direct result of the activity. As a consequence of this, businesses in these
types of industries will be forced to supply their employees with safety
equipment in order to lower the likelihood that their employees will be
involved in an accident. As a consequence of this, the interests of the workers
will be protected, and a safe atmosphere in which they may carry out their jobs
will be provided for them.
As this
limits how the Doctrine of Absolute Liability can be used, the fact that there
is a chance to get away, which is a key part of strict liability, can be
ignored here.
Often,
dangerous things like poisonous fumes can get out of an industry's building,
but they can still hurt the people who work there. In this case, workers won't
be denied their right to get paid. So, this principle needs to be used in a
broader way, leaving no room for escape.
The Public Liability Insurance Act,
1991[41] is another
act that aims to help people quickly who have been hurt by accidents that
happened while they were handling dangerous substances. It also covers things
that are related to or happen because of the other acts. One part of the Act
says that the owner of an industrial unit must buy one or more insurance
policies before starting to work with a dangerous substance and must continue
to do so regularly until the policies' terms expire. This part of the law says
that owners of industrial units must follow the law. It will let people who
have been hurt by these kinds of things get money right away, and it won't stop
them from asking for more money in the future. The law recognizes the idea of
"absolute liability," which is also called "no-fault
liability."
Section 3: No fault liability[42]
In the
event that an accident causes the death of any person, harm to any other person
(other than a workman), or damage to any property, the owner shall be obliged
to provide such relief as is indicated in the Schedule for such death, injury,
or damage.
In any
claim for relief under subsection (1), the claimant is not required to plead
and establish that the death, injury, or damage in respect of which the claim
has been made was due to any wrongful act, neglect, or default of any person.
This is because the claimant is not required to prove that the claimant was at
fault for the death, injury, or damage in question.
Section 4- mandatory insurance[43]
Before
beginning to handle any hazardous product, the owner is required to obtain one
or more insurance policies that provide for contracts of insurance, so making
the owner insured against the possibility of having to provide relief in
accordance with Section 3. (1).
It is hereby
provided that any owner who was engaged in the handling of any hazardous
substance immediately prior to the commencement of this Act is obligated to
acquire the aforementioned insurance policy or policies as soon as is
practicable and in any event within a period of one year from such
commencement.
Each owner
is responsible for ensuring that the insurance policy is kept up to date and
renewed on a regular basis well in advance of the policy's expiration date.
This ensures that the insurance policies are kept in full force during the
entirety of the time that such handling is maintained.
Section 14 – Penalty for Contravening Section 4[44]
Whoever contravenes the provisions of Section 4(1), or
fails to comply with any direction issued under Section 12, he shall be
punishable with imprisonment for a term which shall not be less than one year
and six months but which may extend to six years, or with fine which shall not
be less than one lakh rupees, or with both.
Whoever, having already been convicted of an offence
under sub-section (1), is convicted for the second offence or any offence
subsequent to the second offence, he shall be punishable with imprisonment for
a term which shall not be less than two years but which may extend to seven
years and with fine which shall not be less than one lakh rupees.[45]
Quantum of
Compensation: In MC Mehta's case, the Supreme Court ruled that compensation should be
proportional to the industry's size and potential to deter.
Larger and wealthier
enterprises must pay more remuneration. Deep Pocket Theory underpins this rule.
Absolute liability damages
are exemplary, while strict liability damages are based on the nature and
amount of damage. Industrial accidents usually kill many people and destroy
property and the environment, thus compensation should exceed the damage.
The National Environmental Tribunal
Act, 1995[46]: The length
of time it took for the civil courts to reach decisions in situations involving
compensation for strict liability was a major factor in the decision to pass
this Act.
It made it
possible for environmental cases to be resolved expeditiously through the use
of environmental tribunals.
It
stipulated that the responsible party would be held strictly liable for any
damages that occurred as a result of an accident that occurred while handling
any hazardous substance.
The
National Green Tribunal Act of 2010 [47]repealed
it, hence it is no longer in effect.
|
Basis for comparison
|
Strict liability
|
Absolute liability
|
|
Meaning
|
The concept of "strict
liability" refers to the legal obligation that an individual has to
compensate those who have been harmed or wronged, even in cases when that
individual was not at fault or irresponsible.
|
Activities that are intrinsically
dangerous, such as harboring dangerous animals or using explosives, give rise
to absolute liability in the event of an accident.
|
|
Focuses on
|
Person
|
Company
|
|
Escape
|
Necessary
|
Not necessary
|
|
Exceptions
|
Applicable
|
Not applicable
|
|
Damages
|
Either ordinary or compensatory
|
Exemplary damages may be imposed
by the court
|
Necessity of the Principle of absolute liability in
India
Our country
is a pioneer in industrial development, and with complexity in life and
geography, no-fault liability must be harsher and more absolute.
In
addition, Ryland's v. Fletcher's strict responsibility theory was developed in
the 19th century, and in the midst of the industrial revolution, this
two-century-old tortuous liability principle cannot be applied without change.
Our country
is on the verge of becoming one of the world's most globalized, thus the
participation of multinational corporations (MNCs) causes both praise and
concern. The protection of human rights and lives should be considered due to
the rising complexity and nature of industrial development and the industrial
sector's large contribution to our GDP. Therefore, strict responsibility cannot
be the only principle of redress. “This rule evolved in the 19th Century at a
time when all these developments of science and technology had not taken place
cannot afford any guidance in evolving any standard of liability consistent
with the constitutional norms and the needs of the present day economy and
social structure,” Bhagwati J. stated in M. C. Mehta v. Union of India. We shouldn't
feel constrained by this rule, which was developed in a different economy. To
meet society's changing requirements and the nation's economic growth, law must
grow. The law must adapt to new situations. Law can't stand still. In a highly
industrialized economy, we need new ideas and norms to address new issues.
"We cannot allow our judicial reasoning to be constrained by reference to
the law as it prevails in England or any other foreign country." Because
hazardous and fundamentally dangerous businesses are vital for industrial
progress, they must take responsibility for protecting people from accidents
and other dangers. “Such hazardous or inherently dangerous activity for private
profit can be tolerated only on condition that the enterprise engaged in such
activity indemnifies all those who suffer on account of the carrying on of such
activity regardless of whether it is carried on carefully or not,” Justice
Bhagwati said. "The enterprise alone has the resources to find and guard
against hazards or dangers and to provide warning against prospective
hazards," also observed. From the above, such a theory is essential to
shaping our jurisprudence and avoiding strict responsibility in modern society.
Thus, the
necessity element stated above helps us see that the principle of absolute
liability is needed to defend core human rights, develop tort law in India, and
grow our country's jurisprudence.[48]
CHAPTER 3:
JUDICIAL PRECEDENTS
18th and 19th
Century
Case #1: Rylands v Fletchers (1868)[49]
Background:
Rylands Vs. Fletcher is a landmark torts case. The 1868 English decision
established Strict Liability for unreasonably unsafe conditions and activities.
Many nuisance and negligence cases were decided after this case. Negligence can
result in liability. Strict liability holds a person responsible for the harm
they cause without considering carelessness, mens rea, or distant culpability.
Facts:
Fletcher lived near Rylands. Rylands built a reservoir for his mill's water. He
hired independent contractors and engineers. Fletcher lost a lot of money when
the private contractor broke the shafts to his mine, flooding it. Fletcher sued
Rylands for damages.
Issues
raised: Negligence and nuisance, damage to neighbours’ property Injury to
human, Liability of the owner. It was unclear whether the plaintiff was
entitled to compensation.
Judgement
according to the (i) Exchequer chambers- The Court of Exchequer Chamber found
Rylands responsible for Fletcher's injuries. The dedefendant a duty of care to
the risk he took by using his land unnaturally and bringing any object that was
not harmful at the time but would be dangerous if it escaped. Even if the defendant was unaware that shafts
could lead water into the plaintiff's mine, he is liable.
(ii) House
of lords: The appellant argued that an independent contractor and engineer
inspected the construction. The appellant was not involved. Construction
security was unknown to him. The appellant was accountable for the harm because
he introduced a risky item to his premises. Fletcher was compensated.
Justice
Blackburn observed that “The rule of law is that the person who for his own
purpose, brings on his land and collects and keeps there anything likely to do
mischief if it escapes, must keep it at his own risk; and if he does not do so,
he is prima facie answerable for all the damage which is the natural
consequence of its escape.”
A person is
liable because he maintained a harmful thing on his land that escaped and
caused damage.
MC Mehta, a
social activist lawyer, petitioned to close Shriram Industries because it
manufactured hazardous compounds in a highly populated area of Delhi. On
December 4 and 6, 1985, Shreeram Foods and Fertilizers spilled oleum gas,
harming several people. The Delhi Legal Aid & Advice Board and Delhi Bar
Association sought compensation for gas spill victims. These joined MC Mehta's
petition.
The
Doctrine of Absolute Liability was created by a five-judge Supreme Court
Constitution Bench that rejected the Strict Liability Principle. Hazardous or
intrinsically risky businesses are exempt from the strict liability rule and
its exceptions. The court subsequently ordered the petitioning organizations to
sue the industry within two months to seek compensation for the victims. The
Court noted that the strict liability rule originated in England in the 19th
century before these scientific and technological advances. Modern issues in a
highly industrialized economy require new concepts and conventions. Thus, the
Court might create a new regulation that suits India's current social and
economic situations.
An
application for public interest litigation (PIL) was submitted in accordance with
Article 32[52]
of the Constitution of India to express the petitioners' displeasure with the
presence of industries that were responsible for widespread environmental
pollution and put the lives of villagers who lived in close proximity to the
industries in danger. Because they were unable to live in a healthy
environment, this action violated their right to life, which is guaranteed by
Article 21[53]
of the Indian Constitution. The Supreme Court moved quickly to take action and
issued an order to the Central Government and the Pollution Control Board
instructing them to develop stringent measures to combat the aforementioned
industries. The court upheld the Doctrine of Absolute Liability in this case,
noting that the damaged environment must be restored to a pollution-free
condition that is conducive to healthy life. The industries are responsible for
covering the costs incurred as a result of this procedure, even if it means
having their possessions seized for the purpose of carrying it out. The
industries were held fully accountable for the payment of monetary damages to
be used in the process of restoring the environment.
The
villages in the affected region, the land, and the subsurface water were deemed
absolutely accountable for any injury caused by the respondent industries, and
they were ordered to receive compensation for that harm. As a result, they were
given the order to take all the necessary steps to remove the sludge and other
pollutants that were lying in the affected region, as well as to pay the cost
of any remedial measures that were required to bring the ecology of that area
back to normal.
Case #4 Klaus Mittelbachert vs. East India Hotels
Ltd., (A.I.R. 1997) Delhi 201:[54]
The
plaintiff in this case is a German Pilot who was severely injured after diving
into the swimming pool of a five-star hotel. He is seeking compensation for his
injuries. After conducting an examination, it was discovered that the swimming
pool had both a flawed construction and an inadequate supply of water. The
injuries sustained by the pilot left him disabled, which ultimately led to his
passing 13 years after the event. The judge ruled that hotels with five stars
and high room rates had an obligation to exercise a high level of care for
their patrons. The Hotel Oberoi Intercontinental in New Delhi failed to
exercise the required standard of care when a man suffered significant injuries
as a result of the faulty design of the hotel's swimming pool. Because of this,
the Hotel became totally responsible for making up for the damages. Due to the
substantial amount of money that the hotel had collected from its patrons, it
was forced to pay exemplary damages to the person who had passed away. As a
result, the plaintiff will be awarded Rs. 50 Lakhs in compensation for the
accident that was caused by the defendant as a result of the Delhi High Court's
application of the norms of absolute liability and Res Ipsa Loquitur. However,
because the plaintiff passed away while the lawsuit was still continuing in
court, the cause of action was also terminated, and the aforementioned ruling
was overturned as a result of an appeal that was submitted by the party that
was being sued (A.I.R, 2002 Delhi 124 D.B.)
Case #5: Uphaar Cinema Fire, 1997
V. K.
Sharma, Superintending Engineer (C), Group 'A', Central Public Works Department
V Union of India, Through its Secretary, Ministry of Urban Development 2011 Indlaw
CAT 159[55]
Facts: The Uphaar
fire was one of the nation's deadliest. On July 13, 1997, while showing
"Border," the Uphaar Grand theater in Green Park, New Delhi, caught
fire. 800 of 1000 viewers escaped. Smoke and CO asphyxiated 59 persons. The
hallway stampede harmed 100 persons. Captain Manjinder Singh Bhinder, an
off-duty Indian Army captain, sacrificed himself, his wife, and son to save 150
others from the fire.
Decisions
by the lower courts: The CBI charged cinema owners Sushil and Gopal Ansal and
13 others. They were charged under IPC Sections 304, 304-A, 337, and 14 of the
Cinematograph Act, 1952. In 2007, the trial court sentenced 12 of the 14
suspects to two years in prison and a Rs. 5000 fine. In 2008, the Delhi High
Court maintained the conviction of 6 of 12 suspects but reduced their sentence
from two years to one.
Verdict of
Supreme court: The Delhi High Court ruling was appealed to the Supreme Court.
In 2015, a three-judge Apex Court bench led by Justice Anil Dave ordered Sushil
Ansal, Gopal Ansal, and Delhi Vidyut Board (DVB) to pay Rs. 30 Crores each to
the victims and their families and create a trauma center in Delhi. It also
ordered two years of harsh detention if the convicted didn't pay. The
building's transformers, which caused the fire, are dangerous, the Court said.
The Supreme Court found the owners and Delhi Vidyut Board (DVB) responsible for
the fire due to their gross negligence.
21st century
Case #1: Vizag Gas Leak, 2020
On May 7,
2020, while the rest of the world was focused on combating the Covid 19
pandemic, an LG polymer production facility in Visakhapatnam, Andhra Pradesh,
in India, experienced a horrifying gas leak. The styrene gas quickly spread to
communities within a radius of five kilometers, resulting in the deaths of
eleven individuals and injuries to more than one thousand people that did not
result in death. Following the event, a number of professionals in the field of
public health made comparisons to the Bhopal gas tragedy that occurred in 1984.
Both the gas catastrophe in Bhopal and the gas leak in Visakhapatnam (Vizag)
occurred during the night, and both occurred right before the plants were ready
to resume after a period of downtime. The Andhra Pradesh Police have already
filed a case against LG Polymers, charging them under several sections of the
Indian Penal Code for their negligence, causing hurt and endangering the life
of others, and for culpable homicide not amounting to murder. The case was
filed against LG Polymers because they are accused of causing harm and putting
the lives of others in danger.
Additionally,
the Andhra Pradesh High Court, the National Human Rights Commission (NHRC), and
the National Green Tribunal (NGT) have all decided to take suo-motu cognizance
of the matter. In addition to penalizing LG Polymers with a fine of Rs 50
crores (or Rs 500 million), the National Green Tribunal (NGT) established on
June 1, 2020 a special committee to conduct an investigation into the case.
Case #2: Surat Gas Leak, 6 January 2022
On the
early morning of January 6, 2022, in the Surat district of Gujarat, hazardous
gases leaked from a chemical truck that was parked near a plant. As a result,
six factory workers passed away and 22 others were taken to the hospital as a
result of the exposure. When the incident occurred, the workers were present at
the dyeing facility, which is situated in the Sachin Industrial Area.
It is possible
that hazardous gas was produced as a result of the reaction of one chemical in
the water with another chemical that was illegally discharged from a tanker
into a rivulet that was located adjacent to the mill. In the end, the fire crew
was successful in stopping the leak by closing the valve on the truck.
Case #3: Munni Devi V Government of NCT of Delhi and
another 2021 Indlaw DEL 205[56]
The
petitioner claimed that her 23-year-old son Mintu Kumar Jha was studying
Bachelor of Science at Indira Gandi Open University. On 16.05.2007 at 8.05 pm,
an exposed live electric wire fell on his bicycle in House No.D-62, DDA Flats,
Kalkaji, New Delhi, killing him. Respondent negligence caused this act. the
electrical company argued that lightning killed the deceased, not
electrocution. The court added that tort actions required fault. In those
circumstances, the Supreme Court ruled that an Article 226 writ was not
appropriate.
Case #4: Parigabai W/o Ashok Kakde and others V State
of Maharashtra, through Collector, Aurangabad and others 2021 Indlaw MUM 41[57]
Ashok's
farm Gate No.12 hosted the incident on July 31, 2014. The deceased was working
in the field on a rainy day. He was starting an electric motor when Petitioner
No.1 was in the dwelling on the same land. Electric pump power was allegedly
removed from a pole near the well. Petitioner No.1 claims she observed the
deceased laying beside the well after hearing her cry. The victim was taken to
Government Hospital, Vaijapur, but the doctor ruled him dead. Respondents are
ordered to pay Rs. 4,00,000 (Rupees Four Lakh) for Ashok Kakde's death. This
Court requires the deposit within 45 days. Act of stranger can be used for
escape of strict liability
CHAPTER 4:
CRITICAL ANALYSIS
Because
India is a developing nation and seeks to foster expansion in its economy, the
country warmly welcomes investment from outside enterprises and individuals.
The promotion of industrialization is essential to the process of
globalization, which must first be accomplished. However, we must not lose
sight of the impact that these firms have, over the course of time, not only on
the health of the people but also on the environment. Neither of these two
factors should be overlooked. India needs to be much more severe in how it
implements the laws that have already been passed in order to prevent having to
pay such a large price once again. This will allow India to avoid having to pay
such a high price. UCIL was able to commit such egregious violations and yet
get away with it because the enforcement was not strong enough to function as a
deterrent. This allowed them to commit such violations and still get away with
it.
Are the
lives of people in India valued at such a low price that we are willing to
shrug off the unfortunate event as a tragic accident? It is impossible to bring
back the thousands of lives that were cut short; all that can be done is make
sure that those who were left behind are able to live a normal life and are
able to come to grips with their loss. It is impossible to bring back the
thousands of lives that were cut short. The industrial tragedy served as the
catalyst for a paradigm shift in environmental awareness and legislation, as
well as judicial activism and human rights. It compelled both the public and
the government to address these issues with the highest priority that they
deserved to get from either party. Are the victims receiving the compensations
that were awarded to them by the firm that is being sued in the correct
amounts? No, there is an issue with the way it is disseminated. It should be
the responsibility of the government to establish communities in order to make
this a reality; now, many officials use communities for their personal benefit,
which prevents victims from receiving justice.
The Bhopal
accident produced significant shifts in the chemical industry and sent shock
waves through the whole sector. As a result of both the human heart failure and
total technological incompetence, a significant amount of attention was placed
on the safety of the process. This emphasis was placed both technically and in
terms of management. Since another chapter in our book on poverty discusses the
power dynamic between the underprivileged and the world's largest corporations,
it's possible that it's too late to figure out who was responsible for putting
on such a spectacular display. However, it is of the utmost significance that
the tragedy be investigated, and that any errors be corrected. Over the course
of the past few decades, the pharmaceutical sector has been quite successful in
this regard.
It is the
one "plaintiff centered" liability in criminal and tort law, and it
is known as the principle of strict and absolute liability. This liability
ensures that if a victim suffers a loss of life or property, then they will be
reimbursed as quickly as possible. Nobody should have to suffer because of the
carelessness of others. In addition, if the danger is caused by a chemical that
is inherently dangerous, the owner is solely responsible for taking the
necessary precautions to prevent any accidents from occurring. In these kinds
of situations, there should be no leeway offered in the form of exceptions or
defenses of any kind. This is ensured by a provision that allows for absolute
liability. It is a defense that cannot be qualified in any way.
However,
total liability has not always been a defense that precludes all possibilities
of an exception. In the past, a criminal may walk away scot-free if the
circumstances surrounding the crime were either unexpected or abnormal, or if
there was a lack of mens rea. The need for a more stringent type of liability
was perceived slowly and gradually, which led to the beginning of the
application of this principle. As a result, this principle has developed via
the process of transition in order to provide the necessary fairness. Not just
this theory in particular, but also any law that becomes inactive as a result
of societal transition, needs to be developed.
Given that
it is the organ that is responsible for modifying laws so that they are more in
line with the expectations of society, the judiciary plays an extremely
important part in this context. It is commendable that the Indian Judges
adopted a progressive approach in the matter of M.C. Mehta, and it is
imperative that this approach be maintained. They were of the opinion that if
they wanted to bring about change in the Indian legal system, they could not
wait for the English legal system to evolve since they did not have the
financial means to do so. They need to be brought up to date with the changes
that have taken place in society as a whole and the laws that have been passed
to accommodate the public's requirements. The transformation of the principle
of absolute liability has brought about favorable outcomes in terms of its
applicability; hence, it is essential to make sure that the transitional growth
of this principle and other laws is maintained through the application of
transformative judgments.
CHAPTER 5:
CONCLUSION AND SUGGESTION
Given that
it is the organ that is responsible for amending laws so that they are more in
accordance with the expectations of society, the court plays an enormously
significant part in this context. [Cause and effect] Regarding the case of M.C.
Mehta, it is admirable that Indian Judges took a progressive attitude, and it
is absolutely necessary that this approach be preserved. They were of the
opinion that in order to bring about change in the Indian legal system, they
could not wait for the English legal system to develop because they did not
have the financial means to do so. If they wanted to bring about change in the
Indian legal system, they could not wait for the English legal system to
evolve. They need to be brought up to speed on the developments that have taken
place across all of society as well as the new laws that have been enacted to
meet the demands of the general public. It is vital to make sure that the
transitional growth of this principle and other laws is maintained through the
application of transformative judgements since the transformation of the
principle of absolute liability has resulted in beneficial outcomes in terms of
its implementation. wrongdoer. Therefore, the researcher suggests that the
factor of paying capacity should only be considered for major firms; for all
other businesses, the researcher recommends using the amount of damages
sustained, which is in line with tort law. In conclusion, the research question
that was posed earlier yielded mixed results. While the first part of the
question was answered correctly, namely that there is a need for recognition of
the concept of absolute liability, the later part of the question was answered
incorrectly, namely that the judiciary has recognized the principle to some
degree. The response to this line of reasoning is the same as the previous one;
the first portion of the hypothesis is invalid, while the second part of the
hypothesis is valid. Therefore, there is a pressing need in India for a greater
acceptance of the concept of absolute culpability.
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[54] Klaus Mittelbachert vs. East India
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[55] 2011 Indlaw CAT 159
[56] Munni Devi V Government of NCT of
Delhi and another 2021 Indlaw DEL 205
[57] Parigabai W/o Ashok Kakde and
others V State of Maharashtra, through Collector, Aurangabad and others 2021
Indlaw MUM 41
Article Information
Critical Analysis Of Bhopal Gas Tragedy In Relation To Evolution Of Absolute Liability
Authors: Shreyansh Dumawat
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/02/17
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
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