BHOPAL GAS TRAGEDY TO THE VIZAG GAS LEAK: REDUCING LIABILITY ON

ENTERPRISES IN INDIA

Tort law stands on three basic components – a wrongful act or omission, damage to someone
else, and gives remedy for the damage so caused. When applied to the tort of negligence,
these components narrow down to the determination of identifying who is at fault. In other
words, tort law aims to establish ‘fault based liability’ wherein the party at fault for damage
to another due to wrongful act or omission pays damage. However, tort law also finds
mention of a concept of no-fault liability, especially through strict liability and absolute
liability. This meant that even if one had not committed the wrong act or omission
themselves, they could be held liable.

Strict Liability was laid down in the famous case of Ryland v. Fletcher [(1868) LR 3 HL
330]. In this case, the defendant got a reservoir constructed through independent contractors
on his land to provide water to his mills. During the construction of these reservoirs, the
contractors did not address several mine shafts that were present in the land. Once the
reservoirs were filled after its construction, the water reached the adjacent land of the plaintiff
which had several coal mines. For the heave damage that was caused in the coal mines of the
plaintiff, he sued the defendant. Although the defendant tried to defend his case by arguing
that the fault is of the independent contractor, the House of Lords decided the case in favour
of the plaintiff by establishing the concept of no-fault liability. Justice Blackburn explained
this concept as:

“we think that the rule of the law is that the person who for his own purposes brings
on his lands and collects and keeps there anything likely to do mischief if it escapes,
must keep it in 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.” [1]

In the context of this case, ‘anything’ will equate with the reservoir which is an uncommon or
non-natural use of land; ‘mischief’ which refers to the possibility of water from the reservoir
escaping from the plaintiff’s land and causing damage to someone else; and, makes the
plaintiff ‘prima-facie answerable’ because it all happened in his land.

At the same time, the Court also laid down certain exceptions to strict liability. They are –
plaintiff’s own fault, act of God, acts done voluntarily (volenti non fir injuria), mutual
benefit, act by stranger, and, statutory authority. These exceptions became a set of defences
which was making it difficult for the Courts in India to ascertain liability on a person for
causing harm to others. This led to the evolution of the concept of absolute liability

EVOLUTION OF ABSOLUTE LIABILITY IN INDIA

In December 1984, when a hazardous chemical named methyl isocyanate leaked out from the
Union Carbide India Ltd.’s pesticide factory, the entire city of Bhopal turned into a gas
chamber. With more than 15,000 people killed, the Bhopal Gas Leak tragedy became one of
the most devastating industrial disasters in India. When the matter came before the Court it
was found that all safety systems in the premises of the enterprise were non-functional. Then
Chief Justice PN Bhagabati, while delivering the judgement in MC Mehta v. Union of India
[1987 SCR (1) 819], evolved the concept of absolute liability for the first time in India.

Absolute principle imposed liability on an enterprise for conducting any dangerous or

hazardous activity, even if there was no escape. As opposed to strict liability, which can be
invoked against a person, absolute liability was a remedy against an enterprise. In addition to
this, there is no exception under absolute liability, meaning the party against whom
allegations are made cannot avail a defence. Therefore, it becomes more difficult for
companies to escape from their liability and easier for the Courts to ensure relief to the one
who has suffered loss.

The liability on the enterprises has been construed as absolute and non-delegable due to
which such a stern position has been taken, especially in this case where a dangerous threat
loomed on the public leading to large-scale damage. This nature of liability was reaffirmed
by the Supreme Court of India in Charan Lal Sahu v. Union of India [AIR 1990 SC 1480].

AFTERMATH OF BHOPAL GAS LEAK TRAGEDY

After this incident, not only was a strict approach of absolute liability developed by the
judiciary, the legislature also played its part. Two very important legislations drew attention,
namely the Bhopal Gas Leak Disaster (Processing of Claim) Act, 1985 and the Public
Liability Insurance Act, 1991. The former was enacted to by the Central Government to
ensure that the claims arising out of the disaster were dealt with effectively whereas the latter
mandated all enterprises that dealt with any hazardous substances to have a public liability
insurance policy cover.

VIZAG GAS LEAK CASE

History repeated itself, although in a smaller scale, when the Venkatapuram village witnessed
a major leak of the styrene gas in May 2020. Numerous videos of people fainting on the
streets went viral over social media and attracted a lot of attention. However, this time, when
a case similar in nature to the Bhopal Gas Leak came before the National Green Tribunal
(NGT), the Tribunal held it to be a case of strict liability instead of absolute liability and
ordered LG Polymers to pay 50 Crore Rupees as damages[2].

This marks a backward step by the judiciary in affixing liability on enterprises from absolute
to strict liability. In the Bhopal Gas Leak Case, the number of deaths was much higher than
that of the Vizag Gas Leak Case, however all the essential components laid down in MC
Mehta v. Union of India was being fulfilled in this case as well.

 Enterprise: LG Polymers is the identified enterprise in this case against whom action
has been raised for affecting public health in the Venkatapuram village
 Hazardous substance and its Escape: escape of deadly styrene monomer vapour
from the LG Polymers Plant had led to a huge number of health cases which is a sign
of the degree of damage caused by the escape of the hazardous gas

At the same time, there are certain differences in both the cases which might have led to this
decision by the Tribunal. First is the vast difference in the number of cases as well as the
number of deaths. Moreover, the plant in the Vizag Gas Leak Case was situated in a village
which had lesser population in comparison to a major city like Bhopal. Further, the gases in
both the cases, being different in nature led to a difference in how far it travelled. In other
words, in the Vizag Gas Leak Case, the hazardous gas being heavier did not spread beyond
1.5 KM of the plant [3] however, in the Bhopal Gas Leak Case, a larger area had turned into a
gas chamber.

Keeping all differences and similarities in mind, it cannot be neglected that applying strict
liability instead of absolute liability is going back a step. Absolute liability was evolved to
ensure that enterprises do not take for granted a permission to use hazardous substance for
their business. This principle was evolved to make enterprises more responsible and to
compel them to take up due reasonable care while dealing with hazardous substances.
However, going back to a more lenient concept of strict liability opens a window for
enterprises to escape liability by proving any of the exceptions (defences), which in some
cases might even be done by manipulating facts. This is also likely to facilitate the
infringement of the right to health of the citizens as companies would have higher changes of
escaping charges levelled against them.

[1] Parmar, Bharat and Goyal, Aayush. “Absolute Liability: The Rule of Strict Liability in
Indian Perspective”. Manupatra.
http://docs.manupatra.in/newsline/articles/Upload/2D83321D-590A-4646-83F6-
9D8E84F5AA3C.pdf

[2] Saxena, Akshita. 2020. “Vizag Gas Leak: ‘Strict Liability’ or ‘Absolute Liability’?”. Live
Law. May 9, 2020. https://www.livelaw.in/know-the-law/vizag-gas-leak-strict-liability-or-
absolute-liability-156508?infinitescroll=1

[3] Bhattacharjee, Sumit. 2020. “Vizag Gas Leak: An Avoidable Tragedy”. The Hindu. May
17, 2020. https://www.thehindu.com/news/national/andhra-pradesh/avoidable-
tragedy/article31609216.ece