Vishakhapatnam And Bhopal: A Look At Our Morbid Past On The Road To Justice

Strict v/s Absolute liability

The National Green Tribunal elicited a quick response to the situation, taking suo motu cognizance of the matter and proceeded to constitute a five-member committee to investigate into the incident , The order dated 8^th of May^[1] stated that the tragic event prima facie attracts the principle of strict liability, a doctrine conceived out of 19^th century common law tort jurisprudence.^[2]

The doctrine has received a major revamp through the Indian Supreme Court, more specifically through the earnest efforts of Justice PN Bhagwati as he devised the principle of absolute liability in the Oleum Gas Leak case, holding it to be better suited to Indian conditions. The judgment states that if an enterprise or industrial establishment is engaged in "dangerous activities" including the leak of toxic gases then the principle of strict liability would apply sans its exceptions. ^[3]

The NGT by viewing the entire incident through the lens of strict liability has indeed erred right at the beginning of the victims' journey towards justice. The South Korean industrial conglomerate now has an opportunity to work around the charges by exploring exceptions to the doctrine of strict liability which include incidents occurring due to an Act of God, third party's fault or the performance of statutory duty to name a few. These exceptions can be explored in the backdrop of the exceptional circumstances presented by the COVID 19 pandemic that had led to a shut-down of the plant's operations.

A Game of Committees killing the need for fair investigation?

While the NGT proceeded to constitute a five-member committee in its order, the Andhra Pradesh Government set up its own high-powered committee to look into the issue. It is pertinent to note that the Central Pollution Control Board, Andhra Pradesh State Pollution Control Board and the Ministry of Forests and Climate Change have already been served notice in the case by the NGT. Under these circumstances, the inclusion of senior officials from Central and Andhra Pradesh Pollution Control Board as members and convenor (emphasis added) in these committees becomes problematic, giving the impression that the authorities are rather investigating their own follies. These developments have arisen after the boards have already been under heavy criticism for their issuance of Environmental Clearance, Consent for Establishment as well as Consent for Operation certificates to the LG plant. In fact, no environmental clearance had been given to the said plant since 1997 or when its operational capacities were expanded later.^[4] This alarming scenario clearly falls foul of the rule against bias, which is an essential part of the principles of Natural Justice.

Envisaging compensation as a continuous and dynamic phenomenon

The NGT's order directing LG Chemicals to deposit 50 crores with the offices of the District Magistrate raises the oft debated issue of compensation in industrial disasters.

Looking back at the Bhopal Gas tragedy, we find the Union of India initially litigating for damages worth $3.3 billion in New York. But Justice Keenan (the judge who heard the case in New York) ruled that proceedings should arise in India, something which the Indian side had been arguing against, skeptic of domestic courts' capability of handling tortious litigation of such scale. This delivered a devastating shock to the victims as proceedings remained lagging in courts for almost three decades. Aided by the Supreme Court authorities settled for a paltry sum of $470 million that was a mere fifteen per cent of the initial demand ($3.3 billion). ^[5]

What makes compensation in the Bhopal case a tough task is the continuing nature of the insidious impacts of the disaster. During the entire duration where the authorities and courts were busy with a facile delivery of justice, the number of victims flared up significantly as medical complications kept mounting, even transmitted across generations. It is interesting to note that the rising numbers did not impact the magnitude of settlement or call for a revision of the same. Even now, as the world battles the COVID 19 virus, victims of the gas tragedy find themselves fatally predisposed to the pandemic.^[6] A significant chunk of the fatalities of COVID 19 in Bhopal happen to be victims of the terrible gas tragedy. What exacerbates the situation are reports of the victims being turned down by hospitals and caught in procedural and chaotic quagmires in pursuit of medical assistance even from hospitals which were specifically created for responding to the medical needs of the gas tragedy victims.^[7]

Need for enabling encumbrance free scientific research, analysis and impact assessment

New hurdles were born with the Union Carbide's lobby of aggressive litigation blocking India's access to testing MIC for medical research purposes through the existing laws on Intellectual Property and trade secrets.^[8] Similar complications could to arise in the case of the Styrene gas leak in Vishakhapatnam as reports suggests that research on the effects of the compound on human and animal life are inadequate and wanting. Apparently, there have been no recorded deaths on account of exposure to the deadly gas making the Vishakhapatnam incident a global first. This revelation raises several doubts on whether the chemical that the residents of the affected villages were exposed to was styrene or a deadlier compound formed through styrene's reaction with the environment.^[9] This issue as it seems merits thorough scientific research before a final compensation is imposed on LG chemicals and elicits a need to encompass both monetary and non-monetary components (such as healthcare or welfare benefits, research grants)

A conflict in the application of legal principles to attaining justice for victims

Another problematic aspect lies in the state's cosmetic application of the doctrine of Parens Patriae.^[10] What transpired in Bhopal exemplifies how the state managed to attain a monopoly over the legal representation of victims in the guise of fulfilling its legal duties towards citizens. While the move appeared to be a messianic gesture in the interest of impoverished and indigent victims, it rather succeeded in stifling their voices against a deep pocketed Conglomerate. Lower courts in the Bhopal case clearly point towards the culpability of UCC (Union Carbide Corporation), Government of India and Madhya Pradesh in the disaster. However, the doctrine of necessity places the same governments in the position of defending the victims. As observed in the long drawn out battle in Bhopal the govt clearly seemed to be a bad negotiator for the victims, cutting them a deal from a large corporate rather than assisting them in the legal battle against it. Further, it allows the government to play the role of both Plaintiff and defendant indulging in a gigantic breach of faith while appearing to act in the interest of citizens. As a consequence, justice is bound to take a back seat.^[11] Such a conflict between the doctrine of necessity and the principles of natural justice can be a cause of concern when the Vishakhapatnam incident reaches courts.

A transition from civil to criminal side of industrial disasters.

While the Civil side of the Justice system was found to be wanting for the victims of the Bhopal Gas disaster, the criminal aspect of the story seems to have died a premature death. It started with dropping of criminal charges against corporate leadership and modification of offences from culpable homicide to voluntarily causing hurt and culminated with the criminal charges being completely dropped in a supreme court driven settlement in 1989.^[12] This clearly sets a poor precedent for corporate criminal liability in India on environmental matters painting a bleak picture for the victims in Vishakhapatnam.

While justice may have suffered a slow and agonising death in the case of Bhopal, Vishakhapatnam still remains a fledgling menace that stands the chance of being averted from turning into a full blown dark spot in India's judicial history, but only if we learn from our past and tread carefully.

Views Are Personal Only

(Arnav Sharma is a 3^rd year LL.B. student at Campus Law Centre, University of Delhi and Dr. Anita Yadav is Assistant Professor at Campus Law Centre, University of Delhi )