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If the COVID-19 pandemic has taught us anything, then it is to not take life for granted, as it is. The year 2020 surely did bring in a slew of mishaps beginning from the present pandemic, to world war threats and major diplomatic tumbles in the diplomatic sphere. The series of unfortunate events continued as a major gas leak took place in and around Vizag on the 7th of May, 2020 that ended up in a cataclysmic tragedy with thousands under the effect of toxic fumes.
The leak occurred early in the morning on 7th May in a chemical factory called LG Polymers India private limited. The Styrene gas that leaked out from the factory is a residue from the polymer manufacturing process that is undertaken in the factory and is highly carcinogenic in nature. This Styrene becomes even more lethal when it comes in contact with atmospheric oxygen and oxidizes into Styrene Dioxide. Prolonged exposure to Styrene in either its true form or to its dioxide form can cause a variety of afflictions, including, but not limited to, irritation of the mucous membranes, inflammation of the digestive tract, malfunctioning of the central nervous system, etc. According to India’s Manufacture, Storage and Import of Hazardous Chemical Rules 1989, styrene is classified as a ‘hazardous and toxic chemical’.
Right To Safe Environment under the ambit of Article 21
It is essential to view the Vizag Gas Leak Tragedy under the purview of Article 21 of the constitution. Though it can be contested and argued that while drafting the constitution, the founding fathers didn’t necessarily intend Article 21 to take into consideration the ‘Right to Safe Environment’ of an individual, but the very essence of the Constitution of India lies in the fact that our constitution is both, a mixture of rigid and flexible tendencies and thus, the highest interpreter of the constitution, namely, the Supreme Court can interpret the constitution in accordance to what the society demands as time passes. Thus, there is no lack of jurisprudence on the varied interpretations of the scope of Article 21 and whether or not it should cover the Right to Safe Environment. The philosophy behind considering Right to Safe Environment under the ambit of Article 21 is that ‘Right to Life’ shouldn’t be interpreted in the terms of bare-bones, basic-subsistence level survival, rather, it needs to cover everything that a man needs for the satisfaction of his being and to ensure a dignified life.
The Supreme Court held that the right to life under Article 21 of the Constitution is a fundamental right and includes the rights to free water and free air from pollution for the full enjoyment of life in the case of Subhash Kumar v. State of Bihar. Thus, according to this doctrine laid down by the Supreme Court, an individual might seek redressal in case his right to a healthy environment is hampered in any way or form, pertaining to the leakage of any toxicant from industrial outlets.
The Doctrine of Absolute Liability and its legal modalities
Absolute liability is a sort of tortuous liability of a person arising out of his wrong doing in which if caught offended, there is no defence available to the wrongdoer. In legal terms, it can be defined as, “Offences in which it is not open to a person to avoid liability on the ground that she or he acted under a reasonable mistake of fact which, if the facts had been as the accused believed them to be, would have made his act innocent”.
Though the concept of absolute liability has existed in other legal systems across the world, India is a new contender to jump onto the bandwagon with the M.C. Mehta v. Union of India case that dealt with the Oleum Gas Leak tragedy that had rattled the core of India. The malefactors behind the tragedy were powerful corporate giants and were getting off comparatively easy with the rule of strict liability as considered to the appalling condition of those affected by the gas leak. Thus, the Supreme Court of India came up with the doctrine of absolute liability so as to ensure that corporates didn’t go unscathed and were held responsible for their wrongdoings.
Essentials for establishing Absolute Liability
The essentials for establishing liability under the doctrine follow the similar lines of those required for establishing strict liability given that absolute liability is an extension of the pre-existing principle of strict liability. The essentials are:-
- Possession of Dangerous Substance :- In general terms, the question of strict liability shall only arise when the substance in question is inherently dangerous and poses a threat to human beings in the vicinity of it. In various torts cases filed worldwide, the ones involving the doctrine of strict liability have held “large body of water, gas, electricity, vibrations, yew trees, sewage, flag-pole, explosives, noxious fumes, rusty wires, etc. as dangerous things.
- Escape :- It is an essential condition for the tort of strict liability to sustain that, the dangerous thing that was under the possession of the defendant has escaped or leaked from the aforementioned possession and has caused trouble to others. The principle for the same was laid down in Crowhurst v. Amersham Burial Board case.
- Non-natural Use of Land ;- In Rylands v. Fletcher case, it was established that land which is put to domestic use, doesn’t qualify for strict liability, whereas, land used for storing or processing industrial amounts of substances are taken into consideration. Also, it is essential to understand that ‘natural’ usage doesn’t cover everything that organically arises out of the land. For instance, if the defendant knowingly plants toxic trees, then he shall be liable for any damage caused by their escape from the premises of his land.
- Mischief: – None of the conditions can sustain by themselves if the plaintiff cannot prove that the escape of dangerous substance from the possession of the defendant has caused his to suffer from some tangible damage.
- Evolution of the Doctrine of Absolute Liability
It has been testified time and time again that though Indian legal system derives its substance from the English Common Law system that has existed since medieval times, over the years, the stalwarts of Indian Legal System, have shaken off the colonial fetters and shaped the law to accommodate Indian circumstances. The story of evolution of the Doctrine of Absolute Liability is one that enunciates the intricacies that the Indian jurists went into, in order to secure justice for the Indian masses.
Previously, the Indian legal system only considered the Doctrine of Strict Liability as laid in the Rylands v. Fletcher case. But, after the Bhopal Gas Leak Tragedy and the Oleum Gas Leak Tragedy, in a landmark judgement of M.C. Mehta v. Union of India, the rule of Absolute Liability was laid down.
Jurisprudence behind the Doctrine of Absolute Liability
In the M.C. Mehta v. UOI case, Justice Bhagwati opined that it is unjust to deal with cases of 21st century with a law that dates back to 19th century, a time when the industrial revolution was just taking off. In his opinion, the law wasn’t well suited to deal with industrial giants of present day who were involved in wrongdoings way beyond what the Doctrine of Strict Liability could have foreseen and thus, when any defence is maid available to them, it is nothing but a loophole in the legal system and an injustice is committed against those who are affected by the wrongdoing.
Being absolutely liable makes the party anticipate for the worst, even if it is highly unlikely so that possibility of occurring any mishap is reduced to zero.
Difference between Strict Liability and Absolute Liability
The main difference between the concepts is the lack of any defences available to the defendants if found guilty. The Doctrine of Strict Liability gives the benefit of doubt to the defendants by allowing them to plead not guilty by using a number of defences such as, Act of God, Volenti Non Fit Injuria, Benefit of the plaintiff, Statutory Authority, etc. Another point of difference is that under Strict Liability, the damages paid are compensatory in nature, whereas, the damages paid under Absolute Liability are exemplary.
- Corroborating Absolute Liability and Right to Life
According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme importance in a democratic society.” Iyer, J., has characterized Article 21 as “the procedural magna carta protective of life and liberty. Article 21 of the constitution is the primary unit that defines life and liberty of individuals and all other rights add quality into it. No other fundamental right can stand by itself if this singular article is taken away. Given its basic nature and inalienability, it needs to be protected at all costs and that is the reason why Absolute Liability was ruled to be a part of Article 21.
Judicial activism surrounding the interpretation of Article 21 has helped broaden its scope over the years and now the terms ‘life’ and ‘liberty’ include much more than just mere subsistence. The Right to Life now includes Right to Education. Right to Speedy Trial, Right to Livelihood and Right to Healthy Environment amongst others. The principle of absolute liability was considered as a tool of prevention of mass destruction or avoidance of danger to life of masses and thus stands as a mighty protective wall that apprehends any threat to the Right to Life of an individual.
Judicial Activism in India has come a long way and doctrines like that of Absolute Liability, stand as a burning testimony of the changing times. The doctrine is a torch-bearing stalwart in the arena of enforcing industrial social responsibility because it creates a factor of apprehension in the minds of industrialists re4garding their dealings with harmful substances because they know that unlike the doctrine of strict liability, the present law has no loopholes that they can exploit and go unscathed.
Also, with the advent of the new doctrine, an entire new arena of interpretation of the Right to Life has opened up. This in turn, is symbolic of the fact that our law system has changed for good and has woken out of its colonial hangover and is taking progressive strides.
Though decades have passed since the doctrine came into being, its applicability is still as relevant as ever and this doctrine has helped the court of law serve justice in cases similar to that of the Oleum Gas Leak case that are concerned with industrial irresponsibility. Presently, in context of the Vizag Gas Leak Tragedy, though the NGT has found prima facie liable under strict liability, jurists are of the opinion that absolute liability would have been a better term to be used given that the NGT had ‘whole-heartedly’ supported the applicability of the doctrine of absolute liability back in 2010.
Author: Monalisa Nanda from Rajiv Gandhi National University of Law, Bhadson Road, Sidhuwal, Patiala.
Editor: Akshat Mehta from Institute of Law, Nirma University.