A Contemplation on India’s Disaster Regulations
The Vishakhapatnam gas leak incident is more or less a recurrence of the Bhopal gas disaster, which shook the world on 2nd December 1984. The Bhopal incident paved way to a plethora of new laws concerning environmental safety and protection. These legislations were made with the motive of eliminating the chances of such catastrophic incidents in future. But, it is indeed unfortunate that the laws could not serve the purpose efficaciously. Accidents such as the Vizag gas leak confirm the same. Hence, it is high time to re-evaluate the effectiveness of disaster regulations in India. This article would highlight the important legal changes brought about after the Bhopal gas tragedy and evaluate the effectiveness of the same. It would also provide an analogy between the incidents that happened in Vizag and Bhopal, to suggest why there is space for more amendments with respect to environmental safety and protection.
Bhopal gas tragedy was a fatal disaster that took place due to the leakage of Methyl isocyanate (MIC) gas from the Union Cardbide factory located in Bhopal. According to an estimate, 3,800 people died immediately, out of which most were in poor slums adjacent to the plant. Estimated number of deaths in the first few days was more than 10,000 and reported 15,000 – 20,000 premature deaths in the next 2 decades. This tragedy is considered as the world’s most terrifying industrial disaster. Even though the company tried to detach from any kind of legal responsibility, it reached a settlement with the Indian Government and accepted moral responsibility to pay $470 million in compensation which is relatively a small amount.
Vizag incident occurred recently by the leakage of styrene gas from the LG polymers’ plant thereby resulting in the death of 11 people and 1100 being exposed to the gas. A number of legal moves took place between these two incidents ranging from ‘The Environment Protection Act (E.P.A) of 1986’ to the establishment of ‘National Green Tribunal in 2010’.
Development of Environmental Law in a Nutshell
- The Bhopal Gas Leak Disaster (Processing of Claims) Act came into force on 20th February, 1985. The objective was to deal with the claimants or victims of the disaster speedily and equitably. Act also gave central government the absolute right to represent every person who is entitled to claim compensation (both inside and outside India).
The government of India was criticised for insufficiency of environmental protection laws and proper liability rules which resulted in the victims receiving a very small amount of compensation. The events in Bhopal revealed that expanding industrialization in developing countries without concurrent evolution in safety regulations could have catastrophic consequences.
- The Environment Protection Act (E.P.A), 1986: This act was an initial step towards giving general powers to the Central government to take necessary measures in order to protect and enhance the quality of environment. It provided standards for discharge of environmental pollutants and restricted areas in which industrial activities were allowed subject to certain safeguards. Other crucial aspects include – procedures and safeguards for the prevention of accidents and remedial measures for such accidents, safeguards for handling hazardous substances and examination of such manufacturing processes. Apart from this, the Ministry of Environment and Forests (MoEF) was set up by this act.
Section 16 of the act specifies on “offences by companies”: any person who was responsible or in charge of the conduct of business, at the time the offence was committed, shall be deemed guilty of the offence. However, he will not be held liable if he can prove to the satisfaction of the court that he was unaware or that he exercised all due diligence to prevent the offence from happening.
- In 1987, amendments were made in the Factories Act, 1948, which empowers states to appoint site appraisal committees to advise on the location of factories using hazardous processes
- The Hazardous Wastes (Management and Handling) Rules, 1989: These are the set of rules concerning the management of toxic chemical wastes from industries. It deals with the responsibilities and duties of occupier and the operator of a facility for proper collection, reception, treatment, storage and disposal of hazardous wastes. It focuses on the importance of procuring the ‘grant of authorisation’ from the State pollution control board for handling hazardous wastes. State Pollution Control Board has the authority to cancel an authorisation if the authorised person has failed to comply with the conditions therein.
- The Public Liability Insurance Act, 1991: It is an insurance meant to provide relief to persons affected by accidents that occur while handling hazardous substances.
- The Environmental Impact Assessment Notification, 1994: This basically deals with the requirements for clearance of projects. The central government would allow clearance for projects only if it passes the environment impact assessment. The impact that would be created by the conduction of the project will be measured and it will be allowed only if it does not cause significant damage to the environment.
- The National Environment Appellate Authority Act, 1997: establishment of National Environment Appellate Authority to hear appeals with regard to restriction of areas in which industries can be set up and safeguards as per the Environment Protection Act (E.P.A), 1986.
- National Green Tribunal Act, 2010: Article 21 of Indian constitution enshrines the “right to life and personal liberty”. A major facet of this right is the right to a safe and healthy environment. The National Green Tribunal Act is a product of this very aspect of our constitution. Issues similar to Bhopal gas tragedy or those related to the Environment Protection Act will be dealt by these special tribunals. Setting up of a special tribunal for this purpose can help in speedy trials and faster decision making.
Unravelling the lacuna in disaster regulation
- The major disappointment after the Bhopal tragedy was the relatively small amount of compensation received by the claimants. The Union Carbide Factory tried to shift the burden to its Indian subsidiary, which is UCIL. Finally they accepted for 15% of the claim which was very meagre considering the total number of deaths and disabilities. Moreover, the contamination also had a continuing impact on newer generations. This settlement was more or less an injustice towards the victims. Also, the Union of India took over the representation of all claimants in the case against the Union Carbide Corporation thereby preventing the survivors to negotiate their own settlements on their own terms. The unreasonable delay in systematic procedures was also an added difficulty the victims had to face.
- Today, unlike the time when Bhopal gas tragedy occurred, India has a better legal framework to address any such issues. Still, the author opines that incidents such as Oleum gas leakage and the recent Vizag tragedy reveals the systematic errors or negligence from the authorities concerned. According to the National Disaster Management Authority (NDMA), in the recent past, over 130 significant chemical accidents have been reported in the country, which have resulted in 259 deaths and caused major injuries to more than 560 people.
- According to the rules under EPA, authorisation for setting up as well as working of industries is given by the state pollution control board. But, analysis shows that many at times the environmental impact assessment depends on self-report submitted by industries, which are tested in private laboratories. Such self-reports not only is unreliable but also cannot be enforced.
One of the most controversial “The Civil Liability for Nuclear Damage Act, 2010” in itself is proof that lessons learnt from Bhopal tragedy were not effective. The act fixes civil liability for nuclear damage. With a large number of criticisms against the bill, it was passed in both the houses of the parliament. Some of the major drawbacks are:
- It authorises only Nuclear Power Corporation of India Ltd to sue the manufacturers, thus taking away that right from the victims.
- Time period allowed to claim compensation was reduced to 10 years, which a very short period of time.
- The people who may be alleged responsible for any nuclear accident will undergo trials in the Nuclear Damage Claims Commissions and not in any civil courts.
- The constitutionality of the act has also been challenged.
- Lack of transparency is another important issue. The people who are at high risk of nuclear disasters have the “right to know” every detail of industries being set up in their locality, the kind of activities they are going to adopt and the toxicity of chemicals that are going to be used by them. Authorities are answerable to them and they have the “right to be heard”.
Absolute Liability v. Strict Liability
Principle of strict liability takes us back to the famous case of Ryland v. Fletcher. Facts of the case are as follows: the defendant constructs a reservoir for his mill. Unbearable weight of water coupled with the defendant’s negligence resulted in the breakage of the shaft and overflow of water into the nearby land. This land was owned by the plaintiff. Water caused damage to his mine and he filed suit for compensation. The court declared “strict liability” in this case.
In M.C. Mehta v. Union of India, the court declared absolute liability over strict liability. It was a turning point as the court stated that once the plaintiff proves to the satisfaction of the court that damage was caused by the defendant due to a hazardous item, he will be liable in an absolute sense. The defences such as negligence of the plaintiff will not be available as it is the duty of the defendant to ensure that no harm is caused to anyone in relation to hazardous substances.
Practical suggestions for a better tomorrow
The existing legal framework and the issues associated were addressed in the previous parts of the article. It is evident that the law is changing according to the changes in society. This includes scientific changes as well. Hence, certain suggestions in this regard are:
- Making corporate liability mandatory. This would need amendments in “The Civil Liability for Nuclear Damage Act, 2010”.
- Hard and fast implementation of absolute liability principle, so that industrial sector does not have a choice but to adhere to the safety standards. Victims should not face the consequences they faced in Bhopal tragedy. Avoiding unreasonable delay in systematic procedures can also serve the purpose.
- Increasing transparency in matters related to new projects and impact over environment. The citizens living near such locations must have a choice and the right to know.
- Following law is more important: from the grass root level strict actions must be taken with regard to environmental issues.
- Avoid reliance on self-reports. The officials from state pollution control board must fix a date and time and necessarily conduct tests under their supervision. Private reports should not be encouraged.
- Adherence to rules while sanctioning industrial locations and ensuring that risk reduction strategies are being taken, especially in case of manufacture of pesticides.
- A better response system in areas where such plants are located. This includes immediate response systems and better hospital services. The public health infrastructure was considerably weak in Bhopal when the disaster occurred.
- Re-evaluate the need to manufacture harmful substances in the first place.
- Constant surveillance of industrial activities.
Bhopal gas tragedy is a reminder of the fact that whenever profit motive surpasses environmental safety and protection, the cost would be nothing but human life. After more than 30 years of the Bhopal incident, present India does not face any insufficiency of laws. This paper clearly examined the plethora of legislations that happened in India. However, such tragic incidents continue to happen in different parts of the country. Oleum case and Vizag gas leak are some of the examples. This shows that a major part of the problem is with the administration. Henceforth, it is high time that we learn from the past mistakes to avoid such disasters in future. Author would like to conclude the paper by stating that “no development or economic growth is more precious than the life of a human”. Let us bring laws from paper to practise.
 Hazardous Installations Directorate. Health and Safety Executive; 2004. Accident Summary, Union Carbide India Ltd., Bhopal, India: December 3, 1984.
 1868 LR 3 HL 330
 1987 AIR 1086, 1987 SCR (1) 819