On the morning of May 7th, 2020, a major leak of Styrene gas occurred from a
polymer plant near Visakhapatnam owned by LG Polymers India Private Limited
(Company). The mishap claimed the lives of 11 people and affected thousands in
the area. The chilling scenes at the place of disaster with affected people
laying on roads, health care workers rushing to attend those affected and
children being carried by their parents in their arms brought back grim memories
of the 1984 Bhopal Gas Disaster. However, in comparison, the casualty of human
lives from the Styrene gas leaked from the plant near Visakhapatnam is
The gas leak, as per the prima facie findings, is a result of failure by the
Company to comply with the Manufacture, Storage and Import of Hazardous Chemical
Rules, 1989 that requires the Company to maintain on-site and off-site emergency
plans to ensure prevention of damage.
The National Green Tribunal, Principal Bench, New Delhi, (NGT) taking suo moto
cognizance of the fatal incident, vide its order dated 8th May, 2020 (Interim
Order), constituted a five-member Committee to inspect the site and submit a
report to NGT within ten days. NGT, vide the Interim Order, in the interregnum,
directed the Company to forthwith deposit a sum of Rupees fifty crores (Rs.
50,00,00,000) with the District Magistrate, Vishakhapatnam.
The NGT observed
that apart from statutory liabilities, the Company is also liable to restore the
damage caused to the environment, thereby reiterating and reaffirming the
position that, even in the absence of any statutory recognition, polluter
is well enshrined in jurisprudence of the Indian environmental laws.
However, the observations made by NGT in the Interim Order that the situation
attracted the principle of strict liability
and not absolute liability
raised certain concerns.
The principle of polluter pays
liability vs. strict liability
are detailed herein below:
Polluter Pays Principle
Polluter Pays Principle is a well-recognized and much celebrated environmental
law principle. The rationale behind the principle is fairly simple and places
the responsibility of paying the damages to the persons who ought to pay it and
also who have the ability to pay it. The principle implies that he/ she who
damages the environment should bear the cost of rectifying that damage. The
principle has played an important part in mitigation of environmental
The Polluter Pays Principle was first adopted at international level in the 1972
Organization for Economic Corporation and Development Council Recommendation on
Guiding Principles concerning the International Aspects of Environmental
Policies OECD Principles
One year later, the European Community followed the
example of the OECD Principles from 1972 by adopting and implementing the first
Environment Action Programme. Since 1987, the Polluter Pays Principle has been
part of European Laws. It is included in Article 174 of the European Union
Treaty, 1997. The Rio Declaration adopted in 1992 also recognizes the polluter
Principle 16 of the Rio Declaration reads as follows:
authorities should endeavour to promote the internalization of environmental
costs and the use of economic instruments, taking into account the approach that
the polluter should, in principle, bear the cost of pollution, with due regard
to the public interest and without distorting international trade and
Since its introduction in 1972, the Polluter Pays Principle in the present time,
has been given a much broader sense and therefore, not only covering pollution
prevention and control measures but also covering liability such as costs for
the clean-up of damage to the environment.
The polluter pays principle
was for the first time explicitly applied and
defined in the case of Indian Council for Enviro Legal Action vs. Union of
India. In this case, five chemical industries were producing H Acid. An azo
dye and untreated toxic sludge were discharged into the open compound which, in
due course of time, flowed through a canal across the entire area and the
rainwater washed the sludge deep into the bowels of the earth.
pollution of river water and underground water up to 70 feet below the ground
within a radius of seven miles of the village Bicchari in the Udaipur district
of Rajasthan. It further left the fields nearby infertile, as a result of which
residents had to migrate out of the village. The Supreme Court in its judgment
declare that the redemption of the damaged environment is a part of the process
of sustainable development and as such polluter is liable to pay the cost of the
individual sufferers as well as the cost for reversing the damaged ecology.
Vellore Citizens Welfare Forum vs. Union of India
was a public interest
petition under Article 32 of the Constitution of India filed by the Vellore
Citizens Welfare Forum against pollution which was being caused by the massive
discharge of untreated effluent by the tanneries and similar industries in Tamil
The Petitioners, in the present matter alleged that tanneries discharge
untreated effluent into agricultural fields, road-sides, water ways and open
lands which ultimately reaches into river Palar, which is the main source of
water for its residents. The pollution of water has risen to such a distressing
point where drinking water is not available for the residents.
The Apex Court
held that polluting tanneries were liable to pay for the past pollution
generated by them, which resulted in environmental degradation and suffering to
the residents of the area. In this decision, two noteworthy principles, namely,
the Polluter Pays and the Precautionary principles were further entrenched
into the environmental laws in India.
In December, 1985, leakage of oleum gas from one of the units of Shriram Foods
and Fertilisers Industries in Delhi, belonging to Delhi Cloth Mill Ltd resulted
in the death of one advocate practising in the Tis Hazari Court and affecting
several others. A writ petition under Article 32 of the Constitution was brought
by way of Public Interest Litigation in the matter of M.C. Mehta and Anr. vs.
Union of India
The Supreme Court, in its decision held that it was not bound
to follow the 19th century rule of English Law as laid down in the case of Ryland
, and it evolved a rule which is suitable to prevail in the of
social and economic India of the present times. It was for the first time, the Hon'ble Supreme Court in its decision laid down the rule of absolute liability
where the Hon'ble Apex Court maximised the limit of rule of Ryland vs. Fletcher
decided by the House of Lords. Supreme Court evolved a new rule creating
absolute liability for harm caused by dangerous substance.
statement of Bhagwati, C.J. which laid down the new principle may be noted:
"We are of the view that an enterprise, which is engaged in hazardous or
inherently dangerous industry which poses a potential threat to the health and
safety of the persons working in the factory and residing in the surrounding
areas owes an absolute and non-delegatable duty to the community to ensure that
no harm results to anyone on account of hazardous or inherently dangerous
activity which it has undertaken.
The enterprise must be held to be under an
obligation to provide that the hazardous or inherently dangerous activity in
which it is engaged must be conducted with the highest standards of safety and
if any harm results on account of such activity the enterprise must be
absolutely liable to compensate for such harm and it should be no answer to
enterprise to say that it has taken all reasonable care and that the harm
occurred without any negligence on its part."
Absolute Liability vs. Strict Liability
From the above, it is evident that the principle of strict liability laid down
by the House of Lords in the matter of Ryland v. Fletcher
has evolved as far as
the Indian jurisprudence is concerned.
The rule of absolute liability as laid
down by the Supreme Court in the matter of M.C. Mehta and Anr. vs. Union of
applies the principal of no-fault even in cases of accident in contrast
to the strict liability principle which applies without any limitation or
exception. In a highly developing economy like India where the hazardous or
inherently dangerous industries are necessary to carry out development programme,
it was important to modify the rules as per the present requirements.
Following are certain differences between the principles of absolute liability
and strict liability:
- Whereas principle of strict liability allows exceptions if the liability
has been accrued by an Act of God, act of third party etc., absolute
liability offers no exception to the industries involved in hazardous
activities and are liable for the damage so triggered notwithstanding
adherence to the highest safety norms.
- Under absolute liability, the extent of damages depends on the magnitude
and financial capability of the institute, however, under strict liability,
compensation is payable as per the nature and quantum of damages caused.
- Under the doctrine of absolute liability, the element of escape is not
essential. In other words, rule of absolute liability shall be applicable to
those injured within the premise and person outside the premise, however,
the same is not the case under the doctrine of strict liability.
NGT's Interim Order: A step backward
In the matter of M.C. Mehta vs. Union of India
, the Hon'ble Supreme
Court after arriving at a conclusion that the principle of strict liability is
woefully inadequate to protect citizens' rights in an industrialised economy
like India, formulated the principle of absolute liability. However, the Interim
Order passed by the NGT directed the Company to deposit an amount of Rs. 50
crore as immediate compensation, by using the words strict liability
only presented an opportunity to the Company to build its defence by showing
that there was no negligence on their part but has acted ultra vires Section 17
of the National Green Tribunal Act, 2010 which directs the NGT to apply the
principal of no-fault even in cases of accident.
- 1996 SCC (3) 212
- AIR 1996 SC 2115
- 1987 SCR (1) 819
- 1868 LR 3 HL 330
- See Supra 4
- See Supra 4
Written By: Mantul Bajpai: is a lawyer currently associated with the
dispute resolution team of the firm M/s Crawford Bayley and Co.
Email: [email protected], Ph no: +91-9920251050