The National Green Tribunal's order on Friday in the Visakhapatnam gas tragedy found LG Polymers prima facie liable under the 19th century English law principle of “strict liability”, which was made redundant in India by the Supreme Court in 1986. Lawyers say the term “absolute liability” should have been used instead.
Even though the NGT directed the company to deposit an initial amount of ₹50 crore and formed a fact-finding committee, its use of the term “strict liability” has been questioned. For, under the “strict liability principle”, a party is not liable and need not pay compensation if a hazardous substance escapes his premises by accident or by an “act of God’” among other circumstances.
The Supreme Court, while deciding the Oleum gas leak case of Delhi, found strict liability woefully inadequate to protect citizens’ rights in an industrialised economy like India and replaced it with the ‘absolute liability principle’.
The country was then reeling under the shock of the 1984 Bhopal gas tragedy. The court under then Chief Justice P.N. Bhagwati wanted corporations to be made fully liable for future “undeserved suffering of thousands of innocent citizens”.
So, under the absolute liability principle, the apex court held that a company in a hazardous industry cannot claim any exemption. It has to mandatorily pay compensation, whether or not the disaster was caused by its negligence. The court said a hazardous enterprise has an “absolute non-delegable duty to the community”.
“If any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm irrespective of the fact that the enterprise had taken all reasonable care and that the harm occurred without any negligence on its part,” Justice Bhagwati wrote.
“The court found that strict liability, evolved in an 1868 English case called Rylands versus Fletcher, provided companies with several exemptions from assuming liability. Absolute liability, on the other hand, provided them with no defence or exemptions. The principle of absolute liability is part of Article 21 (right to life)... The courts, to make the legal position clear, should use the term ‘absolute liability’ in orders and judgments,” said senior advocate Sanjay Parikh.
The National Green Tribunal Act of 2010 has wholeheartedly adopted ‘absolute liability’. Section 17 mandates that the Tribunal should apply the ‘no fault principle’ even if the disaster caused is an accident.
“The NGT statute recognises only absolute or non-fault liability. That is, a hazardous enterprise is liable even if the disaster is an accident and not caused by the negligence of the company. The Act of 2010 fully incorporated the principle of 1986 Oleum gas leak judgment,” said environmental lawyer Ritwick Dutta.