Legal consequences of a disaster during a pandemic

AMIDST a global pandemic due to the breakdown of novel disease Coronavirus, one more disaster struck the people residing in Gopalapatnam area of Visakhapatnam, Andhra Pradesh. On the dreadful night of May 6, 2020, people started facing problems breathing and in no time almost 13 people were reported dead and thousands admitted in hospital with serious complications as on May 7.

It was found out that the leak happened from LG Polymers India Limited. It manufactures polystyrene, a type of plastic used in consumer products like toys and appliances. The gas which was leaked is said to be Styrene. This gas is supposed to be stored in cold temperature. The plant was shut down due to the lockdown. It led to a chemical reaction and heat was produced inside the tank as a result of which the gas leaked. Breathing air contaminated by this deadly gas leads to breathing problems, central nervous system depression and certain other deadly diseases.

The prime minister declared this as a national disaster and specialised CBRN (Chemical, Biological, Radiological and Nuclear ) team of the NDRF (National Disaster Response Force) was rushed to the place of the accident. The Andhra Pradesh High Court, NHRC (National Human Rights Committee) and the NGT ( National Green Tribunal) have taken suo-moto cognizance of the case, issued notices to the Central and the State Governments to investigate the incident.

Legal Implications of the Incident

Criminal Liability

LG polymers being a company dealing with hazardous gas like styrene, owed a high duty of care towards the public. The element of criminality is introduced by the owners having run the risk of doing such an act with recklessness and negligence to the consequences keeping in mind the precautions to be taken when the plant was going to be shut for a long period during to COVID-19. Necessary precautions should have been taken to make sure that the temperature of the gas was maintained.

The persons in charge can be held guilty under Section 304 (Culpable Homicide not amounting to murder) and Section 304A (Causing death by negligence) of the Indian Penal Code. Further they might also be held liable under sections 336, 337 and 338 which deal with the offences of endangering life and personal safety of others.

Tortious Liability

After the horrific incident Bhopal Gas Tragedy one more accident took place in Shriram Foods and Industrial Fertilizers in Delhi where there was a leakage of Oleum gas in one of the units which led to  death of one person resulted the principle of absolute liability in India. It was held that an enterprise engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher.  It is possible that the owners of the company will argue that the situation was not under their control due to lockdown but that would not hold any value under this principle. However, this would not possibly make any difference on the liability of LG Polymers as this duty is absolute and non-delegable and the enterprise cannot escape liability by showing that it has taken reasonable care and there was no negligence on its part.

Compensation for Victims

Post the Bhopal Gas tragedy, 1984 which remains the unparalleled in the history of Industrial disasters anywhere in the world, India passed several laws as a strong need was felt to incorporate the no-fault liability in order prevent such mishaps in order to provide the justice to the victims of that catastrophe and lessen the agony of their families. This was done through the following Acts:

• Public Insurance Liability Act, 1991

Under this act the owners of the companies have to compulsorily take out insurance policies within one year of the commencement of handling hazardous substances. An application for claim for relief can be filed before the collector within five years of the occurrences of the incident. The collector upon inquiry may direct the company to pay the amount decided by him. LG polyesters, in this case, have taken an insurance amount of 5 crore rupees and an additional top-up of 5 crores which means it can pay up to 10 crores to the victims. Moreover, an environmental relief fund can be created by the central government which would be used for payment to relief to victims of accidents in hazardous businesses under the provisions of the Act.

• The National Green Tribunal Act, 2010

It replaced the National Environment Tribunal Act, 1957 and the National Environment Appellate Authority Act, 1997. It was enacted to give effect to international obligations arising out of various decisions taken at International Conferences to which India has been a Party and also to implement the Indian apex court's pronouncement that the right to healthy environment is a part of the right to life under Article 21 of the Indian Constitution. The tribunal may order relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule-I to the Act, including accident occurring while handling any hazardous substance. The relief under this Act is an addition to the relief given under the Public Liability Insurance Act, 1991. The Act also ordains that no civil court shall be allowed to entertain cases which Tribunal is competent to hear. Any applicant can make an application before the Tribunal for such relief as is provided in the Public Liability Insurance Act, 1991, provided that no such application shall be made if the relief has been received by the claimant earlier or an application made by the claimant to the Collector under the said Act is pending and has not been withdrawn. Keeping in might the current pandemic it is a vital question that whether the tribunal will be able to dispose of the case within six months.

Then v now

One important point that makes the present cases different is that Union Carbide Corporation owned a majority of stake in Union Carbide India Limited (UICL) and the rest was owned by state governments and corporations. Bhopal Gas Leak Disaster Act, 1985 was enacted in order to invoke the Parens Patriae principle which enabled the government to represent every victim who could have a case against them under the shield of the state responsibility.

In the present case then the company which in 1961 was called Hindustan Polymers which was fully taken over by a South Korean company LG Chem in 1997 and was renamed as LG Polymers India Limited. The company is a fully private company. The parent company being LG Chem will be fully liable and will not be possible for the company to evade any liability for this tragic incident.

Conclusion

India in spite of having faced one of the worst industrial disasters doesn't seem to have learnt a lesson. Even after having sufficient checks and balances here we are yet again battling two crisis: Coronavirus and this gas leak. The people who are affected are the people who reside up to a 5-kilometre radius which will make them vulnerable to breathing the contaminated air. As a result, their immunity might be weak which will make them a possible victim of the COVID-19. The number of COVID -19 cases in various districts of Visakhapatnam has reached 50 now. The officials are further going to face additional responsibility of evacuating the residents at the same time ensure that they are well equipped with all safety gears so that they don't contract anyone the diseases.

After going through all the provisions and the facts of this accident it is pertinent to note that if it was during a normal situation this probably would have been prevented, but this can be conclusively said only after a thorough investigation is done. However, this pandemic cannot be used by the company as a getaway pass from any liability.

(The author is a penultimate year law student at ILS Law College, Pune with a keen interest in Public, Criminal and Maritime laws)

Note: This is an opinion piece, and the views expressed are the author's own.