The Vizag Gas Leak: Revisiting the Environmental Jurisprudence & Concerns

Author - Keshav Narnolia

On 7th May 2020 India woke up to witness the horrific tragedy of gas leak at around 3:30 am at Vizag, Andhra Pradesh. The gas named Styrene escaped from the premises of LG Polymers. It is claimed to have effected an area within 3 km radius affecting the lives of over 2000 villagers. As of now the gas leak has claimed lives of 12 people and more than 350 people are hospitalized. Andhra CM Reddy has announced a relief package of ₹1 crore to the family of the deceased, jobs to one member from the family and a slew of other relief packages. On 8th May 2020 the National Green Tribunal (NGT) directed LG Polymers to pay ₹50 crore as damages by the leak. The NGT bench headed by  NGT Chairperson Justice Adarsh Kumar Goel also directed the Central Pollution Control Board (CPCB) and the A.P. Pollution Control Board to submit a response of the incident. Additionally, a five-member fact finding committee has been set up to investigate and report on the matter. On 9th May 2020 the villagers have staged a protest in front of the doors of the industry demanding to shift its operation. This “story” is not new, rather its a reminiscent of the 1984 Bhopal Gas Tragedy. What is pertinent and of relevance here is to study how far have we come in awakening the environmental consciousness in the country; and to control and compensate the damages to people and nature from such environmental catastrophe(s). Let us look at the exemplars of judicial crafatsmanship over the decades to raise conciousness and protect environment.

 

Rise of Environmental Consciousness

India saw a rise in its consciousness towards environment preservation from the early 70’s. At the international level the Stockholm declaration had a huge impact towards this approach. Consequently, with a rise in nation’s consciousness of environment degradation and demand for a clean environment along with developing international norms, India passed the Water Act and Air Act in the same decade. In 1987 the Supreme Court in the case of M.C. Mehta v. Union of India (Shri Ram Fertilizer Case) unequivocally held that the mandate of Article 32 is so wide that they can forge and formulate new remedies as the case warrants. This case was regarding passing of poisonous gas from Shri Ram Foods and Fertilizers Industry. While Shri Ram was a “Private Entity” and fundamental rights are only enforceable against the State, the court with astute care and precision, innovated the tortious principle of “absolute liability” to hold Shri Ram accountable. “Absolute Liability” punishes any escape from land or harm within the land due to hazardous[unnatural] objects or activity on the land for “private profits”. In such case the court held that there would be no defense available whatsoever. The court also remarked that “the measure of compensation must be co- related to the magnitude and capacity of the enterprise because such compensation must have a deferent effect…for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise.” In another case of UCC v. UOI infamously called as the Bhopal Gas Tragedy case, the issue before the court was with a legislation of Parliament stating – a. No one would sue the UCC and only the government will sue the UCC. b. Criminal Immunity to be granted. This became the constitutional issue before the SC – Can the parliament take away the rights of victim to sue and appointing government as their guardian to sue on behalf of them. The SC held it to be valid as there is “circumstantial flexibility”. For immediate relief it is required. The court also held that fair hearing can be curbed as the compensation given by the government was just and fair hearing would not warrant any better deal. However, they held that no criminal immunity can be granted. The Supreme Court of India use their original and exemplary powers under Arts. 136 and 142 to do complete justice in cases of public interest, especially under Article 32 of the Indian Constitution. And do to so court is not obliged to abide by statutes. This contention was far clearer in the stance of the Supreme Court in the case of Doon Valley regarding mining of limestone by quarries in the valley. The Supreme Court was clear enough to overlook procedural technicalities in cases of public interest and declare that the mandate of Article 32 overpowers any special legislation. The Court however did not stop there and went on to establish a Monitoring Committee to monitor afforestation program as directed by the court. Though this case doesnot explicitly mentions, but it led to the innovation of “Fact finding commissions” and “Continuing Mandamus” by the Supreme Court to monitor the implementation of their decisions themselves and implement it thereby. The court did all these in pursuance of the constitutional mandate of Article 51A(g) read with Article 48A.

 

Innovating New Remedies

Moving ahead, in the case of Bichhri village of Rajasthan, where growing number of industries were corroding the base of Udai-Sagar, which was made up of concrete. The Supreme Court accepted the petition by a Delhi based NGO regarding the same. The court held that the established principle of “absolute liability” has two prongs to it. First is ascertaining “responsibility”, which will be governed by the tortious principle of absolute liability itself. Second is ascertaining “liability”, which the court held to be governed by the principle of “polluter pays”. This principle is another example of judicial craftmanship as it not only ensures for compensation to victims, but also restoring the environmental degradation caused. Therefore, it has both compensatory as well as restorative aspect of damages attached to it. But again, the question of fundamental rights against private entities emerged before the SC. To dodge this debate, the SC used sec. 3&5 of the Environment Protection Act, 1986 (EPA) to direct the central government to do their duty as per the Act and take all remedial measures.

However, this was not enough to preserve the environment, as due to the poor functioning machinery of the implementing authority i.e. the pollution control boards (PCB’s) etc., time and again from various decisions of the court it is apparent that “polluters” get away vey easily. For example, even after establishing the “polluter pays” principle in the Bichhri Village case, the industrial waste is still not cleaned and villagers are still subjected to the toxic industrial waste, harrowing the village of Bichhri. So, to not just restore the environment, rather prevent the happening of a degradation before-hand, the court therefore formulated another remedy, which is called the “precautionary principle” in the case of Vellore Citizens Welfare Forum Vs. Union of India. In this case the tanneries in Tamil Nadu were discharging large amount of poisonous-untreated effluent into agricultural fields, road-sides, waterways and open lands. The untreated effluent was finally discharged in river Palar, the main source of water supply to the residents of the area. The “precautionary principle” means that “(i) Environmental measures – by the State Government and the statutory authorities – must anticipate, prevent and attack the causes of environmental degradation; (ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation; (iii) The “Onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign” The court incorporated both the “polluter pays” and “precautionary principle” as a part of India’s environmental law in this case. The court also went on to direct the central government to establish an “authority” under Section 3(3) of the Environment (Protection) Act, 1986 and confer on the said authority all the powers necessary to deal with the situation created by the tanneries and other polluting industries in the State of Tamil Nadu. This provision of the EPA has since then been used by the courts as a jurisdictional refuge. The court also directed the Chief Justice of the Madras High Court to constitute a special Bench [Green Bench] to deal with this case and other environmental matters. Finally, after stating all these, the court read Articles 47, 48A and 51A(g) of the Indian Constitution, to make a constitutional mandate to provide for clean and fresh environment. While doing so, the Court also held that “sustainable development” is a part of Indian Constitution. 

 

Remarks on the Existing Framework

The activist Supreme Court in the emancipatory aftermath of the Emergency, with the advent of PIL has been forging new remedies to do complete justice in cases of environmental hazards. Whether the interventions are effective and desired or not, is outside the scope of this article. The tortious principle of “absolute liability” as discussed above has become the bedrock of environemntal law of India. The measure of compensation is proportional to the scale in which business run in the country and in what rate they are hazardous. The principle of absolute liability further runs to expound the principles of “polluter pays” and “precautionary” which are compensatory and restorative damages. India has completely incorporated the principle of “sustainable development” based upon the international norm that development and ecology donot run counter to each other. The Supreme Court is quite consistent in their approach towards a sustainable environment, although as the case demands, the court have been known to use their ordinary and exemplary powers under the constitution to forge and fashion new remedies for doing complete justice, in public interest.

 

Despite all such progressive laws on the subject, why we fail as a nation in controlling such environmental hazards are due to lacking infrastructure to implement and execute the laws. A study of the dying rivers of India will show us how the poor-functioning pollution control boards (PCB’s) have contributed to the decaying of the revered rivers of the nation. This account of the environmental jurisprudence developed within the hallowed chambers of the honourable Supreme Court discussed above, shows us how far India as a nation has come up with its development of law in terms of environmental concerns. The promise of sustainable development is glaringly visible in our constitution and judicial decisions. But due to lack of infrastructure and poor functioning implementing authority, the law becomes futile. Often the “polluter” escapes or a miniscule fine is imposed. What is more disturbing is that the people affected never recieves their share of compensation. And the most alarming part of the story is that the environment is never restored. The present case of Vizag LG Polymers is one such story of our failure. It is therefore time to not ponder over the jurisprudence of environmental law in India, but to bolster the implementation of the same.