ROLE OF LAW IN PREVENTING HAZARDS OF PROCESS INDUSTRY
Author: Sanat Kapoor
Affiliation: Student of IIyr the prestigious Nalsar University of Law, Hyderabad that has been conferred the status of ‘Institution of National Eminence’ by the UGC
Contact Address : 3-4-761, Barkatpura,Nalsar University of Law, Hyderabad- 500 027 , A.P. Ph: 09849369589 , Fax : 0183-2229043, E-mail address:
Abstract:-
My paper shall be concentrating on the role of law in preventing catastrophe resulting out of inherently dangerous substances and toxics that process industries use and that pose a threat to the people living in its vicinity. I shall be concentrating on the policy changes as envisaged in judgements of Bhopal Gas Tragedy, and a special legislation The Public Liability Insurance Act, 1991 that followed the judgement. It is not pertinent to state the sequence of events that happened in the Bhopal Gas Tragedy as everyone knows about it. First I shall discuss another gas leak case , the Oleum Gas Leakage case as this is the basis for the Bhopal Gas case. In this case Oleum gas leaked from a factory of Sriram Foods and Fertilizers in New Delhi on the night of December 3-4, 1985 exactly 1 year after the Bhopal tragedy. Delhi Bar Association and Delhi Legal Aid and Services Authority filed a writ in the Supreme Court (SC) under Art 32 of the constitution. Though the SC refused to entertain petitions on certain grounds but it said that a new principle of liability, i.e. absolute liability should be applicable to such industries. The puisine judges devised this principle keeping in mind the inadequacy of the Indian tort law which had to deal with the Bhopal Gas Tragedy case that ultimately shall come before the courts in India one day. This rule said that whosoever is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working and residing nearby the factory, the enterprise shall be absolutely and completely liable to the victims in case of a mishap and there shall be no exception to it.
The basis of liability for the Union Carbide India Limited was this rule as devised in Oleum Gas case. The process industry shall not take any chance if such a rule is in force.
When the case of Union of India v. UCIL came up before the district judge, he took suo motu(on its own) action and awarded interim compensation( compensation before the final amount is decided). This is a deterrent for the process industry enterprise that as they shall be brought to justice not at the end of the long litigation(say 10-14 years) but the moment case is filed in the district court. Secondly the enterprise not only has a monetary liability but a criminal liability. The owner in this case was booked under Sec 304-B of the Indian Penal Code which deals with culpable homicide not amounting to murder. So this is another reason why the owner shall take full precaution to make sure that there is no hazardous accident. This decision was upheld by the SC in the review petition filed in 1991 of Bhopal case that was decided first in 1989. Thirdly it was held in this case that if proved the parent company had control over its subsidy in India, as in this case UCC had control over UCIL, then UCIL is liable as well. This rule is specially relavent today as hundreds of MNCs have flocked India due to globalization who still have parent companies in western developed countries. So MNCs cannot escape their liability today and so the will ensure that their factories and industries are safe. Fourthly the liability of the defaulting enterprise was further aggravated when SC in its review judgement said that UCIL is to bear the expenses of providing medical checkup to the affected people for a period of 8 years. Most importantly this case has set the precedent of out of the court settlement. If we look at the entire history it was much better to have out of the court settlement because otherwise we would have had tremendous amount of litigation and in order to make liable the parent company separate proceedings were to go in USA in which there was a probability that the Govt of India might loose the case and hence no compensation at all. Now that this precedent has been set, the court and the opposing party can compel the defaulter for out of the court which shall be detrimental to him.
Finally The Public Liability Insurance Act, 1991 was passed wherein every owner , i.e. a person who has control over handling of any hazardous substance, shall take out, before he starts handling any hazardous substance, one or more insurance policies providing for contracts of insurance whereby he is insured against liability to give relief in case of death or injury to a person , or damage to any property arising from an accident occurring while handling any hazardous substance.
Three Keywords : Oleum Gas Leakage case , Bhopal case , The Public Liabilty Insurance Act, 1991.