Author: – Padmini Subhashree from National University of Juridical Science, Kolkata
On the morning of May 7, 2020, residents of Vishakhapatnam woke up to a tragic occurrence whereby the leakage of toxic styrene gas from a chemical plant owned by LG polymers Ltd. (LGP) had claimed the lives of 11 people and injured several others. An FIR was registered hours after the incident against LGP, and a day later, the National Green Tribunal (NGT) began an investigation by taking suo motu cognizance.
Determination of Liability and Remedies
According to the findings of the investigation, NGT has stated that LGP bears absolute liability for loss of life induced by a gas leak at its Vishakhapatnam factory and, therefore, an amount of Rs. Fifty crores, which has already been deposited by the company as a penalty, will be used to compensate partial liability. A detailed plan, however, is expected to be devised soon on, directing the company to diverge funds to spend on environmental restoration and victim compensation borne out of the tragedy
The concept of absolute liability etched out in the Bhopal gas tragedy case (1984), wherein the Supreme Court ordered Union Carbide to pay US$470 million against all destruction caused by the leakage of MIC gas from its industrial premise. Unlike strict liability, which bears an exclusion for the company if the dangerous emission escapes the premises via an ‘Act of God,’ the rule of absolute liability does not make any such exclusion for the company. This case illustrates that companies have an intrinsic responsibility to protect the public and environment from the consequences of their industrial endeavours; however, worthy or exigent those endeavours may be.
Liability arising on account of industrial negligence has been covered under multiple claims of tortious and contractual duty that the companies either abide by with directions from the domestic regulator or owe towards the resident population and environment present in their cluster. The law in India is aptly commensurate with product liability obligations, which devolves in other parts of the world. However, bearing the occurrence of increasing industrialization and fast-tracked clearance mechanisms to build high-calibre industrial corridors in the country, there are looming concerns regarding the effective administration of these remedies.
Recent Regulatory Amendments
The Government of India is involved in a wide-spread deregulation effort as a mitigating economic exercise during the COVID-19 pandemic. In the process of attracting more investments and reducing the proverbial red-taping imbroglio that often impedes industrial growth, a slew of legislation is being amended. While rapid growth in the manufacturing sector is crucial to reviving the pandemic-stricken economy, it is not a wise decision to attenuate voluntary enforcement of important regulatory channels such as environmental impact assessments, labour laws, decriminalization of corporate offences, etc. without affecting even a marginal increase in industrial penalty.
To begin with, in March 2020, the Government approved as many as 65 amendments in the Companies Act, 2013, which include a reduction in prison sentences for corporate offences, lowering the threshold of expenditure earmarked for Corporate Social Responsibility (CSR), removal of about 23 offences from mandatory judicial scrutiny and opening them up for settlement through alternate dispute resolution and finally, decriminalization of some offences altogether.
The executive intent behind doing so is to promote investments and help ailing industries recover that have been affected due to the lockdown. However, the omission of liability is just inversely proportional to the possibility of eroded corporate accountability. Deregulation, thus, may help bring in investments and help support local livelihoods by setting up industries. However, it does not lift a finger to help the endangered families are due to a direct consequence of industrial negligence and laxity in safeguard implementation.
Dilution of Labour Laws
Secondly, the change in labour laws in 18 different states that took effect less than two months ago practically exhausted several available remedies that were available earlier to secure workers’ rights. The rights of workers have been curtailed significantly by increasing hours of employment, reducing overtime wages, and bringing down the possibilities of unionization in industries. Disincentivizing the workforce is unfortunate in the face of implementing safety standards and thorough regulatory vigilantism because an unhappy worker will be less likely motivated to administer the final order of checks and balances that is necessary to prevent disasters like the one in LG polymers plant from occurring again.
Weakening the Vital EIA Machinery
Thirdly, the proposed Draft Environment Impact Assessment (EIA) Notification 2020 underlines the Government’s desire to dilute the regulatory scrutiny and conforming mechanisms that are required for industries to get institutional approval before setting a shop. If enforced, this amendment will instrumentalize scores of industrial establishments that were necessarily impeded earlier due to their failure to meet erstwhile EIA qualifications.
Necessity for Review
Although the EIA Notification is yet to assume legislative force, the numerous pleas by the Government in defending its cause and crackdown on activist groups opposing the same is unfortunate. Judging the pattern of the proposed and enforced regulatory overhauls as described earlier, the intent to release legal bottlenecks in favour of prime capitalization over resources and rapid industrialization in the country is apparent.
Need to Combat Unrequited Laissez-Faire Approach
Industrialization is neither unfavourable nor uncalled for, as long as it is achieved in conformity with established standards of safety, environmental protection, labour security, and general development. The three instances that have been accounted for in this article collectively testify to the fact that the kind of industrial strides and manufacturing prowess that our present establishment is seeking is far from adhering to the previously-stated standards.
The way to ameliorate this crisis is to retract these instruments and seek a balance between economic growth in tandem with community vis-à-vis national interests. The provisions in the Factories Act, 1948 or Special Economic Zone Act, 2005, or Coastal Regulation Notifications, which pertain to the issue of licenses and environmental clearance, must be revisited with heightened scrutiny. The implementation of clauses must be affected by more significant standards of examination and more frequent regulatory inspections.
A concerted program must be designed to address the issues faced by groups who are impacted by the operation of the industries from ground-up. Representatives of the local community should be statutorily empowered to keep a vigil over the facilities. The decentralization of surveillance is essential to counter the problem of systematic corruption and help in the swift redressal of grievances. One must also keep in mind that in order for such reforms to take a lift, it is essential to remind the stakeholders about the deterring effects that will be borne by them if they do not adhere to the required standards. The role of the Judiciary is crucial in this regard because a culture of defiance cannot be eradicated without ushering in a culture of punitive justice.
At a time when incidents such as LGP are on the rise, and the pressure to reinvigorate an ailing economy is beginning to mount, the Government must strike a balance in easing investment and regulatory norms with a few prodigal measures to increase industrial compliance, if not many. Attract foreign investments, lax licensing, and clearance norms for a while, indeed. However, do not reduce the survival of citizens or preservation of the environment to a chance, for there is no quantum of growth that is rightfully warranted in an atmosphere of regulatory anarchy.