The gas leak at the Visakhapatnam plant of LG Polymers India Pvt. Ltd. on 7 th May which killed 11 persons and exposed thousands of people living in nearby villages to toxic styrene fumes is a stark reminder of the risk the workers of such dangerous and hazardous industries have to face in order to earn their livelihood and how little has been done to prevent such tragedies. LG Polymers India Pvt. Ltd. is owned by LG Chem Ltd. of South Korea, an affiliate of LG Corp., the electronics giant. LG Polymers India, earlier known as Hindustan Polymers, was established in 1961 for manufacturing polystyrene and its co-polymers which is used for making plastic products. It was merged with Mc Dowell & Co. Ltd. of the United Breweries Group in 1978. In 1997, LG Chem (South Korea) took over Hindustan Polymers and renamed it LG Polymers. In the wake of this tragedy, the Government of India and the State Government must step-in to ensure that the families of the deceased victims and the victims who have suffered impairment/ disability, permanent or temporary, should get adequate and timely compensation from LG Polymer and its parent Corporation. If left to fend for themselves, the victims will be no match for the big multinational Corporation. The government may invoke the concept of ‘parens patriae’ to act and sue on behalf of the victims. Parens patriae jurisdiction, is the right of the sovereign and imposes a duty on sovereign, in public interest, to protect persons under disability, who have no rightful protector. Our Constitution makes it imperative for the State to secure to all its citizens the rights guaranteed by the Constitution and where the citizens are not in a position to assert and secure their rights, the State must come into the picture and protect and fight for the rights of the citizens. The preamble to the Constitution, read with the Directive Principles contained in Articles 38, 39 and 39A enjoins the State to take up these responsibilities. It is the protective measure to which the social welfare state is committed. In this background, the Central or the State Government must take over the compensation claims of the victims against LG Corporation. Such a proactive approach by the government may bring an early resolution of the dispute through a one time settlement, as had happened for the victims of Bhopal gas leak case. This would also ensure that interim compensation is paid to the families of the victims by the Corporation, so that, the victims get proper medical treatment without worrying about the expenses. However, if in case, the Corporation is not forthcoming for a settlement, then the State must provide free legal aid to the victims who do not have the financial resources to pursue their legal remedies. The Courts will have to adjudicate on the claim cases filed by the victims of this tragedy, claiming compensation for negligence on part of LG Polymers in handling such a toxic gas. The duration and complexity of a trial will be based on the fact that whether the damages in case of such an accident have been quantified upfront or not. In case, the quantum of compensation has been ascertained upfront, the adjudication of the claims may be expeditious. However, in case the compensation has not been quantified, then the courts will have to rely on past precedents to assess the compensation to be awarded to each victim. This would result in protracted legal battles and entail considerable effort and financial resources. Fortunately, for the victims, the Hon’ble Supreme Court of India in the case of M.C. Mehta versus Union of India (1987) 1 SCC 395, commonly known as Sriram Oleum Gas Leak case has significantly withered down the principle of strict liability laid down by the House of Lords in Ryland versus Fletcher (1868) 3 HL 330. The Constitutional Bench of Hon’ble Supreme Court in the ibid judgment has held that such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not. This principle is also sustainable on the ground that the enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential accidents.
However, the question that begs consideration is that despite norms and guidelines being laid down to avert such disasters, multinational corporations and their Indian subsidiaries continue to flout the norms with impunity. Strict implementation of terms of license and adherence to safety norms is the need of the hour. The government must take the blame for not taking adequate steps for averting such a tragedy. The Hon’ble Supreme Court in Maneka Gandhi versus Union of India (1978) 2 SCR 621 has held that the right to life and liberty guaranteed under Article 21 of the Constitution also includes the right to healthy environment free from hazardous pollutants. Also relevant are the observations made by the Hon’ble Supreme Court in the judgment in Charan Lal Sahu versus Union of India 1990 (1) SCC 613, popularly known as Bhopal gas leak case. The Court while parting with the judgment in the ibid case had laid down certain safeguards which must be ensured before permitting a transnational company to do business in India. Firstly, processes in the Bhopal Gas Plant were so much shrouded in secrecy that neither the composition of the deadly gas that escaped nor the proper antidote were known to anyone in this country with the result that the steps taken to combat its effects were not only delayed but also totally inadequate and ineffective. It is necessary that this type of situation should be avoided. The Government should therefore insist, when granting license to a transnational company to establish its industry here, on a right to be informed of the nature of the processes involved so as to be able to take prompt action in the event of an accident. Secondly, the Court had mandated that the victims have been considerably handicapped on account of the fact that the immediate tort-feasor was the subsidiary of a multinational Corporation with its Indian assets totally inadequate to satisfy the claims arising out of the disaster. It is, therefore, necessary to evolve, either by international consensus or by unilateral legislation, to overcome these handicaps and to ensure (i) that foreign corporations seeking to establish an industry here, agree to submit to the jurisdiction of the Courts in India in respect of actions for tortious acts in this country; (ii) that the liability of such a corporation is not limited to such of its assets (or the assets of its affiliates) as may be found in this country, but that the victims are able to reach out to the assets of such concerns anywhere in the world; (iii) that any decree obtained in Indian Courts in compliance with due process of law is capable of being executed against the foreign corporation, its affiliates and their assets without further procedural hurdles, in those other countries.