Post on 22-Feb-2023
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SUBJECT: BASICS OF CASE LAW
TOPIC: THE BHOPAL GAS TRAGEDY
PREPARED BY:
Vikesh Kumar
Roll No.157
Section A
1st Semester
B A LLB (Hons.)
Dr. RMLNLU
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CONTENTS
ACKNOWLEDGEMENT………………………………………………………..(3)
LIST OF ABBREVIATIONS …………………………………………………... (4)
LIST OF CASES REFERRED….……….………………………………..……...(5)
INTRODUCTION…………………………………………………………….…..(6)
THE NIGHT OF 2ND DECMEBER-3RD DECEMBER,
1984…………………………………………………………………………….…(7)
TRIALS OF BHOPAL GAS TRAGEDY IN US…………………………………………………………………………..
….....(8)
TRIALS OF THE BHOPAL GAS TRAGEDY IN INDIA…………………….. (9)
ASPECTS OF THIS TRAGEDY…………………………………………………..…………………..(10)
LESSONS LEARNT FROM THE TRAGEDY…………………...…………………………………..……………...(11)
CONCLUSION………………...……………………………..…………………(12)
LITERATURE REVIEW……………………………………………………….(13)
BIBLIOGRAPHY………………………………………………………………(14)
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ACKNOWLEDGEMENT
Every work accomplished is a pleasure- a sense of
satisfaction. However a number of people motivate, criticize,
appreciate a work with their objective ideas and opinions,
hence I would like to use this opportunity to thank all, who
have directly or indirectly helped me to accomplish this
project. Firstly I would like to thank Shashank Shekhar
without whose support this project would remain
unaccomplished. Next I would like to thank all those people,
who gave their valuable time and feedback to this project. I
would also like to thank our college which provided resources,
which beyond any doubt have helped me.
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LIST OF ABBREVIATIONS
AIR : All India Reporter
SC : Supreme Court
UCC : Union Carbide Corporation
UCIL : Union Carbide India Limited
USA : United States of America
CBI : Central Bureau of Investigation
CJM : Chief Judicial Magistrate
NGO : Non Governmental Organization4 BHOPAL GAS LEAK
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CEO : Chief Executive Officer
LIC : Life Insurance Corporation
MIC : Methyl isocyanite
LIST OF THE CASES REFERRED
Charan Lal Sahu v. Union of India, AIR 1990 SC 1480
M C Mehta v. Union of India, AIR 1987 SC 1086
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“…the struggle of man against power is the struggle of memory against forgetting.”
-Milan Kundera
On the world map, Bhopal has been known for all the wrong
reasons. The Bhopal Gas leak or the Bhopal gas tragedy remains
an unparallel industrial disaster anywhere in the world. The
Ghosts of the night of 2nd December, 1984 preyed upon the
Bhopal inhabitants and their several generations. Even today
the ill and catastrophic consequences can be seen of that gas
leaks which appear in form of damaged reproductive systems,
lung problems and vision impairments. Many unborn that were in
the womb of their mother at the time of this drastic gas leak
suffer irreparable catastrophic consequences. What followed
the accident as was regrettable as the incident itself. In the
following years, the struggle for justice, victims of the
disaster have been revictimized. Bureaucracy and politics
power worked together in order to cause the fullest mental
agony upon the victims that claimed justice in relation with
the gas leak tragedy. A number of questions have been raised
on several issues ranging from compensation that victims claim
for, criminal negligence of UCIL and UCC the piercing of the
corporate veil1, the criminal liability of the directors of
UCIL and UCC and the appropriate and precise choice of forum
of justice but little good trickled down to the victims of
this catastrophe. There had been no effective mechanism that
1 ‘Piercing the corporate veil’ is a legal concept. A company as an entityis separate from the people who promote and run it. On the whole, anyliability to a company is not a liability to its directors, promoters oremployees. Similarly under law a parent company is a separate entity fromits subsidiary company.
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could be applied in order to obtain a speedy justice and
remedy for those who were entitled to claim compensation in
relation to the Bhopal gas leak or the Bhopal gas disaster.
This project highlights the chronology of the Bhopal gas leak
from the very beginning and the consequences of that
horrendous incident which even today can be witnessed in the
inhabitants of Bhopal in form of ill, drastic and catastrophic
circumstances they suffer from. The project highlights out the
trials that have occurred in and outside in India in relation
to this gas disaster, compensation they were entitled to pay
and the criminal charges revived against them. The project
also highlights that Indian legal system was below par to
handle such a complex litigation on a case of such gigantic
proportion and raises the question on making the grade of
Indian lawyers in relation to their expertise in area of tort
claims. The competencies of Indian legal system have been in
question in relation of grappling this Bhopal gas disaster
case.
THE NIGHT OF 2 ND DECMEBER - 3 RD DECEMBER, 1984
UCIL was incorporated in India in 1934 to manufacture
batteries, pesticides, chemicals and other industrial
products. In 1970, UCIL set up a pesticide plant in a densely
populated area of Bhopal, Madhya Pradesh. UCC, an American
enterprise owned a majority stake in UCIL. Many of the
superiors of the UCC claimed this plant to be as offensive as
a chocolate factory. This plant manufactured sevin and temik
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in its Bhopal plant. UCC owned 51% (approx.), LIC 22% and
Indian public 27% of stakes in the UCIL.2
On the late night and early morning of 2nd and 3rd December,
1984 respectively, tonnes of MIC, a highly toxic and poisonous
gas leaked out of the pesticide plant that were used in the
production of sevin and temik. The exposure of this gas with
the atmosphere caused an exothermic reaction and blew over the
adjacent hutments of Bhopal. That night the city turned into a
gas chamber. The gas leak preyed upon several generations of
the inhabitants of Bhopal. Estimates indicate that the number
of fatalities rose to a whopping 20,000 while 6, 00,000 people
suffered irreparable damage.3 Thousands of animal carcasses had
to be were found that had to be disposed off. Residents of
Bhopal suffer generic and catastrophic circumstances because
of the horrendous tragedy. Soon after the leak, Hundreds of
tort lawyers from USA and their seeking exemplariness damages
on behalf of those who were affected by the gas leak. Quickly
acting on this Government of India came up with the Bhopal Gas
Leak Disaster Ordinance, 1985 replaced by Bhopal Gas Leak
Disaster (Processing of Claims) Act, 1985 on March 29, 1985
which states that
“An Act to confer certain powers on the Central Government to
ensure that the claims arising out of or connected with,
Bhopal gas leak disaster are dealt with speedily, effectively,
2 10 Judgments that Changed India by Zia Mody, P. 98 ,Line 13 http://www.guardian.co.uk/world/2009/dec/03/bhopal-anniversary-union-carbide-gas
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equitably and to the best advantage of the claimants and for
matters incidental thereof.”
This act after its enactment evoked sharp criticism as the
wrong doer UCIL was partially owned by the State and as such
state were partially liable for the Disaster. The action of
the government was criticized as it could be a tool which
aimed at protecting from the state of the guilty rather than
protecting and providing justice to the victims of the Bhopal
gas leak. The constitutional validity of the Bhopal Gas Leak
Disaster Act, 1985 was challenged before the SC.4 The SC
justified the application and application of parens patriae
principle and held that:
“The government is within duty to protect and to control
persons under disability. Conceptually, the parens patria
theory is an obligation of the state to protect and take into
custody the rights and privileges of its citizens for
discharging its obligations. 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 position to assert and secure their rights, the
state must come into picture and protect and fight for the
rights of the citizens.5 This act meant for betraying the
people that were entitled claims in relation to the gas leak
disaster as they were partially compensated and exempted of
their right to act in their individual capabilities.
TRIALS OF BHOPAL GAS TRAGEDY IN US4 Charan Lal Sahu v. Union of India, AIR 1990 SC 14805 Ibid
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On April 8th, 1985 Central Government filed a complaint in a
Southern District Court, New York, and USA. By then there were
already 144 proceedings in US in respect of this gas leak. All
these proceedings were forwarded and assigned to the court of
Judge John Keenan. The arguments projected in the court
created a strange situation. The argument presented in the
Keenan’s court was the incapability of Indian courts to handle
matter of gigantic proportion. Following are the arguments
that were presented on behalf of Union of India:
Indian legal system was ill equipped to handle such a
matter of complex litigation
Indian Lawyers at that time lacked capability to
expertise in area of torts.
The stage of tort law of such gigantic proportion was
under development.
Procedural law in India would hinder the path of justice
for the victims.
Judge John Keenan dismissed the case on arguments that it was
untenable and claim on ground of “forum non coveniens 6”. Judge
Keenan made political and to an extent some patronizing
observations in relation to the capability of Indian courts on
the matter of dispensing justice. The case was dismissed
subject to the following conditions:
6 A doctrine of law holding that a court should decline to hear a case ifanother court would provide a more convenient forum for the parties andevidence
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UCC would have to consent to submit its jurisdiction of
Indian Courts and continue to relinquish with the
defenses founded on the statue of limitations7.
UCC would have to dwell by any judgment that would have
been rendered by an Indian Court as long as it complies
with minimum due process8 requirements.
Judge Keenan’s decision was a great opportunity as he believed
the Indian Legal system faced was squandered by the bar and
the bench.
TRIALS OF THE GAS LEAK IN INDIA
In September 1986, US district court transferred all Bhopal
Litigation in India. CBI filed a charge sheet against Warren
Anderson and other accused on charges of culpable homicide.
CJM of Bhopal issued a non bailable warrant of arrest against
Anderson for repeatedly ignoring the summons of the court and
convicted others under Section 304-A, 304-B, 336, 337 and 338
of the IPC. Indian government and UCC striked an out of court
deal and tried to settle the matter. UCC was ordered to pay a
compensation of $470 million. Appeals were made in higher
courts by the UCC for the compensation figure. On valentine
day in 1989, a five judge constitutional bench quashed all
civil proceedings and criminal proceedings with $470 million.
This decision of the court gained widespread criticism and
dissatisfaction. It appeared that the reasons that compelled
7 ‘Limitation’ is a legal concept under which a time limit is set withinwhich the legal proceedings can be done8 ‘Due process’ refers to the procedure of a court or any otheradministrative body in order to arrive at a decision
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the court for such decision must be set out. The reasons must
not be stated in order to finalize any infallibility of the
decision the court gave. The basic consideration that came out
as that the court was motivated by the compelling need of
urgent relief and seedy justice. The court felt it as its
compelling duty, both judicial and humane, to secure the
immediate relief to the victims. An uncertain degree of
uneasiness was there in the public and uninformed and
irresponsible criticism evoked at the time of settlements.
Call for remedy in review of the court’s decision arose under
Article 137 of the Indian Constitution.9 The part of $470
million was disbursed among the Bhopal disaster victims.
Despite many petitions in courts, the SC allowed UCC to sell
its stake in India. The charges of the Indian officials of the
UCIL were diluted on the ground that the state of guilt lies
with the UCC. The ground water, soil and the wells in and
around the pesticide plant was found with 12 volatile organic
chemicals and mercury in quantities up to higher than
approximately 6 million. Several victims and NGOs filed
against the UCC with charges of violation International rights
law, environmental law and international criminal law in the
US court but the US court refused to take the responsibilities
for the liabilities of the UCIL in India. The survivors of the
disaster launched a protest which gained widespread support
from all over the country seeking justice and demanding to
revive charges against the CEO Warren Anderson. Protests with9 Article 137 of the Indian Constitution says that “Subject to provisionsof any law made by the parliament or any rules made under Article 145, theSC shall have the power to review any judgment pronounced or order made byit.
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objective of cleaning thousands of tonnes of toxic waste
around the UCIL factory site in Bhopal were launched. India SC
ordered Central Bank to pay out the rest of $470 million by
UCC as compensation in October, 2004. Further on June 7, 2010
all eight accused including the UCIL chairman Keshub Mahindra,
Vice President Kishore Kamdar, J N Mukund the Works Manager,
Production Manager S P Choudhary, Plant Superintendent K V
Shetty and the Production Assistant S I Quereshi.
ASPECTS OF THE BHOPAL GAS TRAGEDY
SOCIAL ASPECT OF THIS TRAGEDY
In establishing the factory in a country which is still on
the verge of industrializing like India which still was a
poor nation in the year 1984 which evolved Caste system.
Majority of which the people involved lower castes and the
untouchables and these people are the most affected ones and
the worst affected too. Delay in path of seeking justice may
have been arisen due to this very fact that these people
belong to the minority background. The question that arises
is how these downtrodden, poor could and the uneducated ones
afford the best? And this makes for them absolutely
impossible to seek justice and when it is in relation to a
tragedy of such a gigantic proportion.
ENVIRONMENTAL ASPECT OF THE TRAGEDY
Residual environment aspects still loiter in Bhopal.
According to the experts, toxics have migrated through
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various mediums and still they have become a burden towards
the people of the society. However people have succeeded in
gaining “Right to succeed” whereby people can identify any
contaminated sites around their sites. Majority revolves
around the poor, uneducated and unaware people in the
catastrophe area. Tragedy has propelled Government of India to
require Environmental Impact Assessment statements for any
central approval of industrial projects.
LESSONS LEARNT FROM THE BHOPAL GAS TRAGEDY
The Bhopal gas tragedy shocked the lackadaisical politicians
and the makers of the policies. Before the 1980s India had
only specific legislation pertinent to air and water
pollution. After the Bhopal gas leak Environment Protection
Act, 1986 was enacted which is a statue that address pressing
concerns of sustainable development. The enactment was
followed by the Public Liability Insurance Act, 1991 and the
National Environmental Tribunal Act, 1995. On 27th January,
1994 an Environmental Impact Assessment Notification was
passed which was an approval for the mechanism of industrial
projects. All this work rose to raise the enviro-
consciousness of Indian citizens by various notches. It
reinforces the fact that justice in India is still
administered reactively, not proactively. The tragedy was a
call for lawyers, politician, activists, judges and the media
as they go on repeating the mistakes of the past. The legal
and political system itself put their in capabilities in front
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of the world instead of putting efforts together to curb the
drastic consequences of that horrendous night. Despite all the
efforts there is still a lacuna left behind in the Indian
legal system. There exist some faults in the way that despite
the UN framework, Indian law does not yet clearly spell
requirements necessary under norms for many organizations. One
right step taken by the Government of India in 2010 was the
1265 crore rupee aid package cleared and shows the efforts of
the GOI in the right direction. GOI have filed a petition
asking a compensation package of 7844 crores 10 which is the
most realistic amount that would soothe the wounds of the
thousands who still suffer mentally, physically and
economically. The question arises is let’s see how much of the
promised amount will reach to the victims. The Bhopal case
illustrates how companies evade their human rights
responsibilities and underlines the need to establish a
universal human rights framework that can be applied to
companies directly. Governments have the primary
responsibility for protecting the human rights of communities
endangered by the activities of corporations, such as those
employing hazardous technology. However, as the influence and
reach of companies have grown, there has been a developing
consensus that they must be brought within the framework of
international human rights.
10 http://articles.economictimes.indiatimes.in/2010-12-04/news/27628406_1_dow-chemicals-compensation
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CONCLUSION
The study firstly provoked me and instilled in me sympathy for
the victims of the Bhopal Gas leak disaster. On the whole, my
study finds out that anywhere or somewhere; Government of
India is responsible for this drastic gas leak due to several
reasons like bypassing safety precautions required for
approval of industrial projects. The politicians took undue
advantage of such a horrendous and terrifying disaster and
take and increase their vote banks. The only fault of the US
authorities in charge of the case as they were incapable in
locating the CEO of the UCC warren Anderson and reported him
‘Absconding’. The former prime minister of India Dr. Manmohan
Singh on the very 25th anniversary of the Bhopal Gas tragedy
made a statement “still gnaws at our collective conscience”
and promised continuous efforts to tackle the issue of site
contamination and water contamination. Despite the terror of
the night of 2nd December and the chemical terror that was
endured by the survivors of the Bhopal gas tragedy, the
victims continue their struggle for the justice,
accountability of the corporate and their basic human right
towards an environment of toxic chemicals. This struggle is a
crucial one for us and will never end because of the reason
that until and unless Dow- Carbide is held accountable, we all
are living in the next Bhopal. The legal aspect of this Bhopal
Gas leak has been the worst aspect as it failed to held liable
the Directors and the others and only was able to figure out
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the compensation figure which moreover they cannot ensure that
whether those compensation figures reach to the victims. After
many years on, neither revival of criminal charges against the
offenders nor the estimation of the compensation figures will
warrant the suffering of the Bhopal gas leak victims rather
applying a realistic approach in providing the best relief the
government could confer on the people would be a step that
wounds soothe balm on the wounds of the victims. The tragedy
was a call for the politicians and the policy makers of the
country as to how can they confer better governance on the
people. The biggest question that arose after the
catastrophe was that does Indian Law value life as much it is
valued in any other nation like USA as it is because the
country have so many people that each one of us doesn’t mean
as much? At last I and we must hope that there is no more such
drastic and horrendous disaster anywhere in the world and let
there be peace, justice and life on the earth.
LITERATURE REVIEW
‘Justice Delayed’ from the 10 Judgments That Changed
India by Zia Mody, Shobhaa D’e Books
Fali S. Nariman, Before Memory fades: An autobiography
(New Delhi: Hay House, 2010), pp. 205-206
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