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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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INTRODUCTION

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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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BIBLIOGRAPHY

SCC

AIR

Lexis Nexis

SCC Online

West Law India

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