The Bhopal Gas Tragedy Case: An Analysis

This article was originally written as an academic paper and is republished here as a knowledge-sharing resource. It has been lightly formatted; statutory references reflect the law as it stood at the time of writing.

Bhopal Gas Tragedy Case

Introduction

There is absolutely no doubt that pollution has grown into a serious environmental issue as we know it because of its undeniably adverse impact on our whole planet. Environmental pollution affects not only people, animals and vegetation but also the wider environment such as air, mountains, lakes, rivers, soil and so on. Perhaps one of the best ways to demonstrate the damaging effects brought about by all types of pollution is to examine a well-known case study and see how all those involved are affected from a practical perspective. In this respect, I believe that the Bhopal disaster that took place in India in 1984 presents a suitable example for the said purposes.

Facts Of The Case

On the night of December 2/3, 1984, a chemical disaster, the worst in the recent times, took place in the city of Bhopal, capital of State of Madhya Pradesh. The similarity between what happened in Milan, Italy (1976) and at Bhopal, India (1984) is apparent. In both the places, deadly poisonous material was let into the atmosphere with devastating effects.

The Union Carbide India Ltd. (UCIL) owned and operated in the northern sector of Bhopal, a chemical plant manufacturing pesticides commercially marketed under the trade name “Sevin” and “Temik”. The leakage of Methyl Isocyanate (MIC) and other toxic gases from a plant immediately took a toll of 2660 innocent lives and thousands of people of the city of Bhopal were physically affected.

This tragedy was described by RANGANATHAN J., of the Supreme Court of India, as “a national catastrophe second in the magnitude and disastrous effects only to the havoc wrought by the atomic explosions in Hiroshima and Nagasaki. Multitude of illiterate and poverty stricken people in and around the Bhopal suffered damage to life and limb due to the escape of Methyl Isocyanate gas from one of the storage tanks at the factory of the Union Carbide Ltd., Bhopal”. In the words of SABHAYASCHI MUKHERJEE, the then Chief Justice of India, it was “the most tragic industrial disaster recorded in human history”.

Events And Consequences Of Legal Battle

Legal Battle In Usa

After the Bhopal tragedy, several suits came to be filled in the USA for damages as UCIL is a subsidiary of the Union Carbide Corporation (UCC), a multinational company, registered in USA. In the meanwhile, the Union of India took upon itself the right to sue for compensation on behalf of affected parties and filed a suit for realization of compensation. These proceedings were commenced in the USA. Various suits were consolidated and the Judge KEENAN, who was dealing with the matter dismissed them on the ground of forum non conveniens subject, intra alia, on the following grounds:-

Union Carbide shall consent to submit to the jurisdiction of the court of India and shall continue to waive defenses based on the statues of limitations; and

Union Carbide shall agree to satisfy any judgment rendered against it in an Indian Court, and if appealable, upheld by any appellant Court in that country, whether such judgment and affirmance comport with the minimal requirement of the due process.

An appeal was preferred before the United States Court of Appeal for the second Circuit. This Court on 14th January, 1987, upheld the condition no. 1 in the order passed by the Judge KEENAN, but with regard to condition no. 2 some observations were made regarding difference of law between the USA and India.

Legal Battle In India

After the aforementioned orders were passed by the Courts in the United States, a suit came to be filled before the District Court at Bhopal. Compensation was claimed. The trial court allowed interim compensation to the tune of ₹ 350 crores. The matter was taken to the High Court of Madhya Pradesh. The High Court reduced the amount of compensation to ₹ 250 crores. This decision is reported as Union Carbide Corporation v. Union of India. It was against this judgment passed by the High Court of Madhya Pradesh, the matter was taken in appeal before the Supreme Court of India. It was in these proceedings, the whole issue was settled and a judgement came to be passed on 14th February, 1989. As per the decision so given, the Union Carbide was to pay a consolidated amount of 470 Million US dollar approximately 750 crores to the Union of India for full and final settlement of claims, rights and liabilities related to and rising out of Bhopal Gas disaster and all civil proceedings arising out of this disaster were to be treated as having come to an end. The further fact is that reasons in support of order dated 14th February, 1989 came to be given on 15th February, 1989. This decision is reported as Charan Lal Sahu v. Union of India. Thereafter review petitions were referred and these came to be decided on 3rd October, 1991. The decision so given is reported as Union Carbide Corporation v. Union of India.

Principals Laid Down In Bhopal Gas Case

The Supreme Court of India in Union Carbide Corporation v. Union of India, proceeded to give the decision and what was said is being serialized:

That the settlement reached in Bhopal Gas disaster case and quashing criminal proceedings ordered by the Supreme Court of India was not without jurisdiction.

That the settlement recorded by the Supreme Court of Indian in Bhopal Gas disaster case was not void for absence of notice to the interested persons.

That the Section 320, 321, 482 of the Code of Criminal Procedure Code, 1973 do not limit the power of the Supreme Court of India to quash criminal proceedings.

That the plea of nullity can be raises even by a person who had earlier consented to the agreement.

That the validity of the consent order would depend only on the legal validity of agreement on which agreements rests.

When accord and satisfaction is recorded and if the contract is illegal, then it cannot constitute or effect an accord and satisfaction.

When settlement was reached in Bhopal Gas disaster case no part of consideration was unlawful. The question of stifling the prosecution as such would not arise.

Merely because rights of victims were being settled would not lead to a conclusion that they had a right to be heard in the matter.

Absence of re-opener clause would not vitiate the settlement.

The Court must see that a litigant does not go with a feeling that he was prejudiced by a Court order.

In mass disaster cases, review proceedings should not be taken in strict, orthodox and conventional fashion.

As to whether scientific and statistical evidence for quantifying damages can be lead or not was an issue which was discussed.

The principal that size of award should be proportional to economic superiority of offender cannot be applied to settlement of Bhopal Gas disaster case.

As victims of Bhopal Gas disaster were subject to ill-effects of the gas, therefore, medical surveillance of exposed population is essential.

For the children who were born to exposed mothers. Union of India was to take appropriate action for medical group insurance.

For individual settlement, the Union of India and the State Government were directed to expeditiously set up adjudicatory machinery.

Rules Of Law Applicable In The Bhopal Gas Disaster Case

Negligence would be one of the main form of tort laws applicable in this case along with loss spreading, risk attitude, moral hazard, transactions costs, and cost minimization or social efficiency. Negligence is a failure to exercise the care that a reasonably rational person would exercise in like circumstances. Proving a case for negligence can potentially entitle the injured plaintiff to compensation for harm to their body, property, mental well-being or financial status.

The proceedings were initiated under Section 304 A (deals with causing death by negligence) and Sections 336, 337, and 338 (deal with the offences of endangering life and personal safety of others) read with Section 35 (deals with the aspect of common intention) of the Indian Penal Code, 1860.

One of the main issues which the Bhopal Gas tragedy raises is the issue of “Absolute liability”. This issue was elaborately discussed in the case of M.C. Mehta v. Union of India. The principle of absolute liability states that when an enterprise is engaged in hazardous or inherently dangerous industry and if any harm results in account of such activity then the enterprise is absolutely liable to compensate for such harm and that it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. Thus, even if the accident is some freak incident, liability would still be fixed. Even if the Company had taken extreme precautions to ensure that such events do not take place, responsibility would still be fixed on them.

The Bhopal gas tragedy in 1984 triggered the passage of comprehensive Environment Legislation of 1986 and Public Liability Insurance Act, 1991. Indian Parliament inserted two Articles, i.e. Article 48A (directs that the State shall endeavor to protect and improve the environment and safeguard forests and wildlife of the country) and clause (g) of Article 51A (imposes a duty on every citizen of India, to protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures) in the Constitution of India in 1976. The cumulative effect of Articles 48A and 51A (g) seems to be that the ‘State’ as well as the ‘citizens’ both are now under constitutional obligation to conserve, perceive, protect and improve the environment. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way.

Scheme For Payment Of Compensation To Victims Of Bhopal Gas Tragedy

A scheme was prepared in the year 1985 by the Government of India, namely the Bhopal Gas Leak Disaster (Registration and Processing of Claims) Scheme, 1985. Para 5 of the scheme provided for categorization and registration of Claims. The limits within which the compensation could be awarded to the claimants fell under different categories. Different amounts were specified. The Deputy Welfare Commissioner and Additional Welfare Commissioner were to hear the claims and deal appeal before a Welfare Commissioner who was a sitting judge of the High Court of Judge in looking after the matter, therefore, there should be no grievance. Still it was observed that the decision given by the Welfare Commissioner could be challenged under Article 226 & 227 of the Constitution of India as observed in Krishan Mohan’s case.

Air Pollution Effects Of Bhopal Gas Leakage

We know that MIC is an extremely toxic and reactive gas which should be handled with absolute caution. Here is what Ashok Bhargava reports:

“The effects of [this] chemical on human beings resemble those of nerve gas. The eyes water, and the cornea is rendered opaque. Vomiting, Racking Coughs, and a sense of suffocation and temporary blindness are common. In larger amounts exposure can kill the cells of the cornea, producing permanent blindness. It can also bring about emphysema, asthma, bronchitis, pneumonia, and other respiratory ailments. Heavy exposure can cause death by suffocating spasms of the bronchial tubes carrying air to the lungs, or by drowning as body fluids released by the irritating gas accumulate in the lungs. Because of the danger of suffocation, the chances of ill effects increase if one runs when MIC is present in the atmosphere, as running increases the oxygen requirement. ... [Long-term effects may be] lung, kidney, liver, and eye damage, because MIC destroys protein in the blood stream; the kidneys and liver become overworked trying to rid the body of these aberrant wastes. It can lead to keratitis and corneal ulcers which could cause opacity of the cornea”.

Reports published several months after the Bhopal disaster's gas leak claim that as many as 2,000 commercial cows, buffaloes, goats and horses as well as thousands of stray dogs, cats and birds died immediately. Vegetation surrounding the affected areas had also been badly affected. People were even warned about eating locally grown vegetables as many plants showed signs of genetic damage.

Water & Soil Pollution Effects Of Bhopal Gas Leakage

According to Jack Laurenson reports of 2011:

“Although it was the release of toxic gas that drew worldwide attention to Bhopal, Union Carbide had been openly dumping its highly toxic waste in the surrounding areas for years, and water and soil contaminated with chemicals and heavy metals continues to claim lives. Entire communities suffer with painful, debilitating illnesses. ... Greenpeace and other organisations, including the CSE, have found high concentrations of chlorobenzenes and volatile & semi-volatile organochlorines, as well as metals such as chromium, copper, nickel, lead, zinc and mercury in the local water and soil”.

Mercury concentrations seven million times higher than the World Health Organization's recommended limits have been recorded, and all of the water pumps in the area have been found to be heavily contaminated with toxins and metals.