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1 TOPIC: THE BHOPAL GAS TRAGEDY Has the justice been dispensed? PREPARED BY: Vikesh Kumar Roll No.157 Section A 1 st Semester B A LLB (Hons.) Dr. RMLNLU 1 BHOPAL GAS LEAK

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A brief on Bhopal Gas Tragedy

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TOPIC: THE BHOPAL GAS TRAGEDYHas the justice been dispensed?

PREPARED BY: Vikesh Kumar Roll No.157 Section A 1st SemesterB A LLB (Hons.)Dr. RMLNLU

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)

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 Organization 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

INTRODUCTION

the struggle of man against power is the struggle of memory against forgetting.-Milan KunderaOn 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 veil[footnoteRef:1], 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 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. [1: Piercing the corporate veil is a legal concept. A company as an entity is separate from the people who promote and run it. On the whole, any liability to a company is not a liability to its directors, promoters or employees. Similarly under law a parent company is a separate entity from its subsidiary company.]

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 2ND DECMEBER - 3RD DECEMBER, 1984UCIL 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 in its Bhopal plant. UCC owned 51% (approx.), LIC 22% and Indian public 27% of stakes in the UCIL.[footnoteRef:2] [2: 10 Judgments that Changed India by Zia Mody, P. 98 ,Line 1]

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.[footnoteRef: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 [3: http://www.guardian.co.uk/world/2009/dec/03/bhopal-anniversary-union-carbide-gas]

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, 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.[footnoteRef:4] The SC justified the application and application of parens patriae principle and held that: [4: Charan Lal Sahu v. Union of India, AIR 1990 SC 1480]

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.[footnoteRef: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. [5: Ibid]

TRIALS OF BHOPAL GAS TRAGEDY IN USOn 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 Keenans 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 [footnoteRef: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 if another court would provide a more convenient forum for the parties and evidence]

UCC would have to consent to submit its jurisdiction of Indian Courts and continue to relinquish with the defenses founded on the statue of limitations[footnoteRef:7]. [7: Limitation is a legal concept under which a time limit is set within which the legal proceedings can be done]

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 process[footnoteRef:8] requirements. [8: Due process refers to the procedure of a court or any other administrative body in order to arrive at a decision]

Judge Keenans 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 INDIAIn 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 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 courts decision arose under Article 137 of the Indian Constitution.[footnoteRef: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 with 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. [9: Article 137 of the Indian Constitution says that Subject to provisions of any law made by the parliament or any rules made under Article 145, the SC shall have the power to review any judgment pronounced or order made by it.]

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 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 TRAGEDYThe 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 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 [footnoteRef: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 lets 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]

CONCLUSIONThe 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 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 doesnt 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 De Books Fali S. Nariman, Before Memory fades: An autobiography (New Delhi: Hay House, 2010), pp. 205-206BIBLIOGRAPHY

SCC AIR Lexis Nexis SCC Online West Law India

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