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IELRC.ORG - Bhopal Gas Leak Disaster - Legal · PDF filev Executive Summar y The Bhopal gas leak disaster symbolises the failure of the legal system in general and the failure of the

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  • This paper can be downloaded in PDF format from IELRCs website athttp://www.ielrc.org/content/w0405.pdf

    UNSETTLING TRUTHS, UNTOLD TALESTHE BHOPAL GAS DISASTER VICTIMS TWENTY YEARS

    OF COURTROOM STRUGGLES FOR JUSTICE

    [BHOPAL GAS LEAK DISASTER LEGAL ISSUES]

    S. Muralidhar

    2004

  • i

    Table of contents Acknowledgments ______________________________________________________ iii Abbreviations _________________________________________________________ iv Executive Summary _____________________________________________________ v

    CHAPTER 1 _______________________________________________________________ 1 1.1 Introducing the FFM Report on the Legal Issues arising out of the Bhopal Gas

    Leak Disaster __________________________________________________________ 1 1.2 Reading this Report ____________________________________________________ 2

    CHAPTER 2: THE BHOPAL DATE LINE _____________________________________ 3

    CHAPTER 3: COMPENSATION______________________________________________ 9 3.1 Background facts _______________________________________________________ 9 3.2 Litigation prior to the settlement order of February 14/ 15, 1989 ______________ 13 3.3 Validity of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 ______ 17 3.4 The review petitions ___________________________________________________ 18 3.5 Grant of interim relief to the Bhopal gas victims ____________________________ 20 3.6 Categorization and settlement of individual claims for compensation __________ 22 3.7 Premature closure of cases for non-appearance of the claimant _______________ 27 3.8 Disbursement of the balance compensation ________________________________ 28 3.9 Fact Finding Mission - Findings _________________________________________ 31 3.10 Principles of liability __________________________________________________ 33 3.11 Legislative changes ___________________________________________________ 34 3.12 Conclusion __________________________________________________________ 35

    CHAPTER 4: CRIMINAL PROCEEDINGS ___________________________________ 36 4.1 Background facts ______________________________________________________ 36 4.2 The commencement of criminal proceedings _______________________________ 39 4.3 Settlement Order ______________________________________________________ 40 4.4 The Review Petitions ___________________________________________________ 40 4.5 Attachment of UCCs shares in UCIL ____________________________________ 41 4.6 The commencement of criminal trial against Indian accused _________________ 43 4.7 Review Petitions by the victims in the Supreme Court _______________________ 44 4.8 Trial before the CJM, Bhopal ___________________________________________ 45 4.9 Extradition of the foreign accused ________________________________________ 45 4.10 Questions that arise ___________________________________________________ 49

    CHAPTER 5: MEDICAL AND HEALTH ISSUES ______________________________ 50 5.1 Background facts ______________________________________________________ 50 5.2 The response of the State _______________________________________________ 53 5.3 Research by ICMR ____________________________________________________ 53

  • ii

    5.4 Litigation on medical issues _____________________________________________ 54 5.5 The Bhopal Hospital Trust ______________________________________________ 61 5.6 Significant aspects of the litigation concerning medical issues _________________ 68 5.7 The outstanding issues _________________________________________________ 69

    CHAPTER 6: ENVIRONMENTAL ISSUES ___________________________________ 70 6.1 Background facts ______________________________________________________ 70 6.2 Post-disaster facts _____________________________________________________ 72 6.3 The US litigation ______________________________________________________ 75 6.4 PIL in the Supreme Court concerning hazardous wastes _____________________ 78 6.5 Major legislative changes _______________________________________________ 78 6.6 Environment jurisprudence _____________________________________________ 80 6.7 Questions concerning environmental issues ________________________________ 81

    CONCLUSION ____________________________________________________________ 82

  • iii

    A ck nowledgments

    This Report has been in the making for over five years now. It has benefited immensely from the help and support of numerous persons comprising the victims of the Bhopal gas leak disaster, activists based in or outside Bhopal, scholars, professionals and administrators. This Report would not have come about without the support of many of the Bhopal groups Bhopal Group for Information and Action, Bhopal Gas Peedit Mahila Udyog Sangathan, Bhopal Gas Peedit Stationery Karamchari Sangh, Sambhavna, Bhopal Ki Awaaz, Bhopal Mahila Purush Sangharsh Morcha, Bhopal Gas Peedit Sangarsh Sahyog Samiti and the Bhopal Gas Peedit Nirashrit Sangharsh Morcha.

    Other Media has been instrumental in providing the backup support for this work. A big thank you to Deenadayalan, Anuradha Saibaba, Rakesh Kapoor, Mariamma and Satwant. Tarnjit Birdi and Leena worked hard in preparing, administering and analyzing the responses to the detailed questionnaire prepared for the Fact Finding Mission.

    Shreyas Jayasimha and Reeta Misra, Advocates sat for days and nights at different points in time, amidst several thousand pages of documents to make sense of it all. Intermittent support was rendered by interns which included Arundhati Katju, Gauri Subramanium and Arvind Ramesh.

    Shiny Chacko did the entire typing of this manuscript notwithstanding many hurdles.

    It is quite possible that some others may have been left out from this list. The omission is not deliberate. Bhopal has deeply affected a large number of right thinking persons. That is what gives hope for the future.

    October 28, 2004 S. Muralidhar

  • iv

    A bbr eviations

    ATCA - Alien Torts Claims Act (US)

    BGIA - Bhopal Group for Information and Action BGPMUS - Bhopal Gas Peedit Mahila Udyog Sangh

    BGPSSS - Bhopal Gas Peedit Sangarsh Sahyog Samiti

    BHMRT - Bhopal Hospital Memorial Research Trust

    BHT - Bhopal Hospital Trust

    CPC - Code Civil Procedure, 1908

    Cr.PC - Code of Criminal Procedure, 1973

    EPA - Environment (Protection) Act, 1986

    FERA - Foreign Exchange Revision Act,

    IPC - Indian Penal Code, 1860

    PIL - Public Interest Litigation

    SCALE - Supreme Court Almanac

    SCC - Supreme Court Cases

    UCC - Union Carbide Corporation

    UCIL - Union Carbide India Limited

    UOI - Union of India

  • v

    E xecutive S ummar y

    The Bhopal gas leak disaster symbolises the failure of the legal system in general and the failure of the system to respond to the disaster in particular. The twenty years of engagement with the law and the justice system holds many lessons for the future. It is time for introspection and assessment. Law may not have all the answers to the problems that Bhopals generate, but it has the potential to do harm. Also, law is used by the State and the corporation/industry in a variety of ways that actually result in negation of justice to those within their control.

    The lack of awareness of the legal processes and the absence of legal aid led many of the persons to claim compensation of amounts less than a lakh of rupees and over 90% of them received only Rs.25,000/-. Therefore, the high degree of dissatisfaction with the compensation awarded.

    The cases concerning award of compensation The Supreme Court which approved on February 14/ 15, 1989 the settlement by which Union Carbide Corporation (UCC) was to pay 470 million US dollars as full and final settlement of all civil and criminal claims by the victims, justified it saying: this court, considered it a compelling duty, both judicial and humane, to secure immediate relief to the victims. Twenty years after the settlement, neither has the relief to the victim been adequate nor immediate. The assumptions on which the settlement is approved was that the number of deaths was 3,000 and the number injured in the range of 1,00,000. In March 2003, the official figures of the awarded death claims stood at 15,180 and awarded injury claims at 5,53,015. The underestimation was slightly above 5 times. The range of compensation which was assumed in the settlement order would be payable was Rs.1 to 3 lakhs for a death claim, Rs.25,000/- to Rs.1 lakh for temporary disablement and Rs.50,000/- to Rs.2 lakhs for permanent disablement. Each death claim has been awarded not more than Rs.1 lakh and on an average an injury claim has been settled for as little as Rs.25,000/-.

    There have been failures in acknowledging the victims of the disaster by the devices of exclusion, arbitrary categorization and arbitrary re-categorisation. Further, the costs and losses arising out of the Bhopal gas leak disaster have had to be borne by the victim. The failure to develop a jurisprudence to deal with the legal issues arising out of a mass disaster is clearly inexcusable particularly when the status of risk and safety in Indian industry is no better than it was in 1984. Developing a law is only part of the solution, implementing it effectively would be an even greater challenge.

    Nothing of the compensation money was saved since most of it was utilised in health care and repayment of loans. Lack of awareness again resulted in a very small percentage actually filing appeals against the awards.

    The results of the appeal were hardly beneficial to the claimant. A sizeable number of the appellants (26.5%) faced the ironic result of the compensation awarded to them in the first court reduced by the appellate court. The appeal pro