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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 Organization
 CEO : Chief Executive Officer
 LIC : Life Insurance Corporation
 MIC : Methyl isocyanite

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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

“…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 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

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.

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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, 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 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,
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

2
10 Judgments that Changed India by Zia Mody, P. 98 ,Line 1
3
http://www.guardian.co.uk/world/2009/dec/03/bhopal-anniversary-union-carbide-gas

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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 US

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:

4
Charan Lal Sahu v. Union of India, AIR 1990 SC 1480
5
Ibid
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

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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 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
7
‘Limitation’ is a legal concept under which a time limit is set within which the legal proceedings can be done
8
‘Due process’ refers to the procedure of a court or any other administrative body in order to arrive at a decision
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.

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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.

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.

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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 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
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right direction. GOI have filed a petition asking a compensation package of 7844 crores
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 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.

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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

BIBLIOGRAPHY

 SCC
 AIR
 Lexis Nexis
 SCC Online
 West Law India

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