By Deepro Sen
Introduction
The age of mass torts arrived with Bhopal Gas Tragedy
unveiling the environmental disasters with toxic invasions, and unfortunately,
it continues. . The multinationals, which entered the 'developing world' as
harbingers of profit and gain were in fact, brought the death demon, the Union
Carbide which authored the tragedy thought it could wash off its hands by
selling the abandoned Bhopal plant to Dow Chemicals, even as it emanate the
poisonous gases and continue to cause enormous damage to the environment. It is
not known with great certainty the figure of casualties and injured persons it
is not possible to measure up the real damage to the environment which appear as
on today as eternal.
The Bhopal Disaster took place in the early
hours of the morning of
Background and the
event itself-
On the night intervening 2nd and
MIC is a chemical used in the manufacture of pesticides and requires constant
pressure and freezing temperatures to maintain stability. Neglected and coupled
with tanks in which pressure had been reduced in an attempt to cut costs,
triggered a massive reaction leaking toxic gas into the night sky.
A small leak at
Legal proceedings
and settlement
On
March 1986 saw Union
Carbide propose a settlement figure, endorsed by plaintiffs’
Litigation continued in
Throughout 1990, the Indian
Supreme Court heard appeals against the settlement from “activist petitions”.
Nonetheless, in October 1991, the Supreme Court upheld the original $470
million, dismissing any other outstanding petitions that challenged the
original decision. The decision set aside a “portion of settlement that quashed
criminal prosecutions that were pending at the time of settlement”. The Court
ordered the Indian government “to purchase, out of settlement fund, a group
medical insurance policy to cover 100,000 persons who may later develop
symptoms” and cover any shortfall in the settlement fund. It also “requests”
that Carbide and its subsidiary “voluntarily” fund a hospital in
The Chairman and CEO of
Union Carbide, Warren Anderson, had been arrested and released on bail by the
Madhya Pradesh Police in
Beginning in 1991, the
local authorities from
The US Supreme Court
refused to hear appeal of the decision of the lower federal courts in October
1993, meaning that victims of the
Meanwhile, very little of the money from the settlement reached with
Union Carbide went to the survivors, and people in the area feel betrayed not
only by Union Carbide (and chairman Warren Anderson), but also by their own
politicians. On the anniversary of the tragedy, effigies of Anderson and
politicians are burnt.
In July 2004, the Indian
Supreme Court ordered the Indian government to release any remaining settlement
funds to victims. The deadline for this release was extended by the Indian
Supreme Court In April 2005, giving the Indian government until
August 2006 saw the Second
Circuit Court of Appeals in
Criminal charges are
proceeding against former Union Carbide India Limited employees including:
Former UCIL Chairman Shri Keshub Mahindra; presently Chairman-cum managing
Director Shri Vijay Gokhale; former Vice-President Functioning In charge, Shri
Kishor Kamdar; former works manager Shri J. Mukund; and former Production
manager A.P. Division, Shri S.P. Choudhury.
It is shocking that the Dow
Chemicals claimed the remainder of the Relief Fund carved out of the settlement
between the Government of India and Union Carbide for cleaning up the
environmentally hazardous pollution emanating from the abandoned unit of the
factory at
Very appropriately, the Supreme Court on
Survivors whose claims may
have been wrongly dismissed or who were underpaid were directed by the court to
file a separate application, and seek compensation from the Government of
India. The average payout will still only amount to $570 per person which,
despite Dow-Carbide's now famous dictum that "$500 is plenty good for an
Indian", comes nowhere near meeting the costs of medical treatment that
survivors have already had to fund for themselves, much less compensating for
two decades of illness, loss of livelihood and fear for what new horrors may
emerge in their bodies.
It is a further setback for
the Dow-Carbide Corporation and its political accomplices in
The Government of India has
decided to convey the "No Objection" to the US Court of Appeals to
consider environmental contamination claims unrelated to the Bhopal Gas Leak
Disaster as defined in section 2(a) of the Bhopal Gas Leak Disaster (Processing
of Claims) Act 1985.
The issue pertains to a
civil proceeding instituted in 1999 by some of the Bhopal based NGOs including
that of Hasina Bi"s claims and affected persons in the US District Court
for the Southern District of New York seeking relief under the Alien Tort
Claims Act of New York against Union Carbide Corporation and Mr. Warren
Anderson for causing personal injury as well as damage to the property. The
suit was dismissed by the District Court on
As is clear from the order
of the Court of Appeal the claim for site remediation can be taken up by the
District Court to which the case stands remanded only if the Indian Government
or the State of
The views of Madhya Pradesh
Government have also been obtained and who have also conveyed their "No
Objection" in the matter with certain conditions. The "No
Objection" given by the Government of India gives its consent to the US
Court to direct the Union Carbide Corporation to clean up the mess it left
behind in its plant in Bhopal, as the plant, which was operated by Union
Carbide India Limited (UCIL) a wholly owned subsidiary of the multinational
Union Carbide Corporation (UCC), closed down in December 1984 following the
leak of tonnes of methyl isocyanate that led to the death of thousands of
people.
The union of India made it
clear that neither the Madhya Pradesh State Government or its instrumentalities
nor the Union of India has any objection to any relief for environmental
remediation of the former Union Carbide plant premises in Bhopal being ordered
or directed by a competent court or tribunal of the United States, as pleaded
by the representatives of the victims of the tragedy. The Union of India made
such a submission to the Court in US. Further, the Union of India and the Madhya
Pradesh State Government and their respective instrumentalities, expressed
their will to cooperate with any such relief as and when issued by the United
States District Court. The Union of India will monitor and supervise such
environmental remediation including decommissioning of plant and machinery,
remediation / disposal of contaminated soil and appropriate disposal of toxic
chemicals and wastes on the plant site by Union Carbide in order to ensure that
it is undertaken in compliance with the norms parameters laid down by a
specific organization of the Government of India, the Central Pollution Control
Board, for that purpose.
However the Union of India
was categorical in its commitment that the Union Carbide will also be held
responsible for any loss/damages caused to life or property in the process of
remediation and disposal. Pursuant to the "polluter pays" principle
recognized by both the United States and India, Union Carbide should bear all
of the financial burden and cost for the purpose of environmental clean up and
remediation. The Union of India and the State Government of Madhya Pradesh, the
submission stated, shall not bear any financial burden for this purpose.
.In spite
of the anxiety of the Supreme Court for providing expeditious relief to the gas
victims, there is much to be desired regarding medical care, rehabilitation and
compensation. The progress regarding compensation claims to be slow, that it
may take 15 years for all cases to be heard. Even the interim relief of Rs.200
per month being paid to the gas victims was discontinued from
Noteworthy Legal Issues
Absolute Liability:As the case was in progress the
Supreme Court of India had occasion to consider a case (M.C. Mehta v. Union of
India[3]
decided on 20/12/1986) relating to the leak of Oleum Gas from one of the units
of Shriram Foods an Fertilisers Industries. The case arose out of the
applications filed by the Delhi Legal Aid and Advice Board and the Delhi Bar
Association for award of compensation to persons who had suffered harm on
account of escape of Oleum gas. The Supreme Court declined to entertain these
applications and left them to be investigated and tried in the ordinary courts
for it did not decide the question whether shriram was an authority within the
meaning of Article 12 so as to be subjected to the discipline of the
fundamental right under Article 21. But
the Court went into the question of cases and evolved new principles. The
principle of liability laid down is that an enterprise engaged in a hazardous
or inherently dangerous industry owes a strict, absolute and non-delegable duty
and if any harm results on account of such activity, the enterprise is
absolutely liable to compensate for such harm. The exceptions to the rule of Rylands v. Fletcher[4]
have no application to this new rule and so the enterprise cannot escape
liability by pleading act of God or act of a stranger e.g. sabotage being the
cause of the damage. As regards to compensation, the Court said that the
measure of compensation must be correlated to the magnitude and capacity of
enterprise because such compensation must have a deterrent effect.
There after a number of enactments were made by the union
legislature for the purpose of controlling the environmental pollution, like
the Hazardous Waste (Management and
Handling) Rules, 1989, secondly the Manufacturing
Storage and Import of Hazardous Waste Chemical Rules, 1989, thirdly the Public Liability Insurance Act, 1991,
fourthly the National Environmental
Tribunal Act, 1995, an even many more legislation are made on the
protection of environment from pollution.
Again the
scope of Art 21 was enlarged the
Right to human health and healthy environment was approved; the Right of
enjoyment of pollution free water and air for full enjoyment of life as a part
of Right to Life was approved. And
Right to clean environment was also comprehended as a Right under Art 21 of The
Constitution of India.
The Congenital Disabilities (Civil
Liability) Act 1976
of
Conclusion and
analysis
In his article, N.D. Sharma, chief editor of the Tribune,
Around
twenty years after the world's worst disaster the story has not yet ended,
Thousands who survived are today suffering multiple health complications and
those living closest to the plant continue to be poisoned. Thousands drink
water poisoned by the chemicals that remain in the abandoned Union Carbide
plant. Neither the Government nor the Dow Chemicals, which bought Union Carbide
is willing to take responsibility for cleaning up. The victims are still
running from court to court seeking justice, while the rest of the country does
not know anything about their plight. It is rightly described as the tragic
story of
It is reported that the company dug the bottom soil from three large solar
evaporation ponds in Atal Ayub Nagar adjoining UCIL's factory in
The land around the factory is now occupied and every inch of it was built
upon. The abandoned factory was being used as a public toilet by adjacent
slums. Two large cylindrical tanks, which contained MIC including the one
responsible for the gas leak on that fateful night are still lying there in the
factory emanating the poisonous fumes. Sacks of decaying chemicals, blackened
chemical bags, pools of stagnant water, rusted metal boxes labeled Sevin and
Nitrate residues are still pose a danger to the vicinity there. As the
groundwater is totally contaminated the people living around were promised to
be supplied with the alternative piped water. The amount of Rs 3 crore
sanctioned for this purpose was spent elsewhere.
Who is legally responsible for this toxic wastes left behind by UCIL? In the
absence of industrial activity the lease of the land to factory was cancelled
by the Government of Madhya Pradesh. The land measuring 87.62 acres has been
transferred to the Gas Relief and Rehabilitation department of the Madhya
Pradesh Government. But as polluter, the UCIL must be fully responsible for
wastes. It agreed to surrender the land in usable and habitable condition, as
per lease terms. The Madhya Pradesh Pollution Control Board had directed UCIL
to carry out environment investigation of dumpsite and remediation thereafter.
Yet site was surrendered without complying with those directions in the same
conditions not fit for habitation. All those provisions in Environment
(Protection) Act 1986 and the Water (Prevention and control of Pollution) Act
1974, which contain heavy penalties, are yet to be used against them. It is
continuation of crime of pollution; the MPPCB does not use its power to
prosecute the culprit company.
The CAG
notes in his latest report that by March 2006 Rs 325 crore had been reported as
spent by the State Government under various heads for the gas affected people.
A major portion of the funds, according to the CAG report, was lying unspent,
while substantial amounts were spent on activities unrelated to the welfare of
gas victims. The medical facilities were inadequate and measures of social and
economic rehabilitation lacked effectiveness.[7]
Cost of clean up was estimated to be Rs 2.5 Crores sometime back. Now the
estimates have gone up to even Rs. 100 crores while Greenpeace activists put it
at Rs 500 crores.[8]
Who will pay? It remains a moot question even today. Bhopal is the symbol of a
disastrous 'side' effect of so called Globalization and stands out as a living,
say dying, example of inadequacy of domestic law to regulate, prevent or
penalize the pollute TNCs and their agents.
As the environment problems are going to be there for all generations to come,
it is the duty of every person and every nation to evolve a equitable principle
of making Trans National Companies liable for its transfer of hazardous
technology to developing countries if that resulted in damage to human life or
environment, without leaving any scope for escape after passing the buck on to
the subsidiary or agent in different mask.
International law based on conventions and protocols read with UN documents and
reports of the UN Commissions, a new law to tackle the TNC hazards and imposing
absolute liability should emerge. The environment protection is a universal and
inter-generational equitable obligation of entire humanity irrespective of
being developed, developing or underdeveloped nations in the international
comity of nations. If not, the environment and human life will never be safe.
Environmental safety cannot be achieved by creating new fundamental rights in
favour of citizens, when they are not effectively enforced. Disaster may not be
frequently repeated.
But after experiencing the trauma of disaster, disastrous litigation and
corrupt consequences without imposing any criminal liability on the culprits,
nothing tangible is left as a system with which we could prevent such
disasters. As mentioned even now the abandoned Union Carbide factory is
spreading the poisonous gas, and the State did not prevent the spread of
residential colonies around the deserted place of disaster, containing the
contaminating chemicals. What system do the third world countries have to
tackle the present and continuous disaster and to prevent some more?
The
The
disaster which left thousands dead and 600000 injured was settled for a mere US
$ 470 million which comes to about Rs.10000 per person if it is divided equally
among the victims.
Times of
Thus it is
seen how the life of an Indian citizen in
Bibliography
Books Referred
1. Ratanlal & Dhirajlal’s ‘The Law
of Torts’, Wadhwa & Company Nagpur, 24th edition,2007
2. Ramaswamy Iyer’s ‘The Law of Torts’
Lexis Nexis Butterworths, 9th edition,2006
3. ‘Law of Torts’ by R.K. Bangia,
Allahabad Law Agency, 2006
4. ‘Our Constitution’ by Subhash C.
Kashyap, National Book Trust, 2004
5. ‘Poison cloud’ by Larry Everest,
Banner press,1986
Websites Referred
1. http://web.amnesty.org/pages/ec-bhopal-eng
2. http://www.legalserviceindia.com
3. http://www.tribuneindia.com
4. http://www.commonlanguageproject.net/?page_id=23
Cases Referred
1.
M.C. Mehta v.
2.
S. Saiduddin v
Court of Welfare Commr 1996(3) Scale 28 (SP)
3.
Rylands v Fletcher (1868) LR 3 HL 330
[1] Poison cloud, Banner press,1986, Page 12
[2] The
Tribune, April 19-23,
[3] (1987) 1 ACC 157 : 1987 1 SCC 395 : AIR 1987 SC 965
[4] (1868) LR 3 HL 330
[5] S. Saiduddin v Court of Welfare Commr 1996(3) Scale 28 (SP)
[6] The
Tribune,
[7] The
Tribune,
[8] Figures
found in http://web.amnesty.org/pages/ec-bhopal-eng>
accessed on