Bhopal Gas Tragedy

By Deepro Sen



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 December 3, 1984, in the heart of the city of Bhopal in the Indian state of Madhya Pradesh. A Union Carbide subsidiary pesticide plant released 40 tonnes of methyl isocyanate (MIC) gas, immediately killing nearly 3,000 people and ultimately causing at least 15,000 to 22,000 total deaths. Bhopal is frequently cited as one of the world's worst industrial disasters and the Hiroshima of the Chemical Industry.


Background and the event itself-

On the night intervening 2nd and 3rd December, 1984, there occurred in Bhopal the most tragic industrial disaster in which thousands of persons lost their lives and lakhs of people suffered injuries of various kinds. The leak was a result of compromised safety procedures approved by the officials concerned with saving some $40 a day. There were no emergency systems in place to warn residents of the danger and despite claims by American officials that the chemicals emitted were no more harmful than tear gas, over 7000 people were killed in the immediate aftermath. During maintenance operations in the Methyl-Iso-Cyanide MIC plant a large quantity of water entered one of the storage tanks containing 60 tons of MIC, triggering off a runaway reaction. A deadly cocktail of MIC and other chemicals such as Hydrogen Cyanide and Phosgene was carried by the northerly wind to the neighboring communities. People woke up with invisible clouds of poison gas, stinging eyes and burning throats. The suffocating gas invaded lungs and created enormous fluids inundating the lives with their own body fluids. Running here and there for life did not save their lives, as the killer gas was all pervading.

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 11.00 pm occurred from MIC storage tank 610. Workers noticed it but thought to be a normal and small leak, source of which could not be located. The sting of MIC was getting stronger and the temperature and pressure were rapidly rising in tank. At around 12.30 a gigantic hiss came out, a runaway chemical chain reaction, triggered by the entrance of water, and created a tremendous heat and pressure. Forty tons of deadly gases burst past the rupture disc, overwhelmed the plant's safety systems, and shot into the atmosphere. Most of the workers fled in panic. Larry Everest narrated [1] "Throughout the slums and shanty settlements that surround the Union Carbide plant on three sides, thousands were awakened by the suffocating, burning effects of the gas, the cries of neighbours, the clamor of running, stumbling feet, or by the howls of animals in their death throes. Mothers did not know their children had died. Children didn't know their mothers had died. Men did not know their whole families had died. Anyone who was left alive ran away blindly." The toxic cloud was so dense and searing that people were reduced to near blindness in their rush through narrow, ill-lit alleys. Some who managed to hand onto life panicked, leaving loved ones behind. Families who tried to stay together were often separated momentarily in the blinding gas and then unable to regroup. Soon there was a massive exodus away from the Union Carbide Factory, now a fount of death, a stream of humanity of tens of thousands strong-walking, running, clinging to taxis, trucks, three wheeled autorickshaws or any other means of escape they could find. Bhopal looked like a battle zone in a chemical war. It was littered with the dead-lying in alleys, ditches, roadways, or still trapped in their huts, in the contorted positions of sudden death. They lay intermingled with the goats, cows, sheep, and other animals that had also perished. The gas cloud had devastated everything living in its path, even killing plants and turning leaves black. People were just lying on the road like dogs and cats. The survivors wandered among the carnage desperately seeking family and loved ones they had lost in the chaotic night. The total number of died may never be known. People continue to die from the effects of the gassing. Estimates of the number severely debilitated run as high as 60,000. And one can only speculate on what the long-term effects of such a massive exposure to toxins will be. There were mounting incidents of spontaneous abortions and stillbirths. Thousands could not work. All in all it was the worst industrial disaster in history.


Legal proceedings and settlement

On 14th December 1984, the Chairman and CEO of Union Carbide, Warren Anderson, addressed the US Congress, stressing the company’s “commitment to safety” and promising “to ensure that a similar accident “cannot happen again”. However, the Indian Government passed the Bhopal Gas Leak Act in March 1985, allowing the Government of India to act as the legal representative for victims of the disaster, leading to the beginning of legal wrangling.

March 1986 saw Union Carbide propose a settlement figure, endorsed by plaintiffs’ US attorneys, of $350 million that would, according to the company, “generate a fund for Bhopal victims of between $500-600 million over 20 years”. In May, litigation was transferred from the US to Indian courts by US District Court Judge. Following an appeal of this decision, the US Court of Appeals affirmed the transfer, judging, in January 1987, that UCIL was a “separate entity, owned, managed and operated exclusively by Indian citizens in India”. The judge in the US, Judge Keenan, granted Carbide’s forum request, thus moving the case to India. This meant that, under US federal law, the company had to submit to Indian jurisdiction.

Litigation continued in India during 1988. The Indian Supreme Court told both sides to come to an agreement and “start with a clean slate” in November 1988. Eventually, in an out-of-court settlement reached in 1989, Union Carbide agreed to pay US$470 million for damages caused in the Bhopal disaster, 15% of the original $3 billion claimed in the lawsuit.]By the end of October 2003, according to the Bhopal Gas Tragedy Relief and Rehabilitation Department, compensation had been awarded to 554,895 people for injuries received and 15,310 survivors of those killed. The average amount to families of the dead was $2,200.

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 Bhopal, at an estimate $17 million, to specifically treat victims of the Bhopal disaster. The company agreed to this. However, the International Campaign for Justice in Bhopal notes that the Court also reinstated criminal charges.

Charges against Warren Anderson and others

The Chairman and CEO of Union Carbide, Warren Anderson, had been arrested and released on bail by the Madhya Pradesh Police in Bhopal on December 7, 1984. This caused controversy as his trip to Bhopal was conditional on an initial promise by Indian authorities not to arrest him; after reneging on their word, Anderson has since refused to return to India.

Beginning in 1991, the local authorities from Bhopal charged Warren Anderson, who had retired in 1986, with manslaughter, a crime that carries a maximum penalty of 10 years in prison. Anderson has so far avoided an international arrest warrant and a US court summons. He was declared a fugitive from justice by the Chief Judicial Magistrate of Bhopal on February 1, 1992 for failing to appear at the court hearings in a culpable homicide case in which he was named the chief defendant. Orders were passed to the Government of India to press for an extradition from the United States, with whom India had an extradition treaty in place. He went missing for several years, until he was discovered by Greenpeace “living a life of luxury in the Hamptons”. The Bhopal Medical Appeal believe that “neither the American nor the Indian government seem interested in disturbing him with an extradition”. Some allege that the Indian government has hesitated to put forth a strong case of extradition to the United States, fearing backlash from foreign investors who have become more important players in the Indian economy following liberalization. A seemingly apathetic attitude from the US government, which has failed to pursue the case, has also led to strong protests in the past, most notably by Greenpeace. A plea by India's Central Bureau of Investigation to dilute the charges from culpable homicide to criminal negligence has since been dismissed by the Indian courts.

The US Supreme Court refused to hear appeal of the decision of the lower federal courts in October 1993, meaning that victims of the Bhopal disaster could not seek damages in a US court.

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 30th April 2006 after a request from the Welfare Commission for Bhopal Gas Victims. The fund is believed to amount to $390 million after earning interest “from money remaining after all claims had been paid”.

August 2006 saw the Second Circuit Court of Appeals in New York uphold the dismissal of remaining claims in the case of Bano vs. Union Carbide Corporation. This move blocked plaintiffs’ motions for class certification and claims for property damages and remediation. In the view of Carbide, “the ruling reaffirms UCC’s long-held positions and finally puts to rest — both procedurally and substantively – the issues raised in the class action complaint first filed against Union Carbide in 1999 by Haseena Bi and several organizations representing the residents of Bhopal”. In September 2006, the Welfare Commission for Bhopal Gas Victims announced that all original compensation claims and revised petitions had been “cleared".

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 Bhopal. The balance of the hitherto undistributed compensation has accumulated interest and grown to Rs. 1,505 crores. (some $327 million).
Very appropriately, the Supreme Court on
19 July, 2004 ordered the Government of India to distribute the balance of compensation remaining from Union Carbide's settlement among the 566,876 Bhopal survivors whose claims have been successfully settled.

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 India, who are on record as demanding that this money, meant for the relief of the survivors, should be used to clean up the company's abandoned and polluted factory in Bhopal. Last month, the Government of India threw its weight behind a court action to force Dow-Carbide to bear the full costs of cleaning the plant.

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 August 28, 2000 on the grounds that the plaintiff lacked standing to bring the action and that their claims were barred by 1989 settlement in the Supreme Court of India. Being aggrieved by the dismissal of their suit, the plaintiff filed an appeal before the Second Circuit Court of Appeals. The Court of Appeals heard parties in detail and after taking into account all the relevant facts, remanded the case by its order dated 17.3.04 to the District Court to consider certain aspects afresh.

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 Madhya Pradesh seeks to intervene in the action or otherwise urges the Court to order such relief.

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 April 1, 1993 and there was a demand in the lok sabha on 2nd April, 1993 for the restoration of the same. According to another report, 74% of the Bhopal gas victims claims have been rejected and sufficient amount of claim courts have yet to be set up to deal with the claims.[2]

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 England was referred to by the Supreme Court of India in this case. This act permits an action if the child is born alive but disabled. Damages for the loss of expectation of life of such a child can be claimed, provided the child lives for at least 48 hours after birth. The Act permits an action not for injury to a child in the mother’s womb, but also for the acts prior to that. In a suit by minors relating to congenital disabilities arising due to inhalation of MIC by their parents, the court held that those who were not born at the time of the gas leak but who were able to show that their congenital defects are traceable to the toxicity from the gas leak inherited or derived congenitally will be entitled to compensation. A father of a girl child, born after the disaster, who died after four months, showing the symptoms of the gas effect because her mother had inhaled the gas was allowed compensation of Rs.1.5lakh by the Supreme Court.[5]



Conclusion and analysis


In his article, N.D. Sharma, chief editor of the Tribune, chandigarh has said, Bhopal is the largest industrial accident in the world history, bigger even than Chernobyl, and yet fifteen years of it remains an unprecedented example of the monstrous injustice for those affected. Carbide, one of the world's richest corporations, is responsible for poisoning half a million innocent people; for killing upwards of 16,000 and destroying the health, for the rest of their lives, of some 100,000 others — but it still hasn't properly answered for its actions in a court of law.” [6]

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 Bhopal how corporate indifference, government apathy and uninformed people's disinterest made the life and death of victims miserable for some more decades. It is unending continuation of perpetuation of tragedy.

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
Bhopal, spread over more than 20 acres, which were used to dump waste by UCIL. It was dug to bury the sludge under three meters of farm soil. People bathe, swim and even drink this water. Cattle die after drinking water from these ponds. The adjoining tube wells give water unfit for drinking. The yield from crops from nearby fields was drastically reduced. At least one person a day still dies from gas exposure related diseases and 1.5 lakh are in urgent need of medical attention. Breathlessness, loss of appetite, pain, menstrual irregularities, recurrent fever persistent cough, neurological disorders, fatigue weakness, anxiety and depression are among the most common symptoms. Research findings on chromosomal aberrations suggest that the future generations of the survivors will possibly carry the leftovers of the industrial toxins.
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 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 standards.

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 India in an article stated that approximately US $ 40,000 was spent on the rehabilitation of every sea otter affected by the Alaska oil spill. Each sea otter was given rations of lobsters worth US $ 500 per day.

Thus it is seen how the life of an Indian citizen in Bhopal was clearly cheaper than that of a sea otter in America.


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







Cases Referred

1.     M.C. Mehta v. Union of India (1987) 1 ACC 157 : 1987 1 SCC 395 : AIR 1987 SC 965

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,Chandigarh, India

[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,  Sunday, December 10, 2000,Chandigarh, India

[7] The Tribune,  Sunday, December 10, 2000,Chandigarh, India

[8] Figures found in> accessed on Wednesday October 3,2007 at 11.47am