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
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 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 
"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.
Legal proceedings and settlement
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
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.
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 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 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
Conclusion and analysis
In his article, N.D. Sharma, chief editor of the Tribune,
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
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.
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.
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. 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 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.
Thus it is
seen how the life of an Indian citizen in
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
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
 Poison cloud, Banner press,1986, Page 12
Tribune, April 19-23,
 (1987) 1 ACC 157 : 1987 1 SCC 395 : AIR 1987 SC 965
 (1868) LR 3 HL 330
 S. Saiduddin v Court of Welfare Commr 1996(3) Scale 28 (SP)