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Published : October 06, 2010 | Author : deepikanuals
Category : Human Rights laws | Total Views : 42551 | Rating :

Deepika Kumar Date of Birth: 7th April, 1992 Currently 2nd student of National University of Advanced Legal Studies, Kochi.

Legal Aspects Of Bhopal Gas Tragedy

The Bhopal gas tragedy is, till date, the world’s worst industrial disaster. It occurred in December of 1984 at Bhopal in Madhya Pradesh. The tragedy was a result of the leak of the methyl isocyanate (MIC) gas from the Union Carbide India Ltd (UCIL) plant which manufactured pesticides. On the night of December 2-3, 1984, there was a leak of the MIC gas which is considered to be the most toxic chemical in industrial use. All around the city of Bhopal, people were exposed to this gas and the immediate effects of inhaling the gas were coughing, vomiting, severe eye irritation and a feeling of suffocation. Thousands of people died immediately and lakhs of people sustained permanent injuries.

Background And Effects Of The Leakage: -  The MIC in the Union Carbide Plant was primarily used for the production of carbaryl, which is a pesticide. It is alleged that most of the safety systems were not functioning and that most of the safety valves were in poor condition around the time the incident took place. During the night of December 2-3, 1984, large amounts of water entered into the tank numbered 610 which contained about 42 tonnes of methyl isocyanate. At the time, workers were cleaning out pipes with water, and some claim that owing to bad maintenance and leaking valves, it was possible for the water to leak into tank 610. This resulted in an exothermic reaction which caused the temperature and the pressure inside the tank to increase. Due to this urgent venting of pressure, large volumes of MIC gas were released into the atmosphere. The gases flooded the city of Bhopal, causing great panic as people woke up with a burning sensation in their lungs. Thousands died immediately from the effects of the gas and many were trampled in the panic. The long term health effects of the gas include visual impairment, blindness, respiratory difficulties, immune and neurological disorders, lung injury, female reproductive difficulties and birth defects among children born to affected women.

The Legal Battle: - In the February of 1985, the Indian Government filed a case in the U.S Court for a claim of $3.3 billons against the Union Carbide Corporation. But by 1986 all of these litigations in the U.S District were transferred to India on the grounds of forum non conveniens. It means that the case should be transferred to a more convenient forum so that the trial proceeds smoothly. Meanwhile in March 1985, the Bhopal Gas Leak Disaster (Processing of Claims) Act was passed which empowered the Central Government to become the sole representative of all the victims in all kinds of litigations so that interests of the victims of the disaster are fully protected and the claims for compensation are pursued speedily. In the year 1987, cases were filed in the Bhopal District Court which ordered the Union Carbide Corporation to pay 350 crores as interim compensation. But the interim order could not be decreed and therefore the UCC refused to pay the amount. Later on, at the High Court, this interim compensation amount was reduced to 250 crores. Both the Union of India and the UCC preferred appeals by special leave against this High Court's order.

The Settlement Order: -  But a major twist to these legal proceedings came through the settlement order which was stroked out between the Indian Government and the Union Carbide in an out of Court settlement in February 1989. Through this deal the liability of the Union Carbide was fixed at $470 millions in full and final settlement of all claims, rights, and liabilities arising out of the disaster. The terms of the settlement were such that it limited liability under all future claims as well, whether they were civil or criminal. This would mean that henceforth, all kinds of liability arising out of the disaster could be fixed only upon the Government of India and the Union Carbide would be held liable only to the extent of $470 millions.

The actual wordings of the settlement are thus:
‘This settlement shall finally dispose of all past, present and future claims, causes of action and civil and criminal proceedings (of any nature whatsoever wherever pending) by all Indian citizens and all public and private entities with respect to all past, present and future deaths, personal injuries health effects compensation, losses, damages and civil and criminal complaints of any nature whatsoever against UCC, Union Carbide India Limited, Union Carbide Eastern, and all of their subsidiaries and affiliates as well as each of their present and former directors, officers, employees, agents representatives, attorneys, advocates and solicitors arising out of, relating to or concerned with the Bhopal gas leak disaster, including past, present and future claims, causes of action and proceedings against each other.’

This was indeed a bad move as the settlement would limit liabilities under future claims as well. Moreover, $470 millions was not sufficient to compensate all the injured. In fact, it is hardly 15% of the original claim of $3.3 billions at the U.S Supreme Court.

This obviously evoked criticisms from all corners. A number of review petitions were filed at the Supreme Court questioning the validity of the settlement order. The settlement order was challenged on various grounds. Firstly, it was pointed out that the settlement order was between the Union of India and the Union Carbide Corporation, whereas the actual people who are going to be affected by such a settlement order would be the victims of the tragedy. Thus, the first argument raised was that the settlement order is void because no notice was given to any of the people whose interests would be affected.

It was also assailed on the grounds that this order also applied to future claims and this would mean stifling prosecution and that it was opposed to public policy. The order was also questioned for the inadequacy of the compensation and for the absence of any re opener clause. The absence of re opener clause is a very significant issue as latency period for the manifestation of the effects of the toxic injuries was unpredictable and therefore the amount of compensation was wrongly arrived at. Moreover, a lot genuine claims might arise in the future and limiting the liability arising out of such a major industrial disaster with such gravity and magnitude, without a re opener clause is clearly against justice, and if such a thing be allowed, it would definitely amount to unfair treatment from the view of the lakhs of people who were injured as a result of the gas leak.

But all these contentions were rejected by the Supreme Court and the validity of the settlement order was upheld in the case, Union Carbide Corporation v Union of India, the judgement being delivered on October 3, 1991. The Court upheld the validity of the settlement order in all aspects except the condition quashing the criminal proceedings. The condition quashing the criminal proceedings alone was held unjustifiable but all other aspects including the amount of compensation decided in the settlement order were held to be valid.

The Court was of the opinion that the subject matter of the deal was not illegal and that there was no valid reason to render the contract void. The settlement only limits the liability of the Union Carbide and this does not affect the victims in anyway because in any case the settlement fund is to be found insufficient, then the deficiency is to be made good by the Union of India. Thus, no liability could be fixed on the Union Carbide. This would obviously mean that if the claims exceed $470 millions, the excess liability can only be compensated by the Union of India and the Union Carbide cannot be made responsible for that in any manner.

The settlement order was reached because of the urgent demands to compensate the victims. The very basic consideration motivating the conclusion of the settlement order was the compelling need for urgent relief. Though the amount stroked out may prove to be inadequate the deal stands valid in all aspects and no further liability could be placed on the Union Carbide. The rationale behind the judgement is that withdrawal of a prosecution with a good motive, such as providing relief to the victims of a disaster is not opposed to public policy and hence the deal would stand valid. Moreover, on the question of accord and satisfaction, it was held that even a promise to pay a lesser sum would be a full satisfaction of the claim if it was agreed upon by both parties based on a compromise. Therefore, the whole claim is discharged at $470 millions as the Government of India agreed upon this as a full and final settlement for all past and as well as future claims.

The Criminal Proceedings: -  Apart from these civil proceedings, criminal proceedings were also initiated before the Chief Judicial Magistrate in Bhopal. The case was instituted in the year 1987. Since the clause in the settlement order which quashed the criminal proceedings was held invalid and unjustifiable, the criminal proceedings initiated could continue. The judgement was delivered only on June 7, 2010, 26 years after the disaster. The proceedings were initiated under Section 304 A, and Sections 336, 337, and 338 read with Section 35 of the Indian Penal Code. Section 304 A deals with causing death by negligence. Sections 336, 337 and Section 338 deal with the offences of endangering life and personal safety of others. This is read along with Section 35 which deals with the aspect of common intention.

In this case, the prosecution argued that the whole disaster was a result of running a defectively designed plant with a number of operational defects without any reasonable care. The prosecution submitted the findings by the Council of Scientific and Industrial Research (CSIR) to substantiate their contentions. The team of scientists from the CSIR noticed that MIC was stored in large tanks instead of stainless steel drums. The flare tower and the vent gas scrubber had been out of service for five months before the disaster. The gas scrubber therefore did not treat escaping gases with sodium hydroxide (caustic soda), which might have brought the concentration down to a safe level. To reduce energy costs, the refrigeration system, designed to inhibit the volatilization of MIC, had been left idle. Slip-blind plates that would have prevented water from pipes being cleaned from leaking into the MIC tanks through faulty valves were not installed. Carbon steel valves were used at the factory, even though they corrode when exposed to acid. On the night of the disaster, a leaking carbon steel valve was found, allowing water to enter the MIC tanks. The pipe was not repaired because it was believed it would take too much time and be too expensive. Thus, insufficient caution in design choice of material and other alarming instruments, inadequate control on systems of storage and on quality of stored materials and as well as lack of necessary facilities for quick effective disposal of material are the main reasons which lead to the incident. All these show that the business was carried out with reckless indifference to the public. The Company authorities had the knowledge and the properties of how dangerous a gas is MIC and still carried on the activities with gross negligence, recklessness and utter disregard to the public. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. The UCC being a company dealing with a substance like MIC, it owes a duty of care to the public. The activities of the enterprise falls far below the standards required and therefore, the prosecution argued that it amounted to gross negligence.

For all these contentions, the UCC came up with several defences. Firstly, they argued that the reports by the CSIR cannot be admitted as evidence. It was that CSIR was merely a fact finding body and that it was constituted for a very limited purpose. Therefore, it was argued that its contents could not be taken as proof. Secondly, it was contended that the Company had obtained all licenses and approvals from the Government for carrying out the business under the Designed Transfer Agreement & Technical Service Agreement. All other permits required were also duly obtained and hence the UCC argued that they carried out their business in a completely authorised manner with the permission being obtained by the Government of India itself. Moreover, it was submitted that none of the Company officials had any criminal intention to cause any harm to any member of the public. The Company refused to admit any kind of negligence on its part and further argued that the officials were in no way involved with the day to day activities of the business and therefore they cannot be held responsible for any negligence on the part of the workers. It was further argued that the accused officials were not even present in the occasion where the disaster took place. All these were based on the principle that vicarious liability is not applicable under criminal law and therefore the directors cannot be held liable for the negligence of the workers.

The UCC also denied all allegations that the UCIL plant in India was not properly designed. It further submitted that the MIC plant at Bhopal was designed in the same pattern as that of the MIC plant in Verginia, USA. But it is important to note that The Government of India was never permitted to visit the plant at Vergina. Also, no brochure or any other documentary evidence demonstrating the similarity between the two plants at Verginia and Bhopal was produced before the court by the UCC to support its contentions.

The Judgment: - But all of these contentions were rejected and all the accused were found guilty and were subjected to imprisonment and were also liable to fine. But these orders could not be enforced as some of the accused did not appear in the Court. Mr. Warren Anderson, who was the chairman of the UCC at the time the disaster took place, is still absconding and all requests for his extradition still remain unsuccessful as the U.S Government rejected it.

Legal Issues: One of the main issues which the Bhopal Gas tragedy raises is the issue of absolute liability. This issue was elaborately discussed in the case of M.C Mehta v Union of India. The principle of absolute liability states that when an enterprise is engaged in hazardous or inherently dangerous industry and if any harm results in account of such activity then the enterprise is absolutely liable to compensate for such harm and that it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. In such industries, the principle of safe design would be that one does not guard merely against the most predictable, routine type of accidents. Rather one tries to anticipate the worst that could happen, even if it is highly unlikely, and not only guard against it, but prepare to contain it and make sure that there is no way for that even to take place.

This is the principle of absolute liability and liability can be fixed even if there is no negligence on part of the accused. In the case of absolute liability, even the defences available under strict liability would not apply. Thus, even if the accident is some freak incident, liability would still be fixed. In such a case, it would be no good defence to argue that the direct or the proximate cause of the accident or the causa causan of the accident was not the carrying of such hazardous activity, but it actually is an Act of God or that it is due to some third party intervention. Even if the Company had taken extreme precautions to ensure that such events do not take place, responsibility would still be fixed on them. This principle of absolute liability in India evolved primarily because of the awakening that the Bhopal Gas Disaster and the Oleum Gas Leak case gave.

The Bhopal Gas Tragedy is also in a way responsible for the passing of the Public Liability Insurance Act, 1991 which provides for compulsory insurance of any unit or factory undertaking a hazardous activity.

Apart from all of this, the tragedy has recently been much discussed in the light of the Nuclear Liability Bill. This bill has a lot of controversial provisions which aim at capping the total liability in case of a nuclear accident. The bill also prohibits the victims from suing the suppliers directly and allows them to recover only from the operators. The bill also lays a cap on the amount that an operator can recover from the suppliers.

In the light of the events that followed Bhopal, it is clear that there is a need for a proper mechanism of compensation and it is important that any kind of cap on liability should be removed as it would be unconstitutional.

Conclusion: -  The tragedy is still considered to be the world’s worst industrial disaster. To prevent such events from occurring in the future, the government should thoroughly check and regulate such industries. They should be placed under constant surveillance and the activities of such industries should be monitored at least once in every six months. Any kind of repair in any of the machines or equipments should be immediately attended to. The government should take it upon itself to make sure that everything is functioning properly.

Apart from this, the government should also make sure that there is a proper mechanism for compensation to the victims. It should ensure speedy justice and should make sure that proper relief is given to the victims.

In the event of such a large scale disaster as Bhopal, the questions like who is right and who is wrong and who was negligent and who was not become totally irrelevant in the plight of thousands of people who get affected in one single night.

It is totally unjustifiable to leave even a single victim without providing relief. Hopefully, such incidents should never occur again, and even if they do, we should not forget the lessons from Bhopal and we should make sure that any law capping the limit on the liability of such large magnitude disasters should be declared as unconstitutional.

Authors contact info - articles The  author can be reached at: deepikanuals@legalserviceindia.com

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