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Bhopal Gas Tragedy and (in)adaequcy of compensation to victims

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The Bhopal gas tragedy remains unparalleled in the history of industrial disasters in the world. In the Union Carbide Corp v UOI (AIR 1992 SC 248) Hon’ble Chief Justice RN Misra said that judges are human beings and their hearts also bleed when calamities like the Bhopal gas leak incident occur.

Now, a Curative petition was before the 5-Judge Bench led by Hon’ble Justice S.K. Kaul. The Bench heard arguments for three days from January 10th-12th, 2023 and has reserved Judgment in the case. The Union’s plea was to enhance compensation settlement of $470 million for the damage caused by Union Carbide to the victims of the Bhopal gas Tragedy. The learned Attorney General (AG) R. Venkataramani argued that errors were made when deciding the settlement, requiring the Hon’ble Supreme Court to intervene and enhance the compensation granted to the victims. The learned Attorney General argued that the significant human tragedy involved in this case is sufficient reason for the Court to move past ‘conventional principles’ and provide relief through the curative petition.

HISTORY OF THE TRAGEDY

In the year 1934, UNION Carbide India Ltd (UCIL) was incorporated in India to manufacture batteries, chemicals, pesticides and other industrial products. The American enterprise, Union Carbide Corporation (UCC) owned a majority stake in UCIL. At the time of the disaster, UCIL’s ownership structure included UCC owning 51 per cent of the company, Life Insurance Corporation of India/Unit Trust of India owned 22 per cent and the Indian public owned 27 per cent.

In the year 1970, UCIL erected a pesticide plant in a densely populated area of Bhopal, Madhya Pradesh.

An Argentinean agronomic engineer by name Eduardo Munoz, who had been assigned the task of setting up the plant in Bhopal by UCC, had objected as it being in a residential area. But his bosses in the US overruled, saying, “You have absolutely no need to worry, dear Eduardo Munoz. Your Bhopal plant will be as inoffensive as a chocolate factory.”

With approval from the Government of India, UCIL manufactured the pesticides Sevin and Temik in the above plant. In the night time of 2-3 December 1984, water seeped into a tank containing over forty tonnes of the highly poisonous methyl isocyanate (MIC), a gas used in the production of Sevin and Temik. This caused an exothermic reaction because of which the MIC escaped into the atmosphere-and when the north-westerly winds blew this gas over the hutments adjacent to the plant and into the very densely populated parts of the city of Bhopal, making the city a gas chamber. This resulted in the immediate death of around 2606 people and the death toll rose to 8000 within a fortnight, hundreds of thousands were impacted by this leak.

This tragedy has had a profound impact and haunted several generations of Bhopal’s inhabitants. Over the next twenty-five years, estimates indicate that the number of fatalities rose to a 20,000 while 6,00,000 people suffered irreparable physical damage. Many who were not even born and still in the womb endured its catastrophic consequences. Even the current residents of Bhopal suffer from damaged reproductive systems, lung problems and vision impairments due to the gas leak.

LEGAL BATTLES

Accident of this colossal magnitude and its heinous impact woke up the environmentalists, social workers, general public and government institutions to start devising new ways and means of preventing similar tragedies in the future. This process leads to legislative measures and administrative activism. Industrial accidents involving environmental hazards give rise to judicial concern also.

A suo-motu FIR was registered on December 3rd, 1984 at Hanumanganj police station, Bhopal by the Union government against the executives and employees of UCC and UCIL under Section 304 (A) (causing death by negligence) Indian Penal Code. On December 6th, 1984 the investigation into the tragedy was handed over to the Central Bureau of Investigation (CBI). 

LEGAL BATTLES IN USA

The Government of India promulgated the Bhopal Gas Leak Disaster (Processing of Leak Disaster (Processing of Claims) Act, 1985(replacing the Bhopal Act and the privileges of its Claims Ordinance, 1985). This was done to avoid the problem of multiplicity of parties. This legislation conferred the Union of India the responsibility of suing parens patriae on behalf of the victims. The doctrine of parens patriae allows the state to protect the well-being of its citizens in a representative capacity. The intention behind the legislative measure was the speedy and equitable disposal of claims arising out of the Bhopal disaster.

The Bhopal Act evoked sharp criticism by few as the wrongdoer (UCIL) as mentioned earlier was partly owned by state corporations and the government could have been held partially liable for the tragedy. By invoking the doctrine of parens patriae, the government began to represent the very victims who could have initiated action against it. The government’s action has therefore been criticized as a device to protect itself rather than protect the victims.

The Union of India acting as parens patriae, had to select the forum where it could sue for compensation on behalf of victims. Two alternatives were observed:

  1. To file a case before a court in USA, where UCC, the parent company of the United Carbide India Ltd (UCIL), had its head-quarters and domicile or
  2. To file a case before the district court of Bhopal, where UCIL, the subsidiary of the UCC, is located.

Exercising the powers under the Bhopal Act, the Union of India choose the first option and on 8 April 1995 filed a complaint against UCC before the Southern District Court in New York, United States of America. By then, 144 proceedings were already under way in several federal courts across the United States in respect of the Bhopal gas leak. All these proceedings were consolidated to the court of Judge John Keenan. The arguments projected a strange situation-the Union of India argued that Indian courts could not handle the matter efficaciously while a United States corporation asserted that they could. The Union of India contended that

  • Its legal system was ill-equipped to handle the complex litigation
  • Delays in India’s legal system and the substantial backlog of cases would impede the effective disposal of the case.
  • Indian lawyers could not provide proper representation due to a lack of expertise in the area of tort claims as tort law in India was still in its infancy,

Judge Keenan of the District Court, Southern District of New York concluded that the arguments were untenable and dismissed the claim on the ground of forum non conveniens (doctrine which a court can refuse jurisdiction over a case where a more appropriate/convenient forum is available). The judge pointed out that the Union of India was a world power in 1986, and that its courts had the proven capacity to mete out fair and equal justice. Thus, accepted the stand taken by the UCC and rejected our contentions. He observed:

“To retain the litigation in this forum as plaintiffs request would be yet another example of imperialism, another situation in which an established sovereign inflicted its rules, its standards and values on a developing nation.”

“To deprive the Indian judiciary of this opportunity to stand tall before the world and to pass judgment on behalf of its own people would be to revive a history of subservience and subjugation from which India has emerged. India and its people can and must vindicate their claims before the independent and legitimate judiciary…”

LEGAL BATTLES IN INDIA

As soon as the above unsuccessful, the Union of India filed a suit in Bhopal on behalf of the victims. On December 17th, 1987, the Bhopal District Judge Ordered UCIL to pay an interim compensation of ₹350 Crores (Rs 3,500 million) to the victims. For doing so, the court invoked the inherent power of courts under section 151 of the Code of Civil Procedure 1908.

The High Court did not approve the use of inherent power during the hearing of the revision against the interim order. The High Court held that interim compensation could be given under section 9 of the Code of Civil Procedure 1908, as well as under the common law evolved and recognized by Indian courts. But the High court reduced the interim relief granted by the district court to ₹250 Crores (Rs 2,500 million). Both UCC and Union of India appealed against the decision.

The idea of a compromise arose during the course of hearing the appeal before the Supreme Court, The Supreme Court accepted the suggestion for compromise soon. In the overall settlement award of $470 million. The compensation amount was a mean between UCC’s offer of 426 million dollars and the Union of India’s demand for 500 million dollars. The court laid down a clear mandate concluding all civil proceedings and quashing all criminal proceedings in relation to the Bhopal gas leak.

The five-judge Constitution Bench of the Supreme Court passed this order on Valentine’s Day in 1989, the victims expected much compensation, since the Central government had earlier kindled their hopes of obtaining compensation of around 3 billion dollars i.e. more than six times the final settlement amount.

The court did not give enough emphasis on the issue of the need to protect national interests from being exploited by foreign corporations and to develop criteria to deal with potentially hazardous technology.

The Supreme Court reiterated that the compensation was adequate and that it actually exceeded personal injury claims of the time. But several individuals believe that the Court failed to appreciate the extent of the damage and its hazardous long-term effects.

In the book ‘10 Judgements that changed India’, by Zia Mody, the author attempts to put things into perspective. Here, she takes a conservative estimate that 1,70,000 people were killed or injured in the disaster, each victim/kin would get less than 50,000 rupees as the compensation. This was definitely not adequate in any manner.

In May of 1989, because to widespread public protests the Supreme Court decided to review the settlement. The Court did not increase the value of the compensation.

On October 3rd, 1991, the Union government filed a petition requesting the Supreme Court to reopen the settlement proceedings. They contested that the Supreme Court should have upheld the compensation stated by the Bhopal District Court. The Supreme Court rejected the petition and stated that it used its powers under Article 142 to dispose of the case in the District Court (Article 142 enables the Court to issue or pass any order that it feels is necessary to provide ‘complete justice’ in a case before it).

In 1994, UCC sold its entire stake in UCIL to an Indian company called McLeod Russel Ltd for Rs 170 crore. The name was changed to Eveready Industries India Ltd, which continues to operate in India.

In December 2010, the Union Government filed a curative petition against the 1989 settlement and sought additional funds of over ₹7,400 crores from the company. A Curative Petition is the last chance available for a party to ask the Court to reconsider a case it is filed after the court refuses to review a Judgment. 

On September 20th of 2022, the matter appeared for hearing before a Constitution Bench led by Justice S.K. Kaul. On October 11th of 2022, the Union informed the Court that it would pursue the petition and make a demand for higher compensation for the victims. 

The Bench heard arguments for three days from January 10th-12th, 2023 and reserved Judgment in the case.

CONCLUSION

All we can do for now is wait for the decision of the Hon’ble Supreme Court and have hope in the justice system.

References:

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Article by Aditya G S

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