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Project Report on

Bhopal Gas Tragedy

Submitted to: Submitted by:

Ms. Sabina Salim Resham rana 73/13

Assistant Professor, U.I.L.S Soumi goyal 97/13

Yajur sharma 112/13

Sukhsandesh 97/13

Aditya mehtani 187/13


Acknowledgement

I take this opportunity to express my profound gratitude and deep regards to my teacher
Ms. Sabina Salim for her exemplary guidance, monitoring and constant encouragement
throughout. The blessing, help and guidance given by her time to time shall carry me a
long way in the journey of life on which I am about to embark.

I am obliged to the library staff for their cordial support, valuable information and
guidance, which helped me in completing this task through various stages.

Lastly, I thank almighty, my parents, siblings and friends for their constant
encouragement without which this assignment would not be possible.
Table of Contents

Contents

Acknowledgement ..................................................................................................... 2

About Heart rending day.......................................... Error! Bookmark not defined.

Prior notices issued .................................................. Error! Bookmark not defined.

Consequesnces ......................................................... Error! Bookmark not defined.

Immediate consequences ......................................... Error! Bookmark not defined.

Protracted consequences .......................................... Error! Bookmark not defined.

REHABILIATION.9

Steps taken after..13

Trial Of The Bhopal Gas Incident ......................................................................... 157

Law rekated angle of Bhopal Gas Tragedy.21

The Criminal Proceedings ....................................... Error! Bookmark not defined.

Absolute Liability....31

Conclusion...38
THE HEART RENDING DAY

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. On a clear night, with little wind and no rain expected,
the worst nightmare was unleashed on the unsuspecting people of Bhopal. Workers, on
the night shift in the plant detected a faint smell of boiled cabbage (associated with MIC),
but they ignored it. What they did not know was that shoddy maintenance and poor safety
precautions had meant that water was leaking into tank 410, carrying 40 tons of MIC, and
a violent reaction was about to take place. When a few workers dared to venture out
towards that tank, they felt the rumble under their feet and in a few moments, the tank
burst out of its concrete casing and exploded, sending a deadly cloud of MIC into the air.
The prevailing wind at ground level sent the cloud swirling across the surrounding slums
and into the city of Bhopal.

This was the first time that an accident had occured in a Union carbide plant. In the
Indian plant itself, one of the workers, Ranjit Singh, had died in 1981 of exposure to MIC
when a few drops of it fell on his clothing and he removed his safety mask a little too
early. Compensation was paid, the event was hushed up and there was little to indicate
that this was more than an isolated aberration. However, in the 80s the plant started
running at a loss due to diminishing demand for Sevin and hence was forced to cut back
on costs. Unfortunately, the person responsible for cutting costs did not know the first
thing about chemicals and ended up getting rid of all the safety mechanisms, including
the all important flare to burn off any escaping MIC in case of a leak. Between 1981 and
1984, six such leaks were documented, but did not lead to any deaths, according to a
subsequent report by the Madhya Pradesh government. In the American plant
manufacturing 'Sevin' as well, over 28 such leaks were documented, but the information
wasn't released for the fear of causing an uproar in the local community. The Bhopal
plant, in 1984, had ceased to conform to any international safety standards and Indian
standards being non-existent, it continued to cut back on safety.

Around 570,000 people were affected because of the incident. This massive figure
includes approximately 5,000 who died instantly and several hundred thousand maimed
for life, including children born with defects arising from the disaster. Such a large
number almost matches, another tragedy - the bombing of Hiroshima at the end of World
War II.

WHY THE PLANT STARTED

There is an interesting history behind the setting up of the plant, and it is intricately
linked to the 'Green Revolution' that was underway in India in the 70s. The increasing
emphasis using high-yield varieties of seeds and chemical fertilizers and pesticides, to
ensure self-sufficiency in grain meant that India became a huge consumer of these
products, leading to a severe shortage within the country itself. Foreign multinationals,
such as Union Carbide, saw the massive potential to sell such pesticides and fertilizers to
the country's 300 million or so farmers. One of these products was the 'miracle' pesticide
'Sevin' which, while not being as polluting as DDT, was equally effective against
numerous kinds of pests, and hence was in great demand in many Third World countries
at that time, India being no exception. In the government of the day as well, Union
Carbide's proposal to build the plant at Bhopal was welcomed and permission granted
readily. Bhopal was chosen primarily because of its central location, good access to
resources and easy communications with the rest of India. But instead of promoting
Green Revolution in the country it devastated the country and totally changed the face of
Bhopal.
The Union Carbide India Limited (UCIL) factory was established in 1969 near Bhopal.
50,9 % was owned by Union Carbide Corporation (UCC) and 49,1 % by various Indian
investors, including public sector financial institutions. It produced the pesticide carbaryl.
In 1979 a methyl isocyanate (MIC) production plant was added to the site. MIC, an
intermediate in carbaryl manufacture, was used instead of less hazardous but more
expensive materials. UCC understood the properties of MIC and how to handle it. The
Leakage On the night of December 2, 1984, during routine maintenance operations at the
MIC plant, at about 9.30 p.m., a large quantity of water entered storage tank no. 610
containing over 40 tons of MIC. This triggered off a reaction, resulting in a tremendous
increase of temperature and pressure in the tank. 40 tonnes of MIC, along with Hydrogen
Cyanide and other reaction products burst past the ruptured disc into the night air of
Bhopal at around 12.30 a.m. Safety systems were grossly under-designed and
inoperative. Senior factory officials knew of the lethal build-up in the tank at least one
hour before the leakage, yet the siren to warn neighbourhood communities was sounded
more than one hour after the leak started. By then, the poisonous gases had covered an
area of 40 sq.kms. killing thousands of people. Over 500 thousand experienced acute
breathlessness, pain in the eyes, and vomiting as they inhaled the deadly vapours. They
ran in panic to get away from the poisonous cloud that hung close to the ground for more
than four hours. When people poured into hospitals by thousands, their eyes and lungs in
burning, choking agony, the doctors called up the plant medical officer to find out what
they ought to do. Dr Loya, UCIL's official doctor in Bhopal replied, "It is not a deadly
gas, just irritating, a sort of tear gas."

NOTICES ISSUES PRIOR TO TRAGEDY

A series of prior warnings and MIC-related accidents had occurred:

In 1976, the two trade unions reacted because of pollution within the plant.
In 1981, a worker was splashed with phosgene. In panic he ripped off his mask, thus
inhaling a large amount of phosgene gas; he died 72 hours later.
In January 1982, there was a phosgene leak, when 24 workers were exposed and had
to be admitted to hospital. None of the workers had been ordered to wear protective
masks.
In February 1982, an MIC leak affected 18 workers.
In August 1982, a chemical engineer came into contact with liquid MIC, resulting in
burns over 30 percent of his body.
In October 1982, there was a leak of MIC, methylcarbaryl chloride, chloroform and
hydrochloric acid. In attempting to stop the leak, the MIC supervisor suffered
intensive chemical burns and two other workers were severely exposed to the gases.
During 1983 and 1984, leaks of the following substances regularly took place in the
MIC plant: MIC, chlorine, monomethylamine, phosgene, and carbon tetrachloride,
sometimes in combination.
Reports issued months before the incident by scientists within the Union Carbide
corporation warned of the possibility of an accident almost identical to that which
occurred in Bhopal. The reports were ignored and never reached senior staff.
Union Carbide was warned by American experts who visited the plant after 1981 of
the potential of a "runaway reaction" in the MIC storage tank; local Indian authorities
warned the company of problems on several occasions from 1979 onwards. Again,
these warnings were not heeded.
IMMEDIATE CONSEQUENCES

IMMEDIATE ONES
Apart from MIC, the gas cloud may have contained phosgene, hydrogen cyanide,
carbon monoxide, hydrogen chloride, oxides of nitrogen, monomethyl amine (MMA)
and carbon dioxide, either produced in the storage tank or in the atmosphere.
The gas cloud composed mainly of materials denser than the surrounding air, stayed
close to the ground and spread outwards through the surrounding community. The
initial effects of exposure were coughing, vomiting, severe eye irritation and a feeling
of suffocation. People awakened by these symptoms fled away from the plant. Those
who ran inhaled more than those who had a vehicle to ride. Owing to their height,
children and other people of shorter stature inhaled higher concentrations. Many
people were trampled trying to escape.
Thousands of people had succumbed by the morning hours. There were mass funerals
and mass cremations as well as disposal of bodies in the Narmada river. 170,000
people were treated at hospitals and temporary dispensaries. 2,000 buffalo, goats, and
other animals were collected and buried. Within a few days, leaves on trees yellowed
and fell off. Supplies, including food, became scarce owing to suppliers' safety fears.
Fishing was prohibited as well, which caused further supply shortages.
A total of 36 wards were marked by the authorities as being "gas affected", affecting a
population of 520,000. Of these, 200,000 were below 15 years of age, and 3,000 were
pregnant women. In 1991, 3,928 deaths had been certified. Independent organizations
recorded 8,000 dead in the first days. Other estimations vary between 10,000 and
30,000. Another 100,000 to 200,000 people are estimated to have permanent injuries
of different degrees.
The acute symptoms were burning in the respiratory tract and eyes, blepharospasm,
breathlessness, stomach pains and vomiting. The causes of deaths were choking,
reflexogenic-circulatory collapse and pulmonary oedema. Findings during autopsies
revealed changes not only in the lungs but also cerebral oedema, tubular necrosis of
the kidneys, fatty degeneration of the liver and necrotising enteritis. The still birth rate
increased by up to 300% and neonatal mortality rate by 200 %.

PROTRACTED CONSEQUENCES
It is estimated that 20,000 have died since the accident from gas-related diseases.
Another 100,000 to 200,000 people are estimated to have permanent injuries.
The quality of the epidemiological and clinical research varies. Reported and studied
symptoms are eye problems, respiratory difficulties, immune and neurological
disorders, cardiac failure secondary to lung injury, female reproductive difficulties,
and birth defects among children born to affected women. Other symptoms and
diseases are often ascribed to the gas exposure, but there is no good research
supporting this.
There is a clinic established by a group of survivors and activists known as
Sambhavna. Sambhavna is the only clinic that will treat anybody affected by the gas,
or the subsequent water poisoning, and treats the condition with a combination of
Western and traditional Indian medicines, and has performed extensive research.
Union Carbide as well as the Indian Government long denied permanent injuries by
MIC and the other gases. In January, 1994, the International Medical Commission on
Bhopal (IMCB) visited Bhopal to investigate the health status among the survivors as
well as the health care system and the socio-economic rehabilitation.
REHABILIATION

Economic rehabilitation

After the accident, no one under the age of 18 was registered. The number
of children exposed to the gases was at least 200,000.
Immediate relief was decided two days after the tragedy.
Relief measures commenced in 1985 when food was distributed for a short
period and ration cards were distributed.
Widow pension of the rate of Rs 200/per month (later Rs 750) was
provided.
One-time ex-gratia payment of Rs 1,500 to families with monthly income
Rs 500 or less was decided.
Each claimant was to be categorized by a doctor. In court, the claimants
were expected to prove "beyond reasonable doubt" that death or injury in
each case was attributable to exposure. In 1992, 44 percent of the claimants
still had to be medically examined.
From 1990 interim relief of Rs 200 was paid to everyone in the family who
was born before the disaster.
The final compensation (including interim relief) for personal injury was
for the majority Rs 25,000 (US$ 830). For death claim, the average sum paid
out was Rs 62,000.
Effects of interim relief were more children sent to school, more money
spent on treatment, more money spent on food, improvement of housing
conditions.
The management of registration and distribution of relief showed many
shortcomings.
In 2007, 1,029,517 cases were registered and decided. Numbers of awarded
cases were 574,304 and number of rejected cases 455,213. Total
compensation awarded was Rs.1, 546.47 cores.
Because of the smallness of the sums paid and the denial of interest to the
claimants, a sum as large as Rs 10 billion is expected to be left over after all
claims have been settled.
Occupational rehabilitation

33 of the 50 planned work sheds for gas victims started. All except one was
closed down by 1992.
1986, the MP government invested in the Special Industrial Area Bhopal.
152 of the planned 200 work sheds were built. In 2000, 16 were partially
functioning.
It is estimated that 50,000 persons need alternative jobs, and that less than
100 gas victims have found regular employment under the government's
scheme.

Habitation rehabilitation

2,486 flats in two- and four-story buildings were constructed in the


"Widows colony" outside Bhopal. The water did not reach the upper floors.
It was not possible to keep cattle. Infrastructures like buses, schools, etc.
were missing for at least a decade.

Environmental rehabilitation

When the factory was closed in 19851986, pipes, drums and tanks were
cleaned and sold. The MIC and the Sevin plants are still there, as are
storages of different residues. Isolation material is falling down and
spreading.

The area around the plant was used as a dumping area for hazardous
chemicals. In 1982 tube wells in the vicinity of the UCC factory had to be
abandoned. UCC's laboratory tests in 1989 revealed that soil and water
samples collected from near the factory and inside the plant were toxic to
fish. Several other studies have shown polluted soil and groundwater in
the area.

Reported polluting compounds are, among others, naphthol, naphthalene,


Sevin, tarry residue, mercury, toxic organ chlorines, volatile organ
chlorines compounds, chromium, copper, nickel, lead, hexachloroethane,
hexachlorobuta-diene, pesticide HCH and halo-organics. It is plausible that
these chemicals have some negative health effects on those exposed, but
there is no scientific evidence.

In order to provide safe drinking water to the population around the UCC
factory, there is a scheme for improvement of water supply.[32]
In December 2008, the Madhya Pradesh High Court decided that the
Toxic waste should be incinerated at Ankles war in Gujarat.
STEPS TAKEN AFTER

Within months after the disaster, the GoI issued an ordinance appointing itself as the sole
representative of the victims for any legal dealings with UCC as regards compensation.
The ordinance was later replaced by the Bhopal Gas Leak (Processing of Claims) Act,
1985. Armed with this power, the GoI filed its suit for compensation and damages against
UCC in the United States District Court for the Southern District of New York. Besides
filing the suit, one of its prime responsibilities was to register the claims of each and
every gas victim in Bhopal. Analysts felt that this job was never done, or rather, not with
any seriousness for the next ten years. The government set up various inquiry
commissions to investigate the causes of the disaster; they remained half-hearted
initiatives at best. UCC, on the other hand, moved more quickly with its 'investigations':
it announced by March 1985 that the disaster was due to 'an act of sabotage' by a Sikh
terrorist. Then they shifted blame to a disgruntled worker.

In May 1986, Judge J.F. Keenan ruled that India and not the US was the appropriate
forum for the Bhopal compensation litigation. In the first pre trial hearing in the
consolidated Bhopal litigation in US federal courts, John F Keenan, asked UCC as 'a
matter of fundamental human decency' to provide an interim relief payment of $5 - 10
million. UCC agreed to provide $5 million, provided a satisfactory plan of distribution
and accounting of the funds was devised. For 8 months, the UCC and the GoI haggled
over terms of reference and conditions for using the $5 million interim relief.

Finally, in November 1986, the parties agreed to channel the money through the
American Red Cross to the Indian Red Cross. Even after one year of the tragedy, no one-
not even the official of the MP Government in charge of relief for the victims-had any
idea what the Red Cross would do with the money. On December 17, 1987, a Bhopal
District Court Judge passed an order directing UCC to pay Rs. 3.5 billion as interim
relief. UCC challenged this order in the MP high court (at Jabalpur) on the grounds that
the trial judge was not authorised to pass the order under any provisions of the Indian
Civil Penal Code. On April 4, Justice S. K. Seth of the High Court upheld the liability of
UCC for the Bhopal disaster, but reduced the interim compensation to Rs 2.5 billion.
UCC appealed to the Supreme Court of India against the High Court order saying "No
court that we know of in India or elsewhere in the world has previously ordered interim
compensation where there is no proof of damages or where liability is strongly
contested." On February 14, 1989, the Supreme Court directed UCC to pay up US $ 470
million in "full and final settlement" of all claims, rights, and liabilities arising out of the
disaster. The Supreme Court of India ruled that the $470 million settlement was "just,
equitable and reasonable."

UCC described the court's decision as fair and reasonable, and the company's stock
soared in the London market. Analysts felt that the Bhopal Gas disaster, which left
thousands of people dead and injured, was settled for a mere US $ 470 million-which
worked out to around Rs. 10,000 per victim (if it was divided equally). In the same year,
a leading national daily 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 costing US $ 500 per day. Thus the life of an Indian citizen in Bhopal
was clearly much cheaper than that of a sea otter in America. In 1991, the Bhopal court
summoned Warren Anderson to appear on a charge of 'homicide in a criminal case.'
However, he did not turn up. On September 9, 1993, UCC sold its entire 50.9% stake in
UCIL to the Calcutta based Mc Leod Russell India Ltd., a company of the B M Khaitan
Group. Till 2000, attempts to serve a summon on Warren Anderson by victims'
organizations in the Federal Court on Southern district of New York have been
unsuccessful. Kenneth McCallion, who was the lawyer for some of the victims and their
family members, said a private investigator also hired to deliver the summons at
Anderson's residences in Vero Beach, Florida, and Manhattan and Long Island in New
York was unable to locate him. Asked if he believed Warren Anderson had gone into
hiding to avoid the summons, McCallion said, "We are just surprised we have been
unable to find him, a former CEO of a major corporation." He observed, "And there is
also a legal process which has been issued by the courts in India for him to appear in
Bhopal district court to answer criminal charges and those attempts to serve him... have
been unsuccessful as well.

In 2001, in their book, It was five past midnight in Bhopal, Dominique Lapierre and
Javier Moro wrote that bringing UCC to justice was unlikely because UCC had been sold
out. In August 1999, Dow Chemical purchased UCC for US$ 9.3 billion.

Trial Of The Bhopal Gas Incident

After a trial lasting more than two decades, the judgement on Bhopal Gas tragedy,
pronounced as on 7th june 2010. Chief Judicial Magistrate Mohan P Tiwari pronounced
the judgment after a 23-year-long trial .During the trial, a total of 178 prosecution
witnesses were examined and 3008 documents were produced while eight defence
witnesses deposed in the court. Out of the nine accused tried for the offences, R B Roy
Choudhary, the then former Assistant Works Manager Union Carbide India Ltd (UCIL),
Mumbai died during the trial.

The remaining eight accused in the case are Keshub Mahendra, the then UCIL chairman,
Vijay Gokhle, the then managing director, Kishore Kamdar, the then vice president, J
Mukund, the then works manager, S P Choudhary, the then Production Manager, K V
Shetty, the then plant superintendent, S I Quershi, the then production assistant of UCIL
and UCIL Calcutta.

The three accused -- the then chairman of Union Carbide Corporation of USA Warren
Anderson, besides Union Carbide Corporation, USA and Union Carbide Eastern, Hong
Kong -- escaped the trial.

FIR in the tragedy was filed on December 3, 1984 and the case was transferred to CBI on
December 6, 1984. The CBI filed the charge sheet after investigation on December 1,
1987.

The accused have been held guilty under sections 304-A (causing death by negligence),
336, 337 and 338 (gross negligence), and 35 (common intention) of the India Penal
Code.
They have also been fined under section 304-A (causing death by negligence), given
imprisonment of three months and a fine of Rs250 under section 336, six months and
Rs500 under section 337 and two years and Rs1,000 under section 338.

The sentences will run concurrently. Eyebrows have been raised at the quantum of fine
that chief judicial magistrate Mohan P Tiwari of the trial court in Bhopal has imposed. A
lawyer said the court could have awarded exemplary fine on the accused and the
delinquent company. There is no legal bar on awarding a hefty fine on the company and
the accused. The CBI must challenge the judgment to raise the amount of fine, he said.

WARREN ANDRESON, as the Union Carbide CEO at the time of the disaster, was
charged with manslaughter in the Bhopal disaster case. He travelled to India with a
promise from Indian authorities that he would not be arrested. However, authorities
placed Anderson in custody. Anderson posted bail, returned to the US, and has refused to
return to India.
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. The chief judicial magistrate of Bhopal,
Prakash Mohan Tiwari, issued an arrest warrant for Anderson on July 31, 2009. The
United States has declined to extradite him, citing a lack of evidence.

In August 2009, a spokesman for Union Carbide said "Union Carbide had no role in
operating the plant at the time as the factory was owned, managed and operated by
employees of Union Carbide India Limited." Eight former senior employees of this
subsidiary were found guilty on June 7, 2010. After these convictions, a Union Carbide
spokesperson said, "All the appropriate people from UCIL -- officers and those who
actually ran the plant on a daily basis -- have appeared to face charges."

Indian government too seems to be in denial mode as far as bringing justice to those
thousands of people affected by the tragedy. David Headley is being tried by all hooks
and crook to be punished for his possible involvement in the killing of 200 people in
26/11 Mumbai terrorists attack but the main culprits of Bhopal Gas Tragedy or killer of
more than 20,000 people are walking scot-free and government is not trying to bring
those culprits to book of justice.

Affected people are blaming the government that Anderson is a corporate tycoon and
political parties gain financially to fight elections from businessmen. If they do not get
justice, government intention will remain in questions.

All this is happening before the government under different political parties. In these 26
years the Congress and the BJP have been in power in the state but have done nothing to
bring those culprits to book of justice. Compensations have been insufficient to those
survivors struggling for their lives because of killer diseases not to talk of the dead ones.
Now, there is one more risky business waiting in to come into force. Nuclear plant has to
be set up on Indian land on the line of Union Carbide. In case of mishap government has
prepared nuclear liability bill. But many sections in our politics of society are against the
current format of the compensations referred in the bill. On international standard too it
lacks behind and does not meet the criterion. So, the question remains to be answered- is
government going with the attitude couldnt care less?

Founder of Gas Pidit Mahila Udyog Sansthan Abdul Jabbar and an activist Satinath
Sarangi also hailed the decision of the Supreme Court and expressed the hope that the
justice would be delivered soon.

While expressing happiness over CBIs initiative to approach the Supreme Court, S R
Mohanty, the Principal Secretary, Madhya Pradesh government, said that CBI took it up
and the Supreme Court had issued notice. This opens the possibility of meeting the ends
of justice.

Sunita Narain, Chairman of Centre for Science and Environment, said the apex courts
decision has assured that we are on the road to justice.

During the trial, 178 prosecution witnesses were examined and 3008 documents were
exhibited.
Law related angle of Bhopal Gas Tragedy

The Bhopal gas tragedy is, till date, the worlds 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.

The US case

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.
Out of court settlement

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.

Settlement
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.

SLEW OF CASES FILED


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.

POSITION NOW

Following the events of December 3 1984 environmental awareness and activism in India
increased significantly. The Environment Protection Act was passed in 1986, creating the
Ministry of Environment and Forests (MoEF) and strengthening India's commitment to
the environment. Under the new act, the MoEF was given overall responsibility for
administering and enforcing environmental laws and policies. It established the
importance of integrating environmental strategies into all industrial development plans
for the country. However, despite greater government commitment to protect public
health, forests, and wildlife, policies geared to developing the country's economy have
taken precedence in the last 20 years.
India has undergone tremendous economic growth in the two decades since the Bhopal
disaster. Gross domestic product (GDP) per capita has increased from $1,000 in 1984 to
$2,900 in 2004 and it continues to grow at a rate of over 8% per year . Rapid industrial
development has contributed greatly to economic growth but there has been significant
cost in environmental degradation and increased public health risks. Since abatement
efforts consume a large portion of India's GDP, MoEF faces an uphill battle as it tries to
fulfill its mandate of reducing industrial pollution . Heavy reliance on coal-fired power
plants and poor enforcement of vehicle emission laws have result from economic
concerns taking precedence over environmental protection.

With the industrial growth since 1984, there has been an increase in small scale industries
(SSIs) that are clustered about major urban areas in India. There are generally less
stringent rules for the treatment of waste produced by SSIs due to less waste generation
within each individual industry. This has allowed SSIs to dispose of untreated wastewater
into drainage systems that flow directly into rivers. New Delhi's Yamuna River is
illustrative. Dangerously high levels of heavy metals such as lead, cobalt, cadmium,
chrome, nickel and zinc have been detected in this river which is a major supply of
potable water to India's capital thus posing a potential health risk to the people living
there and areas downstream.

Land pollution due to uncontrolled disposal of industrial solid and hazardous waste is
also a problem throughout India. With rapid industrialization, the generation of industrial
solid and hazardous waste has increased appreciably and the environmental impact is
significant.

India relaxed its controls on foreign investment in order to accede to WTO rules and
thereby attract an increasing flow of capital. In the process, a number of environmental
regulations are being rolled back as growing foreign investments continue to roll in. The
Indian experience is comparable to that of a number of developing countries that are
experiencing the environmental impacts of structural adjustment. Exploitation and export
of natural resources has accelerated on the subcontinent. Prohibitions against locating
industrial facilities in ecologically sensitive zones have been eliminated while
conservation zones are being stripped of their status so that pesticide, cement and bauxite
mines can be built. Heavy reliance on coal-fired power plants and poor enforcement of
vehicle emission laws are other consequences of economic concerns taking precedence
over environmental protection.

In March 2001, residents of Kodaikanal in southern India caught the Anglo-Dutch


company, Unilever, red-handed when they discovered a dumpsite with toxic mercury
laced waste from a thermometer factory run by the company's Indian subsidiary,
Hindustan Lever. The 7.4 ton stockpile of mercury-laden glass was found in torn stacks
spilling onto the ground in a scrap metal yard located near a school. In the fall of 2001,
steel from the ruins of the World Trade Center was exported to India apparently without
first being tested for contamination from asbestos and heavy metals present in the twin
tower debris. Other examples of poor environmental stewardship and economic
considerations taking precedence over public health concerns abound.

The Bhopal disaster could have changed the nature of the chemical industry and caused a
reexamination of the necessity to produce such potentially harmful products in the first
place. However the lessons of acute and chronic effects of exposure to pesticides and
their precursors in Bhopal has not changed agricultural practice patterns. An estimated 3
million people per year suffer the consequences of pesticide poisoning with most
exposure occurring in the agricultural developing world. It is reported to be the cause of
at least 22,000 deaths in India each year. In the state of Kerala, significant mortality and
morbidity have been reported following exposure to Endosulfan, a toxic pesticide whose
use continued for 15 years after the events of Bhopal.
Aggressive marketing of asbestos continues in developing countries as a result of
restrictions being placed on its use in developed nations due to the well-established link
between asbestos products and respiratory diseases. India has become a major consumer,
using around 100,000 tons of asbestos per year, 80% of which is imported with Canada
being the largest overseas supplier. Mining, production and use of asbestos in India is
very loosely regulated despite the health hazards. Reports have shown morbidity and
mortality from asbestos related disease will continue in India without enforcement of a
ban or significantly tighter controls

UCC has shrunk to one sixth of its size since the Bhopal disaster in an effort to
restructure and divest itself. By doing so, the company avoided a hostile takeover, placed
a significant portion of UCC's assets out of legal reach of the victims and gave its
shareholder and top executives bountiful profits. The company still operates under the
ownership of Dow Chemicals and still states on its website that the Bhopal disaster was
"cause by deliberate sabotage".

Some positive changes were seen following the Bhopal disaster. The British chemical
company, ICI, whose Indian subsidiary manufactured pesticides, increased attention to
health, safety and environmental issues following the events of December 1984. The
subsidiary now spends 3040% of their capital expenditures on environmental-related
projects. However, they still do not adhere to standards as strict as their parent company
in the UK.
The US chemical giant DuPont learned its lesson of Bhopal in a different way. The
company attempted for a decade to export a nylon plant from Richmond, VA to Goa,
India. In its early negotiations with the Indian government, DuPont had sought and won a
remarkable clause in its investment agreement that absolved it from all liabilities in case
of an accident. But the people of Goa were not willing to acquiesce while an important
ecological site was cleared for a heavy polluting industry. After nearly a decade of
protesting by Goa's residents, DuPont was forced to scuttle plans there. Chennai was the
next proposed site for the plastics plant. The state government there made significantly
greater demand on DuPont for concessions on public health and environmental
protection. Eventually, these plans were also aborted due to what the company called
"financial concerns".
Absolute liability

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.
n India, absolute liability is a standard of tort liability which stipulates that

where an enterprise is engaged in a hazardous or inherently dangerous activity and harm


results to anyone on account of an accident in the operation of such hazardous or
inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise
is strictly and absolutely liable to compensate all those who are affected by the accident
and such liability is not subject to any of the exceptions which operate vis--vis the
tortious principle of strict liability under the rule in Rylands v. Fletcher.

In other words absolute liability is strict liability without any exception. This liability
standard has been laid down by the Indian Supreme Court in M.C. Mehta v. Union of
India (Oleum Gas Leak Case). These exceptions include:-

Plaintiffs own mistake


Plaintiffs consent
Natural disasters
Third Partys mistake
Part of a statutory duty

The Indian Judiciary tried to make a strong effort following the Bhopal Gas Tragedy,
December, 1984 (Union Carbide Company vs. Union of India) to enforce greater amount
of protection to the Public. The Doctrine of Absolute Liability was therefore evolved in
Oleum Gas Leak Case and can be said to be a strong legal tool against rogue corporations
that were negligent towards health risks for the public. This legal doctrine was much
more powerful than the legal Doctrine of Strict Liability developed in the UK case
Rylands Vs. Fletcher. This meant that the defaulter could be held liable for even third
party errors when the public was at a realistic risk. This could ensure stricter compliance
to standards that were meant to safeguard the public.

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.

Other provisions of law imposed on them

Our Constitution provides protection against laws imposing criminal liability for actions
committed prior to the enactment of the law. Article 20 (1) under the Part III
(Fundamental Rights), reads:

20. (1) No person shall be convicted of any offence except for violation of a law in force
at the time of the commission of the act charged as an offence, nor be subjected to a
penalty greater than that which might have been inflicted under the law in force at the
time of the commission of the offence.

Thus, the maximum penalty that can be imposed on an offender cannot exceed those
specified by the laws at the time. In the context of the Bhopal Gas tragedy in 1984, the
Indian Penal Code (IPC) was the only relevant law specifying criminal liability for such
incidents. The CBI, acting on behalf of the victims, filed charges against the accused
under section 304 of the IPC(See Note 1). Section 304 deals with punishment for culpable
homicide and requires intention of causing death.

By a judgment dated September 13, 1996, the Supreme Court held that there was no
material to show that any of the accused had a knowledge that by operating the plant on
that fateful night whereat such dangerous and highly volatile substance like MIC was
stored they had the knowledge that by this very act itself they were likely to cause death
of any human being. The Supreme Court thus directed that the charges be re-framed
under section 304A of the IPC(See Note 2). Section 304A deals with causing death by
negligence and prescribes a maximum punishment of two years along with a fine.

Consequently, the criminal liability of the accused lay outlined by section 304A of the
IPC and they were tried accordingly. Civil liability, on the other hand, was adjudged by
the Courts and allocated to the victims by way of monetary compensation.

Soon after the Bhopal Gas tragedy, the Government proposed and passed a series of laws
regulating the environment, prescribing safeguards and specifying penalties. These laws,
among other things, filled the legislative lacunae that existed at the time of the incident.

Given the current provisions (See Note 3), a Bhopal like incident will be tried in the
National Green Tribunal (once operationalized) and most likely, under the provisions of
the the Environment (Protection) Act, 1986. The criminal liability provisions of the
Act (See Note 4)prescribe a maximum penalty of five years along with a fine of one lakh
rupees. Further, if an offence is committed by a company, every person directly in charge
and responsible will be deemed guilty, unless he proves that the offence was committed
without his knowledge or that he had exercised all due diligence to prevent the
commission of such an offence.

The civil liability will continue to be adjudged by the Courts and in proportion to the
extent of damage unless specified separately by an Act of Parliament.
Notes

1) IPC, Section 304. Punishment for culpable homicide not amounting to murder

Whoever commits culpable homicide not amounting to murder shall be punished with
imprisonment for life, or imprisonment of either description for a term which may extend
to ten years, and shall also be liable to fine, if the act by which the death is caused is
done with the intention of causing death, or of causing such bodily injury as is likely to
cause death,

Or with imprisonment of either description for a term which may extend to ten years, or
with fine, or with both, if the act is done with the knowledge that it is likely to cause
death, but without any intention to cause death, or to cause such bodily injury as is likely
to cause death.

2) IPC, Section 304A. Causing death by negligence

Whoever causes the death of any person by doing any rash or negligent act not
amounting to culpable homicide, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.

3) Major laws passed since 1984:

1986 The Environment (Protection) Act authorized the central government to take
measures to protect and improve environmental quality, set standards and inspect
industrial units. It also laid down penalties for contravention of its provisions.

1991 The Public Liability Insurance Act provided for public liability insurance for the
purpose of providing immediate relief to the persons affected by an accident while
handling hazardous substances.

1997 The National Environment Appellate Authority Act established to an appellate


authority to hear appeals with respect to restriction of areas in which any industries,
operations or processes are disallowed, subject to safeguards under the Environment
(Protection) Act, 1986.

2009 The National Green Tribunal Act, yet to be notified, provides for the
establishment of a tribunal for expeditious disposal of cases relating to environmental
protection and for giving relief and compensation for damages to persons and property.
This Act also repeals the National Environment Appellate Authority Act, 1997.

4) Criminal liability provisions of the Environment Protection Act, 1986

Section 15. Penalty for contravention of the provisions of the Act

(1) Whoever fails to comply with or contravenes any of the provisions of this Act, or the
rules made or orders or directions issued thereunder, shall, in respect of each such
failure or contravention, be punishable with imprisonment for a term which may extend
to five years with fine which may extend to one lakh rupees, or with both, and in case the
failure or contravention continues, with additional fine which may extend to five
thousand rupees for every day during which such failure or contravention continues after
the conviction for the first such failure or contravention.

(2) If the failure or contravention referred to in sub-section (1) continues beyond a period
of one year after the date of conviction, the offender shall be punishable with
imprisonment for a term which may extend to seven years.

Section 16. Offences by Companies

(1) Where any offence under this Act has been committed by a company, every person
who, at the time the offence was committed, was directly in charge of, and was
responsible to, the company for the conduct of the business of the company, as well as the
company, shall be deemed to be guilty of the offence and shall be liable to be proceeded
against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to
any punishment provided in this Act, if he proves that the offence was committed without
his knowledge or that he exercised all due diligence to prevent the commission of such
offence.
Conclusion
The tragedy of Bhopal continues to be a warning sign at once ignored and heeded.
Bhopal and its aftermath were a warning that the path to industrialization, for developing
countries in general and India in particular, is fraught with human, environmental and
economic perils. Some moves by the Indian government, including the formation of the
MoEF, have served to offer some protection of the public's health from the harmful
practices of local and multinational heavy industry and grassroots organizations that have
also played a part in opposing rampant development. The Indian economy is growing at a
tremendous rate but at significant cost in environmental health and public safety as large
and small companies throughout the subcontinent continue to pollute. Far more remains
to be done for public health in the context of industrialization to show that the lessons of
the countless thousands dead in Bhopal have truly been heeded.

LESSONS LEARNT

The Bhopal Gas leak and the disaster that ensued raise a series of questions regarding
industrial safety, risk, compensation and relief for victims of industrial disasters,
multinational enterprises and liability, regulation of the transfer and use of hazardous
technology. Internal documents that came to light during the discovery process in the US
courts in the contamination case over the last few years clearly indicate that UCC:

a. Transferred unproven technology to UCIL.

b. Did everything it could to ensure that it maintained a majority stake of over 50% in
UCIL.

c. Was aware of the possibility of a potential runaway reaction that triggered the MIC
leak in Bhopal.
d. Had lower safety standards in place in Bhopal than it had in USA.

e. Was aware from 1982 that the Bhopal plant suffered from serious safety problems.

Even as UCCs responsibility for the accident is well established, there is no doubt that
the Governments of India and Madhya Pradesh too have to accept their share of
responsibility for not regulating the safety of the plant. Between the late 1970s and 1984
there were several accidents in Bhopal plant, including the death of a worker due to
phosgene gas leak. It is also significant to note that while the GOI was allowing
industries employing hazardous substances, technology and processes to operate, no
attempt was made to develop appropriate regulatory framework to govern the safety and
risk of such industries. Further little attention was paid for enhancing capacities of bodies
responsible for industrial safety to actually monitor hazardous industries.

Following the Bhopal Gas Leak, the Factories Act 1948 was amended. This included:

The acknowledgement that the impact of accidents and disasters was increasingly
likely to spill beyond the boundaries of factories, affecting the general public in the
vicinity of the factory.

Information regarding potential disasters should be communicated to the local


authority and those in the vicinity of the factory; this should include information on what
may be done to mitigate harm in the event of a disaster.

A Site Appraisal Committee be established to decide on matters of safety and


hazard every time a new factory is set up, or an old one expanded.

Workers right to participate in safety management, including the right to obtain


information from the occupier relating to workers health and safety at work;
To get trained in matters relating to workers health and safety at work; To
represent to the inspector of factories or their representative when there is inadequate
provision for protection of health and safety in the factory.

A new chapter on Hazardous Industries was added in 1987. This amendment also
incorporated some of the Supreme Court pronouncements on industrial safety made in
context of an oleum gas leak in Delhi in 1986. The amendments essentially focussed on
ensuring that information regarding potential risks and hazards are made available to
local authorities and communicated to the vicinities of the plants and that workers have a
right to participate in safety management and regulation of the location.

The 1987 amendments also redefined the occupier (the person designated to be
responsible for the affairs of the factory-specifically safety in the present context) to be
one of the Directors and explicitly laid down that the occupier has an obligation to show,
in the event of an accident, that due diligence had been exercised to enforce the safety
obligations laid down in the Act.

In 1991, India enacted the Public Liability Insurance Act (PLIA) to provide for interim
compensation on a no-fault basis. In 1995 the National Environment Tribunal Act was
enacted to set up tribunals to deal exclusively with the determination and disbursement of
compensation.

Criminal conduct

The law governing criminal conduct, of omission and commission, by corporations and
corporate directors and managers, has not evolved significantly. There has, in fact, been a
certain regression that set in with the decision of the Supreme Court in Keshub Mahindra
v State of Madhya Pradesh (1996), where the court reduced the charges in connection
with the Bhopal gas disaster from culpable homicide to rash and negligent conduct.
The knowledge of the harm likely to be caused by their conduct as corporate managers,
and their intention, was watered down even before it could be judicially established
whether the decisions made by them, and the practices they adopted in operating and
maintaining the plant, could be considered to constitute criminal conduct. Given the
number of people dead, disabled and harmed by the disaster, and the allegations of design
defect, malfunctioning, reduced allocation of resources in matters of safety, and
disinformation that followed on the heels of the disaster, the assumptions that underlie
this change in the law are not easy to explain.

Yet, even as the Union of India was arguing in court for UCC to be held responsible for
design defects and non-use of the information that the UCC had on matters of safety of
the plant, Parliament amended the Factories Act, 1948. In 1987, without any public
debate, Parliament legislated to absolve the designer, manufacturer; importer or seller of
plant and machinery after the user to whom the plant and machinery were handed over
gave an undertaking that, if properly used, no harm would ensue. Seen in the context of
Bhopal, had this amendment been in place before the disaster, Union Carbide
Corporation could not have been held liable for the disaster. Rather, Union Carbide India
Ltd would be solely responsible.

This was a strange provision introduced into the law, providing a pre-judgment of
culpability. And this, in a law that had nothing to do with contracts and liability, but with
standards being maintained at the workplace.

Industrial secrecy

The law has, for some time now, been protective of the right against disclosure in matters
connected with industry. In the Factories Act 1948 (S.91), an Inspector of Factories is
authorised to take samples of any substances used, or intended to be used, in the factory,
where there is reason to believe that it is being used in contravention of the Act, or if in
the opinion of the inspector (it is) likely to cause bodily injury to, or injury to the health
of, workers in the factory. Once tested, and found to constitute evidence that an offence
under the Factories Act has been committed, a prosecution may be launched. But
disclosing the results of the analysis otherwise would be a wrong, punishable with
imprisonment for a term extending up to six months or with fine upto Rs 10,000 or both.
It is interesting that even as disclosure of information was prescribed in Chapter IV A of
the Factories Act in 1987 as being a necessary aspect of safety and preparedness for
hazards, the punishment for disclosure of the results from analysing samples was actually
increased from three to six months imprisonment, and fine from Rs 500 to Rs 10,000.

There is a further provision that has survived the Bhopal gas disaster which places
restrictions on the disclosure of information. No inspector shall, S.118 reads, while in
service or after leaving the service, disclose otherwise than in connection or execution, or
for the purposes of this Act, any information relating to any manufacturing or commercial
business or any working process which may come to his knowledge in the course of his
official duties, unless it is with the written consent of the owner of the business, or it is
for the purposes of legal proceedings. An inspector breaching this injunction may be
punished with up to six months imprisonment, or with fine up to Rs 1,000 or both. It is
the right against disclosure that informs the mood in this provision. It is striking that there
is no provision that has been considered to make punishable the non-disclosure of all the
information that is in the possession of the owner which may help in mitigating the
effects of the disaster. The emphasis on industrial secrecy and the enforced silences rest
uneasily with the dire need for disclosure and of information-sharing witnessed in the
days, months and years following the Bhopal Gas Disaster.

Remediation (Clean Up) of the Bhopal Plant Site

Status of the Former UCIL Plant Site


The Bhopal plant closed after the 1984 methylisocyanate (MIC) gas release and never
resumed normal operations. While the Bhopal gas release litigation was in progress, no
steps could be taken to remediate the site because the MIC unit was considered by the
Central Bureau of Investigation (CBI) as evidence in the criminal case. All activity at
the site was closely monitored and controlled by the CBI, the Indian courts and the
Madhya Pradesh Pollution Control Board (MPPCB).

UCIL was finally permitted to undertake clean-up work in the years just prior to the sale
of its stock by UCC in 1994, and spent some $2 million on that effort, which included
beginning construction of a secure landfill to hold the wastes from two on-site solar
evaporation ponds. The central and state government authorities approved, monitored and
directed every step of the clean-up work. Following the sale, it appears that UCIL, now
renamed Eveready Industries India Limited (EIIL), continued some clean-up work and
completed the construction of the secure landfill on the site. In 1998, the Madhya Pradesh
State Government (MPSG), which owned and had been leasing the property to EIIL,
cancelled the lease; took over the facility; and assumed all accountability for the site,
including the completion of any additional remediation.Click here to view the MPSG
press release.

According to media reports, court-ordered remediation efforts directed at the government


entities have proceeded slowly. Furthermore, proposals made by private companies have
similarly been questioned or rejected. For example, non-governmental organizations
(NGOs) protested against and blocked remediation attempts by those who offered to help
raise funds for clean up or to conduct pro-bono remediation. The disposal of the waste
has consistently proved to be a non-starter, and was further hindered after a Public
Interest Litigation (PIL) was filed in the Madhya Pradesh High Court in 2004. (UCC is
not involved in that litigation.)
The media reported in 2007 that the Supreme Court of India had directed the central and
state governments to pay for collection of waste on the site and to have it landfilled or
incinerated, as appropriate. While some of the waste had been landfilled, public interest
groups again challenged the Court's incineration directive, as did the states where waste
incineration facilities were located.

However, in 2012, the Supreme Court selected the Pithampur waste treatment storage and
disposal facility (TSDF) in Madhya Pradeshs Dhar district as the most suitable facility
for incinerating the waste. Though environmental NGOs claimed the facility failed to
meet desired safety parameters, the Central Pollution Control Board (CPCB) submitted
an affidavit in 2014 verifying the suitability of the facility to carry out the incineration.

According to The Indian Express, 10 tons of trial waste were transferred to the site in
July 2015 and the trial incineration was conducted over a five-day period in mid-August.
Operated by the Ramky Group Company, the TSDF was monitored by the CPCB, as well
as private firms CVR Labs of Chennai and Vimta Lab of Hyderabad. The Express
reported that officials associated with the trial said the levels of emissions and ambient air
quality from the burning were within permissible limits, with the air quality being
monitored at three locations in and around the facility, including a station representing
Tarpura village adjacent to the facility.

The full report on the trial incineration results will be submitted to the Supreme Court,
which will decide on how the rest of the waste at the site will be handled, said The
Express, which also noted that officials expect the remaining waste (some 335 tons) to be
burnt at the same place, using the same technology and the same control parameters.
Bibliography

http://environmentalartilces.wordpress.com/bhopal-gas-tragedy-20-years-after/
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1142333/
http://www.icmr.nic.in/final/bhopal_gas.pdf
http://twoeyesmakeonesight.wordpress.com/2012/05/14/the-legal-and-moral-
implications-of-the-bhopal-gas-tragedy/
http://environmentalartilces.wordpress.com/bhopal-gas-tragedy-20-years-after/
http://scholar.harvard.edu/files/bridgethanna/files/Unending_Disaster.pdf
http://www.econ.upf.edu/~lemenestrel/IMG/pdf/bhopal_gas_tragedy_dutta.pdf
http://www.legalservicesindia.com/article/article/legal-aspects-of-the-bhopal-gas-
tragedy-373-1.html
http://www.mse.ac.in/pub/op_sankar.pdf
http://www.prsindia.org/theprsblog/?p=219