ABSTRACT:

A review of the effects of the 1984 disaster in Bhopal, shows continuing

morbidity of a multi-systemic nature in the exposed population. The complexity of the
Bhopal crisis was underscored by the severe mortality and morbidity as well as its occurrence
in a developing nation which had little experience in dealing with chemical disasters. The
catastrophe has become the symbol of negligence to human beings from inter-country
corporations. It has thus served as an alarm clock. Likewise the industrial disasters still
happen like a customary practice of the corporate industries, in India as well as in the other
industrialized part of the world. Although they are far from the size of Bhopal, they are so
numerous so that chemical hazards could well be considered as a public health problem. The
companies have also been reluctant to compensate the victims economically This tragedy
raises some serious corporate social responsibility issues to be addressed by manufacturing
companies ,in their responsibility towards the community and environment. Lessons learned
from the disaster are discussed along.

OUTLAY OF THE EVENT:

Around midnight of December 2-3, 1984, a pesticide plant Union Carbide India Limited
(UCIL) in Bhopal, Madhya Pradesh leaked some fourty tons of methyl isocyanate, a highly
toxic chemical gas into the air over the sleeping city of Bhopal. The results took the form of
an enormous tide of death that welled up in the city’s hospitals and morgue. During the
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.
Official estimates, probably understated, put the toll at a staggering 2,000 dead but reliable
unofficial estimates suggest a soul numbing figure of nearly 6,000 or more dead in the 48-
hour aftermath of the disaster. The cause of death was described in most cases as pulmonary
edema, a polite medical euphemism for an excruciating manner of death by slow drowning in
one’s own bodily fluids.1 According to the Indian Council for Medical Research, more than
250,000 people continue to suffer from permanent disabilities and chronic ailments as the
result of exposure to the poisonous gases on that night. This was an unparalleled disaster,
perhaps the single worst industrial catastrophe ever to befall a civilian population. By some
accounts, at least 20,000 persons have died over the past two decades. The International
Commission for Medical Research on Bhopal has concluded that, due to chromosomal and
genetic damage among the victims, the wake of this unprecedented catastrophe will continue
to ripple through the next three to four generations in Bhopal in the form of birth defects.

STORY PRIOR THE DISASTER:

UCC's operations in India started in the beginning of the twentieth century. In 1924, an
assembly plant for batteries was opened in Kolkata. By 1983 UCC had 14 plants in India
manufacturing chemicals pesticides, batteries and other products. UCC held a 50.9 % stake in
the Indian subsidiary. The balance of 49.1% was owned by various Indian investors.
Normally foreign investors were limited to 40% ownership of equity in Indian companies, but
GoI waived this requirement in the case of UCC because of the sophistication of its
technology and the company's potential for export. In 1966 , an agreement was signed

1 "What Happened in Bhopal?". The Bhopal Medical Appeal.

between Govt of India and UCIL. Under the agreement UCIL would import 1200 tons of
Sevin from the parent company within five years. In 1969 UCC had set up its pesticide unit in
Bhopal. The govt of India also granted the license to UCIL to manufacture 5000 tons of
Sevin a year.
To manufacture Sevin , phosgen gas was made to react with another gas called
monomethylamine. The reaction of these two gases produced a new molecule, MIC. MIc was
one of the most dangerous compounds ever invented in chemical history. UCC’S
toxicologists had tested it on rats and the results had been so terrifying that the company had
banned the publication of the work. Other experiments had shown that the animal exposed to
MIc vapours would face instantaneous death. MIC was so volatile that as soon as it came into
contact with a few drops of water or a few ounces of metal dust, an uncontrollably violent
reaction followed. Therefore no safety system no matter how much sophisticated would have
been able to stop emitting a fatal cloud into the atmosphere. To prevent the explosion , MIC
had to be kept permanently at a temperature near zero. 2

AFTERMATH OF THE DISATER:

Health effects:

The leakage caused many short term health effects in the surrounding areas. 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 was 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

2 "Frequently Asked Questions". Bhopal Information Center.

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.3

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 stillbirth rate increased by up to 300%
and neonatal mortality rate by 200%.

It is estimated 100,000 to 200,000 people have permanent injuries. Reported 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. The Indian Government and UCC denied that permanent injuries
were caused by MIC or the other gases.

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

3 "The Bhopal Medical appeal". Sambhavna Trust.

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 categorised 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. Number of awarded cases were 574,304 and number of
rejected cases 455,213. Total compensation awarded was Rs.1,546.47 crores. 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. In 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. Infrastructure like buses, schools, etc. were missing for at least a decade.

Health care:
In the immediate aftermath of the disaster, the health care system became tremendously
overloaded. Within weeks, the State Government established a number of hospitals, clinics
and mobile units in the gas-affected area. Radical health groups set up JSK (the People's
Health Centre) that was working a few years from 1985. Since the leak, a very large number
of private practitioners have opened in Bhopal. In the severely affected areas, nearly 70
percent do not appear to be professionally qualified.

The Government of India has focused primarily on increasing the hospital-based services for
gas victims. Several hospitals have been built after the disaster. In 1994, there were
approximately 1.25 beds per 1,000, compared to the recommendation from the World bank of
1.0 beds per 1,000 in developing countries. The Bhopal Memorial Hospital and
Research Centre (BMHRC) is a 350-bedded super speciality hospital. Heart surgery and
hemodialysis are done. Major specialities missing are gynecology, obstetrics and pediatrics.
Eight mini-units (outreach health centers) were started. Free health care for gas victims
should be offered until 2006. The management has faced problems with strikes, and the
quality of the health care is disputed. Sambhavna Trust is a charitable trust that
registered in 1995. The clinic gives modern and Ayurvedic treatments to gas victims, free
of charge. 4

Environmental rehabilitation

When the factory was closed in 1985–1986, 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 tubewells 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 has shown polluted soil and groundwater in the area. Several polluting
compounds such as naphthol, naphthalene, Sevin, tarry residue, mercury,
toxic organochlorines, volatile organochlorine
compounds, chromium, copper, nickel, lead,hexachloroethane, hexachloro
butadiene, and the pesticide HCH were reported after the test. 5

But in December 2008, the Madhya Pradesh High Court decided that the toxic waste
should be incinerated at Ankleshwar in Gujarat.

4 "The Bhopal Medical appeal". Sambhavna Trust.

5 Broughton, Edward (2005). "The Bhopal disaster and its aftermath: a review". Environmental Health
The catastrophe raised some serious ethical issues. The pesticide factory was built in the
midst of densely populated settlements. UCIL chose to store and produce MIC, one of the
most deadly chemicals (permitted exposure levels in USA and Britain are 0.02 parts per
million), in an area where nearly 120,000 people lived. The MIC plant was not designed to
handle a runaway reaction. When the uncontrolled reaction started, MIC was flowing through
the scrubber (meant to neutralize MIC emissions) at more than 200 times its designed
capacity.
MIC in the tank was filled to 87% of its capacity while the maximum permissible was 50%.
MIC was not stored at zero degree centigrade as prescribed and the refrigeration and cooling
systems had been shut down five months before the disaster, as part of UCC's global
economy drive. Vital gauges and indicators in the MIC tank were defective. The flare tower
meant to burn off MIC emissions was under repair at the time of the disaster and the
scrubber contained no caustic soda.
As part of UCC's drive to cut costs, the work force in the Bhopal factory was brought down
by half from 1980 to 1984. This had serious consequences on safety and maintenance. The
size of the work crew for the MIC plant was cut in half from twelve to six workers. The
maintenance supervisor position had been eliminated and there was no maintenance
supervisor. The period of safety-training to workers in the MIC plant was brought down from
6 months to 15 days. In addition to causing the Bhopal disaster, UCC was also guilty of
prolonging the misery and suffering of the survivors. By withholding medical information on
the chemicals, it deprived victims of proper medical care. Numerous independent
investigations have concluded that, while the entry of water into the storage tank may
have triggered the runaway reaction, the real causes of the catastrophe can be traced to
the decision to store methyl isocyanate in large quantities for long periods of time, the
badly flawed design of the plant as well as the near-total absence of safety provisions
and emergency-preparedness measures. By denying interim relief, as directed by two Indian
courts, it caused a lot hardship to the survivors. In February 1989, the Supreme Court of India
ruled that UCC should pay US$470 million as compensation in full and final settlement.
UCC said it would accept the ruling provided Government of India (GoI) did not pursue any
further legal proceedings against the company and its officials. GoI accepted the offer
without consulting with the victims.
Needless to say, Union Carbide has strenuously contested this version of events, disclaiming
any managerial responsibility for the design, day-to-day operation of the UCIL facility or its
safety features and asserting that its relationship with its Indian subsidiary was a hands-off or
arm’s length relationship. The survivors and their representatives, meanwhile, have
maintained that the U.S. company deliberately chose to bequeath to Bhopal an obsolete,
dangerous and illequipped plant, with grossly inadequate technology, pointing to Carbide’s
methyl isocyanate facility in Institute, West Virginia as an example of the company’s
discriminatory imposition of double standards of risk, safety and emergency preparedness.
The Institute plant, they argue, was designed with significantly higher parameters for safety
and emergency-preparedness: e.g., computerized warning systems, larger capacity safety
devices, and safer processes for storage and containment of methyl isocyanate. For the past
two decades, Carbide has insisted that standards of design, technology, safety and
emergency-preparedness were either uniform or at least comparable at all of its worldwide
operations, including at Bhopal6. To date, Union Carbide continues to withhold scientific and
medical research on the toxicology of the leaked gases which could assist in the treatment of
innumerable victims on the specious grounds that this information constitutes a “trade
secret.”

THE LEGAL BATTLE PURSUING THE DISASTER:

In the disaster’s aftermath, hundreds of lawsuits were filed in jurisdictions across the
U.S against Union Carbide by American contingency-fee lawyers. These were ultimately
consolidated into a single proceeding before Judge John Keenan in the Southern District
of New York. Fearing that the victims claims might be exploited by an army of private
lawyers, the Indian Parliament enacted the Bhopal Gas Leak Disaster (Processing of
Claims) Act, on March 25, 1985. The legislation was based on a doctrine under
international law known as “parens patriae” (literally, “parent of the country”), which held
that the State was empowered to act the legitimate protector of its citizens and their
environment. The Act conferred upon the Indian government the full power and authority
to act as the exclusive legal representative of the survivors in all claims for compensation
before foreign or domestic courts, subject to its obligation to consult and cooperate with
the victims and their representatives in the prosecution of such claims. Framers of the
legislation argued that it would enable the Indian government to provide centralized,
integrated decision-making and control to prosecute claims on behalf of the mostly
destitute victims, bringing all the nation’s resources to bear against the multinational
might of the corporation.

6 "Incident Response and Settlement". Bhopal Information Center, UCC.

Based on this legislation, the Indian government filed suit against Union Carbide on April
8, 1985, in the courts of the United States, where, in what can only be described as a
profoundly ironic exercise, India argued that the interests of justice required the case to
be tried in the United States on the grounds that its own legal system was backward and
procedurally outmoded, lacking any class action device or other provision for
representative suits, burdened with the legacy of colonialism, and subject to massive
delays caused by endemic backlogs. The company countered that the case
ought to be tried in the courts of India, without burdening American taxpayers, and
showered praise upon the legal system of the “world’s largest democracy”, particularly to
the extent it was “based on sound and established principles of Anglo-Saxon law.” On
May 12, 1986, Judge Keenan conditionally dismissed the consolidated action on the
grounds that India was the more appropriate forum for the resolution of this litigation. The
decision rested, in part, on the notion that trying the case in the US courts would amount
to “yet another instance of imperialism” imposing foreign legal standards upon a
developing country with vastly different values, different levels of population and
standards of living. The dismissal was conditioned upon Union Carbide’s consent to
submit to the jurisdiction of the courts of India. Meanwhile, criminal proceedings and
investigation had already been initiated against Union Carbide and its former director,
Warren Anderson, in the Bhopal District Court in 1984 and formal charges of “culpable
homicide” and “causing death by use of a dangerous instrumentality” were framed by
India’s prosecuting agencies on November 30, 1987. The charge of culpable homicide
under the Indian Penal Code is equivalent to manslaughter, causing death by reckless
indifference.
By the time the case first reached the Supreme Court of India on the issue of whether
interim relief assessed against Union Carbide on behalf of the victims was appropriate,
litigation had continued in India for more than five years without even reaching the
commencement of pretrial discovery. The mostly destitute victims had received nothing
in the way of compensation from their erstwhile parent, the Union of India. On February
14, 1989, Chief Justice Rajinder S. Pathak interrupted the proceedings to announce that
he felt, in light of "the enormity of suffering occasioned by the Bhopal gas disaster and
the pressing urgency to provide immediate and substantial relief to the victims," that the
case was "preeminently fit for overall settlement." The Chief Justice then entered a
judicial decree preliminarily recording the terms of this settlement which required Union
Carbide to pay $470 million in damages in order to extinguish all civil and criminal liability.
The Indian Supreme Court, however, gave the victims and their able counsel a last
opportunity to challenge the terms of the proposed settlement. In its final decision of
October 1991, the Indian Supreme Court justified the settlement giving it final approval on
the grounds that the victims’ fate could not be left to the “uncertain promise of law,” but
modified its terms and conditions by mandating the prosecution of criminal charges
against Union Carbide and its former director, Warren Anderson, which had been
pending since 1987. Criminal charges against Union Carbide and Warren Anderson
were accordingly renewed in the Bhopal District Court. In March 1992, the Judicial
Magistrate issued an arrest warrant for Warren Anderson and gave lawyers for Union
Carbide a month in which to appear for trial. Neither of the parties presented themselves
in court and Union Carbide’s official spokesperson stated that the company would flatly
refuse to submit to the jurisdiction of India’s criminal courts. Summons served on Union
Carbide through the U.S. Department of Justice were ignored. In 1992, the Bhopal
District Court proclaimed the company and Mr. Anderson to be “absconders”, i.e.
fugitives from justice. To date, neither Union Carbide nor Anderson have appeared to
face the criminal charges pending against them in India. In 2004, the Indian
government submitted an extradition request for Anderson under the Indo-US Treaty of
Extradition which was, reportedly, rejected. Progress in the criminal case against Indian
officials has been, if anything, was equally glacial.
The compensation tribunals, established by the Union of India, the erstwhile ‘parent’ of
the disaster victims, did not even begin functioning until 1992. Estimates by
non-governmental organizations indicate that over 90% of claimants have received less
than $400 from the claims process in India, an amount insufficient to pay for medications
over a five year period. Meanwhile, tests of the water supply of as many as sixteen
communities residing near the plant site and surrounding environs have revealed severe
environmental contamination of the aquifer in Bhopal resulting from the indiscriminate
disposal of toxic chemicals and by-products produced there. Soil and water
sample tests conducted by an independent British laboratory for Greenpeace and certain
victims organizations indicate massive contamination of soil and drinking water around
the facility in Bhopal. To cite one instance, the Greenpeace report states that water
samples taken from the Bhopal site contained carbon tetrachloride, a carcinogenic
chemical, which exceeded maximum tolerance limits established by the World Health
Organization by 1,705 times. Union Carbide claims that it has no further responsibility or
liability for the environmental remediation of the plant site because it has sold its shares
in its Indian subsidiary and the land was returned to Madhya Pradesh in 1998.
In litigation before the Indian Supreme Court, the Union of India has sought to utilize the
interest earned on the settlement fund, over the many years that it remained
undistributed, to clean-up and remediate the badly polluted plant site and the
groundwater aquifer which provides the drinking water of as many as 20,000 residents of
affected communities. The Supreme Court , mercifully, denied its request and ruled
that the victims must receive the remainder of these sums to which they are legally and
morally entitled. But lawyers for political parties filed objections claiming, with truly
democratic largesse, that these funds should be allocated to a dozen or so municipal
wards in Bhopal where the effects of the disaster were felt principally.

On remand from the appellate courts, Union Carbide was obliged, for the first
time, to submit to certain limited discovery for documents relating to the history of its
operations at Bhopal. One of the documents was a UCC Capital Budget from 1973 for
the transfer of technology which Union Carbide approved to the Bhopal plant for the
manufacture of the pesticides including the technology for methyl isocyanate (“MIC”).
Under a section entitled “Technology Risks,” the document revealed for the first time that
the “comparative risk of poor performance and of consequent need for further investment
to correct it is considerably higher in the UCIL operation than it would be had proven
technology been followed throughout,” noting in particular that even the MIC-to-Sevin
process, as developed by UCC, has had only a limited trial run.

Union Carbide's defense:

Now owned by Dow Chemical Company, Union Carbide denied allegations against it on it.
The corporation believes that the accident was the result of sabotage, stating that safety
systems were in place and operative. It also stresses that it did all it could to alleviate human
suffering following the disaster.

Investigation into possible sabotage:

Theories of how the water entered the tank differ. At the time, workers were cleaning out
pipes with water. The workers maintain that entry of water through the plant's piping system
during the washing of lines was possible because a slip-bind was not used, the downstream
bleeder lines were partially clogged, many valves were leaking, and the tank was not
pressurized. The water, which was not draining properly through the bleeder valves, may
have built up in the pipe, rising high enough to pour back down through another series of
lines in the MIC storage tank. Once water had accumulated to a height of 6 meters (20 feet),
it could drain by gravity flow back into the system. Alternatively, the water may have been
routed through another standby "jumper line" that had only recently been connected to the
system. Indian scientists suggested that additional water might have been introduced as a
"back-flow" from the defectively designed vent-gas scrubber.[4][12] However, none of these
postulated routes of entry could be duplicated when tested by the Central Bureau of
Investigators (CBI) and UCIL engineers. The company cites an investigation conducted by
the engineering consulting firm Arthur D. Little, which concluded that a single employee
secretly and deliberately introduced a large amount of water into the MIC tank by removing a
meter and connecting a water hose directly to the tank through the metering port.[14] Carbide
claims such a large amount of water could not have found its way into the tank by accident,
and safety systems were not designed to deal with intentional sabotage. Documents cited in
the Arthur D. Little Report state that the Central Bureau of Investigation (CBI) along with
UCIL engineers tried to simulate the water-washing hypothesis as a route of the entry of
water into the tank. This all-important test failed to support this as a route of water entry.
UCC claims the plant staff falsified numerous records to distance themselves from the
incident, and that the Indian Government impeded its investigation and declined to prosecute
the employee responsible, presumably because that would weaken its allegations of
negligence by Union Carbide.

Safety and equipment issues:

The corporation denies the claim that the valves on the tank were malfunctioning, claiming
that "documented evidence gathered after the incident showed that the valve close to the
plant's water-washing operation was closed and leak-tight. Furthermore, process safety
systems—in place and operational—would have prevented water from entering the tank by
accident". Carbide states that the safety concerns identified in 1982 were all allayed before
1984 and "none of them had anything to do with the incident".

The company admits that "the safety systems in place could not have prevented a chemical
reaction of this magnitude from causing a leak". According to Carbide, "in designing the
plant's safety systems, a chemical reaction of this magnitude was not factored in" because
"the tank's gas storage system was designed to automatically prevent such a large amount of
water from being inadvertently introduced into the system" and "process safety systems—in
place and operational—would have prevented water from entering the tank by accident".
Instead, they claim that "employee sabotage—not faulty design or operation—was the cause
of the tragedy".

Response:

The company stresses the "immediate action" taken after the disaster and their continued
commitment to helping the victims. On December 4, the day following the leak, Union
Carbide sent material aid and several international medical experts to assist the medical
facilities in Bhopal. Union Carbide states on its website that it put $2 million into the Indian
Prime Minister's immediate disaster relief fund on 11 December 1984. The corporation
established the Employees' Bhopal Relief Fund in February 1985, which raised more than $5
million for immediate relief. 7

According to Union Carbide, in August 1987, they made an additional $4.6 million in
humanitarian interim relief available. Union Carbide states that it also undertook several
steps to provide continuing aid to the victims of the Bhopal disaster after the court ruling,
including:

 The sale of its 50.9 percent interest in UCIL in April 1992 and establishment of a
charitable trust to contribute to the building of a local hospital. The sale was finalized in
November 1994. The hospital was begun in October 1995 and was opened in 2001. The
company provided a fund with around $90 million from sale of its UCIL stock. In 1991,
the trust had amounted approximately $100 million. The hospital caters for the treatment
of heart, lung and eye problems.

 Providing "a $2.2 million grant to Arizona State University to establish a vocational-
technical center in Bhopal, which was constructed and opened, but was later closed and
leveled by the government".

 Donating $5 million to the Indian Red Cross.

Developing the Responsible Care system with other members of the chemical industry as
a response to the Bhopal crisis, which is designed "to help prevent such an event in the future
by improving community awareness, emergency preparedness and process safety standards"

7 "Statement of Union Carbide Corporation Regarding the Bhopal Tragedy". Bhopal Information Center, UCC.
THE SETTLEMENT:
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. In May
1986 Judge Keenan ruled that India and 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 the UCC was asked as a matter of fundamental human decency to provide
an interim relief payment of $ 10 million.

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).

RECENT LEGAL IMPLICATIONS:

The Chief Judicial Magistrate sentenced eight former Union Carbide of India Ltd (UCIL)
executives to two years’ imprisonment for the criminal negligence that led to the Bhopal gas
disaster of December 1984. But after the sentencing, the convicts were freed on bail on
personal bonds of Rs 25,000 each. The court also fined them Rs 1 lakh each and UCIL Rs 5
lakh. The convicts include the top brass of UCIL in 1984: the then chairman Keshub
Mahindra, Vijay Gokhle, SP Raichoudhary, Kishor Kamdar, J Mukund, KV Shetty and SI
Qureshi. Another person convicted, RB Rai Choudhary, has passed on.

US-based Union Carbide on Monday said it was not subject to the jurisdiction of the Bhopal
court and that none of its officials was involved in the operation of the plant. Union Carbide
and its officials were not part of this case since the charges were divided long ago into a
separate case.

The case began in December 1987 after the CBI filed a chargesheet in court. Since then, 20
CJMs heard the case. There were 256 hearings in all. The hearings were suspended briefly
after the Supreme Court ratified an out-of-court settlement between Union Carbide
Corporation and the Indian government in 1989. By the terms of the agreement, the company
got immunity from all civil and criminal liabilities relating to the gas disaster. Proceedings
resumed in 1991 after the Supreme Court restored criminal charges against the company and
its officials in response to a petition by two NGOs — Bhopal Gas Peedit Mahila Udyog
Sangthan and Bhopal Gas Peedit Sagharsh Sahyog Samiti. However, the Supreme Court
Bench in 1996 diluted the charges against the accused from culpable homicide to criminal
negligence. The convictions have been heavily criticised by campaigners. Amnesty
International described the two-year sentences for eight people as “too little, too late”.

GoM on BHOPAL GAS TRAGEDY:

The Group of Ministers (GoM) on the 1984 Bhopal gas tragedy met on June 2010s to
discuss the legal, environmental and health issues relating to the world's worst industrial
disaster. The ministerial panel on Bhopal recommended a fresh Rs 1,500-crore package on
Monday to help the gas victims and their families. 8
Decision to file cuarative petitions in the Supreme Court against the 1996 judgement
dilutiong the criminal charges against the Union Carbide officials and the 1989 SC verdict
that cleared the company of all its civil liabilities in lieu of its $470 million (Rs.3000 crore)
compensation package. This was for the first time that the government had implicitly
acknowledged that the $470 million settlement was unfair to the victims and commited
itself to fund a rehabilitation package of Rs 1500 crore of taxpayers money.

It also proposed making a fresh bid to seek then Union Carbide chief Warren Anderson’s
extradition from the United States to stand trial in India. The Group of Ministers on the
Bhopal gas tragedy is expected to suggest that the 350 metric tones of toxic waste at the

8 http://www.dnaindia.com/india/report_bhopal-gas-tragedy-extra-aid-to-help
Carbide plant be incinerated and 1.1 million tones of contaminated soil at the accident site be
treated in a scientific manner.

NUCLEAR LIABILITY BILL:

The Bhopal tragedy, which is closer to Indian hearts, has engaged the Indian government and
courts for over 26 years and yet a solution acceptable to victims and other stakeholders is
proving to be elusive. Every step from the government and the courts has been welcomed
only with exasperated cries of 'not enough', 'too little' and 'too late'.

Many questions remain unanswered: who was liable to compensate the victims of Bhopal
Gas Tragedy? What ought to have been done to ensure immediate compensation to the
victims? Could a structured legal regime have made the difference? Should there have been a
liability regime in place before allowing units of the likes of Bhopal to be set up? Did India
pay for the absence of a liability regime in terms of human lives, livelihoods and irreversible
environmental degradation?

The world saw the Bhopal Gas Tragedy (1984) and the Chernobyl accident (1986) follow in
quick succession to each other. Though both accidents had different backgrounds, they
opened up appreciation of the magnitude of damage and loss such tragedies could cause,
especially nuclear tragedies which do not recognise any geographic or temporal boundaries.
Damage caused by ionizing radiation to human cells may remain latent for a long time before
manifesting itself. Even the best of safety standards cannot completely exclude the
possibilities of nuclear accidents and in this light, the need to have a legal regime to
compensate for damage and losses arising from nuclear accidents in India becomes evident.
Increasing energy availability in general and electricity availability in particular is not merely
an economic pursuit for India but a social necessity.

Therefore the government introduced the Civil Liability for Nuclear damages Bill, 2010 in
the Lok Sabha on 15th of March, 2010, to enable the initiation of a Nuclear power era in
India. The bill defines certain words and expressions including 'nuclear damage', 'nuclear
incident', 'nuclear installation', 'nuclear material', 'nuclear reactor', 'operator', etc. It proposes
that the Atomic Energy Regulatory Board, constituted under the Atomic Energy Act 1962,
shall notify nuclear incidents within a period of 15 days from the date of its occurrence. It
further provides that the maximum amount of liability in respect of each nuclear incident
shall be the Rupee equivalent of SDR 300 million (Rs 2000 crores).
The bill provides for the liability of the operator and Central government in case of a nuclear
damage. The liability of the operator, whether public or private, is capped at Rs 500 crores.
The Central government can, by notification, increase or decrease the liability of the operator.
The Central government shall be liable for nuclear damage beyond Rs 500 crores subject to
maximum of Rupee equivalent of 300 million SDRs. In its current form, the bill has been
drawn flak for being a sell-out to foreign and domestic commercial interests that want to
enter into the lucrative nuclear supplies market in India without taking on any responsibility
for safety and compensation issues and also for accepting the principle that the value of
human lives in India as well as property is not only different from but inferior to the value
ascribed in developed countries. 9

The bill essentially seeks to legally channel the liability for accidents to the operators, give
operators an extremely limited right of recourse against suppliers in the event of an accident
and also set aside ordinary tort law so as to disallow fault-based claims by victims against
operator or supplier. If the government wants to signal interest in the victim rather than
interest in the nuclear industry, it is necessary that the bill is reworked meticulously to reflect
economic channelling of liability rather than mere legal channelling of liability.

Problematic provisions of civil liability damage bill

There are some major problems with the bill

1) It caps the, total liability for a nuclear mishap, however serious, at as little as 300
million SDR (special drawing rights) and the liability of the operator has been capped
at Rs 500 crore (USD 109 million at current exchange rates). This means that if the
nuclear damage exceeds this amount, the central government is liable to compensate
victims subject to a cap of 300 million SDR. Several countries which are major
producers of nuclear power have a higher limit on the liability of the operator

2) It imposes liability only on the operator, which means statutory exemption to plant
designers, manufacturers and suppliers.

3) It leaves the determination of the occurrence and gravity of a nuclear accident

exclusively to the four claims commissions at four zones under Atomic Energy

9 Sources: Civil Liability for Nuclear Damage Bill, 2010; PRS.

 Regulatory Board, (AERB), which means a non-judicial executive body, would
determine the losses in contradiction to existing law.

4) It bars the post-mishap period for which the operator is liable to only 10 years. If
compared with Bhopal tragedy, as per this Bill, the plant owners (now Dow
chemicals) will not be responsible for continuous damage being used.

5) Payment of compensation

In situations where the damage exceeds the upper limit set by the Bill, there is no criteria
to determine the manner in which those suffering damage will be compensated. The Bill
does not mention in what priority payment of claims for compensation will be made, or in
what proportion if any, claims for compensation will be made.

6) The time limit specified for claiming compensation may be inadequate

Claims for compensation can be filed within ten years of the date of notification
of a nuclear incident. This may be inadequate in cases where the effects of radiation are
discovered after a substantial period of time. In some cases the effects of damage may
also be discovered only in the next generation of those exposed to nuclear radiation.
Some countries provide for a period greater than ten years for claiming compensation

7) Time-limit for central government to comply with awards for compensation

The Bill states that the insurer (to the extent of his liability) and the operator must deposit the
amount to be distributed as compensation within the time limit specified in the award made
by the Claims Commissioner. It does not state whether the Commissioner or the Commission
can ask the Central Government to do so within a time-limit as well. This would be a factor
where the damage exceeds Rs 500 crore and the central government is liable to pay the
remaining amount.

The crucial clause that limits liability is 6(2) which says: The liability of an operator for each
nuclear incident shall be rupees five hundred crores. The clause 7(1) provides: The central
government shall be liable for nuclear damage in respect of a nuclear incident. (a) where
liability exceeds the amount of liability of an operator specified under sub-section clause 6(1)
occurring in a nuclear installation owned by it. Furthermore, the nuclear incident shall be the
rupee equivalent of three hundred million special drawing rights. It means that in case of the
power plants the quantum of liability is three hundred million US $ special drawings rights or
equal to the maximum i.e. total liability of 450 million US $. The lower quantum of rupees
five hundred crores will apply only in case of nuclear power plants operated by private
companies. As of now, there is no such private plant. Because there are specific provisions
referring to operator, it is inferred that there would be private operators in future. Some are
apprehensive of the possibility that public sector undertakings alone would be operators are
public sector bodies alone, limiting their liability is considered as an appropriate provision.

If the operators are private parties, there are apprehensions about their safety
adherence. There is higher number of safety hazards unique to nuclear industry and the
nuclear power plants are suspected to be potentially catastrophic, as proved in the Chernobyl
disaster. Will it be proper to hand over such a vulnerable industry with dangerous tendencies
of killing people and destroying environment, to private hands with reduced liability law?

There are immunity clauses where the operator is exempted. Clause 5 (1) says
operator will not be liable for damage as a consequence of (1) a grave natural disaster of
exceptional character and (2) an act of armed conflict, civil war, hostility, civil war,
insurrection of terrorism. Clause 5 (ii) offers six excuses for an operator to escape liability.
Clause 5 (2) says the operator shall not be liable for damage caused to nuclear installation or
to any property connected to installation or damage caused to the means of transport upon
which nuclear material involved was carried at the time of nuclear incident. The bill also
says the operator of a nuclear power plant will be liable for all accidents, including those that
occur during the transport of the material. Of course, force majeure occurrences such as
armed conflicts, natural calamities, terrorist attacks, etc are excluded.

There is further sharing of liability among liable groups as defined by clause 7, which
states that the operator will have to pay Rs 500 crore and the remaining amount will be paid
by the Indian government. By this law the central government also undertook to bear the
damage from nuclear incident caused by grave natural disaster, or terrorism, or damage
caused to nuclear installation owned by it. Because these are defenses which immune the
operator reactors in existing nuclear installations, and cause any damage to those government
installations without any fear of liability?
In sum and substance, this bill envisages to

a) prohibit the victims to sue operator for beyond Rs 500 crore

b) prohibit operator from getting more than Rs 500 crore from supplier or manufacturer,

c) prohibit victims from suing suppliers or manufacturers directly

d) Prohibit the courts of law from hearing the claims, and prohibit the claims beyond ten
years from date of nuclear accident.

Mr. Sukla sen (Who is a columnist for environment press) analyzed and compared the
liability amounts with the Bhopal gas tragedy saying. In case of Bhopal Gas Disaster, the
Supreme Court had approved a deal between UCC and Union of India providing
compensation to the victims amounting to $470 million. That was way back in 1989, more
than two decades ago. Even at that time this was considered grossly inadequate. So, while
whatever cap on liability is unacceptable; this cap on total liability or the maximum amount
of liability, as the draft bill has put up it, is woefully paltry. More so, given the fact that a
catastrophic nuclear accident may very well dwarf the Bhopal Gas Disaster in terms of
devastations. In case of Chernobyl Disaster, while no precise estimate of total spending only
by neighboring Belarus on Chernobyl between 1991 and 2003 was more than US $ 13 billion.
That’s incomparably larger as compared to the maximum liability pegged in the bill – 450
million US $! The second tier of compensation amounting to Rs. 2,100 crore is to be met by
the government.

If we take inflation since 1984 into account, even the Bhopal settlement would be $
1.5 billion today- about three times higher than the bill’s ceiling. Though the bill allows for
the raising or lowering of liability up to Rs.100 crore, it offers no remedy. Besides, this is an
arbitrary power given in the state’s hands. Thus limiting the liability in terms of rupees also
does not help the victims and largely benefits an MNC involved in irresponsible operating of
the nuclear industry. It makes no sense to let manufacturers and suppliers of nuclear plant
and equipment off the liability hook. If defective designs are the root causes of a mishap ( as
in Bhopal), the designer must be made liable for the consequences of that mishap. Or else,
we will end up punishing a subordinate agency, like the Indian subsidiary of union carbide,
while exonerating the culpable parent.
 Another point of view is that this legislation is necessary because the Indian atomic
energy act of 1962 has no provision for liability or compensation in the event of a nuclear
accident even though India operates 18 nuclear power plants.

The Bill provides for increase and decrease also. The central Government may,
having regard to the extent of risk involved in a nuclear installation by notification, either
increase or decrease the amount of liability of the operator. Assessing the loss and imposing
liability is supposed to be done by an independent adjudicator like court of law or special
tribunal in each individual case separately. Giving power to the Government to increase or
decrease the amount liability by issuing notification, which again amounts to executive
limitation on overall size of the liability, which is against principles of justice and cannot
work out in actually providing relief and compensation to the victims. One interesting feature
of the bill is that it recognizes that the consequences of a nuclear accident may not be limited
to national borders and provides for liability outside India’s territory too. But it makes no
provision for enforcing that liability. It is practically almost impossible to enforce such
liability beyond territory. It appears we traveling from progressive statutory absolute liability
rule to statutory corporate immunity regime.

Exclusions of Courts

Clause 35 extends the legal binding that the responsible groups may have to face. The
operator or the responsible person in case of nuclear accident will undergo the trial under
nuclear damage claims commissions and no civil court is given the authority. The country
will be divided into zones with each zone having a claims commissioner. This is in contract
to the US counterpart the price Anderson Act, in which law suits and criminal proceedings
are taken up under the courts.

Criminal liability

Another basic omission in this bill is mention of criminal liability. As we have seen
from Bhopal incident leading to serious public anger at the way criminal prosecution was
handled resulting in meager punishment and leaving out the real culprits, it is necessary to
specify the criminal liability for causing death in negligence in such hazardous and inherently
dangerous activities considering it as culpable homicide not amounting to murder.
Political opposition

There was strong opposition from the left parties, sections of Bharatiya Janata Party
other centrist parties and some of the congress own allies. It was referred, to a parliamentary
standing committee to analyze it thoroughly and critique the rationale for limiting liability for
accident in civilian nuclear installations. Earlier, the Union cabinet has openly ruled out the
subjections raised by the finance and environment ministries indicating that it succumbed to
the pressure of the US officials. After the approval of significant change is made in clause 6
(2) where the quantum of liability of an operator for each nuclear incident has been revised
upwards from 300 cores to 500 crores. Enforcing liability strictly is what is needed than
mere regulations, because regulatory mechanisms can at best only regulate. Hence the
envisaged ushering in of private players as operators of nuclear power plants has become an
open invitation to disaster. Thus validating the private participator as operator of nuclear
power plants in India is emerging as a big level controversary.

This draft legislation aims at defining the liability, arising out of any nuclear accident
of an individual operator independent of (and unaffiliated with) the Government of India. At
present all nuclear establishment and ventures, power plants are run by the state through
affiliated bodies the Uranium corporation of India Limited (UCIL) for uranium mines and the
nuclear power corporation of India Limited (NPCIL) for the power plants without specifically
laying red carpet for the power plants without specifically laying red carpet for private
operators, the bill provided for operators and their liability and at times immunity specially
this indicates possible private operators to come up with state support.

Defending the Bill

The provisions regarding liabilities are very crucial in this bill of 2010. The defence
of the bill rests on this aspect and on the need for nuclear power to end the scarcity of power.
The scientific studies and advances in nuclear technology have significantly reduced the
probability of a nuclear catastrophe and thus nuclear power is considered an environment
friendly and sustainable source of energy, though environmentalists oppose to agree that it is
clean or green energy. The supporters of bill say, however, it is still necessary to keep in
mind the possibility of nuclear accidents and other negative aspects of the nuclear energy and
measures must be taken for its peaceful use. Substantial part of the controversy is about
providing sufficient financial assistance under such circumstances.

Having brought it, naturally the government has defended this civil nuclear liability
legislation. Pointing to the fact that only the government or NPCIL runs nuclear power plants
in India, said liability of a foreign supplier could be defined by an agreement with the
operator. Fixing responsibility in terms of faulty equipment would always be time-
consuming and this was why the operator had been made directly responsible for
compensation. For liability beyond RS 500 Crores and up to Rs 2,300 Crores, a tribunal
would assess the compensation to be paid. The government and other supporters of this bill
as it is, refer to the legislations in other countries offering even lower amounts (the Rs 205
Crores prevalent in china and Rs 335 crores in Canada), and $ 350-600 million in some other
countries. As pointed out by praful Bidwai and many opponents argued, the US had a pooled
fund of about $ 11 billion under the price – Anderson Act, The US has displayed its concern
for the safety of the US plays a safe game when it comes to its own people and tries to save
coffers of its MNCs in relation to disasters in third world. What is that Indian statesman are
interested in?

CONCLUSION:

In the context of Bhopal, that objective requires India and the international community to
undertake the following measures to ensure that the law will finally remedy this
perversion of justice after twenty six years. India must commit itself to legal reform.
The Bhopal case presents the spectacle of an official indictment of its own legal system by
the country’s government before the courts of a foreign power. This is nothing short of an
acknowledgement that the sovereign, with full knowledge of its consequences, has
deliberately been unwilling or unable to remedy this problem in the more than half-century
since independence.
Civil litigation in India remains subject to delays of 20 years or more. These kinds of delays
are effectively tantamount to a denial of justice. India is a signatory to the International
Covenant on Civil & Political Rights which provides, in Article 14, that: “In the
determination… of his rights and obligations in a suit at law, everyone shall be entitled to a
fair and public hearing by a competent, independent and impartial tribunal established by
law.”
Legal reforms in India must include provisions for representative suits or class actions to
address mass claims of liability like those in Bhopal. Never again should victims be
subjected to something like the Bhopal Act which not only enabled the government to
function as their lawyer, without observing the minimal professional duties or ethical
obligations of an attorney towards his client, but permitted the government to begin
functioning as the client as well, stripping the victims of any legal personality and denying
them any meaningful role in the decisions that affected their case. Article 16 of the
International Covenant guarantees that: “Everyone shall have the right to recognition
everywhere as a person before the law.”
In honor of the victims of Bhopal, India should lead the effort to enact into international
law by treaty or other instrument a legally binding and enforceable code of conduct for
multinational corporations, including provisions of liability concerning the export of
hazardous technology. Our legal strategy seems to have presaged the UN Human
Rights Norms for Business and its Commentary which are approved by the
Sub-Commission on the Protection and Promotion of Human Rights. These do not,
however, have the force of law. India should work to transform these norms into an
international legal framework. Last but not least, India must secure the appearance of UCC or
its new parent, Dow Chemical, to face trial on the criminal charges pending against it in the
Bhopal District Court.
The criminal case against Indian officials has dragged on for a number of years
and judges presiding over the case against UCC have been repeatedly transferred. A
single judge should be appointed to preside over the entire matter and expedite
proceedings so that the criminal case can be quickly adjudicated and disposed of under
the law. India has an obligation to ensure that this crime is effectively prosecuted. Article
8 of the Universal Declaration of Human Rights stipulates that: “Everyone has the right to
an effective remedy by the competent national tribunals for acts violating the fundamental
rights granted him by the constitution or by law.” Pursuant to Article 2 of the International
Covenant on Civil & Political Rights, India has undertaken to “ensure that any person
whose rights or freedoms as herein recognized are violated shall have an effective
remedy,” and to “ensure that the competent authorities shall enforce such remedies when
granted.”

Therefore when we consider Bhopal gas tragedy, it explains the problem of enforcing liability
in case of major disasters. A nuclear accident could be very high in its proportion compared
to Bhopal tragedy. Without considering these major aspects, the state limits the liability
simply to reduce the burden of insurance premium sacrificing the interests and even lives of
Indians. Liability for Bhopal tragedy is not established and not imposed on Union Carbide,
which supplied machinery, technology and offered training besides guiding the Union
Carbide India Limited totally. Legally the UCIL is shown as separate concern in which the
Union of India and Madhya Pradesh state have owned shares along with UCC. The Union of
India accepted its share of liability either by offering damages beyond what is given by UC or
suffering the losses of the disaster. If the state becomes responsible for the disaster caused by
the foreign nuclear firm, it amounts to VICTIMS PAYING FOR THE VICTIMS. Whether
the nuclear firm belongs to India or a foreign country, responsibility should fall on those who
caused it.

BIBLIOGRAPHY:

1) Singh, Moti (2008). Unfolding the Betrayal of Bhopal Gas Tragedy. Delhi, India:
B.R. Publishing Corporation
2) Shrishti. Toxic present—toxic future. A report on Human and Environmental
Chemical Contamination around the Bhopal disaster site.
3) Chouhan , "The Unfolding of Bhopal Disaster"
4) Peterson M.J. "Case study: Bhopal Plant Disaster"
5) Eckerman, Ingrid , The Bhopal Saga—Causes and Consequences of the
World's Largest Industrial Disaster
6) D'Silva, The Black Box of Bhopal (2006).
7) "What Happened in Bhopal?". The Bhopal Medical Appeal.