Introduction:
The industrial manufacturing sector is pivotal for the buoyancy of the Indian economy. Since this production sector extended its hands to facilitate economic sustainability, it has branched with diversified industries indulged and engaged in manufacturing automobiles, pieces of machinery, equipment, mental and electric appliance, mineral-extractions, so on. To utilize our demographic dividend, Indian is supposed to alleviate unemployment. The attainment of such an object necessitates the growth of the industrial sector, which is capable to create large-scale employment opportunities for youths. Consequently, millions of families will move out of poverty and fulfill their economic needs.
On the other hand, every single thing has its highlights and challenges. With having an eye on accomplishing economic and technological culmination, the human community is resting in a vain attempt to bring back or keep up the ecological footprint. The status quo industrial societies are pervaded with noxious or hazardous substances; indeed without the same nothing could be processed and produced. Negligence in treatment, usage, or disposal of such kinds of stuff has its ramifications in all walks of human life; even history tells us the same. India has witnessed countless industrial accidents; one of the notable incidents which have still deeply-rooted in the minds of Indians is the Bhopal gas leak tragedy.
Brief About the Incident:
To produce the pesticide named Sevin comprises the reagents, Methyl Isocyanate and Alpha Naphthol; the American enterprises entitled the Union Cambridge Corporation has established its subsidiary in Bhopal as qua the central place with excellent transport links. Later, the established Indian subsidiary was named The Union Cambridge India Limited (UCIL) since the Indian public had owned the ownership, nearly 40.1% share in the corporation.
The incident happened on the night of December 2 to 3, 1984, when the forty tons of Methyl Isocyanate (MIC) was massively escaped from the Tank E106 at the UCC’s Indian subsidiary laid on at Bhopal. Since the plant has established in a crowded and inhabited area, within less than an hour, a great number of people and animals were befallen as victims and consequently died due to the toxicity of the leaked MIC. The estimated number of immediate death was 3500+, and the critical injury was 6+ lakh. Approximately, over the past decades since the incident, the death count has reached 20000. As per the Indian Council of Medical Research (ICMR) estimation, 62.58% of the Bhopal population had suffered from inhalational toxicity, withal having survivors might have experienced and developed bodily morbidities.
Concerning the treatment and Medicare, due to lack of information about the gas ebullition, the doctors did not play an efficient role. One of the causes for such a ramification is that the UCC’s refusal to disclose the precise proportion of the escaped gas by relying on the trade secrecy as a reasonable exemption.
Following the mishap, the victims have gone on an endless travel quest for justice, who have either lost their lives or sustained permanent disability. The two-fold question presented before the law for consideration is that, on what basis, the parameters for quantifying the liabilities of the corporation engaged in processing such a dangerous substance with nullified safety standards will be fixed? And the further aspect was how the government is going to tackle and prevent future damages by the installation of necessary safety protocols.
Legal Consequences of Bhopal Gas Tragedy:
The Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985:
Soon after the man-disaster, noticing the multitude of the suits arising out of the incident, the Indian parliament has passed the Bhopal Gas Leak Disaster (Processing of Claims) Act on 29th March 1985. This Act confers the government to file suit for damages in place as a representative of the victims (either survived or deceased). For the purpose of effective enforcement of the Act, Section 9 authorizes the central government to frame a scheme; amounts to the introduction of the Bhopal Gas Leak Disaster (Registration and Processing of Claims) Scheme in 1985. The aforementioned government’s power to represent the affected party, both within and outside of India[1], was predicated by the doctrine of parens patriae. However, the government has heavily criticized as, by enacting the Bhopal Act, it is attempting to smother the claimant from taking actions against the UCIL, since the government qua stakeholder at UCIL, is eligible to hold partially liable. Per contra, the government has managed to substantiate such enactment as, its quo animo is to secure the claims arising out of, or connected with, the Bhopal gas leak disaster, are dealt with speedily, effectively, equitably, and to the best advantage of the claimants and for matters incidental thereto.[2]
Does the Bhopal Act ultra vires the constitution:
Indeed, few allegations were brought before the Supreme Court challenging the constitutionality of the Bhopal Act in relation to Article 14, 19 and 21. It was confronted that Sections 3, 4 and 11 of the Bhopal Act violated the right of Indian citizens under the Constitution of India to choose their own counsel, and alleging a conflict of interest by the Indian government, for it could not represent the victims because of its shared responsibility for the disaster by failing to enforce safety regulations.[3] However, the Apex court rejected the appeal and upheld its constitutionality[4].
Initial litigation:
Following the Act’s promulgation, in April 1985, the Indian government filed a suit against the UCC (the parent company of UCIL) in the Federal District Court of the southern district of New York, claiming 3.3 billion US dollars i.e. Rs. 3900 Crores. The skepticisms are that, why the Indian government does propose the American judiciary on behalf of the claimants, despite preferring the Indian judiciary system? Whether India has mistrusted its own judicature, or perhaps, it is strategically a ligation, which desires a significant sum of damages that the American judiciary could award? Nevertheless, the UCC fruitfully availed of the aforementioned issues under discussion and requested for the case dismissal on the grounds of forum non-conveniens. Withal, they pleaded that, since the accident was taken place in India (Bhopal), it might be more convenient to be tried in India.
Thus the litigation seeking both damages and punitive damages, invoking UCC’s liabilities such as absolute liability, strict liability, multinational enterprises liability theories, misrepresentation, negligence, and breach of warranty, was dismissed by the federal District Court after accepting the plea of UCC on May 12, 1986.
Rejection of settlement offers:
Since the parent company is responsible for the tortuous acts of the subsidiary company abroad, several efforts were taken by the UCC for outside court settlement but it went vain attempt after rejection by the Indian government. The negotiated settlement initiated by Union Carbide stood ready to provide 350 million dollars, which was accepted by the private lawyers representing the injured (both victims and the deceased) but dismissed by the Indian government.
Justice combats in Indian courts:
After getting rejected by the American Court, the suit pursued battle in India. In 1986 the Indian union brought this issue before the Bhopal District Court to recover 3.5 billion rupees damages. Subsequently, the same was reduced by 30% to 2.5 billion rupees by the high court of Madhya Pradesh. Later on, the Indian government appealed against the reduced interim award, rendered by the Madhya Pradesh high court before the apex court.
The five-judge bench heard the case, concerning the condition and status of victims, who were filled with hopelessness and experiencing the agony of despair. After four years of the chronicle’s worst industrial catastrophe, to end the wild goose chase and provide the immediate remedy, the Apex court rendered its judgment on 14th February 1989.
The matter of fact is that the people have lacked credibility since their collective thought was that the wrongdoer might get them self out of liabilities by invoking the exceptions of the doctrine of strict liability. Per contra, relying on the absolute liability Doctrine, the Apex Court[5] upheld the liabilities of UCC and ordered them to pay the sum of 470 million USD (approximately Rs. 700 crores) as compensation.
Although the Indian government has brought the golden justice by fixing the liability of the company to pay $470 million, it is deemed to be a bad move qua the fixed damages is hardly 15% of the original claim for $3.3 million. Lucidly, it is not a sufficient sum to compensate for all the damage caused in relation to the tragedy.
Concerning the distribution of the awarded compensation, Rs. 1 lakh was provided to the deceased person’s family, Rs. 50000 for persons suffering lasting damage and Rs. 25,000 for the temporarily injured.
Criticisms on the settlement:
As mentioned, firstly, it was assailed for the total sum of the compensation amount, as being the full and final settlement of all claims, rights, and liabilities arising out of that disaster,[6] the fixed amount leads to inadequacy of sum to compensate. Secondly, in terms of the final payment, vide its judgment ‘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’. Comprehensibly, it quashed the criminal proceedings and concluded all the civil proceedings, further limited the liabilities for the claims which were filed later.
Considering the aforesaid criticisms, in 1989, the Apex Court clubbed several petitions and revived the criminal proceedings, and held that if there is any shortage in the amount of compensation the state is bound to bridge the gap[7].
In 1990, the Indian government sanctioned Rs. 258 crores funds to aid the victims for economic, social, environmental, and medical rehabilitation. Later in 2010, former UCIL chairman and other 6 Ex-employees were convicted for the term of 2 years with a 2000 USD fine for the offense of causing death by negligence.
Employed principle:
Absolute liability:
The trite English principle of strict liability was laid by the case of Ryland v. Fletcher[8] in 1868. The said principle states that the person will be held responsible for the leakage of any hazardous substance from his premises. Withal, it is noteworthy that, even though there is no negligence on his part, he will be held accountable for the act of keeping the dangerous things in his premises. Vide this case’s judgment; it elucidates the ingredients that are essential to invoke strict liability viz. there should be the possession of dangerous substances, it must be escaped from defendant’s premises, and it has been kept for non-natural use of the land. In addition, there are certain exceptions to this rule, which are as follows,
- The fault of the plaintiff
- Act of god
- Act of the third party
- Consent of the party
Till the date of the MC Mehta v Union of India case,[9]the rule of strict liability has governed the Indian judicature in relation to the matter of fact in issue. But then, the rule of absolute liability was introduced in the said oleum gas leak case, wherein the oleum gas was escaped from the fertilizer plant of Shriram foods and fertilizers enterprises. Since the enterprises had engaged in an ultra-hazardous activity, it is their absolute and non-delegable duty to safeguard others from getting injured out of their industrial process. In the case of any failure in discharging the obliged duties, the enterprises will be held liable to pay damages under tort law regardless of the cited strict liability exceptions. Indeed, the same was held in this oleum gas leak gas. Thus, in simple words, the concept of absolute liability is the strict liability without any exceptions, which means under no grounds a person could escape the liabilities.
Conclusion and Analysis:
After analyzing the given circumstance, it is pretty evident that the legislative lacunae lasted at the time of tragedy. Though the factories Act, 1948 was propounded even before the Bhopal catastrophe, it prioritizes the welfare of the workers employed in industries and factories and there is no first place law to deal with the concerned situation. This incident led to breakthroughs in the Indian legislature, the catena of legislations related to the environmental safeguard and determination of penalties were enacted. The status quo is that any similar incident that occurs now will be tried before the National Green tribunal and fall under the ambit of the Environmental protection Act, 1986. Even though, under the provisions of the Public liability Act, 1991, the injured could claim damages for the caused injury because of the leaked hazardous chemicals. In addition, the said Act of 1991 out on the basis of the concept of ‘no-fault liability.
Concerning the disposal of hazardous wastes from industry, we have Hazardous Wastes (Management, Handling, and Transboundary Movement) Rules, 2008, to govern the storage and disposal of such toxic substances with the aid of the pollution control board. Further, In the case of Foundation for Science, Technology and Natural Resource policy v. Union of India,[10] the Apex court upholds the constitutionality of the Hazardous wastes (Management & Handling) Rules, 1989, and the applicability of directions provided in the BASEL Convention. Prior to this, Chemical Accidents (Emergency Planning, Preparedness, and Response) Rules, 1996 was legislated to address gas leaks and to monitor the industries handling those deadly chemicals.
Thus, the aftermath of the Bhopal gas leak tragedy has substantially informed us about the importance of environmental protection and the concept of sustainable development. The wider array of Article 21 of the Indian constitution in relation to the right to a clean and healthy environment[11]has also been obtained only after the catena of judicial decisions interpreted the same. Besides, the Indian constitution prescribes the state as well as citizens to protect the environment under its Article, 39(b), 47, 48, 49, 48 A, and 51 A (g).
Even we have sufficient legislations to address the gas leaks issue; it is an absolute challenge to measure the injuries sustained by a person. However, the injured will receive damages in the light of law (Ubi jus ibi remidium). But then, how far it recompenses their loss? What about the people who lost their lives or happened to suffer the morbidities. Their psychological and physiological distresses are immeasurable. Hence, prevention is always better than cure by the mean, the government, industries, and citizens are obliged to take reasonable care because, ultimately, this is our environment.
References:
- https://blog.ipleaders.in/bhopal-gas-tragedy-case-study/#_ednref28
- https://www.scconline.com/blog/post/tag/bhopal-gas-tragedy/
- https://indianjudiciarynotes.com/case-study/case-study-mc-mehta-vs-union-of-india/
- https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1464&context=ncilj
[1] Section 3(1) of the Bhopal Act, 1985.
[2] THE BHOPAL GAS LEAK DISASTER (PROCESSING OF CLAIMS) ACT, 1985, https://www.indiacode.nic.in/bitstream/123456789/1855/1/A1985-21.pdf.
[3] Lewin, Carbide Is Sued in U.S. by India in Gas Disaster, N.Y. Times, April 9, 1985, at D2, col.4
[4] State of Madras v. V. G. Row, AIR 1952 SC 607.
[5] Union Carbide Corporation v. Union of India, 1990 AIR 273.
[6] Supra note 5.
[7] Zia Modi, 10 Judgments that changed India, 44, {2013}
[8] Rylands v Fletcher (1868) LR 3 HL 330
[9] 1987 AIR 1086.
[10] AIR 2012 SC 2627.
[11] Subhash Kumar v. the State of Bihar, 1991 AIR 420, 1991 SCR (1) 5.
