Bhopal Gas Leak case: Bane indian welfare state

Submitted by Nishant Prashant Doshi Division: B Roll No.: 33 Class: BBA.LLB of Symbiosis Law School, NOIDA Symbiosis International University, PUNE In September, 2011 Under the guidance of

Dr. Md. Salim

Course in Charge, Jurisprudence (Legal Method, Indian Legal System, and Basic Theory of Law) Symbiosis Law School, NOIDA 201301

CERTIFICATE

The project entitled Bhopal Gas Leak case: Bane indian welfare state submitted to the Symbiosis Law School, NOIDA for Law of Contract as part of Internal assessment is based on my original work carried out under the guidance of Dr. Md. Salim from August 2011 to September 2011. The research work has not been submitted elsewhere for award of any degree. The material borrowed from other sources and incorporated in the thesis has been duly acknowledged. I understand that I myself could be held responsible and accountable for plagiarism, if any, detected later on.

Signature of the candidate

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Acknowledgement
I have taken efforts in this project. However, it would not have been possible without the kind support and help of many individuals and organizations. I would like to extend my sincere thanks to all of them. I am highly indebted to Dr. Md. Salim for their guidance and constant supervision as well as for providing necessary information regarding the project & also for their support in completing the project. I would like to express my gratitude towards my parents & member of Symbiosis Law School NOIDA for their kind co-operation and encouragement which help me in completion of this project. I would like to express my special gratitude and thanks to industry persons for giving me such attention and time. My thanks and appreciations also go to my colleague in developing the project and people who have willingly helped me out with their abilities.

INDEX

Particulars Introduction Union Carbide India limited The accident Aftermath Bhopal gas leak disaster processing of claims Act 1985 Series of event Criminal Proceeding The Judgement Legal Issue Conclusions Bibliography

Page 1 1 1 2 3 4 6 7 7 9 11

Introduction
This project describes the inadequacies in response of the Union Carbide Corporation to the accidental release of the highly toxic gas, methyl iso cyanate (MIC), from its plant in Bhopal, India in December, 1984. By 7.00 AM, 70 people were dead, by 9.00 AM 260 were dead and thereafter the figures continued to rise. Though not all dead bodies were brought to the Medico-Legal Institute (MLI), 311 bodies were received on 3.12.1984, followed by another 250 on 4.12.1984 which leads its name the in worst industrial accident on record occurred in Bhopal, India. Over 20,000 people are estimated to have died from exposure to this gas since 1984, with some 120,000 chronically ill survivors. Union Carbide fought to avoid compensation or to keep it very low. The long, much delayed process of distributing compensation focused on minimizing payouts to victims. The corporation tried to blame the accident on a disgruntled employee, whereas key parts of the safety equipment designed to stop the escape of the gas were not functioning or were turned off.

Union carbide india limited

Union Carbide Corporation is a pesticide plant in India produced the compound Methyl Iso Cyanate (MIC) as an intermediate product in the process. The actual product produced is sevin an insecticide for spraying on crops. MIC is an extremely toxic and unstable substance and even in very small quantities is fatal. Large quantities of MIC were stored in steel tank. The tank had many safety measures to maintain the product in safe and stable form. Because of immense economic pressure, most of these features were abandoned to save money.

The accident
On the day of accident, Water inadvertently entered the storage tank and caused an exothermic, runaway reaction to occur. MIC boiled up and the vapour was expelled through the bursting disc vent. Since the scrubber and flare stack were inoperational so the MIC vapours was discharged directly to atmosphere. The wind carried it as a plume over the adjacent city of Bhopal where the victims were living. Following the accident, the Government of India filed a compensation lawsuit against the UCC for an estimated US$3 billion. However, UCC felt that the GoI was to blame for the disaster. In December 1986, UCC filed a countersuit against the GoI and the State of Madhya Pradesh. The company charged the governments with "contributory" responsibility for the leak of poisonous gases, saying both governments knew of the toxicity of MIC but failed to take adequate precautions to prevent a disaster.

Factors leading to the magnitude of the gas leak include:

Storing MIC in large tanks and filling beyond recommended levels Poor maintenance after the plant ceased MIC production at the end of 1984 use of a more dangerous pesticide manufacturing method. undersized safety devices, and the dependence on manual operations. Safety systems being switched off to save moneyincluding the MIC tank refrigeration system which could have mitigated the disaster severity

Aftermath
Immediately after the disaster, UCC began attempts to dissociate itself from responsibility for the gas leak. Its principal tactic was to shift culpability to UCIL, stating the plant was wholly built and operated by the Indian subsidiary. It also fabricated scenarios involving sabotage by previously unknown Sikh extremist groups and disgruntled employees but this theory was impugned by numerous independent sources. The toxic plume had barely cleared when, on December 7, the first multi-billion dollar lawsuit was filed by an American attorney in a U.S. court. This was the beginning of years of legal machinations in which the ethical implications of the tragedy and its effect on Bhopal's people were largely ignored. In March 1985, the Indian government enacted the Bhopal Gas Leak Disaster Act as a way of ensuring that claims arising from the accident would be dealt with speedily and equitably. The Act made the government the sole representative of the victims in legal proceedings both within and outside India. Eventually all cases were taken out of the U.S. legal system under the ruling of the presiding American judge and placed entirely under Indian jurisdiction much to the detriment of the injured parties. In a settlement mediated by the Indian Supreme Court, UCC accepted moral responsibility and agreed to pay $470 million to the Indian government to be distributed to claimants as a full and final settlement. The figure was partly based on the disputed claim that only 3000 people died and 102,000 suffered permanent disabilities. Upon announcing this settlement, shares of UCC rose $2 per share or 7% in value. By the end of October 2003, according to the Bhopal Gas Tragedy Relief and Rehabilitation Department, compensation had been awarded to 554,895 people for injuries received and 15,310 survivors of those killed. At every turn, UCC has attempted to manipulate, obfuscate and withhold scientific data to the detriment of victims. Even to this date, the company has not stated exactly what was in the toxic cloud that enveloped the city on that December night. When MIC is exposed to 200 heat, it forms degraded MIC that contains the more deadly hydrogen cyanide (HCN). There was clear evidence that the storage tank

temperature did reach this level in the disaster. The cherry-red color of blood and viscera of some victims were characteristic of acute cyanide poisoning. Moreover, many responded well to administration of sodium thiosulfate, an effective therapy for cyanide poisoning but not MIC exposure. UCC initially recommended use of sodium thiosulfate but withdrew the statement later prompting suggestions that it attempted to cover up evidence of HCN in the gas leak. The presence of HCN was vigorously denied by UCC and was a point of conjecture among researchers. As further insult, UCC discontinued operation at its Bhopal plant following the disaster but failed to clean up the industrial site completely. The plant continues to leak several toxic chemicals and heavy metals that have found their way into local aquifers. Dangerously contaminated water has now been added to the legacy left by the company for the people of Bhopal.

Bhopal gas leak disaster processing of claims act 1985

The Indian Parliament on March 29, 1985 enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 (Claims Act) under which the Government of India had the exclusive right to represent Indian plaintiffs in India and elsewhere in connection with the tragedy. The long title to the Claims Act claimed that it was an Act to confer certain powers on the Central Government to secure that 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 claims and for matters incidental thereto.11 Section 3 (1) of the Claims Act declared that the Central Government shall have the exclusive right to, represent, and act in place of (whether within or outside India) every person who has made, or is entitled to make, a claim for all purposes connected with such claim in the same manner and to the same effect as such person. Under section. 3(2) the purposes referred to in section.3(1) included (a) the institution or withdrawal of any suit or proceeding; and (b) entering into a compromise. Section.4 of the Claims Act required the Central Government to permit to a claimant a legal practitioner of his choice to be associated in the suit by the Union of India having due regard to any matters which such person may required to be urged with respect to his claim. The tribunals for categorization processing an adjudication of claims were completely under the control of the Central Government. Section 9 of the claims Act gave the Central Government power to frame a Scheme in relation to these matters. Section 11 gave the Claims Act and the Scheme overriding effect over every other statutory enactment. Section 3.2.4 Pursuant to the Claims Act, the Union of India on April 8, 1985 filed a complaint in the Court of the Southern District of New York setting forth claims similar to those in the 145 actions already filed. All the individual complaints were superseded by a consolidated complaint filed on June 28, 1985. This involved over 200,000 plaintiffs. On September 24, 1985, in terms of the powers conferred by the Claims Act, the Government of India framed the Scheme for registration and processing of claims arising out of the disaster. By the end of 1985 nearly 5,00,000 claims had been registered under the Scheme.

SERIES OF EVENTS
After 26 years of the Bhopal Gas tragedy, the worlds worst industrial disaster, the court held all the eight accused guilty on 7th June 2010. Following is the chronology of the events: December 3, 1984: Toxic methyl isocyanate gas releases from Union Carbide India Ltds (UCIL) pesticide plant in Bhopal killing about 15,000 people and injuring at least five lakh others. Millions were left sick and the affected passed on the harmful effects of the gas to the next generations. December 4, 1984: Warren Anderson, the chairman of Union Carbide, is among nine people arrested. But he was freed on bail of $ 2,000, upon a promise to return. Union Carbide is named as the 10th accused in a criminal case charged with culpable homicide. February, 1985: Indian government files claim for $ 3.3 billion from Union Carbide in a US court. 1986: US District Court judge transfers all Bhopal litigation to India. December 1987: CBI files chargesheet against Warren Anderson and other accused, including UCC (USA), Union Carbide (Eastern) Hong Kong, and UCIL. Summons served on Anderson and UCC on charges of culpable homicide. February 1989: CJM, Bhopal, issues non-bailable warrant of arrest against Warren Anderson for repeatedly ignoring summons. February 1989: Indian government and Union Carbide strike an out-of-court deal and compensation of $ 470 million is given by Union Carbide. February - March 1989: Public protest against the unjust settlement followed by filing of a number of review and writ petitions against the settlement in the Supreme Court by the Bhopal Gas Peedith Mahila Udyog Sangatan (BGPMUS), the Bhopal Gas Peedith Sangarsh Sahayog Samiti (BGPSSS) and other concerned groups. 1992: Part of $ 470 million is disbursed by the government among Bhopal gas victims. February 1992: Anderson declared fugitive by law for ignoring court summons. November 1994: Despite numerous petitions by survivors groups, the Supreme Court allows Union Carbide to sell stake in UCIL to McLeod Russell (India) Ltd of Calcutta.

September 1996: Supreme Court dilutes charges against Indian officials of Union Carbide India Limited -subsidiary, majority owned by Union Carbide Corporation [UCC] - partly on grounds that culpability lies with UCC. August 1999: Union Carbide announces merger with US-based Dow Chemicals. November 1999: International environment watchdog Greenpeace tests soil, groundwater and wells in and around the derelict Union Carbide factory and finds 12 volatile organic chemicals and mercury in quantities up to six million times higher than expected. November 1999: Several victims and survivors organisations file an action suit against Union Carbide and its former CEO, Warren Anderson, in federal court of New York, charging Carbide with violating international human rights law, environmental law, and international criminal law. February 2001: Union Carbide refuses to take responsibility for UCILs liabilities in India. January 2002: A study by Srishti and Toxics Links finds lead and mercury in breast milk of nursing mothers in communities near the plant. June 2002: Bhopal gas tragedy survivors launch a protest in New Delhi when they hear the Indian government plans to drop charges against Anderson. August 2002: Charges of culpable homicide are maintained against Anderson by Indian court, which demands his extradition to stand trial. Meanwhile, a British newspaper reports that Anderson is in New York after US authorities say they are unable to locate him. October 2002: Protests to clean up former UCIL factory site in Bhopal that activists say contains thousands of tonnes of toxic waste. May 2003: The Indian government formally conveys its request for extradition of Anderson to the US. March 2004: A US court says it could order Dow Chemicals to clean soil and ground water in the abandoned factory site if the Indian government provides a no objection certificate. The Indian government forwards the certificate to the United States. June 2004: The US rejects Indias request for extradition of Anderson saying the request does not meet requirements of certain provisions of the bilateral extradition treaty. July 19, 2004: Indias Supreme Court orders the Central Bank to pay out more than 15 billion rupees, part of the original $ 470 million received as compensation kept in the account since 1992. October 25, 2004: Bhopal gas victims protest the failure of the government to pay victims compensation. October 26, 2004: Indias Supreme Court sets deadline of November 15 to pay out the rest of $ 470 million paid by Union Carbide as compensation.

June 7, 2010: All eight accused, including the then Chairman of Union Carbide Keshub Mahindra, in the Bhopal Gas disaster case convicted by a court.

The Criminal Proceedings

Apart from these civil proceedings, criminal proceedings were also initiated before the Chief Judicial Magistrate in Bhopal. The case was instituted in the year 1987. Since the clause in the settlement order which quashed the criminal proceedings was held invalid and unjustifiable, the criminal proceedings initiated could continue. The judgement was delivered only on June 7, 2010, 26 years after the disaster. The proceedings were initiated under Section 304 A, and Sections 336, 337, and 338 read with Section 35 of the Indian Penal Code. Section 304 A deals with causing death by negligence. Sections 336, 337 and Section 338 deal with the offences of endangering life and personal safety of others. This is read along with Section 35 which deals with the aspect of common intention. In this case, the prosecution argued that the whole disaster was a result of running a defectively designed plant with a number of operational defects without any reasonable care. The prosecution submitted the findings by the Council of Scientific and Industrial Research (CSIR) to substantiate their contentions. The team of scientists from the CSIR noticed that MIC was stored in large tanks instead of stainless steel drums. The flare tower and the vent gas scrubber had been out of service for five months before the disaster. The gas scrubber therefore did not treat escaping gases with sodium hydroxide (caustic soda), which might have brought the concentration down to a safe level. To reduce energy costs, the refrigeration system, designed to inhibit the volatilization of MIC, had been left idle. Slip-blind plates that would have prevented water from pipes being cleaned from leaking into the MIC tanks through faulty valves were not installed. Carbon steel valves were used at the factory, even though they corrode when exposed to acid. On the night of the disaster, a leaking carbon steel valve was found, allowing water to enter the MIC tanks. The pipe was not repaired because it was believed it would take too much time and be too expensive. Thus, insufficient caution in design choice of material and other alarming instruments, inadequate control on systems of storage and on quality of stored materials and as well as lack of necessary facilities for quick effective disposal of material are the main reasons which lead to the incident. All these show that the business was carried out with reckless indifference to the public. The Company authorities had the knowledge and the properties of how dangerous a gas is MIC and still carried on the activities with gross negligence, recklessness and utter disregard to the public. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences.

The UCC being a company dealing with a substance like MIC, it owes a duty of care to the public. The activities of the enterprise falls far below the standards required and therefore, the prosecution argued that it amounted to gross negligence. For all these contentions, the UCC came up with several defences. Firstly, they argued that the reports by the CSIR cannot be admitted as evidence. It was that CSIR was merely a fact finding body and that it was constituted for a very limited purpose. Therefore, it was argued that its contents could not be taken as proof. Secondly, it was contended that the Company had obtained all licenses and approvals from the Government for carrying out the business under the Designed Transfer Agreement & Technical Service Agreement. All other permits required were also duly obtained and hence the UCC argued that they carried out their business in a completely authorised manner with the permission being obtained by the Government of India itself. Moreover, it was submitted that none of the Company officials had any criminal intention to cause any harm to any member of the public. The Company refused to admit any kind of negligence on its part and further argued that the officials were in no way involved with the day to day activities of the business and therefore they cannot be held responsible for any negligence on the part of the workers. It was further argued that the accused officials were not even present in the occasion where the disaster took place. All these were based on the principle that vicarious liability is not applicable under criminal law and therefore the directors cannot be held liable for the negligence of the workers. The UCC also denied all allegations that the UCIL plant in India was not properly designed. It further submitted that the MIC plant at Bhopal was designed in the same pattern as that of the MIC plant in Virginia, USA. But it is important to note that The Government of India was never permitted to visit the plant at Virginia. Also, no brochure or any other documentary evidence demonstrating the similarity between the two plants at Virginia and Bhopal was produced before the court by the UCC to support its contentions.

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

Legal Issues
One of the main issues which the Bhopal Gas tragedy raises is the issue of absolute liability. This issue was elaborately discussed in the case of M.C Mehta v Union of India. The principle of absolute liability states that when an enterprise is engaged in hazardous or inherently dangerous industry and if any harm results in account of such activity then the enterprise is absolutely liable to compensate for such harm and that it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its

part. In such industries, the principle of safe design would be that one does not guard merely against the most predictable, routine type of accidents. Rather one tries to anticipate the worst that could happen, even if it is highly unlikely, and not only guard against it, but prepare to contain it and make sure that there is no way for that even to take place. This is the principle of absolute liability and liability can be fixed even if there is no negligence on part of the accused. In the case of absolute liability, even the defences available under strict liability would not apply. Thus, even if the accident is some freak incident, liability would still be fixed. In such a case, it would be no good defence to argue that the direct or the proximate cause of the accident or the causa causan of the accident was not the carrying of such hazardous activity, but it actually is an Act of God or that it is due to some third party intervention. Even if the Company had taken extreme precautions to ensure that such events do not take place, responsibility would still be fixed on them. This principle of absolute liability in India evolved primarily because of the awakening that the Bhopal Gas Disaster and the Oleum Gas Leak case gave.

The Bhopal Gas Tragedy is also in a way responsible for the passing of the Public Liability Insurance Act, 1991 which provides for compulsory insurance of any unit or factory undertaking a hazardous activity. Apart from all of this, the tragedy has recently been much discussed in the light of the Nuclear Liability Bill. This bill has a lot of controversial provisions which aim at capping the total liability in case of a nuclear accident. The bill also prohibits the victims from suing the suppliers directly and allows them to recover only from the operators. The bill also lays a cap on the amount that an operator can recover from the suppliers. In the light of the events that followed Bhopal, it is clear that there is a need for a proper mechanism of compensation and it is important that any kind of cap on liability should be removed as it would be unconstitutional. 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 their 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. As per IPC Whoever does any Act with such intention or knowledge and under such circumstances that, if he by that Act caused death, he would be guilty of culpable homicide not amount to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both, and if hurt is caused to any person by such Act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

CLASSIFICATION OF OFFENCE PunishmentImprisonment for 3 years, or fine, or bothCognizableNonbailableTriable by Court of SessionNon-compoundable. PunishmentImprisonment for 7 years, or fine, or both CognizableNon-bailable Triable by Court of SessionNon-compound able. 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. As per 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. PunishmentImprisonment for 2 years, or fine, or bothCognizableBailable Triable by Magistrate of the first classNon-compoundable.

Conclusion
The tragedy is still considered to be the worlds worst industrial disaster. To prevent such events from occurring in the future, the government should thoroughly check and regulate such industries. They should be placed under constant surveillance and the activities of such industries should be monitored at least once in every six months. Any kind of repair in any of the machines or equipments should be immediately attended to. The government should take it upon itself to make sure that everything is functioning properly. UCC resorted to every known tactic in the lawyers book. First, it went into a denial mode. Then, it blamed the event on an alleged sabotage by a disgruntled worker. Then, when that did not wash, it bought its way out of the system by offering a settlement. It used the Indian law in the US courts, with the help of Indian legal experts, to beat the Indian plaintiffs. Hey presto! UCC successfully presented the forum non conveniens defence which was readily lapped up by Judge Keenan of the Southern District Court of New York. Then, UCC hired the best available legal talent in India to put up a spirited defence in the civil proceedings. At every stage it was able to dictate the pace of the proceedings. If the case had to be heard immediately and by a bench of five Judges of the Supreme Court, it would. If the case had to be settled in the next 24 hours, it would. Even in the review proceedings, UCC never went on the back foot. It remained defiant till the end. UCC decided it would never submit to the criminal courts and it did not. Apart from this, the government should also make sure that there is a proper mechanism for compensation to the victims. It should ensure speedy justice and

should make sure that proper relief is given to the victims. In the event of such a large scale disaster as Bhopal, the questions like who is right and who is wrong and who was negligent and who was not become totally irrelevant in the plight of thousands of people who get affected in one single night. It is totally unjustifiable to leave even a single victim without providing relief. Hopefully, such incidents should never occur again, and even if they do, we should not forget the lessons from Bhopal and we should make sure that any law capping the limit on the liability of such large magnitude disasters should be declared as unconstitutional.

Bibliography
Union Carbide Corporation v. Union of India (1989) 3 SCC 38. Union Carbide Corporation v. Union of India (1989) 1 SCC 674. Union Carbide Corporation v. Union of India (1991) 4 SCC 584. Charan Lal Sahu v. Union of India (1990) 1 SCC 613. Charan lal sahu vs. Union of India retieved on 12th September 2011 from http://www.indiankanoon.org/doc/299215/ About Union carbide india limited retrieved on 15th September 2011 from http://www.unioncarbide.com/about-us Attempt of Culpable homicide retrieved on 19th September 2011 from http://www.vakilno1.com/bareacts/indianpenalcode/S308.htm About Bhopal gas leak case retrieved last on 18th September from http://en.wikipedia.org/wiki/Bhopal_disaster Dinhum Barbara, Sarangi satinath The Bhopal gas tragedy 1984 to? The evasion of corporate responsibility in Environment & Urbanization Vol 14 No 1 April 2002 Data collected from www.bhopal.org S. Sriramachari The Bhopal gas tragedy: An environmental disaster CURRENT SCIENCE, VOL. 86, NO. 7, 10 APRIL 2004 About legal aspects retrieved on 20th September 2011 from http://www.lloyd-jones.net/Kalpana/Bhopal-3.htm proceedings and dates retrieved on 20th September 2011 http://indialawyers.wordpress.com/2009/12/18/bhopal-gas-disasterjudicial-failure/