This article is written by Ayushma Sharma of Faculty of Law, Aligarh Muslim University where she has discussed the Bhopal Gas Tragedy Case.

Introduction 

The night of 2-3 December 1984, was the most unfortunate night for the Bhopal, in fact not only for Bhopal but for the whole world. Thousands of people lost their lives that night and many are suffering the consequences of the tragedy even now. The incident was caused because of the leakage of Methyl Isocyanate (MiC) gas from the Union Carbide India Ltd (UCIL) plant.

Bhopal Gas Tragedy Case Study

Background 

The Union Carbide Corporation, an American enterprise established a pesticide plant in India because of its central location. The plant was supposed to produce Sevin, a pesticide. Union Carbide and the Indian Government had a deal, and under this idea, the Union Carbide had a 50.9% share and the Indian Investors had a 40.1% share. The plant was named as The Union Carbide India Limited (UCIL).

UCIL started its production of pesticide in 1979. While this pesticide was produced, a toxic liquid was also produced i.e., Methyl Isocyanate (MIC). Since MIC is a very toxic chemical it required great maintenance. 

Around 1:00 a.m on 4th December 1984, when the MIC gas started swallowing up the whole of Bhopal people who were sleeping peacefully started feeling the change in the air. They ran for their lives but couldn’t escape their death. Some who were able to save their lives weren’t able to save themselves from the coming disabilities. All this happened because of leakage of the MIC gas from the tank E106.

Earlier, too, complaints were being made about the maintainability of the plant, of how MIC was leaking in small amounts. The previous incidents of leakage had also caused the death of some people and left others severely injured. But, the authorities paid no attention to it. The machines were worn out but no replacement was there.

•  The Gas Disaster 

Around midnight on 3-4 December 1984, the MIC gas got leaked from the plant and got mixed with the fresh air in Bhopal. Suddenly, people started feeling uneasy, started vomiting, were having trouble while breathing, people started dying within a few minutes of inhaling the toxic gas. It was not only the human beings that suffered but animals, too, suffered and lost their lives.

People, in large numbers, were rushed to the hospital but at that time no doctor knew about the actual cause of death. No one knew about the leakage of the MIC. They just had a hunch about some leakage but exactly didn’t know about the leakage of MIC gas. Since doctors couldn’t operate properly without knowing the exact cause of the accident, so many people lost their lives.

It was reported that nearly 3000 people lost their lives and more than 6 lacs were severely injured. The survivors survived with permanent respiratory problems, and other complications. Children who weren’t even born at that time were born with some health issues. 

•  The International Medical Commission

After the tragedy took place there was no proper health aid provided to the victims. The company was involved in lawsuits and was on the verge of closing down its business. On the other hand, the Indian Government had to face the wrath of the families of the victims and the other people all over India on a lack of carrying out an investigation and providing medical aid to the sufferers. 

For the medical personnel to provide correct medical treatment to the victims they had to know the exact cause of the tragedy. So that based on the cause they could start their operation. A connection had to be established between the cause of the accident and the health attributes caused by the accident.

In 1992, Permanent Peoples’ Tribunal suggested the formation of an international commission to provide better medical treatment to the victims of the Bhopal tragedy. Later on, in 1993 Bhopal Group for Information and Action laid down a proposal for the same.

Finally, in the year 1993 International Medical Commission on Bhopal (IMCB) was organized to provide medical assistance to the survivors of the Bhopal tragedy of 1984. IMCB was a constitution of 15 professionals from 12 countries having expertise in the field of:

• Environmental health
• Respiratory medicine
• Toxicology
• Immunology

IMCB had co-chairpersons and they were, Dr. Rosalie Bertell and Gianni Tognoni. The main aim of the International Medical Commission on Bhopal was to provide some relief to the victims and to suggest some ways to prevent such disasters in the future. 

The work was divided into 8 areas, and they are:

• Clinical
• Family Life
• Epidemiology
• Medical care 
• Drug Therapies 
• Accident Analysis
• Claims
• Review of published literature

A plan was laid out for investigation to know the actual cause of the exposure. This plan has three phases. 

First Phase – In this phase, the symptom report was analyzed and distance was used as a substitute for exposure. It stated that respiratory and neurologic problems were the aftermath health effects of the exposure.

Second Phase – Lung function and respiratory organs were assessed. According to the report, there were excessive respiratory issues and the functioning capability of the lungs was reduced with each passing minute. 

It was noticed that to know the exact level of risk factors involved it was necessary to analyze the exposure accurately. Also, to provide long-term care and medical aid it was mandatory for them to know exactly what they were dealing with.

Third Phase – This was the last phase of the process. In this phase, the victims were assessed individually based on exposure time, location and distance. Finally, the reports were compared to the findings from the distance surrogate to determine whether their association is better than that of distance alone. 

Immediate effects of the Bhopal Gas Tragedy

• The leak and its effects

Methyl Isocyanate (MIC) :

• The colorless liquid used for the creation of pesticides.
• Is highly toxic.
• Since it is extremely reactive to water, it requires good maintenance.
• A small amount of water is sufficient to increase pressure for converting the liquid into a toxic gas.

The UCIL had to store three tanks of MIC and its temperature was to be maintained below zero degrees celsius. Also, it was to be kept under pressure with the help of inert nitrogen. But, before the few days of the accident the tank, E106, in which the MIC was kept couldn’t hold the pressure any longer resulting in stopping of production for some time. 

The tank even after being worn out couldn’t stop the production for a much longer time. The production process resumed after some time. But, on the night of 2-3 December 1984, because of a lack of maintainability, the water broke out from the connecting pipe and started getting mixed with the MIC liquid. This resulted in a strong heating reaction because of which pressure at a splitting pace was created and the MIC gas got released. 

People who were leaving nearby started getting affected by the harmful gas. They started having a breathing problem, irritation in eyes, chemical burns on the skin, contraction of lungs. They were then taken to the hospital but without the main reason for the accident, the doctors couldn’t operate correctly. 

• Cause of Leakage

Though the main reason for the tragedy was the mixing of water with the Methyl Isocyanate because of leaks in the connecting pipes yet it was not the only reason that contributed towards the happening of the tragedy. There are many other reasons which contributed to this unfortunate event. All these small reasons are because of the lack of proper maintenance.

Following are the reasons that, too, have contributed to the Bhopal tragedy:

• An inspection team came from Danbury, the United States to the Bhopal plant and found 61 safety problems. Out of these 61 problems 31 were major.

• Main refrigeration and cooling system were closed down before 150 days of the accident
• To lower the cost number of workers working were reduced.
• Also, the specialized training was not given to the unskilled workers so that they could at least have an idea about the consequences of their actions.
• As already mentioned, before this major tragedy there had already been minor leakages which cost the life of one worker and others were injured.
• No supervisor was there for his night shift.
• The pressure control valve of the tank E610 had not been working properly for over a month.
• Negligence on the part of the maintenance authorities.
• There was no backup plan in case of emergencies.

Another important thing to notice is that if the fire or the rescue squad had an idea of how to prevent the gas from spreading, or if there was any antidote chemical that could have been used to bring down the effects of MIC gas then, maybe some lives could have been saved.

The root cause was the lack of management on the part of the authorities. Also, it’s been said that the company had not informed all the concerned authorities about the emission of MIC gas. Had some authorities known about the gas maybe they could have prepared some backup strategies in case of a crisis. 

• Toxicology of MIC

Methyl Isocyanate is highly toxic. The American Conference of Government Industrial Hygienists stated that the level up to which a worker could be exposed to MIC without any harmful effects is 0.02ppm. As soon as the level is 0.4ppm it is toxic by inhalation, or by ingestion. At 5ppm, most people cannot detect it but because of symptoms, they get a warning. 

The symptoms of exposure includes:

• Chest pain
• Irritation in the eyes
• Breathing problem
• Irritation in the nose and throat
• Burning of skin 
• Coughing

When exposure level is above 21ppm it can result in:

• Death
• Bronchial Pneumonia – A condition that causes inflammation of the lungs
• Lung edema – A condition caused by the accumulation of excessive fluid in the lungs, making it difficult to breathe
• Emphysema – It means damage to the air sacs in the lungs resulting in shortness of breath

Therefore, storing methyl isocyanate requires proper care and caution, and especially when comes to water extra precautions must be taken. Methyl Isocyanate is very sensitive to water. It can be stored in glass or stainless steel, and temperature should be below 40-degree celsius or 104-degree Fahrenheit. 

• Attributed diseases to the gas exposure

The attributed diseases to gas exposure are as follows:

• Ophthalmic Problems – The MIC gas irritated the eyes of the people. MIC gas caused burning, watering, and photophobia, redness of the eye, swelling of the eyelid.

• Respiratory and Pulmonary Problems – Inhalation of MIC gas resulted in shortness of breath, suffocation and chest pain. When examined it was found that some victims had suffered necrotizing lesions in their respiratory organs
• Reproductivity Toxicity – Gas leak resulted in high-risk factors to the fetus and it not only the gas leak that increased risk but the factors like stress and ingestion of drugs by the mothers.
• Genotoxicity – The MIC gas had affected the genetic information of the victims within their cells which had increased their possibility of having cancer. 
• Neuromuscular Toxicity – It was found that the survivors of the accident had neuromuscular symptoms like numbness, pain, aches, and sensation of needles
• The victims suffered many other health problems like carcinogenicity, immunotoxicity, psychological and neurobehavioral toxicity.

Litigation

After the accident, many cases were filed on behalf of the victims since there was a problem in claiming compensation, and many people, especially the ones having low financial status, couldn’t afford to fight the case for a long time. These cases were filed against UCC in Bhopal as well as in the USA. An effort was also made to settle the matter outside of the court but it wasn’t successful. 

Then, after some time passed, the Indian Parliament passed The Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985. According to Section 3 of the Act, the government of India had the power to file cases on behalf of every citizen who was entitled to claim the compensation. The government by Section 9 of the Act introduced “The Bhopal Gas Leak Disaster (Registration And Processing of Claims) Scheme, 1985”. 

The Indian Government filed a lawsuit in the United States District Court of NewYork against UCC. But, the UCC pleaded that filing the lawsuit in an American Court was not convenient. They pleaded on the grounds of forum inconvenient (it means that the Court can refuse to take jurisdiction when the parties have more convenient forums to go to). UCC said that since the accident took place in Bhopal and all the evidence was there only so it was more convenient to try in Indian Courts. 

So, Keenon J. accepted the plea of UCC and a new case was filed in the District Court of Bhopal. The District Court ordered UCC to pay a sum of Rs 350 crore to the victims. Next, UCC filed an appeal in the Madhya Pradesh High Court against the judgment of Bhopal District Court. This resulted in a decrease in the “interim compensation” from Rs 350 crore to Rs 250 crore. Simultaneously UCC tried to settle the matter directly with the gas victims outside the court. But, M.W. Deo J. of Bhopal District Court put an interim order on UCC to not to make any settlement with any victim until further orders of the Court. 

Finally, after the propagation of the rule of Absolute liability, the Court held UCC liable for the Bhopal tragedy. Though people had their doubts that the Indian Judiciary won’t be able to handle the situation. They thought that the wrongdoers would escape from their liability under the rule of Strict liability but it didn’t happen. The Indian Judiciary brought fair justice to the victims. 

On 14th and 15th February 1989, the Supreme Court in Union Carbide Corporation v. Union of India [1] ordered UCC to pay a sum of $470 million (Rs 750 crores) to the victims. 

Principle of Absolute Liability 

This liability is also known as “No-Fault Liability”.

Absolute liability is a liability where the accused is held liable but without any exception of getting excused from the liability. Normally, a person can be held liable only when he had mens rea (guilty mind) but in the case of absolute liability, a person can be held liable even if he had no intention of committing the offense. 

The principle of absolute liability is similar to strict liability. In the case of strict liability, a person keeps something dangerous with him, and he knows that even the slightest mistake would cause a release of that thing resulting in the death of human beings. So, even if he took proper care and caution but still the thing escaped resulting in the death of a man, he can be held liable under strict liability.

The principle of strict and absolute liability differ only at one point. While on one hand under strict liability, a person is having options to escape the lability so arisen but, on the other hand under absolute liability a person has no such options available. 

• Rylands v. Fletcher

This doctrine of Strict liability was laid down in Rylands v. Fletcher [2] by Justice Blackburn.

Facts:

• The defendant paid the contractor to build a reservoir on his land.
• The contractors while doing their work discovered old coal shafts in the ground.
• They decided not to do anything and carried on with their work.
• The defendant didn’t know anything about this.
• Later on, when the reservoir was filled with water the shaft broke and the water started bursting out of the reservoir.
• As a result, the neighbor’s mine was flooded.
• The respondent (neighbor) then, filed a suit against the defendant and claimed damages.

Judgment:

The House of Lords propounded the Doctrine of Strict Liability in this case stating that even if the accused did not have any intention of causing any harm to others yet he would be held liable for the same. This was so because of his mistake harm was caused. 

Following are the words used by Blackburn J. while propounding the rule: [3]

“We think that the rule of law is, that the person who for his own purposes brings on his lands and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default; or perhaps that the escape was the consequence of vis major, or the act of God: but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient.” 

Another important feature of Strict liability is that for the applicability of this rule the use of land should be non-natural. 

• M.C. Mehta v. Union of India

The Doctrine of Absolute Liability was introduced in this case [4] by P.N. Bhagwati J.

Facts:

• The defendant, Shri Ram Food and Fertilizer Industry belonging to Delhi Cloth Mills Ltd. produced dangerous chemicals.
• M.C. Mehta had already filed cases against this industry demanding closure of units of this industry.
• On December 4 the oleum gas leaked from one of the units of the industry.
• Many people lost their lives in this accident including an advocate practicing in the Tis Hazari Court.
• It is believed that the leakage was caused because of mechanical and human errors.
• not even two days after the accident there was another minor leakage of oleum gas from the connecting pipes.
• District Court ordered Shriram industry to stop their production of lethal gases and chemicals.
• M.C. Mehta filed a Public Interest Litigation (PIL) under Article 32 of the Indian Constitution. 

Judgment:

It was the second case of leakage of toxic gas after the leakage of MIC gas from the Union Carbide plant in Bhopal within one year. The Supreme Court knew that if they applied the Doctrine of Strict liability which was laid down in Rylands v. Fletcher case then the industries involved in hazardous work will escape liability by using an exception to the rule of the strict article. 

Therefore, the Apex Court decided to introduce a new rule which will align the Indian circumstances. It laid down the rule of Absolute liability which did not have exceptions available to a person under strict liability. The court held the defendant was liable under the rule of absolute liability. 

The Court held that the petitioners could claim compensation for the same on behalf of the victims after filing an action in an appropriate court. 

The Court, while justifying the rule gave the following two reasons: 

1. An industry knows all about its operations that are being carried out while producing commodities. It is, therefore, the industry’s responsibility to have resources and safeguards in case of any danger.
2. When an industry is involved in a dangerous or hazardous activity for profit then it owes an obligation towards the public for their safeguard. Therefore, in case of an accident, it has to compensate for the sufferers. 

Bhagwati C.J. while laying down the new principal gave the following statement: [5]

“We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and 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.” 

The Court gave the following statement as well: [6]

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

Enactment of Acts 

Even after so many years of the accident people living in Bhopal, especially in the places near the plant, are still being affected till date. They haven’t escaped from the consequences of the accident yet. Even now, children who are being born have some kind of problem which is about the accident.

The Government to prevent future environmental hazards caused because of the actions of human beings has decided to implement laws that would protect the environment. Laws that would ensure that in case of disputes some authority is there for a speedy trial.

• The Environment Protection Act, 1986

The Environment Protection Act was enacted in the year 1986 after 2 years of the Bhopal tragedy. The main purpose of the Act is to safeguard the environment and prevent future hazards. It is said to be implemented based on the United Nations Conference on the Human Environment held in Stockholm in June 1972.

The Act contains five chapters and twenty-six sections. This Act is concerned with the protection of the environment, human beings, plants and animals, and prevention of any kind of future hazard like Bhopal tragedy. 

This Act is also known as an Umbrella Act because it makes the Union and the State work in coordination for the various other laws like the Water Act and the Air Act.

• The National Green Tribunal Act, 2010

This Act provides speedy trial to the cases related to matters concerned with environmental protection. In case of any violation of environmental law, or case human beings require protection against the use of hazardous chemicals this Act is applicable. The main purpose of The National Green Tribunal Act is to provide speedy disposal of cases.

This Act has five chapters and thirty-eight sections. This owns its established to Article 21 of the Indian Constitution which provides for “Right to a healthy environment”.

• The Factories Act

The Factories Act, 1948 was enacted before the Bhopal accident. But, the provisions of this Act are in favor of the workers involved in factories, industries, and mines. The main purpose of this Act is to ensure the welfare of the workers, to improve the working conditions for the workers and also, it provides special provisions for women and children involved in the factories.

• The Public Liability Insurance Act, 1991

According to the Public Liability Insurance Act,1991, a person can claim relief in case of an accident caused because of keeping any hazardous chemicals. The Act provides public liability insurance. This Act is based on “No-Fault Liability”. This means that it is the responsibility of the person to compensate for another irrespective of the fact that he was careful enough to avoid any kind of accident.

Widened scope of Article 21 of the Constitution of India 

Article 21 of the Indian Constitution states that every person has a right to life and personal liberty. Unless a court order, a person cannot be deprived of this right. This Article is considered as the “mini-constitution”. It includes many other rights within itself like, Right to Privacy, Right to Shelter, Right to Information. The Apex Court of India has widened the scope of Article 21 from time to time and by making ‘Right to a clean and healthy environment’ a fundamental right it added more to its dimensions. 

The Supreme Court in Subhash Kumar v. State of Bihar [7] held that the citizens of India have a fundamental right of living in a free pollution environment for their full enjoyment of life. This even compelled the local authorities to take measures to decrease the rate of pollution in their areas.

In Rural Litigation and Environment Kendra, Dehradun v. State of Uttar Pradesh [8] the Supreme Court admitted a Public Interest Litigation under Article 32 of the Indian Constitution and ordered some limestone quarries to close down their quarries. It was held that only those quarries which were fit for operating their business and caused less adverse effect could carry out their work. The fitness of a quarry was decided after an inspection. 

Initially, there was no provision regarding the protection of the environment but with time, the Supreme Court realized its importance and incorporated it as a fundamental right. There are other provisions, too, in the Indian Constitution that direct the State and the citizens to protect the environment. These provisions include Article 39(b), 47, 48, 49, 48 A and 51 A (g). 

Amendment in Penalty 

According to Section 15(1) of the Environment Protection Act, 1986 if a person violates any provision of the Environment Protection Act then he shall be punished with imprisonment for a term which may extend to 5 years, or with fine which may extend to one lakh rupees, or with both. And, in case the offender continues to violate the Act then he has to pay an additional fine of Rs 5000 every day from the date of conviction till he stops violating it.

Section 15(2) states that in case the violation continues beyond a period of one year then he can be punished with imprisonment for a term which may extend to 7 years.

Introducing New Legislative Rules 

• Hazardous Rules, 2008

The Hazardous Wastes (Management & Handling) Rules, 1989 was enacted under the Environment Protection Act, 1986. Later on, it was amended in 2000 and then in 2003. 

In 2008, the Hazardous Wastes (Management, Handling & Transboundary Movement) Rules, 2008 superseded the Hazardous Wastes, 1989 and its amendments.

The Hazardous Wastes (Management, Handling & Transboundary Movement) Rules, 2008 is concerned with the proper management in handling storing, collecting, and disposing of the ‘hazardous wastes’. The Schedule 1, 2 and 3 of the Rule divides hazardous wastes into different categories. The definition of ‘hazardous wastes’ under this Rule does not include exhaust gases, biomedical wastes, wastewater, etc.

• Chemical Accident Rules 1996

The production process of different commodities involves dealing with many dangerous chemicals. The use of these chemicals, if proper care and caution is not taken, involves a high-level risk in case of any mishap. Therefore, the government of India introduced Chemical Accidents (Emergency Planning, Preparedness, and Response) Rules, 1996, so that in case of any emergency people would know exactly what to do.

Under these rules a Central Crisis Group, State Crisis Group and a District Crisis Group were to be formed, and these groups would deal with chemical mishaps and provide guidance in dealing with the issue. A list of hazardous chemicals has also been mentioned in the Chemical Accident Rules, 1996.

Conclusion 

No matter how many years have passed, the aftermath of the Bhopal tragedy can still be seen today. Even after holding UCC liable the loss of those people who lost their lives and the ones who are still suffering cannot be measured. Though it is important for the government to promote globalization it should ensure that there are no risks involved. Also, it is the need of the hour that the laws made are implemented in the best way possible because nothing is more important than the lives of the people.

References 

1. A.I.R. 1990 S.C. 273.
2. (1868) LR 3 HL 330.
3. (1868) LR 3 HL 330.
4. A.I.R. 1987 S.C. 1086.
5. A.I.R. 1987 S.C. 1086.
6. A.I.R. 1987 S.C. 1086.
7. (1991) 1 SCC 598.
8. 1985 A.I.R. 652, 1985 SCR (3) 169.