This article is written by Stuti Mishra.

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ABSTRACT

More than 30 years have passed since the dreadful night of December 3^rd 1984 when a gas leak killed thousands of people and permanently disabled the survivors. The Bhopal Gas leak disaster is still fresh in the minds of all those who survived and inherited the suffering from their predecessors. The immediate effects of the gas killed 3787 people and several thousand over the next decade. The government, representing the victims, secured 470 million USD as compensation from the Union Carbide Corporation. The amount is considered too meagre when compared to the magnitude of damage caused. Following the incident, the state enacted several legislations including, the EPA, 1986, Public Liability Insurance Act, 1991 etc. Judicial Activism covered the loopholes and evolved the ‘absolute liability’ doctrine. Tighter regulations were framed but enforcement is still a problem, even though the situation has improved as compared to the pre-disaster period. While economic growth is being observed, the unregulated industries continue to threaten public safety and environmental balance. Sustainable development and fixing corporate liability is the way ahead.

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INTRODUCTION

Often named as the world’s worst industrial disaster, the Bhopal Gas Tragedy has been the focus of many research papers, articles, documentaries, debates and disputes. This project attempts to report and analyze the development of environmental policy in India after the Bhopal Gas tragedy. Chapter I contains the details about the disaster and its immediate consequences. Chapter II deals with the litigation involved in the determination of compensation. Chapter III examines the probable causes of the disaster explaining the role of the corporation as well as the state.  Chapter IV briefly discusses the standards that were already in place before the disaster and then describes the different changes initiated as a response to the disaster. Finally, the project concludes by mentioning the lessons learnt from the disaster.

CHAPTER I

The disaster

In 1970, the American enterprise, Union Carbide Corporation (UCC) established a pesticide plant in the densely populated region on Bhopal due to its central location and transportation network. The specific site within the city was to be utilized for light industrial and commercial activities and not hazardous industries[i]. In 1984, the plant was manufacturing Selvin at one-quarter of its capacity due to decreased demand of the pesticide[ii]. Due to the decreased productivity, UCIL made plans to dismantle the key production units and transport it to another country. In the meantime, the plant kept up production but due to low profits, safety standards were the lowest priority. Although the local government was aware of the lower standards, it was reluctant to impose strict controls on a struggling industry, which was also a large employer[iii].

At around 1:00 pm on December 3, 1984, massive amounts of Methyl isocyanide quickly engulfed the city. Within hours, a large number of humans and animals died due to inhaling the poisonous gas. According to an estimate, around 3787 people died immediately[iv]. Local hospitals were packed with clueless patients and doctors alike. In the first few days, the death count reached 10,000 followed by 15,000 to 20,000 premature deaths in the subsequent decade[v].  A large proportion of people who survived suffered from acute multi-system morbidities with the eyes and lungs being the target organs. The ICMR estimated that approx. 62.58% of the population of Bhopal suffered from inhalational toxicity[vi]. The population that survived developed morbidity of varying degree over the next 25 years[vii].

When the hospitals started receiving patients, they had no idea about what was affecting them and the treatment that would be necessary. The doctors still do not know about the toxin or its antidote. The problem could have been more efficiently handled if the government had more information. UCC refused to divulge any information about the exact composition of the leaked gases citing trade secrecy as an excuse[viii], which forced the treatment to be symptomatic.

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The consequences

After the incident, UCC started distancing itself from its Indian subsidiary intending to evade liability by transferring the blame to UCIL. The operations at the plant were discontinued.

The gas leak claimed the lives of thousands of people, animals and carried over its devastating effects to the next generations. People suffered from various ocular, respiratory, gastrointestinal, reproductive and neurological disorders.[ix] Among the injured were pregnant women who experienced abortions, had premature delivery and gave birth to infants with fetal abnormalities.

The injury was also inflicted on the environment. Even after the death of so many people, the corporation refused to take active responsibility and restore the healthy environment. During the company’s production years, it dumped huge amounts of toxic waste outside and inside the plant site. Almost 350 tons of toxic waste and residue of old pesticides still remain at the plant site[x]. These wastes degrade slowly and pollute the soil and groundwater. This threatens a larger number of people and will keep spreading unless it is properly disposed of. In May 1999, Greenpeace collected soil and water samples from the site and found that the water and soil and breast milk contamination is toxic to humans[xi].

CHAPTER II

Aftermath: Litigation

The government, observing the increasing number of cases in courts, promulgated the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 (the Bhopal Act) on 29 March 1985. The Bhopal Act gave the Central government the exclusive right to represent and act (in India or overseas) on the behalf of the persons entitled to make claims in relation to the Bhopal gas leak. It gave authority to the Central government to represent the interests of those affected by the gas leak as ‘parens patriae’.  The government-owned stakes at UCIL, which would make it partially liable for the tragedy. This action of the government was criticised as a way to evade responsibility by stopping the victims to initiate action against the state[xii]. This act was challenged before the Supreme Court which justified the act and held it to be valid.

The central government filed a complaint against UCC before Southern District Court of New York, USA, where it argued the inability of the Indian Courts to deal effectively with the situation and that the matter should be dealt with in US courts. The company, however, pushed for the matter to be dealt with in Indian Courts, knowing that the compensation is likely to be higher in the US courts. The court dismissed the claims on the grounds of forum non-conveniens.

In September 1986, the Union of India filed a complaint in a district court of Bhopal seeking interim compensation of 3.5 billion rupees which the Madhya Pradesh High Court reduced to 2.5 billion rupees. UCC appealed to the Supreme Court. The court ordered UCC to pay 470 million dollars (approximately 750 crore rupees) ‘in full settlement of all claims, rights and liabilities related to and arising out of the Bhopal gas disaster’[xiii]. In terms of settlement all civil proceedings were concluded and all criminal proceedings were quashed.

The government’s original claim involved a compensation of 3 billion USD but the company agreed to the mere sum of 470 million USD. The sum is grossly inadequate for people who lost their family or are permanently disabled.

This settlement received widespread criticism for the quashing of the criminal proceedings and the amount of compensation. In 1989, the Supreme 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.[xiv]

During 1990, the first five-year plan; the central government sanctioned a 258 crore rupees fund for medical, economic, social and environmental rehabilitation of the victims[xv].

In June 2010, seven former employees, including the former UCIL chairman, were convicted in Bhopal of causing death by negligence and sentenced to two years imprisonment and fine of 2000 USD.

CHAPTER III

Causes

It seems that the UCIL was trying to minimize cost by compromising with the health and safety standards. There is no sensitivity towards the environment or the wellbeing of the locals residing around the plant. The loss could have been significantly less if only UCC had a crisis management plan. Instead, the plant focused on evading liability, withholding information and ignoring the impact. It accepted moral responsibility but denied legal liability[xvi].

UCC admitted in their own investigation report that most of the safety systems were not
functioning on the night of the 3rd December 1984:[xvii]
· Tank temperatures were not logged;
· The vent gas scrubber (VGS) was not in use;
· The cooling system was not in use;
· A slip bind was not used when the pipes were washed;
· The concentration of chloroform in Tank 610 was too high;
· The tank was not pressurised;
· Iron was present because of corrosion;
· The tank’s high-temperature alarm was not functioning;
· Tank 619 (the evacuation tank) was not empty.

This shows how the safety of the workers as well as the city was taken casually. The company was reluctant in investing more in the safety standards as the plant was already in loss. Further, it seems that the lack of governmental pressure and monitoring did not invoke any sense of urgency for the company.

The responsibility for the incident lies majorly with the company but the state has neglected its own part too.

In the Constitution of India, it is clearly stated that it is the duty of the state to ‘protect and improve the environment and to safeguard the forests and wildlife of the country’ Environment has also been discussed in the Directive Principles of State Policy. The Department of Environment was established in India in 1980 to ensure a healthy environment for the country.

The state failed in monitoring the industry properly. It should not have granted permission for a hazardous plant to be in operation in such a populated area. Even if the plant operates within the city, it is the duty of the state to closely monitor its activities in order to ensure compliance of safety standards. The state should have a mechanism in place for an emergency situation. A gas leak is a reasonably foreseeable event. The government should have gathered information on the type of gases that the company uses. It should have organised mock drills and ensured that the public is aware of the dangers. Stringent action should have been taken in case of any non-compliance.

CHAPTER IV

Standards in place

The legislation in place were the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. These acts were not very effective to check non-compliance[xviii].  The acts provided that firms not complying with pollution control regulations will be fined. Organisations found it economically advantageous to avoid compliance with the law and pay the penalty. If based on torts, the organisations will just pay the damages and continue the violation. Criminal proceedings were complex and uncertain. The industries were able to freely discharge their effluents into water without an Environmental Impact Assessment. There was no compulsion to have an EIA.

Steps taken after the disaster

It is a sad truth that such a tragic incident had to happen for us to realise the importance of safety standards.

In response to the disaster, the government brought forth various legislations. This marked the shift in the consciousness with regard to environmental issues. The legislative developments are outlined below.

The principle of absolute liability

The English Principle of strict liability as laid down by Ryland vs Fletcher[xix], was the governing principle in India before M.C Mehta vs Union of India[xx]. In this case, the Supreme Court increased the bar of tortious liability when it held that an enterprise engaging in any harmful or inherently dangerous activity had an absolute and ‘ non-delegable’ duty to ensure that no one was harmed, and if anyone was harmed, they were to be compensated. The Supreme Court did not accept the exceptions which had evolved in English jurisprudence regarding strict liability. Bhagwati. J states in the case that, “We have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous or inherently dangerous industries which are concomitant to an industrial economy, there is no reason why we should hesitate to evolve such principle of liability merely because it has not been so done in England.”

This ruling was significant in that the Supreme Court determined the effective control in the Indian scenario ‘to regulate an environment in which industrial growth was not matched with necessary legal reform’[xxi]

The Environment Protection Act was enacted in 1986. The act defines the environment and authorizes the central government to take all such measures as it deems necessary or expedient for the purposes of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution[xxii]. In this connection, the central government has the authority to issue direct written orders including orders to close, prohibit, or regulate any industry, operation or process or to stop or regulate the supply of electricity, water or any other service[xxiii]. The act conforms to the commitments made by the Stockholm Declaration, 1972.

The Factories Act was amended to include the list of hazardous industries[xxiv] and the provision to locate an industry[xxv]. The Central and State Pollution Control Board laid down comprehensive industrial standards for the control of effluents and emissions.

The Public Liability Insurance Act, 1991 is another act with an aim to provide immediate relief to the victims affected by accidents while handling hazardous substances and for matters connected therewith or incidental thereto. The Act incorporates a provision making it mandatory for the industrial units that every owner shall take out before he starts handling any hazardous substance, one or more insurance policies and renews it or them from time to time before the expiry of validity[xxvi]. It will allow the victims of such incidents to get compensation immediately, which will not bar them to seek larger compensation. The act recognises the ‘absolute liability or no-fault liability’ doctrine.

Acknowledging the need to deal with the cases related to the environment effectively and expeditiously, the government established a National Green Tribunal in 2010 through the National Green Tribunal Act, 2010. The tribunal exclusively deals with the cases arising out of environmental issues.

After the Bhopal Gas Tragedy, the importance of environmental regulation became starkly evident. The inadequate measures and the vacuum in the legal system were also exposed. The Supreme Court, in order to fill such loopholes, applied Judicial Activism. The scope of Article 21 was considerable widened to include the right to a clean environment. This way, environmental concerns became the part of the constitution as well as the rights of the citizens.

The Environment Impact Assessment Notification in 1994 was also a significant step to calculate risks associated with any project which will determine whether or not it is granted clearance.

Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008, provide for means of safe storage and disposal of “hazardous waste” (which is listed in its schedules) with the help of central and state pollution control boards[xxvii].

Chemical Accidents (Emergency Planning, Preparedness, and Response) Rules, 1996 was also enacted, which address gas leaks and similar events. The Chemical Accidents Rules seem to have been framed for the exact purpose of monitoring plants or industries like the UCC in Bhopal[xxviii].

The state pollution control boards are required to give the industry consent to establish and then consent to operate. But all that the pollution boards do is to process the consent and authorisation. They do not have time to monitor compliance with standards for pollution or enforce their directions[xxix].

There is also no deterrence in the system. The maximum penalty imposed by courts under the Water (Prevention and Control of Pollution) Act is Rs 10,000 and under EPA, it is Rs 1 lakh. But only courts can impose this penalty. So all the boards can do is to either deny the consent to operate or issue closure notice for 30 days[xxx].

These problems need to be fixed before it is too late to save the environment.

CONCLUSION

India is a developing nation and hence is open to foreign investors so as to induce growth in its economy.  Industrialization is encouraged in order to be globalised. However, we should not lose sight of the effect these industries have in the long run on the environment and the health of the people. India needs to rigid when it comes to enforcement of the legislation in place so that we do not pay such a heavy price again. UCIL got away with such blatant violations because the enforcement was too weak to serve as a deterrent.

Are human lives in India so disposable that we are ready to pass off the incident as an unfortunate accident? There is no way to replace the thousands of lives lost all that can be done is to ensure that the ones that have been left behind can lead a comfortable life and cope up with the loss. The industrial disaster catalyzed a paradigm shift in terms of environmental awareness, environmental policy, judicial activism and human rights. It forced the government and public alike to treat these issues with utmost priority.

Are the legislation enough?

As discussed in the previous chapter, the controls in place are not adequate. The State Pollution Control Board has does not have the time to monitor the industries and impose regulations. The legislations contain various loopholes that need to be taken care of. The lack of efficient deterrence is also a problem.

Is India in a better position to deal with a disaster of such a magnitude now?

While the controls we have in place are not top-notch, we are certainly in a better position to deal with any such disaster. The state is sufficiently alert to ensure that a disaster like Bhopal does not happen again. It has taken active steps right after the disaster to protect the citizens from such a fate. With the EPA, 1986, the EIA notifications, the amendments in Air Act, Water Act and the Factories Act, we are certainly in a better position. Apart from this, the communication channels and the emergency warning systems have ensured that proper evacuation can take place before any disaster can strike.

What is the responsibilities of and the obligations on the state?

When we are so liberal with granting approvals for the projects that are essential for the growth of the nation, why shouldn’t we exercise the same liberality when the rights of the citizens are so casually violated. The grown of a nation should not come at the expense of the safety of its inhabitants. It is the duty of the state to ensure that such violations are prevented and punished. Corporations must not be allowed to cut costs and jeopardize the lives of the people associated. While it is a truth that the corporations want to establish production units in India because the labor is cheap but they should keep in mind that their lives are not disposable. In case of violations, criminal liability must be placed on the corporation. If necessary, the corporate veil must be lifted and the culpability determined. “The boards of companies must realise that human beings have a value that is higher than the value of shares”[xxxi]. The companies must also enable and assist the recipient country to do a full-scale environmental impact assessment and risk analysis of the proposed installation and to define the conditions under which the facility should operate.

Honoring the basic rights of the citizens should be the first priority of the state and these corporations. The public health department needs to be upgraded, maintained and prepared for emergency circumstances. During the disaster, there was no lack of hospitals but a lack of treatment. The government needs to step in and clear the untreated waste responsible for contaminating water and soil. Adequate resources should be devoted towards advance planning in case of foreseeable disasters. Social-action and community groups can play a powerful role in the risk-management process[xxxii]. They are often best equipped to understand, articulate, and protect the interests of local communities. The Bhopal disaster might have initiated several effective changes in the policy, their proper implementation remains to be seen. Although the Indian economy is growing, sustainable development should be the guiding principle.

Right to a clean and healthy environment is a pre-requisite to enjoying all the other rights[xxxiii]. This right is included as a fundamental right in India. Therefore, it is the duty of the state and the citizen to protect and conserve the environment. The state must strengthen the current regulations and involve the local population in conservation plans. It is the only way we can respect the thousands of innocent lives that the negligence of the authorities claimed. We must do whatever we can to ensure that such a horrific incident never becomes the part of India’s history.

References

[i] Edward Broughton, The Bhopal disaster and its aftermath: a review, Environmental Health: A Global Access Science Source, 10 May 2005

[ii] Id.

[iii] Id.

[iv]Bhopal Gas Tragedy, Relief and rehabilitation Department, Bhopal Madhya Pradesh, https://web.archive.org/web/20120518020821/http://www.mp.gov.in/bgtrrdmp/relief.htm

[v] Supra note 1

[vi] Disaster Management In India by Ministry of Home Affairs, Recovery, Reconstruction and Rehabilitation, Bhopal Gas Tragedy, at 127

[vii] Id.

[viii]B. Dinham and S. Sarangi,  The Bhopal gas tragedy 1984 to? The evasion of corp.responsibility. Environment and Urbanization, 2002, 14(1), pp.89-99.

[ix] Supra note 1

[x] Sunita Narain & Chandra Bhushan, 30 years of Bhopal gas tragedy: A continuing disaster, Down to Earth, December 2014, http://www.downtoearth.org.in/coverage/30-years-of-bhopal-gas-tragedy-a-continuing-disaster-47634

[xi] Malini Nair, Bhopal Gas Tragedy : A Social, Economic, Legal and Environmental Analysis, Munich Personal RePEc Archive, March 2015, https://mpra.ub.uni-muenchen.de/id/eprint/37856

[xii] Zia Modi, 10 Judgments that changed India, 44, {2013}

[xiii] Id.

[xiv] Supra note 12

[xv] Supra note 6

[xvi]P Shrivastava.,. Industrial/environmental crises and corporate social responsibility. The Journal of Socio-Economics, 1995, 24(1), pp.211-227.

[xvii] Ingrid Eckerman, The Bhopal Saga – Causes and Consequences of the World’s Largest Industrial Disaster, 13, {2004}

[xviii] B Bowonder & S S Arvind Environmental regulations and litigation in India, Project Appraisal,, 1989,  182-196, https://www.tandfonline.com/doi/pdf/10.1080/02688867.1989.9726733

[xix] Supra note 12

[xx]  Id.

[xxi] Supra note 12

[xxii] Abhishek Kumar, Bhopal Gas Tragedy Aftemath: Development of Environmental Policy in India, The World Journal of Juristic Polity, 2016, at 3,

[xxiii] Id.

[xxiv] Supra note 18

[xxv]  Id.

[xxvi] Supra note 22

[xxvii] Apoorva & Shreeja Sen, Industrial disasters: Is India better prepared than it was in 1984?, Livemint, December 2 2014, http://www.livemint.com/Politics/NtYcWmazGAis6CEpj4yAkP/Industrial-disasters-Is-India-better-prepared-than-it-was-i.html

[xxviii] Id.

[xxix] Supra note 10

[xxx] Supra note 10

[xxxi] Supra note 17

[xxxii] Supra note 10

[xxxiii] Human Rights and the Environment, United Nations Environment Programme, http://web.unep.org/divisions/delc/human-rights-and-environment