Professional Documents
Culture Documents
Union Carbide Case
Union Carbide Case
UNIVERSITY, LUCKNOW
2017-2018
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CONTENTS
ACKNOWLEDGEMENT..(3)
CASE REFERRED.........................(4)
INTRODUCTION...(5)
1984.(7)
US........(9)
TRAGEDY.........(14)
CONCLUSION......(16)
REFERENCES...(18)
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ACKNOWLEDGEMENT
motivate, criticize, appreciate a work with their objective ideas and opinions, hence I would like
to use this opportunity to thank all, who have directly or indirectly helped me to accomplish this
project. Firstly I would like to thank Bhanu Pratap Singh sir without whose support this project
would remain unaccomplished. Next I would like to thank all those people, who gave their
valuable time and feedback to this project. I would also like to thank our college which provided
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CASE REFERRED
Ratio decidendi : Supreme Court said that -We are of the view that an enterprise which
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
the activity which it has undertaken. The enterprise must be held to be under an
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. Since the
by the enterprise would not be in a position to isolate the process of operation from the
hazardous preparation of substance or any other related element that caused the harm the
enterprise must be held strictly liable for causing such harm as a part of the social cost for
1
Aditya Mishra et al., M.C. MEHTA vs. UNION OF INDIA | LAW MANTRA (Think Beyond Others)
Lawmantra.co.in (2017), http://lawmantra.co.in/m-c-mehta-vs-union-of-india/
4
INTRODUCTION
the struggle of man against power is the struggle of memory against forgetting.
-Milan Kundera
On the world map, Bhopal has been known for all the wrong reasons. The Bhopal Gas leak or the
Bhopal gas tragedy remains an unparallel industrial disaster anywhere in the world. The Ghosts
of the night of 2nd December, 1984 preyed upon the Bhopal inhabitants and their several
generations. Even today the ill and catastrophic consequences can be seen of that gas leaks which
appear in form of damaged reproductive systems, lung problems and vision impairments. Many
unborn that were in the womb of their mother at the time of this drastic gas leak suffer
irreparable catastrophic consequences. What followed the accident as was regrettable as the
incident itself. In the following years, the struggle for justice, victims of the disaster have been
revictimized. Bureaucracy and politics power worked together in order to cause the fullest
mental agony upon the victims that claimed justice in relation with the gas leak tragedy. A
number of questions have been raised on several issues ranging from compensation that victims
claim for, criminal negligence of UCIL and UCC the piercing of the corporate veil 2, the criminal
liability of the directors of UCIL and UCC and the appropriate and precise choice of forum of
justice but little good trickled down to the victims of this catastrophe. There had been no
effective mechanism that could be applied in order to obtain a speedy justice and remedy for
those who were entitled to claim compensation in relation to the Bhopal gas leak or the Bhopal
gas disaster.
2
Piercing the corporate veil is a legal concept. A company as an entity is separate from the people who promote
and run it. On the whole, any liability to a company is not a liability to its directors, promoters or employees.
Similarly under law a parent company is a separate entity from its subsidiary company.
5
This project highlights the chronology of the Bhopal gas leak from the very beginning and the
consequences of that horrendous incident which even today can be witnessed in the inhabitants
of Bhopal in form of ill, drastic and catastrophic circumstances they suffer from. The project
highlights out the trials that have occurred in and outside in India in relation to this gas disaster,
compensation they were entitled to pay and the criminal charges revived against them. The
project also highlights that Indian legal system was below par to handle such a complex litigation
on a case of such gigantic proportion and raises the question on making the grade of Indian
lawyers in relation to their expertise in area of tort claims. The competencies of Indian legal
system have been in question in relation of grappling this Bhopal gas disaster case.
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THE NIGHT OF 2ND DECMEBER-3RD DECEMBER,1984
UCIL was incorporated in India in 1934 to manufacture batteries, pesticides, chemicals and other
industrial products. In 1970, UCIL set up a pesticide plant in a densely populated area of Bhopal,
Madhya Pradesh. UCC, an American enterprise owned a majority stake in UCIL. Many of the
superiors of the UCC claimed this plant to be as offensive as a chocolate factory. This plant
manufactured sevin and temik in its Bhopal plant. UCC owned 51% (approx.), LIC 22% and
On the late night and early morning of 2nd and 3rd December, 1984 respectively, tonnes of MIC, a
highly toxic and poisonous gas leaked out of the pesticide plant that were used in the production
of sevin and temik. The exposure of this gas with the atmosphere caused an exothermic reaction
and blew over the adjacent hutments of Bhopal. That night the city turned into a gas chamber.
The gas leak preyed upon several generations of the inhabitants of Bhopal. Estimates indicate
that the number of fatalities rose to a whopping 20,000 while 6, 00,000 people suffered
irreparable damage.4Thousands of animal carcasses had to be were found that had to be disposed
off. Residents of Bhopal suffer generic and catastrophic circumstances because of the horrendous
tragedy. Soon after the leak, Hundreds of tort lawyers from USA and their seeking exemplariness
damages on behalf of those who were affected by the gas leak. Quickly acting on this
Government of India came up with the Bhopal Gas Leak Disaster Ordinance, 1985 replaced by
Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 on March 29, 1985 which states that
3
10 Judgments that Changed India by Zia Mody, P. 98 ,Line 1
4
http://www.guardian.co.uk/world/2009/dec/03/bhopal-anniversary-union-carbide-gas
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An Act to confer certain powers on the Central Government to ensure that the claims arising out
of or connected with, Bhopal gas leak disaster are dealt with speedily, effectively, equitably and
to the best advantage of the claimants and for matters incidental thereof.
This act after its enactment evoked sharp criticism as the wrong doer UCIL was partially owned
by the State and as such state were partially liable for the Disaster. The action of the government
was criticized as it could be a tool which aimed at protecting from the state of the guilty rather
than protecting and providing justice to the victims of the Bhopal gas leak. The constitutional
validity of the Bhopal Gas Leak Disaster Act, 1985 was challenged before the SC. 5 The SC
justified the application and application of parens patriae principle and held that:
The government is within duty to protect and to control persons under disability. Conceptually,
the parens patria theory is an obligation of the state to protect and take into custody the rights and
privileges of its citizens for discharging its obligations. Our Constitution makes it imperative for
the state to secure to all its citizens the rights guaranteed by the Constitution and where the
citizens are not in position to assert and secure their rights, the state must come into picture and
protect and fight for the rights of the citizens.6 This act meant for betraying the people that were
entitled claims in relation to the gas leak disaster as they were partially compensated and
5
CharanLal Sahu v. Union of India, AIR 1990 SC 1480
6
Ibid
8
TRIALS OF BHOPAL GAS TRAGEDY IN US
On April 8th, 1985 Central Government filed a complaint in a Southern District Court, New
York, and USA. By then there were already 144 proceedings in US in respect of this gas leak.
All these proceedings were forwarded and assigned to the court of Judge John Keenan. The
arguments projected in the court created a strange situation. The argument presented in the
Keenans court was the incapability of Indian courts to handle matter of gigantic proportion.
Following are the arguments that were presented on behalf of Union of India:
Indian legal system was ill equipped to handle such a matter of complex litigation
The stage of tort law of such gigantic proportion was under development.
Procedural law in India would hinder the path of justice for the victims.
Judge John Keenan dismissed the case on arguments that it was untenable and claim on ground
of forum non coveniens 7 .Judge Keenan made political and to an extent some patronizing
observations in relation to the capability of Indian courts on the matter of dispensing justice. The
UCC would have to consent to submit its jurisdiction of Indian Courts and continue to
UCC would have to dwell by any judgment that would have been rendered by an Indian
7
A doctrine of law holding that a court should decline to hear a case if another court would provide a more
convenient forum for the parties and evidence
8
Limitation is a legal concept under which a time limit is set within which the legal proceedings can be done
9
Due process refers to the procedure of a court or any other administrative body in order to arrive at a decision
9
Judge Keenans decision was a great opportunity as he believed the Indian Legal system faced
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TRIALS OF THE GAS LEAK IN INDIA
In September 1986, US district court transferred all Bhopal Litigation in India. CBI filed a
charge sheet against Warren Anderson and other accused on charges of culpable homicide. CJM
of Bhopal issued a non bailable warrant of arrest against Anderson for repeatedly ignoring the
summons of the court and convicted others under Section 304-A, 304-B,336,337 and 338 of the
IPC. Indian government and UCC striked an out of court deal and tried to settle the matter. UCC
was ordered to pay a compensation of $470 million. Appeals were made in higher courts by the
UCC for the compensation figure. On valentine day in 1989, a five judge constitutional bench
quashed all civil proceedings and criminal proceedings with $470 million. This decision of the
court gained widespread criticism and dissatisfaction. It appeared that the reasons that compelled
the court for such decision must be set out. The reasons must not be stated in order to finalize
any infallibility of the decision the court gave. The basic consideration that came out as that the
court was motivated by the compelling need of urgent relief and seedy justice. The court felt it as
its compelling duty, both judicial and humane, to secure the immediate relief to the victims. An
uncertain degree of uneasiness was there in the public and uninformed and irresponsible
criticism evoked at the time of settlements. Call for remedy in review of the courts decision
arose under Article 137 of the Indian Constitution.10 The part of $470 million was disbursed
among the Bhopal disaster victims. Despite many petitions in courts, the SC allowed UCC to sell
its stake in India. The charges of the Indian officials of the UCIL were diluted on the ground that
the state of guilt lies with the UCC. The ground water, soil and the wells in and around the
pesticide plant was found with 12 volatile organic chemicals and mercury in quantities up to
higher than approximately 6 million. Several victims and NGOs filed against the UCC with
10
Article 137 of the Indian Constitution says that Subject to provisions of any law made by the parliament or any
rules made under Article 145, the SC shall have the power to review any judgment pronounced or order made by it.
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charges of violation International rights law, environmental law and international criminal law in
the US court but the US court refused to take the responsibilities for the liabilities of the UCIL in
India. The survivors of the disaster launched a protest which gained widespread support from all
over the country seeking justice and demanding to revive charges against the CEO Warren
Anderson. Protests with objective of cleaning thousands of tonnes of toxic waste around the
UCIL factory site in Bhopal were launched. India SC ordered Central Bank to pay out the rest of
$470 million by UCC as compensation in October, 2004. Further on June 7, 2010 all eight
accused including the UCIL chairman Keshub Mahindra, Vice President Kishore Kamdar, J N
In establishing the factory in a country which is still on the verge of industrializing like India
which still was a poor nation in the year 1984 which evolved Caste system. Majority of
which the people involved lower castes and the untouchables and these people are the most
affected ones and the worst affected too. Delay in path of seeking justice may have been
arisen due to this very fact that these people belong to the minority background. The question
that arises is how these downtrodden, poor could and the uneducated ones afford the best?
And this makes for them absolutely impossible to seek justice and when it is in relation to a
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Residual environment aspects still loiter in Bhopal. According to the experts, toxics have
migrated through various mediums and still they have become a burden towards the people of
the society. However people have succeeded in gaining Right to succeed whereby people can
identify any contaminated sites around their sites. Majority revolves around the poor, uneducated
and unaware people in the catastrophe area. Tragedy has propelled Government of India to
require Environmental Impact Assessment statements for any central approval of industrial
projects.
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LESSONS LEARNT FROM THE BHOPAL GAS TRAGEDY
The Bhopal gas tragedy shocked the lackadaisical politicians and the makers of the policies.
Before the 1980s India had only specific legislation pertinent to air and water pollution. After the
Bhopal gas leak Environment Protection Act, 1986 was enacted which is a statue that address
pressing concerns of sustainable development. The enactment was followed by the Public
Liability Insurance Act, 1991 and the National Environmental Tribunal Act, 1995. On 27th
January, 1994 an Environmental Impact Assessment Notification was passed which was an
approval for the mechanism of industrial projects. All this work rose to raise the environment
consciousness of Indian citizens by various notches. It reinforces the fact that justice in India is
still administered reactively, not proactively. The tragedy was a call for lawyers, politician,
activists, judges and the media as they go on repeating the mistakes of the past. The legal and
political system itself put their in capabilities in front of the world instead of putting efforts
together to curb the drastic consequences of that horrendous night. Despite all the efforts there is
still a lacuna left behind in the Indian legal system. There exist some faults in the way that
despite the UN framework, Indian law does not yet clearly spell requirements necessary under
norms for many organizations. One right step taken by the Government of India in 2010 was the
1265 crore rupee aid package cleared and shows the efforts of the GOI in the right direction. GOI
have filed a petition asking a compensation package of 7844 crores11 which is the most realistic
amount that would soothe the wounds of the thousands who still suffer mentally, physically and
economically. The question arises is lets see how much of the promised amount will reach to the
victims. The Bhopal case illustrates how companies evade their human rights responsibilities and
underlines the need to establish a universal human rights framework that can be applied to
11
http://articles.economictimes.indiatimes.in/2010-12-04/news/27628406_1_dow-chemicals-compensation
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companies directly. Governments have the primary responsibility for protecting the human rights
technology. However, as the influence and reach of companies have grown, there has been a
developing consensus that they must be brought within the framework of international human
rights.
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CONCLUSION
The study firstly provoked me and instilled in me sympathy for the victims of the Bhopal Gas
leak disaster. On the whole, my study finds out that anywhere or somewhere; Government of
India is responsible for this drastic gas leak due to several reasons like bypassing safety
precautions required for approval of industrial projects. The politicians took undue advantage of
such a horrendous and terrifying disaster and take and increase their vote banks. The only fault
of the US authorities in charge of the case as they were incapable in locating the CEO of the
UCC warren Anderson and reported him Absconding. The former prime minister of India Dr.
Manmohan Singh on the very 25th anniversary of the Bhopal Gas tragedy made a statement still
gnaws at our collective conscience and promised continuous efforts to tackle the issue of site
contamination and water contamination. Despite the terror of the night of 2nd December and the
chemical terror that was endured by the survivors of the Bhopal gas tragedy, the victims continue
their struggle for the justice, accountability of the corporate and their basic human right towards
an environment of toxic chemicals. This struggle is a crucial one for us and will never end
because of the reason that until and unless Dow- Carbide is held accountable, we all are living in
the next Bhopal. The legal aspect of this Bhopal Gas leak has been the worst aspect as it failed to
held liable the Directors and the others and only was able to figure out the compensation figure
which moreover they cannot ensure that whether those compensation figures reach to the
victims. After many years on, neither revival of criminal charges against the offenders nor the
estimation of the compensation figures will warrant the suffering of the Bhopal gas leak victims
rather applying a realistic approach in providing the best relief the government could confer on
the people would be a step that wounds soothe balm on the wounds of the victims. The tragedy
was a call for the politicians and the policy makers of the country as to how can they confer
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better governance on the people. The biggest question that arose after the catastrophe was that
does Indian Law value life as much it is valued in any other nation like USA as it is because the
country have so many people that each one of us doesnt mean as much? At last I and we must
hope that there is no more such drastic and horrendous disaster anywhere in the world and let
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REFERENCES
http://www.guardian.co.uk/world/2009/dec/03/bhopal-anniversary-union-carbide-gas
http://articles.economictimes.indiatimes.in/2010-12-04/news/27628406_1_dow-
chemicals-compensation
Aditya Mishra et al., M.C. MEHTA vs. UNION OF INDIA | LAW MANTRA (Think
india
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