Legal Aspects of Bhopal Gas Leak Tragedy

Legal Aspects of Bhopal Gas Leak Tragedy

Introduction

Historically, society has shifted to the industrial sector with evolution, and people have had to face social changes as a result of the commercialization of society. But society must exist for the benefit and benefit of man as well as every living thing on earth, not just for commercial purposes. When that basic purpose is forgotten, society as well as human beings has to face some kind of tragedy. The tragic situation at the Bhopal power plant in India can be described as one of the worst in the history of India as well as the entire history of the world. The purpose of this article is to discuss the legal issues related to that case based on different backgrounds.

Tragic-based incidental background

During the 1970s, the Indian government focused on developing the economy and attracting foreign investment. Accordingly, Union Carbide Corporation, a parent company based in the United States, came to the host country, India, and sought permission for a project in the Bhopal area. The company was initially established to manufacture the most widely used pesticides in Asia. Its Indian subsidiary is Union Carbide India Limited, in which the Government of India holds 22% of the shares. When using the Bhopal area for investment, it is stated that it is more suitable for light industries but later it is clear that this limit has been violated due to the company’s performance.

On December 2, 1984, MIC or Methyl Isocyanate tank E 610 leaked tons of gas into Bhopal within hours. Symptoms of shortness of breath, cough, eye pain, abdominal pain, and vomiting were seen in those who inhaled the gas. As a result, thousands of people had died by the next morning, and the death toll was so high that it was difficult to pinpoint the exact number. Therefore, Bhopal gas leak tragedy is described as the greatest tragedy that has arisen in the industrial world.

Affecting not just one field but the whole world

The Bhopal tragedy is not just one incident. The consequences can be discussed in a number of areas, including social, economic, political, economic, legal, and environmental. Considering the issues that have arisen in this regard and the prevailing ideologies in the society even today, there is no opportunity to discuss excluding even one field. Edward Broughton wrote in The Article “The Bhopal Disaster and its Aftermath: A Review”, “The tragedy of Bhopal continues to be a warning sign at once ignored and heeded.

Bhopal and its aftermath were a warning that the path to industrialization, for developing countries in general. And India in particular, is fraught with human, environmental and economic perils.” In particular, the impact of this on not only India but also the surrounding states under trans boundary was felt when treating India with the duality of land lock countries and Sea lock Countries as recognized in international law. Although the city of Bhopal belongs to the Madhya Pradesh region, it cannot be argued that since India is a federal state, its distribution was limited to the Central region.

Application of legal issues that can be discussed in connection with the Bhopal tragedy

Here we can discuss the following issues under the respective legal concepts and fields.

Bhopal Gas Leak Disaster (Processing of Claim) Act No 21 of 1985

This Act is the first Act passed by India to provide relief to the victims of the Bhopal tragedy. As stated in the preamble to the Act, the purpose of the Act is as follows. “An Act empowering the Central Government to protect the rights arising out of or related to the Bhopal gas leak disaster will be dealt with expeditiously, effectively, fairly and to the maximum extent of the claim and related events.” According to the Act, 12 basic clauses were put forward and in the third clause, the powers of the Central Government are explained and it is stated that the Central Government should appear for proceedings in this case within or outside the country. By the power of this clause, the Union of India represented the victim in a number of cases under the status of parens patriae.

How the case was filed and the jurisdiction

• In February 1985, the Union of India filed a lawsuit in the Southern District of New York, United States of America. As Union Carbide Corporation Limited was an American parent company, the lawsuit was settled out of court. But Judge JF.Keenan, who heard the case, refused to hear the case. As he described it, “the Indian legal system is in a better position than the American judiciary to determine the cause and responsibility for tragic events.” When the union of India joined the case, American lawyers representing the defendant multinational company argued that the concept of parens patriae was not used in the United States and could not be prosecuted.
• In 1987, Union Carbide Corporation Limited was ordered to pay  350 crore as compensation in a case filed before the Bhopal District Court. Judge Mw. Deo Shri ruled that “the poor people who have been affected by the tragedy are discouraged from pursuing the ultimate goal of justice and compensation as they have not received any legal relief so far.” The decision of the District Court was challenged in the Jabalpur High Court in 1988 and the temporary compensation was reduced to 2500 million.
• In 1989 appeal by Union Carbide Corporation, the Supreme Court ordered Union Carbide Corporation and Union Carbide Indian Limited to pay $ 470 million in full and final damages. But there have been various criticisms of how fair this compensation is and how much it hinders the tendency to calculate future compensation.
• Following the 1991 decision of the Supreme Court, the 1989 decision was reconsidered and it was decided that criminal proceedings would be instituted. Union Carbide also funded the construction of a hospital to treat chronic illnesses caused by gas leaks. It can be argued that this decision of the court is more justified. As a social welfare state, the intervention of the judiciary to restore the health of the victims of this catastrophic socially incalculable tragedy is even more positive.
• In 1991, the Bhopal Magistrate’s Court filed a criminal case against Warren Anderson, the head of Union Carbide Corporation Limited. Warren Anderson, chairman of Union Carbide Corporation Limited, is found guilty under sections 304 (A), 336,337 and 338 of the Indian Penal Code, along with section 35.

As mentioned above, a large number of cases have been heard over a long period of time to make excuses for the victims of the  Bhopal gas leak tragedy.

The Relevance of the Tort Law

According to English law Rylands vs Fletcher rule, “Anyone who collects something that could be damaged in the event of a spread is responsible for the damage caused by the spread.” Using this test, it was considered whether liability could be determined under tort law. Union Carbide Corporation Limited is also liable for negligence, as the court observed. Union Carbide pointed out that the Indian people have a duty of care and the fault has been proved for the violation of duty of care. There is some damage caused by fault and among them are death, injury and illness. It is also confirmed in terms of damage and forest causation. In addition, Union Carbide Indian Limited is a subsidiary of Union Carbide Corporation. Therefore, the concept of vicarious liability was also discussed here.

The Relevance of the Company Law

Union Carbide Corporation Limited argued that Union Carbide Indian Limited was the sole shareholder of Union Carbide Corporation as they were two separate legal entities. Union Carbide India Limited also manages the company, citing employee sabotage. According to Judge Seth who heard the case in the Madhya Pradesh High Court, the concept of lifting corporate veil can be taken based on the facts so far. Accordingly, it became clear to Union Carbide of India that the Bhopal power plant was under real control. Union Carbide of India has also become the main economic beneficiary of the primary hazardous activities. This basic concept of corporate law has helped to provide fair compensation for victims.

The Relevance of the International Investment Law

The quality of the technology that came to India as a host country under international investment law was questioned. As the home state, the United States has often argued that the Bhopal power plant in India is similar to the one in West Virginia in the United States. But the criticism of investment law proves that outdated technology has been used and that the plant has not been properly maintained. If India relaxes most of the laws and makes it an investment opportunity to attract capital to India, it will also create a state liability for India. According to the concept of Permanent Sovereignty of Natural Resources (PSNR), the host state has control over the allocation of land for virtually any investment. But the question arises as to how suitable the land given for the construction of this power plant is.

The Relevance of the International Law

According to Todd Howland’s article Can International Law Prevent Bhopal Tragedy, the Bhopal gas leak tragedy took place in India, but it transcends international boundaries and spans three main areas. These include the International Environment Law, the International Trade Law and the Law of the New International Economic Order (NIEO). Not only had the Most Developed Countries (MDC) in the international community but also the Least Developed Countries (LDC) had to bear the brunt of this in various ways. The influence of multinational corporations in particular can also be discussed here, with the least developed countries attempting to regulate multinational corporations through large-scale taxation and agreements. But it is clear that even India, which had achieved an annual GDP growth of 3.8% by 1984, was under great pressure from American multinationals.

The Relevance of the Environmental Law

The Bhopal gas leak tragedy provided an opportunity to rethink India’s environmental law. Compensation for non-compliance with environmental protection laws was missed when considering the damage caused. Therefore, a large number of constitutions and regulations were added to the Indian legal archives as follows.

• The Environment Protection Act (1986)
• The Factories (Amendment) Act (1987)
• The Manufacture, Storage and Import of Hazardous Substances Rules (1989)
• Public Liability Insurance Act (1991)
• Environment Impact Assessment Notification (1994)
• Chemical Accidents (Emergency Planning, Preparedness and Response) Rules (1996)
• Disaster Management Act (2005)
• The Hazardous Wastes (Management, Handling and Trans-boundary Movement) Rules (2008)

The importance of environmental issues at the Geneva Conference on November 24, 2014 is as follows. “Without cleaning the contamination, the number of victims of the toxic legacy left by Union Carbide will continue to grow, and, together, India’s financial liability to a rising number of victims.”

But the problem is that 36 years have passed since the Bhopal disaster in 2020, but from an environmental point of view, how far has the environment changed again? Atmospheric pollution, especially in India, is immeasurable.

The Bhopal gas leak tragedy and the approach to the future

As the Bhopal catastrophe affected not only India but the entire world, the experience of the Bhopal catastrophe is a factor in the right decisions and policies for the future. The study of the legal approach proves that the Bhopal catastrophe bears witness to the unfavorable background based on materialism, forgetting the issues of human conscience and morality at the time of its rise. Industrialization and commercialization alone will not lead the world to future prosperity, but from the perspective of humanity, beyond the legal issues and the social issues.

Although Bhopal provided compensation for the victims of the disaster but provided legal assistance to all parties to reach out to justice, it is questionable whether justice was done as expected in the school of natural law. That is, it is better to take precautionary measures, not after a disaster, as stated in environmental law. However, doubts about the extent to which those lessons can be applied have been raised on May 6, 2020 with the report of a styrene gas leak from LG Polymers India Limited, a company based in the Gopalapatnam area of Visakhapatnam, Andhra Pradesh.

It is important that every state contributes to the creation of a social discourse from the perspective of jurisprudence based on the lessons learned and to its global development. Such an endeavor would further strengthen the right to life enshrined in Article 21 of the Constitution and make the world habitable not only for man but for all.

“Our ethical understanding of human life is not purely market based. There is another legal principle at work which is based on the sanctity of human life and the idea that each human being id entitle to an equal measure of dignity and respect, regardless of sex, ages, nationality, race or other status .”

-M. Anderson: Transnational Corporation and Environmental Damages: It Tort Law the Answer –

Author: Tharuka Hettiarachchi,
Faculty of Law, University of Colombo, Sri Lanka