Legal Considerations of Air Pollution in Light of the Bhopal Gas Disaster

Abstract

A pristine environment is fundamental for sustaining life on Earth. Early human societies thrived with abundant natural resources and a profound reverence for the environment, including rivers, mountains, trees, and plants. However, on December 2nd, 1984, the tranquil town of Bhopal was thrust into chaos due to a catastrophic incident at Union Carbide Plant Pesticide, resulting in the release of lethal ‘Killer Gas’ (MIC). This tragedy claimed the lives of over 3000 individuals and inflicted numerous ailments such as blindness, respiratory issues, and abortions upon countless others. The medical community struggled to cope with the unprecedented effects of MIC exposure, highlighting a lack of understanding and preparedness.

This study delves into the broader concept of air pollution, specifically examining its legal dimensions within the framework of relevant statutes. Focusing on the Bhopal Gas Tragedy, this research explores the ensuing air pollution and its ramifications through the lens of litigation and legal discourse. Emphasis is placed on elucidating the factual narrative of the tragedy, addressing medical controversies surrounding victim treatment, investigating the causes and

Introduction

The tragic events of the Bhopal gas leak, detailed in a news magazine, unfolded with the stealth of a nocturnal intruder on December 2, 1984 (Anand R.P. et al., 1987). As the storage tanks began to release deadly methylisocyanate gas, a thick fog swiftly enveloped Jayaprakash Nagar, a sprawling slum situated in the vicinity of the factory. Residents were immediately afflicted with persistent coughing and eye irritation, succumbing to the lethal effects of the gas, which, akin to cyanide, incapacitated haemoglobin in the bloodstream.

By 2:30 AM on December 3, 1984, panic had gripped Bhopal. Amidst the chaos, the deceased lay-unattended while thousands run away their homes, seeking refuge in the cold town. Men, and children, women,  embarked on desperate journeys to safety, some traversing distances as far as 20 kilometres on foot. Tragically, many perished along the way, while others, including affluent individuals and VIPs, hastily evacuated the city. The railway station, once a bustling hub, transformed into a haunting scene of desolation, with the Station Superintendent and staff succumbing to the deadly fumes. The toll of the tragedy was devastating, claiming above 3000 human lives and an equal number of cattle’s, while rendering thousands seriously ill and leaving a significant portion of the population, including numerous children and pregnant women, afflicted with blindness and other debilitating ailments (The Tribune, Chandigarh, 1984; The Hindustan Times, New Delhi, 1984). The magnitude of the catastrophe prompted over half a million residents to flee Bhopal overnight, overwhelming neighbouring towns ill-equipped to accommodate such a mass exodus.

The treatment of gas-affected victims has been a subject of medical controversy.

The tragedy cannot be told without discussing the medical issues. MIC exposure therapy was unknown, according to reports. Later, it became clear that neither the Chief Medical Officer of Union Carbide (India) Limited nor the plant management could handle the quarter-million MIC poisoning cases. While initially dismissed as “an irritant” or “potent tear gas,” injuries raised suspicions in India and the US. Medical staff doubted that a harmful contamination had contaminated the tank.

legal cases
[Image Sources: Shutterstock]

UCC(I) Ltd., Bhopal, asked U.C.L. America for patient care advice amid the misunderstanding. Dr. Avashia, Medical Director Institute Plant, responded via telex with immediate treatments for methyl isocyanate-induced respiratory difficulties, including intravenous hydrocortisone or prednisone and oxygen therapy. For cyanide poisoning, sodium nitrite and sodium thiosulphate were advised.

On the first anniversary of the accident, the Indian Express (New Delhi) reported thousands dead immediately and hundreds more in the days that followed. Many of these deaths may have been prevented with prompt medical care. However, the medical approach was controversial, with catastrophic implications for gas victims.

MIC toxicity treatment controversy arose when a group of clinicians argued for higher sodium thiosulphate therapy based on German advice. The Indian Council of Medical Research (ICMR) proved sodium thiosulphate works for gas-affected people. Bhopal residents had to navigate medical disagreements and administrative hurdles during relief and rehabilitation efforts (Times of India, Delhi, 1984; The Hindustan Times, New Delhi, 1985).

Causes of the Tragedy

The catastrophe began in 1905 when UC(I) Limited, later named National Carbon Company (India) Ltd. and then Union Carbide (India) Ltd., was founded. It started producing hazardous chemicals like phosphorus, chloromine, carbon monoxide, and methyl isocyanate (MIC) in 1979 after importing them from the US parent company.

Licensed by the Indian Ministry of Industries and Civil Supplies in 1975, the plant opened in 1980 after obtaining permissions from the Reserve Bank of India. Despite initial management efforts to address issues, minor leaks persisted. An accidental phosgene leak in 1981 resulted in a fatality, and further leaks in 1982 left many critically ill for months. Serious safety issues, including MIC leakage, were identified by US Union Carbide experts in 1982, but no action was taken to renovate the plant.

Conflicting views from the Madhya Pradesh Pollution Control Board complicate the understanding of disaster causes.

Perspectives of the M.P. Pollution Board:

Union Carbide, Bhopal, received an environmental clearance certificate from the Madhya Pradesh Pollution Control Board weeks before the tragedy. Senior board officials claimed that methyl isocyanate, the lethal gas, was not a standard carbide plant emission and went unmonitored (The Hindustan Times, New Delhi, February 3, 1985).
Chairman of the Board V.K. Tiwari said plant emissions were low, suggesting the disaster was an accident. For the following reasons, Union Carbide and the government shared responsibility for the tragedy (The Hindustan Times, December 8, 1984):

The government showed lack of concern regarding a report submitted in 1982 by UC (America), which highlighted inadequate safety mechanisms at the plant.

– The government granted clearance for the plant’s location.

– Previous accidents at the Union Carbide plant may not have been thoroughly investigated.

– Several lapses were reported from UC(I) Limited:

  1. a) Reports of methyl isocyanate leaks were disregarded by supervisors.
  2. b) The management shut down a refrigeration unit crucial for maintaining proper conditions in the methyl isocyanate plant, violating plant procedures.
  3. c) Public warnings about the disaster were ineffective. The alarm system used during the accident was similar to routine practice drills, causing confusion.
  4. d) Budget cuts led to reduced training levels and experience requirements for plant workers.
  5. e) Safety systems at the plant were found to be inoperable or out of service during critical periods (The Indian Express, December 6, 1984).

Litigation

In 1985, India’s Parliament replaced the Bhopal Gas Leak Disaster (Processing of Claims) Ordinance with a law to address claims from the tragedy. This empowered the Central Government to manage various aspects, including representing victims, negotiating settlements, and distributing compensation, while following legal frameworks and court rulings.

In 1986, the Bhopal District Court focused on providing interim relief. Despite initial low offers from Union Carbide Corporation (UCC), the court ordered Rs. 350 crores as interim compensation under Section 151 of the Civil Procedure Code. The High Court later reduced this to Rs. 250 crores, ruling that interim compensation under Section 151 was not permissible.

UCC appealed to the Supreme Court against the High Court’s decision, while the Union of India cross-appealed for restoration of the original interim compensation orders. Mr. K. Parasaran represented the Union of India, and Mr. F.S. Nariman represented UCC.

Settlement Order

Before the conclusion of the proceedings, a settlement was reached between the parties. The Government of India accepted $470 million as full settlement from Union Carbide Corporation (UCC), according to the Supreme Court’s premises.

The Supreme Court order stated that after careful consideration of the case, a settlement covering all litigations related to the disaster was deemed suitable. The court ordered UCC to pay $470 million to the Union of India by March 31, 1989. All civil proceedings related to the disaster would be transferred to the Supreme Court and concluded as per the settlement terms, with pending criminal proceedings dismissed. The court expressed gratitude to the counsel for their assistance and cooperation throughout the proceedings.

Resolution Advocated in Light of Protracted Legal Proceedings in India:

The District Court of Bhopal estimated that litigation on the merits would take about eight to ten years, with appeals to higher courts adding another ten years. Thus, a final resolution in India was expected to take around 20 years. Considering this, relief for the victims through Indian courts would have only been possible by 2010, 26 years after the tragedy.

The judge, endorsing the settlement, emphasized the court’s pragmatic approach, quoting a US judge’s remark: “life is not logic but experience.” Highlighting the court’s empathy towards the victims, the Chief Justice noted that judges, being human, were deeply affected by tragedies like the Bhopal disaster.

The court criticized those advocating for a judgment on merits, citing their misunderstanding of the legal process and concern for innocent victims who might be led into detrimental situations due to their lack of legal knowledge. It also condemned individuals exploiting such tragedies for personal gain, a sad reality often seen in such circumstances.

Review Petitions

A constitutional Bench of five Supreme Court Judges gathered to assess the $470 million settlement in the Bhopal gas leak tragedy. This disaster resulted in the deaths of approximately 3,600 people and left numerous others incapacitated. Various grounds for review were presented and elaborated upon below (Charan Lal Sahu, 1990).

Basis for Review:

The arguments supporting the review petitions in Union Carbide Etc. v. Union of India Etc., 1991, are as follows:

  1. The proceedings in the Supreme Court were essentially appeals against an interim order on interim compensation. The court’s jurisdiction to transfer suits to itself under Article 139-A of the Constitution is limited. Since the main suits couldn’t be finally disposed of through the settlement, and transferring suits for final disposal was impermissible, the settlement lacks jurisdiction.
  2. Criminal prosecutions pending were separate from civil suits and not governed by the same law. The court lacked authority to withdraw and quash these criminal proceedings. Orders related to quashing criminal proceedings are therefore without jurisdiction.
  3. The “Court Assisted-settlement” involved only certain parties, while the original suit was representative. Any settlement affecting unrepresented parties should have followed procedural requirements, including proper notice. The settlement without proper notice and procedural adherence is null and void.
  4. Orders prohibiting future criminal proceedings effectively grant immunity from prosecution, a legislative function. Granting immunity through judicial action impedes serious offense investigations and contravenes public policy by preventing punishment of the guilty.
  5. The settlement lacks fairness and adequacy as it fails to address compensation factors such as medical surveillance costs for the population and lacks a provision for long-term effects. Absence of compensation breakdown and criteria for fairness and adequacy further invalidate the settlement.
  6. The settlement violated natural justice principles by not allowing affected persons to participate or provide input. Lack of notice renders the settlement void from inception, and attempts to rectify this cannot revive a void settlement.

Apex Court’s Decision Regarding the Review Petition:

In a 198-page verdict on February 15, 1989, the Supreme Court overturned a part of the settlement order that granted immunity to Union Carbide Corporation (UCC) officers from criminal liabilities arising from the Bhopal gas tragedy. Criminal cases were filed against UCC officers, including Chairman Warren Anderson, after the gas leak in December 1984. However, with the court’s approval of the settlement, these officers were exempted from prosecution.

The judges, while asserting the court’s authority to quash criminal proceedings under Article 142 for complete justice, emphasized the need for proper grounds. The settlement bench failed to provide such grounds.

The court issued directives on the administration of the Rs. 1,200 crore settlement fund for victims’ benefit and instructed the Central Government to supplement the fund if found insufficient.

Examining the verdict on the review petition critically

The Supreme Court upheld the $470 million Bhopal Settlement of February 1989 but imposed conditions allowing partial review. It invalidated the absolution of criminal liability of Union Carbide Corporation and its officials, opening the door for future claims against the multinational. This decision challenges the perceived finality of the settlement, deemed inadequate by many observers. Victims, suffering from long-term disabilities, may seek further compensation in the future.

However, the verdict falls short in addressing the legality of settling on behalf of victims without notice or consultation. The court ruled that any settlement deficiency must be compensated by the Government, which acquired special powers under the Bhopal claims Act. It also mandated increased medical and insurance facilities, though without substantive medical evidence. Establishing an expert medical commission is necessary to fill this gap.

Findings of the Study

The Bhopal Gas Tragedy, one of the worst industrial disasters, claimed over 3,600 lives and affected over one lakh people. The leakage of highly toxic Methyl Isocyanate (MIC) from the Union Carbide plant earned it the epithet “Killer Cloud,” causing extensive damage. Medical experts struggled to treat victims due to the severity of MIC’s effects.

Inquiries sought guidance from America on treating MIC poisoning. Victims suffered from various health complications, including cerebral edema and abortion in pregnant women, blaming Union Carbide Corporation’s management for negligence.

The Madhya Pradesh Government faced criticism for allowing the plant in a residential area without recognizing its hazards. Legal actions pursued included claims lodged in the Federal District Court of New York, later transferred to the Bhopal District Court. However, a settlement reached before the appeal faced criticism for inadequate compensation and granting criminal immunity.

Justice A.M. Ahmadi disagreed with imposing liability on the Union of India without consent. Justice R.N. Mishra emphasized absolute liability, suggesting more prosperous companies bear higher liability for hazardous activities. Public outcry influenced a review order allowing criminal proceedings to proceed.

Despite legal proceedings, victims await compensation, undermining the settlement’s justification. Foreign advocates were criticized for exploiting the tragedy, while Indian advocates were commended. The Public Liability Insurance Act, 1991, aimed to address challenges in providing immediate relief and compensation for handling hazardous substances.

Conclusion

The Public Liability Insurance Act, 1991 aimed to provide immediate relief and compensation for handling hazardous substances. Despite legislation like the Air (Prevention and Control of Pollution) Act, 1981, and proactive interventions by courts, air and environmental pollution persist.

Issues like waste accumulation, inadequate civic amenities, and industrial operations without proper effluent treatment contribute to urban pollution. Rural areas also suffer from emissions from brick kilns and poorly managed drainage systems.

Climate change effects are evident, with irregular rainfall and ozone layer depletion threatening human existence. The Air Prevention and Control of Pollution Act, 1981 needs amendments for efficacy:

Expanding the definition of air pollutants.

Granting autonomy to Pollution Boards.

Expanding industries covered.

Introducing stricter emission limits.

Making offenses cognizable.

Ensuring knowledgeable Board members.

Legislative reform and enforcement are crucial to combat escalating air and environmental pollution challenges.

Author: Abhishek Gakare, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

References

  • Anand R.P., K. Rahmatullah and Bhatt, S. (Edit.) Law Science and Environment (1987) pp. 28-29.
  • ‘Gas caused abortion in animals,’ The Tribune (Chandigarh), Dec. 18, .1984.
  • Prakash, Padma, “Anniversary of a ‘Disaster’”, Indian Express. (New Delhi) Dec. 1, 1985.
  • Ibid. See also the Report of the “Looking Beyond”, MAINSTREAM (New Delhi Jan.

   5, 1985.

  • See “Experts divided on disposal of NIC, The Times of India (New Delhi) Dec.t10,

   1984.

  • ‘Professionals Unfamiliar with gas dissater’ The Hindustan Times (New Delhi) Jan. 4,1985.
  • Bhopal Gas Leak Disaster (Processing of Claims) Act., 1985.
  • Ibid. Section 3 (i).
  • Ibid Section 3(2) (a).
  • Ibid. , Section 3(2)(b),
  • Section 4 of the Act for restrictions on the right of representation of parties.
  • Ibid. Section 5.
  • Ibid. Section 6.
  • Ibid. Section 7.
  • Ibid. Section 9.
  • Magraw, “The Bhopal Disaster : Structuring a Solution,” 87 University of Columbia

Law Review 835 (1986).

  • B.Praful, “The Alcv/m Without Alert”, The Times of India (New Delhi) Dec. 9, 1984.

    See also “Two colosalsafety lapses at plant” The Times of India (New Delhi) Dec. 10,

    1984.

  • “Blocking of Control Valve Caused leak” Indian Express (New Delhi) Dec. 6, 1984.
  • The Bench was consisting of the then chief Justice R.S. pathak, Justice E.S.

Venkataramiah, Justice Rangnath Mishra and Justice N.O. Ohja (Justice M.H. Kania

withdrew himself as he was holding, Shares of the Company).

  • Union Carbide Corporation v. Union of India & others 1939 (I) SCALE 380.
  • Charan Lai Sahu v. Union of India AIR 1990 SC 1480.
  • Ibid. at 1545.
  • Union Carbide Etc. Etc, v. Union of India Etc. Etc. 1991 (2) SCALE, p. 675.
  • Ibid. at 689-91

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