bhopal gas tragedy victims

Insight to Bhopal Gas Tragedy: A case lost before trial

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Almost everyone around the globe is aware of the catastrophe that happened in Bhopal but there are a very few people who actually know what were the legal lacunae involved in the Bhopal case. The battle was lost before the trial and the victims were betrayed at every step of legal proceedings.

The Battle in United States

At that time Indian Law had no provision of punitive damages to effectively deal with the Bhopal Gas Tragedy. The Government of India through an act appointed itself the sole representative of the victims for any legal course with Union Carbide with regard to compensation. The act empowered the government with the exclusive rights to represent and act on behalf of the survivors/victims of the gas leak. The corollary was that the victims could not seek legal redress of their own.

Consequently, the Government decided to approach the U.S. District Court to seek justice. The government justified its stand mainly on three grounds:-

The US courts could grant higher compensation as compared to the one likely to be granted by the Indian Courts. It believed that the parent multinational company Union Carbide could be tried effectively in US. The Indian Courts were incompetent to handle mass tort litigation.

Ironically the government ignored the operating principle in US according to which a suit could be maintainable in an American Court only in cases where the damages or injuries occur on American Soil, to American residents or the dependents of American residents. Alternatively, if the prosecution would have proved a design defect in the plant, the suit could have been entertained by the American Courts. But since it was established that the gas leak happened because of poor maintenance, the parent company was not held liable in the US courts.

US Court’s Decision

The US court ruled that UCIL was a separate entity, owned, managed and operated exclusively by Indian citizens in India. Carbide was ordered to submit to the jurisdiction of Indian Courts; nevertheless it could dispute the verdict rendered by the Indian Courts before its domicile courts. Initially the government of India had filled a suit claiming 3 billion Dollars which could have been achieved only through attachment of UCC’s assets in the US.

The Indian Mistakes

A significant order was passed by Justice Deo of Bhopal District court which directed UCC to pay Rs. 350 crores as interim relief. The order being interim could not be decreed. And without a decree UC could and did refuse to pay it.

On February 14, 1989 the Supreme Court directed Union Carbide to pay up US $ 470 million in “full and final settlement” of all claims, rights, and liabilities arising out of the disaster in 1984. The victims and legal heirs of the dead, were not informed before this settlement took place.

None of the courts ever directed UCC to reveal any epidemiological information that it had. It refused to render any toxicological information as it formed an integral part of its “trade secrets”. It denied that the gases released during the disaster could cause any adverse health effects in the victims. Moreover, UCC was never ordered to clear the toxic material present on the disaster site which it could have been under the “polluter pays” principle evolved in Oleum Gas Leak Case.

The SC refused to consider UCC liability as unquestionable and absolute. The principle of absolute liability was never evoked by the SC. According to this theory where an enterprise is engaged in a hazardous or inherently dangerous activity and an accident in such an operation results in the escape of a 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 under the rule of strict liability.

SECTION 304 TO 304(A)

Originally the charge sheet was filed under Section 304 of IPC i.e. culpable homicide not amounting to murder specially paragraph 2 which deals with the accused having the knowledge that the act would cause death. The charge sheet clearly stated that the UCC plant in Bhopal was deficient in safety and design measures. It further stated that the management was aware of these defects and their probable consequences but it failed to inform the district administration. In 1996 the two judge SC bench held that the charges under Section 304 were not made out and the accused could only be charged under Section 304(A) for causing death by rash or negligent act. Justice Ahmadi while delivering the judgment observed,

“Even assuming that it was a defective plant and it was dealing with a very toxic and hazardous substance like MIC the mere act of storing such a material by the accused … could not even prima facie suggest that the concerned accused thereby had knowledge that they were likely to cause the death of human beings.”

Hence the diluted charges ensured that accused could now be awarded merely a maximum punishment of 2 years and not 10 years.

How was the UCC benefited?

The long trial benefited UCC in various ways. First of all, the fear of length prompted the government to enter into a swift settlement. Secondly, the adverse public pressure on the government also evaded with time. Lastly, UCC saved interest on the sum it finally had to pay.

Are we still left with a remedy?

1. A curative writ petition must be filed under article 32 r/w 142 of the Constitution to set aside the 1996 judgment; seeking the relief of a fresh trial under Section 304 Pt 2 of IPC.

2. An appeal to the sessions court under Section 377 of CrPc on ground of inadequacy of sentence because of lesser charge under Section 304 A IPC can also be filed.

3. Pursuing Extradition is significant for the effective trial of Warren Anderson.

4. Civil Liability of both the government and the UCC needs to be re-addressed. Cleaning of the affected area, proper medical treatment of the victims and distribution of compensation are some of the vital steps that need to be taken.

Conclusion

Bhopal Gas Tragedy is aptly referred to as the night that never ended. The long legal battle benefited none but the accused. The victims were continuously victimized by the fluctuating judgments rendered in the country. The media, bar, bench, authorities, central and state governments all failed to effectively fulfill their responsibilities.

“The greatest disaster in India was not on day of Bhopal Gas Tragedy but on the occasion, when we failed to protect our own countrymen and decided to sell the living dead to a multinational for some dollars.”

Legal Mirror

Is Public Interest Litigation the Pill for the ILLs?

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History of Public Interest Litigation:

The last two decades have witnessed the conceptualization of Public Interest Litigation in India. Through it the courts (High Court and Supreme Court) have acquired the power to grant justice to people on humanitarian grounds. It has ensured access to justice for the deprived, under-privileged and neglected segments of the society. Various public spirited persons and NGO’s have approached the court of law through this resort.

Section 32 of the Indian Constitution conferred a right upon every aggrieved individual to move to the Supreme Court or High Court directly on infringement of his fundamental right. However, Justice P.N. Bhagwati and Justice Krishna Ayyer , acknowledged that any individual or organization can approach the Supreme Court if any act is done contrary to the public interest.

Meaning of Public Interest Litigation

According to the Black law dictionary “Public Interest Litigation means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.” Thus a PIL has following elements:

1. it is a legal action

2. Initiated in a court of law

3. for interest of people

Criticism

The PIL has given right to the under privileged to voice against the injustice done to them. In past the Supreme Court has considered complaints, newspaper reports and credible letters sufficient evidence for initiating proceedings. The court has empowered even third parties (who have no self interest in the matter) to file such litigation.

However the shield for public protection is misused by people as a sword for personal benefit. Organizations file cases under this ambit to evade heavy court fee. Sometimes people file such litigation to pursue their political ambitions. There have been instances of frivolous PIL like to rename India “Hindustan,” rename the Arabian Sea “Sindhu Sagar,” ban vastu, reiki, feng shui, tarot, palmistry, zodiac signs etc and replace the national anthem for one offered by the petitioner.

It has also infuriated the fight between the three organs of the state( executive, legislature and the judiciary). On one hand the judges like Justice S.B. Sinha advocates the importance of judge-made law on the other hand judges like Justice Markandeya Katju emphasis the importance of self restraint on judiciary. Some jurists have opined that judicial activism has now turned into judicial terrorism. It is alleged that about 20% of judges are corrupt. Thus Judicial Accountability is yet another concern in this regard.

The judiciary is also heavily condemned on absence of adversarial trial in PIL’s. Dr. Upendra Baxi has criticized that decisions in Bhopal Tragedy Case, WTO accession and Narmada Dame were dominated by the influence of the global economic elites on the Indian Judiciary. It is criticized that since there is no cross examination litigants may give inaccurate information to the court. The PIL’s are given predominance over the existing cases by the courts. Thus if there is a false or irrelevant allegation, it would be detrimental to the interests of many people. Recently a PIL was filed by a former MP M Narayana Reddy seeking direction to the Andhra Pradesh Speaker to decide on the resignation of over 139 legislators. The SC out rightly rejected his claim saying he had no locus standi on the issue.

Further it is a grave concern that there is no mechanism by which the court can check the effective implementation of its decision. In Vishaka v. State of Rajasthan, the SC had laid broad guidelines on sexual harassment but till date these guidelines have not been legislated.

Conclusion:

Judicial Activism has benefited a considerable number of people. In cases like Sunil Batra, Sheela Barse, Charles Shoobraj, DK Basu and Hussainara Khatoon, Supreme Court took a revolutionary step to safeguard the rights of the accused. Similarly in MC Mehta and Vishaka Case the court evolved directions to protect public interests. The objective of PIL was to over-reach every section of society sadly the same is not happening.

The Supreme Court records state that only 0.4% cases filed in the SC involve PIL. One hand the data reveals that PIL cases don’t hamper the normal working of the courts, on the other hand it shows that from the millions of letters send by ordinary people are neglected and only those through formal channel are entertained. Most of the cases relate environmental concerns, child labor and caste disabilities. There has been significant increase in cases filed by advantaged class ( 57.9% in 1961-1989 to 73.3% in 2000-2008) where as there is a decrease in that filed by the disadvantaged social class ( 71.4% in 1961 -1989 to 47.2 in 2000-2008).

I have personally met the victims of Bhopal Gas Tragedy. They write thousands of letters each day hoping that it would be entertained as a Public Interest Litigation. Their letters are till now unnoticed. It is disgrace that the benefits of P.I.L are not reaching the people for whom it was coined. Although the courts have been instrumental in protecting rights of people. There is a duty vested upon individuals too, lodging of frivolous complaints must be discouraged.