By Prof Satya Narayan Misra in Bhubaneswar, December 11, 2023: Thirty-nine years back, on the night of 3rd December, water seeped in to a tank containing over 40 tonnes of highly poisonous methyl isocyanate (MIC) in Bhopal plant of UCIL, causing exothermic reaction, because of which the MIC escaped in to the atmosphere. As many a 2600 people died in the immediate wake of the leak and the death toll rose to 8000 within a fortnight.

Over the next 25 years, estimates indicate that the number of fatalities rose to a whopping 20000, while 6 lakh people suffered irreparable physical damage. The tragedy remains unparalleled in the history of industrial disasters anywhere in the world. There were a series of debates and decisions, ranging from the compensation payable to the victim, the criminal negligence of UCIL the piercing of the corporate veil and appropriate choice of forum; but in the ultimate analysis very little good trickled down to the victims of this catastrophe.

At the time of the disaster, UCC owned 51% of the company, LIC/ UTI owned 22% & the Indian public owned 27%. Soon after the leak, hundreds of tort lawyers from the US and their Indian counterparts descended on Bhopal, seeking exemplary damages for those affected by the tragedy. The GOI was quick to derail their hopes. It promulgated Bhopal Gas Leak Act 1985, which authorised the Central government to represent the interests of those affected by the gas leak as ‘parens patriae’, a tool that allows the state to protect the well-being of its citizens in a representative capacity.

The Act evoked sharp criticism, as the wrong doer UCIL was partly owned by state corporations and the government could have been held partially responsible for the tragedy. The government did not match wits with results. The outcome was that the victims were double crossed by the state; they were left with little compensation and also deprived of their right to act in individual capacities.

The Central government filed a complaint against UCC before Southern District Court in New York on the laughable plea that India’s legal system was ill equipped to handle the complex litigation that the case would entail and that tort law was not developed enough to deal with a case of such gigantic proportions’. Justice Keenan concluded that the arguments were not tenable and dismissed the claim on the ground of forum non conveniens, a doctrine based on which a court can refuse jurisdiction over a case where a more appropriate forum is available.

Consequently, the district court in Bhopal ordered UCC to deposit an interim compensation of 350 crore rupees. On appeal the MP High Court reduced the figure to 250 crore rupees. On appeal, the Supreme Court ordered UCC to pay 750 crores in full settlement of all claims. The order passed on Valentine’s Day in 1989, disappointed the victims as they hoped to get a compensation of six times the compensation awarded by the Supreme Court.

One of the unfortunate effects of the settlement was the court did not adjudicate the critical issues raised by the Bhopal incident. It clearly failed to appreciate the extent of the damage caused by the leak and its crippling long term effects. The average compensation for each victim was less than 50000 rupees. Indian law does not value life as much as it is valued in other nations, such as the USA.

The settlement sanctioned by the Supreme Court was widely condemned. In its judgment of October 1991, it did not revise the 470 m$ compensation to a more realistic figure. The court held that if the settlement fell short, the UOI was bound to make good the shortfall. Many criminal cases did the rounds in the courts across India. Initially, charges were framed against the accused under S304 of IPC, for culpable homicide not amounting to murder, punishable for 10 years of imprisonment.

The Supreme Court diluted the charge to causing death by negligence, under S 304A of IPC, with a punishment of 2 years only. In June 2010, seven people were convicted for two years each and Anderson, Chairman UCC did not appear in the court. The court was sharply criticized for treating the disaster as a ‘minor traffic accident.’

The Bhopal gas leak shows how influential MNCs exploit developing countries; how developing countries import hazardous technology in spite of a conspicuous absence of an environment law frame work and legal infrastructure to handle its potentially disastrous consequences.

The most ironic aspect of globalization in the 1980s and 90s has been that in their quest for economic development, developing countries sacrifice human rights of the lowest rungs of their societies and pollute the environment without effective state regulation. Bhopal was undoubtedly the darkest reflection of globalization.

Critics also believe that government as agents of neo colonialism are subservient to MNCs. After the Bhopal gas tragedy, India enacted the Environmental Protection Act 1986 and Public Liability Insurance Act 1991 and National Environment Tribunal Act of 1995. However, despite all the environmental legislation, there is a definite lacuna in the Indian legal structure.

In July 2011, the UN General Assembly adopted the guiding principles on business and human rights, based on a report by John Reggie, Harvard Law School Professor. As per the framework, the governments must clearly spell out their policies to protect human rights and communicate these to business organizations. Further, business must undertake regular human rights impact assessment and due diligence and create internal policies to ensure compliance with human rights norms.

However, despite the UN framework, Indian law does not yet clearly spell out any such requirement for corporations. While the concept of Corporate Social Responsibility has been introduced in the Companies Act, it would be more effective to introduce a clause to escalate an HRIA and stakeholder consultation to the level of directorial duties. This will give victims an enforceable remedy. The government should also consider incorporating due diligence and HRIA obligations in to government contracts awarded to private entities.

The Bhopal debacle has not been enough of a wakeup call for lawyers, judges, politicians, activists and the media. They seem to have pressed the snooze button. Bureaucracy and power dynamics have worked together to cause unparalleled mental agony for the victims seeking justice. Critics of globalisation like Joseph Stiglitz , Paul Krugman & Jeffrey Sachs believe that bereft of proper state regulation the MNCs dominate and control internal economic system of developing economies.

To make matters worse International agencies like the IMF and world bank are sub serving interest of global commercial capital rather than of poor countries. Neo fundamentalism has contributed largely to the Asian financial crisis of 1997 and the US subprime crisis of 2007. Coupled with a weak legal architecture, the poor citizens become hapless victims of unregulated corporates in cahoots with complicit government who depend on them for political funding.

Prof Misra teaches Constitutional Law in a Law School

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