1. -
Veena Das
Presentation by Prabhav Sharma
Hariharan Kumar

2. Union Carbide Factory, Bhopal

3.  The Event
 The Litigation History
 The Construction of Medical Knowledge
 The Judicial Discourse
 The Sequel
 The Residue
 Conclusion

4.  The Bhopal Gas Tragedy has been acknowledged as the worst industrial disaster in
History
 The magnitude of the gas leak in Bhopal directly involved the scientific, legal and
administrative structures of modern society.
 One of the best known studies of legal and moral issues arising out of chemical disasters
was made by Schuck (1987) in Agent Orange Case.
 Case represents attempts of millions of Vietnam war veterans to seek legal redress for
grievous illnesses which they believed were caused by exposure to Agent Orange, a
herbicide used by USA Army to defoliate Vietnam‟s jungle cover.

5.  Financial and personnel demands of the case are staggering.
 1500 law firms representing the plaintiffs.
 Defendants spent $100 mn to just prepare for the trial.
 Cost of trial staggering, this issue also called for a new kind of jurisprudence.
 There are scientific and legal complexities of staggering nature in cases of mass toxic
torts.
 Eg-In Agent Orange case, courts became places where the Vietnam war and its
hardships were symbolically enacted.
 Reich(1982) observes “ Chemical disasters represent an extraordinary event that
disrupts the normal flow of life”.

6.  The Bhopal Gas Tragedy occurred on
the night of 2–3 December 1984 at
the Union Carbide India
Limited (UCIL) pesticide plant
in Bhopal, Madhya Pradesh.
 Over 500,000 people were exposed
to methyl isocyanate gas and other
chemicals.
 This tragedy is considered as one of
the biggest toxic torts that has ever
happened.

7.  The earliest description of the gas were of a
creeping, deadly, yellow, choking vapour
that was intensely irritating to eyes and
lungs.
 Between 3-6 December about 2500 people
died as a result of inhaling this deadly
vapour
 Union Carbide Officials claimed that MIC
was not more potent than teargas and it
caused only surface damage.

8.  Parens patriae
 The Government of India, with this function,
took upon itself responsibility for the conduct
of the case, as well as for the provision of
welfare to the victims.
 The Bhopal Act was passed by the
Government of India in March, 1985
 The constitutional validity of the Bhopal Act
was challenged in the Supreme Court since it
took away from victims the right to be heard.

9. Month/ Year What happened?
1985 • Case initially pursued in New York District Court.*
1986 • Hearing of the case begins in Bhopal District Court.
• The court ruled that Carbide should pay Rs. 350 crore as interim relief.
1987 • Carbide appealed against the ruling in the High Court of Madhya Pradesh
• Quantum of interim relief reduced to Rs. 250 crores
1988 • UCC appealed to the Supreme Court against the MP HC Order.
• Judicial Order passed asking the GOI and UCC to settle at $470 million.

10.  On 15 February 1988, a judicial order was
passed asking the Government of India and
Union Carbide to finally settle at $470 million.
 Part of the settlement deal fashioned by the
court was immunity granted to Union Carbide
Company and its subsidiaries against any civil
or criminal liability arising from the Bhopal
Disaster at present and in the future.
 There were widespread protests against this
settlement

11.  It was believed by many that the courts had
been pressurized by the Congress
Government which was then in power to
issue such an order and that the
Government had made a private deal with
Union Carbide.
 Warren Anderson (the main accused in the
case) somehow managed to leave the
country.

12.  The Janata Government which came into
power in January 1990 supported the
review petitions which were filed in the
Supreme Court challenging the settlement
on behalf of some victim groups.
 The Janata Government took upon itself to
provide relief to the victims. It took upon
itself the role of guardian with great
seriousness.*
(January 1990- November 1990)

13.  At the time of the leak, very little was known
about MIC.
 UCC sent in a team of three doctors as part
of its relief operation.
 Dr. Peter Halberg comments on age group.

14.  Various studies were conducted after the
leak. These included studies on animals ,
clinical studies on survivors and autopsy
reports.
 Various tests conducted.(UCC, ICMR,
Independent Doctors)
 The Indian council of Medical research was
entrusted with sole responsibility for
providing medical evidence to the
government of India.

15.  MIC is the most potent pulmonary irritant and the second most potent sensory irritant.
 The vapour pressure of MIC is exceedingly high, hence even a short duration of exposure
is likely to result in severe effects.
 The acute effects of MIC included immediate death due to profound hypoxia resulting in
blockage of air.
 Other experiments on animals as well as clinical observations on survivors have
confirmed that there is a complex response to varying degrees of exposure to the gas.
 At higher dose levels, there were life threatening manifestations of pulmonary damage.
 At Intermediate level of exposure, there was eye damage including corneal opacity and
high risks of cataract.
 At low doses, sensory and neurological responses were found.

16.  A report by a victim group was submitted
and it mentioned that there were several
long-term effects of MIC, including chronic
respiratory conditions, increase in corneal
opacity and weakening of immune system.
 It is not only that local immunity gets
altered, a experimental research on
animals has shown that there is persistent
bone marrow suppression and suppression
of lympho proliferative responses.

17.  UCC Scientists assumed that most symptoms caused by MIC exposure were reversible,
but by the epidemiological surveys it could be concluded that signs & symptoms in
exposed populations had increased, the population which were initially asymptomatic
were now showing signs of lung and eye disorder.
 The petitioners placed before the court some of the expert studies which shows that MIC
had caused long term irreversible damage to the vital systems of the exposed population.

18. Madhya Pradesh Government had shown that :
 Claimants appeared for medical examination-
3,59,793
 Serious Injuries- 2574
 Permanent Disability- 40
 Temporary Disabilities- 10,534
 Death toll – 2500*

19.  It was alleged that many people had put in
false claims.
 50% of the cases of certain disorders were
out of proportion to the clinical, radiological
features of the patient.
 Malingerers (someone who faked their
illness) became starkly evident during the
hearings.

20.  Carbide Lawyers denied that MIC is the most
potent sensory and pulmonary irritant
 The sufferings of the victims were highly
exaggerated, and also the Government ended
up producing documents which showed victims
exaggerating their symptoms.
 Most of the victims already suffered from
Malnutrition or a previous disease like
Tuberculosis.

21.  The Bhopal Act was an important judicial innovation since the costs of pursuing the case
would have been too staggering for the victims.
 But it was argued that certain sections of the act amounted to naked usurpation of
power.
 The Attorney General claimed that the Government had a right and duty to take care of
its citizens in the exercise of its parens patriae jurisdiction.
 He claimed that the victims could not pursue the case against a powerful multinational
and defended the settlement with Carbide.

22.  The issue of the Government acting as a surrogate for handicapped people has been
widely debated in recent years.
 The Supreme Court had claimed that it had acted in best interests of victims. But the
victims were contesting this.
 How could the court defend the actions of the Government when the victims
themselves were protesting against them?

23.  The judges upheld the Constitutional validity of the Bhopal Act by saying:
„Our Constitution makes it imperative for the state to secure to all its citizens the rights
guaranteed by the Constitution and when the citizens are not in a position to assert and
secure these rights, the State must come into the picture and protect and fight for the rights
of the citizens’
 This principle greatly expand the power of the state to act as a guardian.
 But the settlement did not help in securing the rights of the victims.

24.  After the Supreme Court order, there was nothing in the judicial order to instruct the
Government to provide the immediate relief.
 No procedure was formulated for the dispersal of money nor was any timetable formulated
by the Court.
 Why had the Court not found it fit to invite the opinion of the victims themselves
about the proposed settlement before passing the judicial order?

25.  A MNC was engaged in production of an extremely hazardous chemical.
 Despite the known hazards of the gases, neither the MNC nor the Government of India
considered it necessary to enquire into the nature of hazard.
 The result of this was that more than 3,00,000 people were suddenly blighted by a crippling
disease and around 2500* people died horrible deaths.

26.  How had the Court arrived at the particular sum of $470 million as adequate compensation
for the 3,00,000 victims known to be affected ?
 Were the victims right in alleging that there was no evidence of the application of a judicial
mind behind this order?
 How was the status of a claim made by a victim determined?

27.  The judgment of 22nd December,1989 had concluded on a note of judicial humility
„It is well to remember …Time has upset many fighting faiths …and one must always wager
one‟ salvation upon some prophecy based on uncertain knowledge…our knowledge
changes: our perception of truth also changes…‟
 The judges went to some lengths to defend this settlement on the grounds that the
suffering needed immediate amelioration (change for the better).
 One of the main contentions of the review petitions filed was that the court has been
misled by the Government of India regarding the no. of victims and the type of injuries
caused to them by inhalation of MIC.

28.  The petitioners contended that the ultra hazardous nature and long-term impact of the lethal gas
had not been understood by the court when it fashioned the settlement.
 It claimed that the so called medical examinations of the M.P government was superficial and
likely to mislead.
 It was initially assumed that MIC caused simple and short term injuries but it has now been
found that injury caused by MIC is to the entire system.

29.  The judges made two arguments in this regard :
1. They conceded the point made by Carbide
lawyers that any long term affects of MIC were
known to the government at the time of
settlements and therefore the government must
bear the future costs.
2. They had relied heavily upon an earlier affidavit
of the Additional Director of Claims that the
medical characterization of survivors was
reliable.

30.  The scoring system which relied upon an organ by organ-score-could not have captured
the chronic disease patterns typically associated with assault on immune system.
 Dr. Daya Verma conducted a survey on spontaneously abortion following exposure to MIC
in different localities around the Carbide factory, with the help of school children.
 He conducted in vitro and vivo studies on rats and guinea pigs showing that foetal loss
was not only due to maternal distress but also because MIC directly enters the
bloodstream of the foetus.

31.  The government of Madhya Pradesh had established its sole authority
over the documentation and categorization of claims through the
Bhopal Act and the secrecy of the medical reports and hence they
were able to create a monopolistic control over knowledge.
 Judges set an important principle of public policy by which any risk
from a toxic hazard would entitle the population to claim the expenses
of medical surveillance
 The Judges seem to have been aware that the amount of settlement
was not adequate to cover this but they had to defend their own
settlement.
 Hence they gave direction to the government to provide the insurance
cover to the exposed population and appealed to UCC and UCIL to
provide a hospital for medical care of patients.

32. There was one unconnected moment in this whole
episode:
 Administrative action taken by the Janata Government.
 The Janata Government evolved as scheme for interim
relief that was not dependent upon the litigational
uncertainties.
 The victims were transformed from incompetent ,
irresponsible people to those whose needs for survival
were of paramount importance.

33. Date What happened?
Dec 2-3, 1984 Leak of MIC from UCC, Bhopal Factory
1985 Case initially pursued in New York District Court
1986 Hearing begins in a Bhopal District Court
1987 Appeal made by Carbide to Madhya Pradesh High Court
1988 Appeal made to the Supreme Court. Out of court settlement of $470 million.
February-March 1989 Public protest against the unjust settlement followed by filing of a number of review and
writ petitions against the settlement in the Supreme Court
December 1989 SC held the Bhopal Act as constitutional
1990 Janata Government came into power

34. Hope you all understood…