Bhopal Gas Catastrophe: A Critical analysis of tragedy and its impact on the Human Rights of Victims

INTRODUCTION

In year 1984, the capital city of Madhya Pradesh was hit by a gigantic industrial disaster and it was considered as the worst and deadliest industrial accident ever seen in history. The mishap took place due to chemical leakage at a plant dealing with Union carbide Pesticides. This research article aims at highlighting the gaps and faults from the side of plant’s authorities and how this mishap could have been prevented if all the guidelines would have been duly adhered. Thousands have lost their lives and suffered serious injuries due to ignorance of the few. The Bhopal Disaster puts down the inefficiency of the state parties, judiciary and the administration. The catastrophe did not only affect people merely in year 1984 but continues to affect the health of people till date. Not one but myriad of Human Rights of people including right to life, right to health, right to non-discrimination, right to remedy etc. of residents if Bhopal have been violated. Any corporation, company or any industry has a corporate social responsibility and UCC have clearly breached and surpassed such responsibility by harming the environment and lives of people. This incident gathered national and international attention which deliberates question regarding corporate and social responsibility. When the gas leak took place 7000 were found dead within few days and more than 15000 dies in subsequent years, also approximately, one lakh people are suffering from chronic illness for which treatment has been found utterly ineffective (see here).

This disaster brings up the need of formulation of more comprehensive internal human rights law which can directly be applied and implemented to the corporations directly, which can also work as a catalyst for domestic laws to this respect by setting a benchmark. The measures like involving public opinion while deciding crucial points regarding any establishment such as location, waste management, etc. can be helpful in preventing and avoiding disasters like Bhopal Gas

BACKGROUND – OCCURRENCE OF TRAGEDY

In 1970s, the Indian government was keenly initiating policies I order to promote foreign investments in the local Indian industries. Sevin is a pesticide which is popularly used in Asia and its manufacturer Union Carbide corporation was thus consequently asked to establish plant for the same. As a matter of the fact, 22% of stake of the company’s subsidiary was owned by Indian government and majority of shares were withheld by local shareholders. Due to the central location owing to easy transportation infrastructure of Bhopal and state government’s intention of developing Bhopal, the plant was finally set up here. The location where the plant was being set up was near to the residential area and was away only 3 kms from railway station and bus stand of the city. The administrator of the city applied for the change of location and demanded its set up in the outskirts however the permission was denied. That particular zone was specified for non-hazardous industry however market pressure arising out of competition mandated UCIL to implement ‘backward integration’ through which raw materials are manufactured into the final product with one facility. This was undeniably more sophisticated process however it was also more hazardous. The year 1984 was observing low demand in pesticides and therefore the plant was manufacturing Sevin at only one quarter of its total production capacity. Crop failures, no ready buyers and increase in debt burden were reasons that it was directed to the managers to shut the establishment and sell it since it was yielding no profits. However the plant was not shut but continued operating. The safety measures and the procedure employed during that phase was far less from the standard it is usually expected to operate. The government was aware of these low safety measures still did not want to put burden in the struggling plant since the government did not want to lose such a gigantic investor and employer.

On 2^nd December 1984 around 11-11:30 PM, the operator of the plan have observed some leakage of methyl Isocyanate and the pressure inside the storage tank was increasing. Safety equipment, vent-gas, was turned off three weeks earlier. This device helps in neutralizing toxic discharges. Other ignorance includes the valve used for cleaning was at faulted and as a consequence the water got mixed with 40 tons of Methyl Isocyanate. Refrigerator which was used for coolant the MIC was also not sufficiently cooling since it was also used for another plant. The pressure kept building and 2 hours later around 1:00 Am since the safety valve was not in place the voice kept reverberating and the air till morning had a plume of poisonous MIC gas into it.

In span of few hours, the people started dying on the streets, carcasses of buffalo, cows, dogs etc. was seen lying on the roads. Estimation provides that around 3800 people died instantly and most of these are the people of slum having residential near plant.[1] The hospital began to be busted with the victims and this disaster marked as the worst of all industrial tragedy till date. Along with the thousands of deaths the government issued a report proclaiming the half a million of people have been exposed to the gas (click here to read more).

• CRITICAL ANALYSIS OF FAILURES LEADING TO THE TRAGEDY

1. In spite of hazardous nature of the plant, the location was not changed and the plant continued operating adjacent to residential area.
2. Leaks have been reported from year 1981 which also killed 1 worker and several were injured also.
3. The MIC was being stored in the tanks and according to the safety manual of the Union Carbide Corporation, the temperature of those tanks are to be kept at 0 degree and cannot exceed 15 degree Celsius. These guidelines were being ignored while storing MIC.
4. In case of any release, a vent gas is used in order to neutralize MIC through spray of alkali. Additionally, the flare tower was also not working which is employed to burn the gases moving out through the vent gas scrubber.
5. The said scrubber has to be kept in the active mode however it was turned to the passive mode after a decision of the authorities.
6. In order to cut manufacturing costs, the refrigerator responsible for cooling down the temperature of MIC was turned down.
7. As per the guidelines, there has to be no interconnection between two venting lines i.e., RVVH (Relief Valve and Vent Header) and PVH (Process Vent Header), but before the tragedy took place, the modification has been made in the plant which basically connected these two lines.
8. Few days ago when incident took place, the operator was trying to pressurize the tank and in spite of use of nitrogen the tank could not be pressurized which was itself proving that the leakage had started however this issue remained unattended by the management.
9. Guidelines provided the use of slip band which helps in isolating one section of line from that of others. The ignorance in properly using these slip bands triggered the tragedy as water got mixed with the MIC.

AFTERMATH- LEGAL AND COMPENSATORY ACTIONS AND CLAIMS

Soon after the tragedy, The UCC started making all the efforts to shift the burden to UCIL. On the same day, 5 operator of UCIL were arrested and three days later the case was handed to CBI and inquiry commission kwon as “Bhopal Poisonous Gas Leakage Inquiry Commission” was set up by Madhya Pradesh Government.

Litigation in USA- On behalf of several Indians a law suit was filed in US on 7^th December 1984 [Dawni et al v. Union Carbide Corporation S.D.W (84-2479)]. It was further followed by 145 additional actions in US Federal Court. All these claims were consolidated and were tried by Justice Keenan.

On March 29, 1985, The Parliament of India enacted “The Bhopal Gas Leak Disaster (Processing of Claims Act), 1985” (see here). This act gives exclusive rights to the Indian Government to represent the victims not only in India but elsewhere as well. In pursuance to this act, a complaint was filed by UOI in the US court where 145 cases were already in trial. By placing reliance on the affidavit presented by Nani Palkhiwala, Judge Keenan dismissed the action on the ground of “forum non conveniens”

In 1986, UOI filed a civil suit in Bhopal District Court against UCC [Union of India v. Union Carbide Corporation, Civil Suit No 1113, 1986] in order to claim fair and adequate compensation. It was contended by the plaintiff that the defendants breached their duty and posed danger on the lives of people. The order dated December 17, 1987 gave interim compensation of Rs 350 Crores however in a revision petition this amount was reduced to 250 Crores. It was argued that District Court of Bhopal was not compatible court to order such interim compensation and Section 151 of CPC cannot be appropriately considered as source of derivation. The court also discussed the case of “Oleum gas Leak” [MC Mehta V. Union of India 1 SCC 395, 1987] which makes defendant “liable to pay damages to the gas victims in accordance with the rule of absolute liability without any exceptions” as derived from Judicial Precedent of Ryland V. Fletcher. Thereafter, appeals have been made in Supreme Court and the issue as heard by 5 Judge Bench and in final settlement with regard to both kind of liability, civil and criminal, the amount of 470 million US Dollar was finalised to be paid by UCC [Union Carbide Corporation V. Union Of India 1 SCC 674 (1989)]. According to Bhopal Gas Relief and Rehabilitation Department, this award was awarded till the end of 2003 to 554895 to the people who suffered injury and 151310 heirs of those who died in the disaster (see here).

VIOLATIONS OF HUMAN RIGHTS OF PEOPLE AND HUMAN RIGHTS FRAMEWORK

Bhopal Gas Tragedy resulted in gross violations of basic human rights of people of Bhopal, following is the list of such violations along with the human right norm which has been ignored and not been adhered.

1. Right to Life–

“There were thousands of bodies. There were bodies everywhere. And People were dying all around”- Mohd. Owais (Volunteer at Hamidia Hospital)

Within 3 days of mishap, approximately 10,000 people lost their lives. Many Human Rights instruments including Universal Declaration of Human Rights inculcate the importance of right to life. Article 6 of International Convention of Civil and Political Rights (ICCPR) of which India is a signatory affirms that “Every Human Being has inherent right to life. This right shall be protected by law. No on shall be arbitrarily deprived of his life.” Such right to life has been given further interpretation by Human Rights Committee in the General Comment 6, para 5 of ICCPR (see here), which states that “inherent to life” cannot be given restrictive interpretation. In a similar case of EHP v. Canada (see here for details), it was observed that large scale nuclear waste was being dumped in the residential areas which threatened right to life of people.

2. Right To health

People still suffer from certain chronic disease due to Bhopal gas leak directly violating the Right to health of people. Various health issues arouse soon after the gas leak happened like, respiratory illness, eye diseases, impairment of immune systems, neurological and neuromuscular damages, cancers, gynaecological complications, miscarriages etc. This gas leak not only affected the physical health but mental health of people was also affected. Article 25 (see here) of Universal Declaration of Human Rights enshrines the right to health and subsequently reaffirmed in Article 12 (see here) of ICESCR. Article 12 of ICESCR states that “the State Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”

3. Right to Have Dignity and Adequate Standard of Living

Bhopal Gas tragedy along with causing severe health issues has been responsible for entrenching poverty among people of the city diminishing their human dignity. The people where poor were most affected by this leak since there houses were in much proximity to the plant. As according to the studies conducted by ICMR, it was found that 68-86% of the affected population belonged to the area of “very depressed socio-economic class”. Also, the after effects of leakage has incapacitated people to earn the bread and which handicaps their right to have adequate standards of living and this right has been enunciated in Article 11 of ICESCR (see here).  When a person is devoid of earning, he also loses subsequent human rights like right to food, shelter etc. enunciated in Article 25 of UDHR, Article 11(1) of ICESCR etc.

4. Rights to Remedy

Article 2 of ICCPR, set out the importance of right of remedy as a vital Human Right of people. The people who lost their family members, bread earners or have suffered serious injuries had to go through a lot of struggle in order to procure the remedy from those who were at fault. Some of the victims have never received any compensation and many of them have received however no the sum received was not appropriate and sufficient.

5. Right to clean and safe Environment

The contemporary Human Rights Law recognizes the importance of safe environment since it is a “sine quo non” for several other human rights like right related to health and life. Not only the leakage but from the very installation of the plant it has been polluting the environment and the contaminated sites still continue to pollute with its toxins the groundwater of the area.

Supreme Court of India in case of AP Pollution Control Board v. Nayudu (1999) and in Vellore Citizen Welfare Forum v. Union of India (1996) has also reiterated the customary international principal i.e., “precautionary principle” which imposes duty upon the corporation to take measures to avoid any mishap affecting lives of people as well as deteriorating environment.

6. Right to Freedom from Discrimination

The girls affected by the gas leakage finds it difficult to get married and also the women who were already married faced various discrimination since they were incapable to work as before and the gas leakage has also caused medical problems which to complications in child bearing or pregnancy . Various provisions of human rights enshrined in UDHR, ICCPR and ICESCR are seemed to be violated here but more significantly such discriminations are violation CEDAW (Article 3- See here).      

CONCLUSION AND RECOMMENDATIONS

With the leak of gas in Bhopal, not only one but several disasters were triggered by it. After several years of the happening of disaster the analysis reveals mind boggling facts and figures reiterating the severity of the issue. It does not become hard to derive that how collapsed our administrative, legal and medical system has been during that period. The people continue to suffer from diseases and even after efforts to obtain justice many were denied of fair and equitable compensation.

There has been an utter corporate failure from the side of UCC, the company was aware in respect of  risks it was posing by storing the hazardous substance, still abstained from taking all the possible precautions which could have prevented the disaster. The Government of Madhya Pradesh was also not diligent enough in preventing the disaster and also in ensuring proper remedy to the victims. Permitting such hazardous plant to operate near residential area proved to be unreasonable and unjust.

If any further incident like Bhopal gas leak takes place, it would be disturbing because in spite of knowing the intricacies of past we have not employed precautionary measures. The words of Upendra Baxi, appropriately fits here “The broken world of Bhopal Victims invites a jurisprudence of human solidarity” (see here for full document).

Recommendations

1. The site should be cleaned and decontaminated to prevent the continuing suffering and loss to environment.
2. Government should undertake exhaustive scrutiny of the hazardous industries, and should put such report in public domain to promote transparency
3. Government should be more alert regarding the reparations, restitutions or compensation of the victims of such disaster.
4. International Human Rights Law should broaden their horizon and should be capable enough to intervene directly if such disasters take place.
5. National laws must be made more stringent requiring the corporations to inbuilt more precautionary measures.
6. Public heath infrastructure should be developed enough to respond adequately and sufficiently if any disaster takes place and also more investment is needed in Disaster management plans and operations.

• REFRENCES

1. Baxi Upendra and Dhanda Amita, Valiant Victims and Lethal Litigation: The Bhopal Gas, INDIAN LAW INSTITUTE, (1990)
2. Broughton Edward, The Bhopal Disaster and its Aftermath: A Review, ENVIRONMENTAL HEALTH: A GLOBAL ACCESS SCIENCE SOURCE, 2-6 (2005)

• Cassells J, Sovereign Immunity: Law in an Unequal World, 5(3) SOCIAL AND LEGAL STUDIES (1989)

1. Fortun K: Advocacy after Bhopal, Chicago, University of Chicago Press 259 (2001).
2. Mackenzi D, Fresh Evidence on Bhopal Disaster, 19(1 )NEW SCIENTS (2002)
3. Mead Osney, Clouds of Injustice: Bhopal Disaster 20 years on, Amnesty International Publications. 2004

• Murlidhar S, Unsettling Truths and Untold Tales: The Bhopal Gas Disaster Victims ‘Twenty Years’ of Courtroom Struggles For Justice, IELRC (2004)
• Shrivastava P: Bhopal Anatomy of Crises, BALLINGER PUBLISHING, (1987)