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30 years after ‘settlement’, Bhopal victims await closure

ALMOST 35 years after the Bhopal gas tragedy, the world’s worst industrial disaster, its aftershocks are still being experienced. It was on the intervening night of December 2 and 3, 1984, that the poisonous methyl isocyanate gas leaked from the industrial plant of Union Carbide Corporation (UCC), engulfing slums and other areas of the town.

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Beant Singh Bedi
Former District & Sessions Judge

ALMOST 35 years after the Bhopal gas tragedy, the world’s worst industrial disaster, its aftershocks are still being experienced. It was on the intervening night of December 2 and 3, 1984, that the poisonous methyl isocyanate gas leaked from the industrial plant of Union Carbide Corporation (UCC), engulfing slums and other areas of the town. The disaster led to a contentious and long-drawn-out litigation, the offshoots of which are still pending in the Supreme Court. 

The Indian government, under the provisions of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, filed a suit for compensation in the district court, Bhopal. In December 1987, the district judge passed an order for Rs 350-crore interim compensation. On revision, the High Court reduced this figure to Rs 250 crore. The matter finally reached the apex court. The latter pressed the parties for a settlement. In its order dated February 14, 1989, the Constitution Bench directed that there be an overall settlement of all claims in the suits for $470 million (around Rs 750 crore, as per that year’s rates). Consultations between the parties continued throughout the night. The next day, they filed a written settlement signed by the parties, which was approved by the court. Thus, the Bhopal settlement came into existence. The detailed reasons for this order were set out in a subsequent order of the Constitution Bench dated May 4, 1989. The court observed that it would be its endeavour to undo any injustice (if any, arriving from this settlement). The court added, “Those who trust this court will not have cause for despair.”

In the meantime, another Constitution Bench (December 22, 1989) upheld the constitutionality of the 1985 Act. The order dated May 4, 1989 (Sahu case), led to a series of review petitions, the main challenge being that the quantum of compensation settled was grossly low. The Constitution Bench negatived this challenge by its judgment dated October 3, 1991. However, it restored the criminal case against Warren Anderson, then Chairman of the UCC, and other officials. The court held that if some claimants were left unpaid even after the exhaustion of the settlement amount, the Union of India should not be found wanting in making good the deficiency.

In 1989, the UCC was allowed to go scot-free for all liabilities, including criminal charges, on the payment of the paltry (under the circumstances) sum of $470 million. The Indian government’s original claim was for $3.3 billion. It is pointed out that the number of deaths was five times more than what the government stated while accepting the settlement. This meant that when the compensation was disbursed, the claimants were paid proportionately less. The government has also been criticised for its decision to release Anderson. He flew out of India and never came back to stand trial. The government also exposed itself to criticism when the criminal charge under Section 304 (culpable homicide not amounting to murder) of the IPC was diluted to one under Section 304-A (causing death by negligence). 

In 2010, the Chief Judicial Magistrate sentenced a few UCC officials to imprisonment for two years after holding them “guilty of killing 25,000 innocent people in 1984”. The nation rose in support of the Bhopal victims. Amid the uproar, the government filed a curative petition in the Supreme Court in December 2010, praying for a re-examination of the February 14, 1989, judgment. This curative petition is still pending. Recently, an application was filed for an early hearing, on which the Chief Justice of India directed that it shall be heard in April.

The UCC is now owned by Dow Chemicals, which has merged into DuPont to create Dow DuPont. By April 1, Dow DuPont plans to break up into three companies, a plan that will see the end of UCC. These developments have added another dimension to the pending curative petition. 

In August 2014, a US court ruled that Dow and UCC were not liable. The Indian government has demanded an additional Rs 7,844 crore as compensation for the victims, besides Rs 315 crore to repair the damage to the environment and subsoil water. 

Be that as it may, nothing has been resolved so far. The exact nature of the toxic gas has not yet been determined; the antidote is also not known. Hundreds of tonnes of toxic waste is lying at the site. India neither has the expertise to deal with this waste nor how to de-contaminate underground water. Many survivors have not been paid so far, and many received only a pittance. The liability of the UCC, Union Carbide India Limited (UCIL) and Dow has not yet been determined. Many wonder how and why the settlement of 1989 was entered into. Now that the statutory period of 30 years has passed, survivors hope that archival retrieval will help to deal with the contentious issues, left unresolved so far.

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