Rss

  • stumble
  • youtube
  • linkedin

#Bhopalgasdisaster – Legislation of a complicit state

bhopal
    • The Statesman
    • 12 Dec 2014

Usha Ramanathan

There was no law Parliament had made that anticipated the Bhopal gas disaster. Since the disaster, there have been laws enacted that derive their provenance from the disaster; and there is a strangeness, even absurdity, about these laws.
First, there was the Bhopal Gas Leak Disaster (Processing of Claims) Act 1985. Three months after the disaster, the government decided to give to itself the “exclusive right to represent, and act in place of … every person who has made, or is entitled to make, a claim …”. The problem was that this kindly assumption of the ‘right to represent’ was edging out the right of the affected people to be heard. And, it was being taken over by a government that was itself being pilloried for being a wrongdoer, alongside the corporation. Why? Because it was the government that had given the Union Carbide Corporation the license to operate, and had, even on the face of it, failed to ensure safety during the licensing process. It had failed as a regulator: when there had been episodes of escape of gas and death and injury of workers preceding the mass disaster, they had gone unattended. The Factories Act requires regular inspection to ensure safety in the factory, and there was much to demonstrate abdication of this role. And, again, the government had allowed UCC to locate the plant in a populous area, disregarding the risk it posed to the population.
The government was, in the eyes of the law, answerable to the victims as a joint tortfeasor. And there it was, taking away the right of the victims and converting it into their battle, with the authority to take the case to a conclusion or to settle.
The reason offered for taking over the litigation was that the victims would not be able to stay the course in a long drawn out litigation against a well endowed corporation, and so would stand to lose if the state did not intervene. Except: the government too did not seem to have the staying power. In 1989, it entered into a settlement with UCC – even before it had identified the extent of harm and injury and death; at one-seventh the claim awaiting resolution in the district court; and even while the victims’ challenge to the Claims Act 1985 was pending in the Supreme Court.
All these years later, the government is now before the Supreme Court in a curative petition, claiming that it had grossly underestimated the extent of damage, and the compensation should, in fact, have been much higher.
In the meantime, UCC has fled, hiding in the shade of Dow Chemical’s acquisition; and Dow Chemical is proclaiming that it has an interest in UCC’s assets, but none in its liabilities!
Then, in 1987, when the Factories Act was amended, there were two bizarre provisions tucked away in the law. In 1987, it is significant to recall, the government was in court demanding that UCC be made to pay US $ 3.3 billion.  The plant and machinery that UCC had had installed in its UCIL factory in Bhopal, the government was saying in court, was defective in its design, and this had led to the disaster. UCC was asserting that the fault was not in the design but in the way it was handled. The fact that UCC’s plant in Institute, West Virginia did not pose a similar threat because they had improved on its safety features had been brought on record by the government, and there were proposals that the Institute plant be subjected to ‘discovery’ proceedings.

Even as this contest was on in court, the executive government, in its guise as the initiator of legislation, included a provision in the 1987 amendment which “reliev(ed)” the designer of plant and machinery of the “duty imposed” by the law once the ‘user’ gave a written undertaking that “if properly used” it would be safe and cause no harm. UCC’s defence became the law, even as the government claimed in court that UCC’s defence was unsustainable.
Then there was the second change made in the law which is difficult to explain. The Factories Act invests the Inspector of Factories with the authority to enter the premises of the factory to take samples of any substance that he thinks may “cause bodily injury to, or injury to the health of, workers in the factory”. It is possible that the sample, when tested, is suggestive that it may cause harm or injury. It would be natural to expect that such result should be communicated to all persons who may be at risk. Parliamentary wisdom veered off in another direction. Before 1987, anyone who disclosed the result of the analysis of the sample could be punished with imprisonment up to 3 months or a fine or both. In 1987, after the disaster had demonstrated how much damage could be caused to an unwary people in, and in the vicinity of, the factory, the penalty for disclosing this information was increased – to six months imprisonment or Rs 10,000 fine, or both!
In 1991, the Public Liability Insurance Act was enacted. This was meant to make provision for immediate relief to victims of disasters – re-named in the law as “accidents”. Industries dealing with hazardous substances were required to get themselves insured. Where death or injury resulted from an ‘accident’, victims were to be paid a sum specified in the law (a small sum, but still serving to recognise the victim) without waiting to establish fault, the harm and injury being the point. The Collector was required to publicise these provisions when such ‘accidents’ occur and ‘invit(e) applications’ for compensation.
Between 1992 and 2000, Rs 56,56 crore had been collected as premia. The relief paid out was Rs 46.45 lakhs, pertaining in the main to one ‘accident’. This would make it seem that hardly any ‘accidents’ have happened. How frequent, really, are these accidents?
An explosion at the HPCL plant in Vizag in 1997 killed 60,  a 2008 chlorine gas leak in Tata Motors in Jamshedpur affected 150,  a 2012 Vishakapatnam Steel Plant blast killed 19, a 2002 chlorine gas leak from IPCL in Vadodara affected 250 – the list goes on, and on.
On 1 December 2014, when The Statesman published the first in this series of articles on the Bhopal gas disaster, alongside was a report: `48 ill after gas leak in township near Bhopal, three critical’. Anecdotal evidence indicates that there is very little to no awareness of the PLIA, and that it is seldom applied. It would be instructive to know if the PLIA has been invoked in this episode; there is reason to wonder. Unless rudely awakened, this law threatens to drown in deep slumber.
The National Environmental Tribunal Act 1995 (NETA) presents an extraordinary tale.  NETA was enacted to establish a tribunal to pronounce on cases “arising out of any accident occurring while handling any hazardous substances”.
Years passed, but this law enacted by Parliament was not notified; that is, it never came into being.
Truth is, it was never notified. In 2010, when the National Green Tribunal Act was passed, “relief and compensation” for death, injury or damage caused by ‘accident’ was brought into this law, and NETA was quietly repealed, and slipped away, unnoticed, unsung. No explanations sought in Parliament; none given.
As for corporate manslaughter, which has entered the realm of the probable with the Bhopal gas disaster, the law, and the law maker, continue to maintain an unbroken silence.

Even as this contest was on in court, the executive government, in its guise as the initiator of legislation, included a provision in the 1987 amendment which “reliev(ed)” the designer of plant and machinery of the “duty imposed” by the law once the ‘user’ gave a written undertaking that “if properly used” it would be safe and cause no harm. UCC’s defence became the law, even as the government claimed in court that UCC’s defence was unsustainable.
Then there was the second change made in the law which is difficult to explain. The Factories Act invests the Inspector of Factories with the authority to enter the premises of the factory to take samples of any substance that he thinks may “cause bodily injury to, or injury to the health of, workers in the factory”. It is possible that the sample, when tested, is suggestive that it may cause harm or injury. It would be natural to expect that such result should be communicated to all persons who may be at risk. Parliamentary wisdom veered off in another direction. Before 1987, anyone who disclosed the result of the analysis of the sample could be punished with imprisonment up to 3 months or a fine or both. In 1987, after the disaster had demonstrated how much damage could be caused to an unwary people in, and in the vicinity of, the factory, the penalty for disclosing this information was increased – to six months imprisonment or Rs 10,000 fine, or both!
In 1991, the Public Liability Insurance Act was enacted. This was meant to make provision for immediate relief to victims of disasters – re-named in the law as “accidents”. Industries dealing with hazardous substances were required to get themselves insured. Where death or injury resulted from an ‘accident’, victims were to be paid a sum specified in the law (a small sum, but still serving to recognise the victim) without waiting to establish fault, the harm and injury being the point. The Collector was required to publicise these provisions when such ‘accidents’ occur and ‘invit(e) applications’ for compensation.
Between 1992 and 2000, Rs 56,56 crore had been collected as premia. The relief paid out was Rs 46.45 lakhs, pertaining in the main to one ‘accident’. This would make it seem that hardly any ‘accidents’ have happened. How frequent, really, are these accidents?
An explosion at the HPCL plant in Vizag in 1997 killed 60,  a 2008 chlorine gas leak in Tata Motors in Jamshedpur affected 150,  a 2012 Vishakapatnam Steel Plant blast killed 19, a 2002 chlorine gas leak from IPCL in Vadodara affected 250 – the list goes on, and on.
On 1 December 2014, when The Statesman published the first in this series of articles on the Bhopal gas disaster, alongside was a report: `48 ill after gas leak in township near Bhopal, three critical’. Anecdotal evidence indicates that there is very little to no awareness of the PLIA, and that it is seldom applied. It would be instructive to know if the PLIA has been invoked in this episode; there is reason to wonder. Unless rudely awakened, this law threatens to drown in deep slumber.
The National Environmental Tribunal Act 1995 (NETA) presents an extraordinary tale.  NETA was enacted to establish a tribunal to pronounce on cases “arising out of any accident occurring while handling any hazardous substances”.
Years passed, but this law enacted by Parliament was not notified; that is, it never came into being.
Truth is, it was never notified. In 2010, when the National Green Tribunal Act was passed, “relief and compensation” for death, injury or damage caused by ‘accident’ was brought into this law, and NETA was quietly repealed, and slipped away, unnoticed, unsung. No explanations sought in Parliament; none given.
As for corporate manslaughter, which has entered the realm of the probable with the Bhopal gas disaster, the law, and the law maker, continue to maintain an unbroken silence.

The writer is a lawyer and an academic activist.

http://www.thestatesman.net/news/93322-legislation-of-a-complicit-state.html

Related posts

Leave a Reply

%d bloggers like this: