Bhopal Gas Tragedy vis-à-vis Schools of Jurisprudence

By Ayush Jaiswal, DSNLU

Editor’s Note: The landmark judgment of Union Carbide Corporation v. Union of India, better known as the Bhopal Gas Tragedy case, involving a leak of methyl isocyanate and resulting in the death and injury of thousands, is considered one of the worst industrial disasters of all times. The gross negligence on the part of the company elicited the Supreme Court to coin the doctrine of absolute liability, which stated that if anything dangerous which is likely to cause mischief escapes from a person’s land, he is absolutely liable for any damages caused due to such escape. This paper analyses the Bhopal Gas Tragedy in the context of various schools of jurisprudence.


Leon Duguit, a French jurist believed that scientific progress can be accelerated by individual behaviour in order to satisfy common social needs and interests.[1] Duguit rejected the prevailing concept of state, sovereignty, law as command, or a free human will and said that the basis of law is the fact of social and natural interdependence of individuals and groups upon each other. According to his social solidarity theory, a man, if wishes to live in a society, he must act in conformity with social law and solidarity which are the moral duties. He says ‘ Man must so act that he does nothing which may injure social solidarity upon which he depends, and more positively, he must do all which naturally tends to promote social solidarity.[2]

The Indian Legal System seems to agree with this theory of Duguit. The constitutional provisions relating to fundamental rights and duties give an idea as to how a person is expected to comply with his fundamental duties to ensure the protection of other’s fundamental right. However, what happened in the heart of the state of Madhya Pradesh on the night of 2nd and 3rd December, 1984 was per contra to the social solidarity theory. A foreign company, engaged in producing pesticides leaked tons of poisonous Methyl Isocyanides in the environment thereby causing death of some 25000 odd people and injuring more than 2.5 Lakhs. It has rightly been said that man is nature’s best promise and worst enemy[3].

For any developing nation, development process is necessary but not at the cost of exploitation of environment. A few number of cases and judicial decisions based on the social solidarity theory are analysed in the present paper.


In the last few decades the large scale environmental degradation has caused global concern about the conservation and protection of life on the earth. One such being the Bhopal Gas Tragedy- one of the worst industrial disasters that took place on the night of 2nd December, 1984, with a massive leak of methyl iscocyanate (MIC), a highly toxic gas by the Union Carbide Corporation’s factory at Bhopal which was engaged in production of pesticides.[4] About 40 tons of the poisonous gas created a cloud over the resident population of more than half a million.[5] This resulted in death of 20,000 people and disablement of more than 200,000 persons.[6] The gas not only affected the living, but also the future generations.

As a result of high level of conspiracy between the Union Carbide Corporation Limited, American Government and the Government of India, the chairman of Union Carbide Corporation Mr. Warren Anderson was secretively taken away from Bhopal on a government plane and was allowed to leave the country.[7]

Indian Democracy has witnessed enormous problems in the last several years. We have entered into 21st century with high technologies, projects with multinational companies, industries, high spirited globalisation and contemporary scientific and technological inventions, new government policies, but in the field of environmental protection we are still lagging behind. One of the reasons is that as a nation we lack discipline and a sense of duty. A nation without social discipline and political will to properly implement the laws cannot progress. It has rightly been said that man is nature’s best promise and worst enemy.[8]

Malpractices in every sphere are rampant and people are hardly bothered to get out of the rut unless some serious incidence takes place. As far as social discipline is concerned the less said is better; although social discipline is nothing but respect for law. There is no doubt that economic development is essential for country’s progress but should not be allowed at the cost of wide-spread devastation of environment. It is said that the conflict between environment and development is the hallmark of sustainable development. The real wealth of any nation and any region lies in the well-being of its people. The development of the society is analysed in terms of people’s participation in the activities and how far they benefit from it.

In the recent past we are hearing about environmental legislation which is no different from the goal set out in our constitution. There is no doubt that the technological inventions and progress has over powered nature, it has also resulted in the thoughtless exploitation of nature. If man is able to transform deserts into oasis he is also leaving behind deserts in the place of oasis.[9]


William E. Gladstone once said “What is morally wrong cannot be legally right”.[10] What was done by the UCC was not only morally but also legally incorrect. What added fuel to the fire was the careless attitude of government towards the victims, which was depicted in the way Anderson was helped to escape the country. Since ours is a federal state having three organs i.e. Executive, Legislature and Judiciary, people expected justice from the courts. The Courts not only administered justice to the victims, but also coined out the doctrine of ‘absolute liability.’[11] It can therefore be inferred that courts have been moulding the law in such a manner that the environment is protected and conserved.


To analyse the Bhopal Gas Tragedy Case vis a vis various theories of schools of jurisprudence.


The research methodology requires collection of relevant information through non-empirical research.


The Historical School of jurisprudence rejects the concept of law as a body of abstract, eternal and unchanging principles and evolves historical conception of development of law. Agreeing to the historical School, law cannot be made, rather it is found.[12] According to Montesquieu, laws are creations of climate, local situations, accident and imposture.[13] He seems to agree with the point that law is something that is evolved out of human experience of tackling problems that he is confronted with and the way justice is administered in such cases. In this context, Hon’ble Mr. Justice Thommen decorously said-

“The Indian Legal System is the product of history. It is rooted in our soil, nurtured and nourished by our culture, languages and traditions, fostered and sharpened by our genius and quest for social justice, reinforced by history and heritage”[14]

In the case of MC Mehta v. Union of India[15], the Indian Courts were given the first opportunity to review and evolve laws relating to environment protection. The petitions relating to Bhopal Gas Disaster influenced the judiciary considerably. As a result of this, the doctrine of Absolute liability was brought into existence by the courts, under which, the escape of something collected by a person on his land which is inherently dangerous or would cause mischief by escape would be liable absolutely for the damages caused by such escape.[16] Before the concept of absolute liability, these cases were tackled with the doctrine of strict liability which allowed the wrong-doer to claim defences so as to escape or reduce the liability. This shows how experience and need of administrating justice evolves law.

The above mentioned is an example, wherein the ideology of historical school and Savigny’s theory of Volksgeist[17]had been applied and the law was moulded and given a more strict nature, so as to make it march in tune with the society.


The Social Solidarity Theory

As per the social solidarity theory of Leon Duguit, man, being a social animal is dependent on the society for fulfilment of his needs. If he has to live in the society, he must act in conformity with the social law of solidarity.[18] Solidarity is nothing but moral duties. He says, “Man must so act that he does nothing which may injure social solidarity upon which he depends, and more positively, he must do all which naturally tends to promote social solidarity”[19]

What was done by the Union Carbide Corporation and the Indian Government not only hampered social solidarity but also shook the concept of social contract. The way Anderson was helped to escape India and go scot free, by the so called ‘leaders’ has raised a question on  ‘pactumunionis’ and ‘pactumsubjectionis’of the social contract theory of Rousseau , Hobbes and Locke. The leaders who were elected to defend the life, property and liberty of people sided with the wrong doer, keeping aside the ideals of truth, dharma and justice. ‘Cherry on the cake’ was The Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 which was passed to make the union government representative of the victims of the Bhopal Gas Tragedy and filing suits on behalf of them. Though the Act was passed in conformity with parenspatriae doctrine which obliges the state to protect its citizens, the intent seems to be different. The government in the form of this Act got the legal shield to commit something that cannot be said to be legal. Though the court got an opportunity to review this Act in Charanlal Sahoo v. Union of India[20]but it failed to recognise that the Union of India was colliding with the Union Carbide Corporation and compromising the interests of the victims.  The fault cannot be said to have been from the government’s side only, the management of the ‘killer’ factory is equally responsible; Contrary to the safety rules, Union Carbide factory stored not only stored 42 tons of Methyl Iscocynide in tank No. 610[21]but also failed to prevent the pipelines and tank from corrosion, which accelerated the reaction between MIC and water that entered the tank due to ‘mistake’ from company’s side.[22] This cannot merely be termed as mistake; rather negligence is more appropriate term. It can be logically deducted according to the social solidarity theory, that every member of the society is expected to take reasonable measures and care to ensure that the life of other members of the society is not endangered. However, failure of the UCC to take reasonable care to ensure that the dangerous chemical doesn’t escapes has kept the principles of social solidarity theory at stake.

This disaster has however, made people act in conformity with the idea of Roscoe Pound that law is a social process of adjusting, compromising and balancing of social and individual interests. Social interests have been made to learn to adjust and compromise before individual interests! Not only the social interest of people of those times was sacrificed, but also the interest of generations to come was kept aside by allowing the toxic waste of the killer factory to be dumped in the upper lake[23], that used to be the ONLY source of drinking water of Bhopal and continues to be so, to a great extent.


A version of legal realism was one, which was propounded by Salmond, who believed that all law is not made by legislature; rather it is made and recognised by courts.[24] He contended that law is nothing but a prediction of what the courts will decide.[25]

On February 15, 1989, in a puzzling order containing no reasons at all, a constitutional bench of the Supreme Court of India, headed by the then Chief Justice, RS Pathak quashed “all criminal proceedings related and arising out of the disaster.”[26] The court gruffly closed the case with the observation: “We are of the opinion the case is pre-eminently fit for an overall settlement between the parties covering all litigations, claims, rights and liabilities, related to and arising out of the disaster”[27] A couple of months later, the Supreme Court realised the need to provide reasons for the rather ‘dismissal’ order that was passed. According to the separate decision, it was “the compelling need of urgent relief” which prompted the court to make the initial order.[28]

The above order and application of Law is an example of implementation of the Legal Realism. Though, according to the Indian Penal Code, causing death by negligence is an offence punishable with imprisonment of 2 years or fine or both,[29] a much wider and ambiguous interpretation and recognition was given by the court to the said law thereby allowing the UCC to escape criminal liability. Considering the judgment of the Supreme Court, it can be said that Salmond failed to realise that there is possibility of courts committing mistakes in recognising and interpreting law; rather, he would never have had expected the courts to cause something which may be termed as judicial blunder.

This judgment not only subjected the thousands of victims of the worst industrial disaster, but also recognised the law in an awry way, laying down a precedent enabling further miscarriage of Justice.

An interesting point that arises here is, the courts on one hand coined out the doctrine of absolute liability, holding the industry absolutely liable for damages; while on the other, allowed and admitted the defences of UCC. This is such situation, where the ideals of Historical School and Legal Realism clash! If this is what is the ‘law’ that we get after the experiences and accidents that a man is confronted with; and this is the way of administrating justice to the victims, it can safely be said that even the supporters of this theory would have given it a second thought.

“Though settlement without notice is not quite proper, to do a great right after all it is permissible sometimes to do a little wrong”[30]


After the Bhopal Gas disaster, judicial activism went into tailspin.This case declined the standards of judgments relating to environment to a great level. The way Bhopal Gas Tragedy’s case was handled by the judiciary, executive and the legislature, keeping aside the ideals of truth dharma and justice, shook the foundation of the constitution. It appeared more like b[u]y the people, F[a]r the people, of[f] the people! The authorities sacrificed the interest of the public to such a level that one can hardly imagine. Acts were passed to legalise the illegal, the responsible was helped to scamper and defences were accepted for the so called ‘no fault liability’. All the three organs of the government left the victims in lurches, marking a question mark on the theories of jurisprudence propounded by jurists. Though attempt was made by the court in conformity with the historic law school by coining out the doctrine of absolute liability, practical application of it could hardly be seen. This case could have been taken as a need to introduce laws for protection of environment thereby learning and teaching a lesson to the responsible (no doubt, it has done so!)the industrialists have been taught  a great lesson; if you can get away with Bhopal, you can get away with everything![31] What further worsens the situation is, no strict rules have been implemented to ensure the protection of environment and people. This is very well noticed in a similar incident occurring in Visakhapatnam of Andhra Pradesh, where the Visakhapatnam Port Trust, manually handles the cargo and blasts it as part of rock dredging in the inner harbour, thereby releasing huge amounts of dust in the environment which in turn is leading to respiratory problems.[32]The government however, is in no mood to pay heed to the problems.

This clears the fact that the attitude of the government has still not been changed, and the same cannot be expected in the near future.


  1. Dhyani S.N., Jurisprudence & Indian Legal Theory, Central Law Agency, 6th edition, 2013
  2. Krishna Iyer, V.R., Environmental Pollution and the Law, 1994,
  3. Jhabvala N.H., The Elements of Jurisprudence, C. Jamnadas and Co., twenty fifth edition, 2013
  4. Bangia R.K. Law of Torts, Allahabad Law Agency, 22nd Edition, 2012
  5. Has the Judiciary abandoned the environment?, Human Rights Law Network, November 2010,
  6. The Bhopal Saga—Causes and Consequences of the World’s Largest Industrial Disaster. India: Universities Press. ISBN 81-7371-515-7
  7. Dust pollution: residents threaten direct action, The Hindu, September 14, 2014,
  8. The Indian Penal Code
  9. (accessed on 08/10/2014)
  10. (accessed on 09/10/2014)
  11. (accessed on 09/10/2014)
  12. (accessed on 09/10/2014)

Edited by Sinjini Majumdar

[1]S.NDhyani., Jurisprudence & Indian Legal Theory,90(Central Law Agency, 6th edition, 2013)

[2]Ibid. at 91

[3]Krishna Iyer, V.R., Environmental Pollution and the Law,93 (1994)

[4]Available at- on 08/10/2014)


[6] ‘Ward Morehouse and M. ArunSubramaniam, The Bhopal Tragedy: A Report for the citizens Commission on Bhopal (1986; Council on International and Public Affairs, York)’ as cited in Gonsalves Colin, The Bhopal Conspiracy, Has the Judiciary abandoned the environment?, Human Rights Law Network, November 2010, P. 252

[7]Gonsalves Colin, The Bhopal Conspiracy, Has the Judiciary abandoned the environment?, Human Rights Law Network, November 2010, P. 252

[8]Supra 3

[9]M.C. Mehta v. Union of India, AIR 1987 SC 1109, at p.93

[10] Available at on 09/10/2014)

[11]Available at on 09/10/2014)

[12]Supra 1, at 71


[14]Byran Pestonji Gariwala v. Union of India, AIR 1991 SC 2234

[15]AIR 1987 SC 1086

[16]Bangia R.K. Law of Torts, Allahabad Law Agency, 28 (22nd Edition, 2012)

[17]According to Savigny’s theory of volksgeist, law is not something which can be made or altered arbitrarily by law makers. The contents of law are determined by the experience of people. It cannot be shaped by a legislator or a wise law-giver. He asserts that law is the instinctive sense of right possessed by every race or community. He viewed law as a part of social process and development which arises from silent forces which are not directed by arbitrary and conscious intention but operates in the way of customary law.

[18]Supra 1, at 91

[19]Quoted by Dias and Huges, Jurisprudence 415 (1975) as quoted in Dhyani S.N., Jurisprudence & Indian Legal Theory, Central Law Agency,91(6th edition, 2013)

[20]1990 1 SCC 613

[21]Eckerman, Ingrid (2005). The Bhopal Saga—Causes and Consequences of the World’s Largest Industrial Disaster. India: Universities Press. ISBN 81-7371-515-7


[23]Available at on 09-10-2014)

[24]Jhabvala N.H., The Elements of Jurisprudence, C. Jamnadas and Co., 32 (twenty fifth edition, 2013)


[26] Supra 7 at 254

[27]Union Carbide Corporation V. Union of India 1989 1SCC 674

[28]Ibid. 1989 3SCC 38

[29]Section 304-A,The Indian Penal Code, “Causing death by negligence.—Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

[30]Supra 20 at  705

[31]Supra 7, at 263

[32] Dust pollution: residents threaten direct action, The Hindu, 3 (Visakhapatnam, 14/09/ 2014)

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