Parens patriae refers to the inherent power and authority of a legislature to provide protection to the person and property of persons who are incompetent.
Verdict of the Supreme court after the review petition.
UCC contended that the scoring methods used by the doctors of MP Govt was more reliable than any results obtained by the clinical observations or the ongoing surveys.
UCC stated that the symptoms reported by victims in 50% of the cases for certain disorders were out of proportionExample of Dr H Weil- he claimed that the claims made by the victims were highly exaggerated.
Carbide’s main method of dealing with the medical evidence presented on behalf of victim groups was plain denial.Petitioners placed before the court expert studies that stated that MIC is the most potent sensory and pulmonary irritant.Paragraph “ the popn more than 3,00,000…..”
What is parens patriae?Pg 157 1st paragraphIt was contended that this act took away from the victims the right to be heard.
This view has been challenged on the grounds that a surrogate is acting in the best interests of the patient only if he tries to replicate the decisions that a patient would have made had she been capable.
This deprives the persons of their constitutional rights including the right to petition a court of law.Pg 160 explainThe principle on which usurpation of power by gov. was defended was that the Bhopal Act , had proved to be in the interest of the victims.
Answer: Because there was a certain degree of unease and skepticism that was expressed by the learned counsels of both the parties as they stated that there had ben uninformed and irresponsible criticism of the attempts to settlement.
Yet the people declared incompetent and irresponsibl were neither the multinational nor the government but the sufferers.
The fact is that examination of only half the claimants had been completed at the time that the court ordered settlement, and this through procedures highly questionable.3. It was made on the basis of a scoring system. Each symptom was given a score and finally these scores were aggregated. Scoring system used the analogy of organ y organ I injury rather than systematic damage. Patients who could not produce documentary evidence in the form of records of hospital admission, or proof of having been treated in the first few days of the gas disaster were declared uninjured regardless of the stage of their health.
Suffering, legitimacy and healing:The Bhopal Case
-Veena Das Presentation by Prabhav Sharma Hariharan Kumar
The Event The Litigation History The Construction of Medical Knowledge The Judicial Discourse The Sequel The Residue Conclusion
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.
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”.
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.
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.
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.
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 crores1988 • UCC appealed to the Supreme Court against the MP HC Order. • Judicial Order passed asking the GOI and UCC to settle at $470 million.
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
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.
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)
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.
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.
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.
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.
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.
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*
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.
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.
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.
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?
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 andsecure 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.
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?
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.
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?
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.
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.
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.
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.
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.
There was one unconnected moment in this wholeepisode: 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.
Date What happened?Dec 2-3, 1984 Leak of MIC from UCC, Bhopal Factory1985 Case initially pursued in New York District Court1986 Hearing begins in a Bhopal District Court1987 Appeal made by Carbide to Madhya Pradesh High Court1988 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 CourtDecember 1989 SC held the Bhopal Act as constitutional1990 Janata Government came into power