The Bhopal Act 1985, and the Doctrine of Parens Patriae

In one line

Parliament took every Bhopal victim's claim away from them and gave it to the Union of India, and the Supreme Court held that the State was entitled to do so as the parent of its citizens.

In the wording a student can write in an examination: the Bhopal Gas Leak Disaster (Processing of Claims) Act 1985, Act 21 of 1985, deemed to have come into force on 20 February 1985, provides by section 3 that the Central Government shall, and shall have the exclusive right to, represent and act in place of, whether within or outside India, every person who has made or is entitled to make a claim arising out of or connected with the disaster; section 4 preserves the claimant's right to have a legal practitioner of his choice associated at his own expense; section 5 gives the Central Government the powers of a civil court; section 6 provides for a Commissioner for the welfare of the victims; section 8 excludes from limitation the period after a claim is registered; section 9 empowers the framing of a Scheme; and section 11 gives the Act overriding effect.

Why Parliament had to do it

The problem the Act solves is not obvious until it is stated. Some two hundred thousand people had claims. Most could not read, few could afford a lawyer, none could sue in New York, and the defendant was a corporation in another country with the resources to litigate for a generation. An American court would not entertain a class of unnamed Indian villagers, and an Indian court could not compel a foreign corporation to appear.

There were only two ways out. Either the victims were left to litigate, in which case the fastest of them might recover in twenty years and the rest never. Or the State took the claims over and sued as one plaintiff. Parliament chose the second, and the choice is the reason this Act is on a syllabus about environmental legislation rather than in a footnote.

Section 2, the definitions

The disaster, in clause (a). The occurrence on the 2nd and 3rd days of December 1984 which involved the release of highly noxious and abnormally dangerous gas from a plant in Bhopal, being a plant of Union Carbide India Limited, a subsidiary of Union Carbide Corporation, U.S.A., and which resulted in loss of life and damage to property on an extensive scale.

The parenthesis matters. The plant was the Indian subsidiary's; the defendant sued was the American parent. Piercing that distinction was the central legal difficulty of the whole litigation, and the definition records it in the statute.

Claim, in clause (b), is very wide. Compensation or damages for loss of life or personal injury suffered or likely to be suffered; damage to property sustained or likely to be sustained; expenses incurred or required to be incurred for containing the disaster or mitigating or otherwise coping with its effects; and any other claim, including a claim for loss of business or employment, arising out of or connected with the disaster.