1

Abstract
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
enemy3.

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.

1
Dhyani S.N., Jurisprudence & Indian Legal Theory, Central Law Agency, 6 th edition, 2013, P. 90
2
Ibid. P. 91
3
Krishna Iyer, V.R., Environmental Pollution and the Law, 1994, P.93
 2

Introduction

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

4
Available at- http://www.greenpeace.org/usa/en/campaigns/toxics/justice-for-bhopal/ (accessed on 08-10-
2014)
5
Ibid.
6
‘Ward Morehouse and M. Arun Subramaniam, 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 Note 3
 3

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

Hypothesis

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.

Objective

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

Research Methodology

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

research.

9
M.C. Mehta v. Union of India, AIR 1987 SC 1109, at p.93
10
Available at http://www.brainyquote.com/quotes/quotes/w/williameg150992.html (accessed on 09-10-2014)
11
Available at https://www.scribd.com/doc/50885259/Principle-of-Absolute-Lilability (accessed on 09-10-
2014)
 4

Historical School v. Bhopal Gas Tragedy

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 India15, 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 Volksgeist17 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.

12
Supra Note 1, P. 71
13
Ibid.
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, 22 nd Edition, 2012, P. 28
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.
 5

Sociological School v. Bhopal gas Tragedy

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 ‘pactum unionis’ and ‘pactum subjectionis’ 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 parens patriae 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 India20 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.
61021but 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

18
Supra Note 1, P. 91
19
Quoted by Dias and Huges, Jurisprudence 415 (1975) as quoted in Dhyani S.N., Jurisprudence & Indian Legal
Theory, Central Law Agency, 6th edition, 2013, P. 91
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
 6

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 lake23, that used to be the ONLY source of drinking
water of Bhopal and continues to be so, to a great extent.

Legal Realism v. Bhopal Gas Tragedy

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

22
Ibid.
23
Available at http://www.ingrideckerman.blogspot.se/2013/12/29-years-since-bhopal-gas-catastrophe.html
(accessed on 09-10-2014)
24
Jhabvala N.H., The Elements of Jurisprudence, C. Jamnadas and Co., twenty fifth edition, 2013, P. 32
25
Ibid.
26
Supra Note 7, P. 254
27
Union Carbide Corporation V. Union of India 1989 1SCC 674
28
Ibid. 1989 3SCC 38
 7

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

29
The Indian Penal Code, Section 304-A which reads as “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
Charan Lal Sahu Etc. Etc vs Union Of India (1990 1 SCC 613)
 8

Conclusion

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.

31
Supra note 7, P. 263
32
Dust pollution: residents threaten direct action, The Hindu, September 14, 2014, P.3
 9

Bibliography

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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
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November 2010,
6. The Bhopal Saga—Causes and Consequences of the World's Largest Industrial
Disaster. India: Universities Press. ISBN 81-7371-515-7
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8. The Indian Penal Code
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