Bhopal Gas Peedith Mahila U.Sangat.&ors Vs U.O.I.

09 August 2012
Supreme Court
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BHOPAL GAS PEEDITH MAHILA U.SANGAT.&ORS Vs U.O.I.

Bench: S.H. KAPADIA,A.K. PATNAIK,SWATANTER KUMAR
Case number: W.P.(C) No.-000050-000050 / 1998
Diary number: 977 / 1998
Advocates: NAVEEN R. NATH Vs ANIL KATIYAR

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO.50 OF 1998

Bhopal Gas Peedith Mahila Udyog Sangathan & Ors. ... Petitioners

Versus

Union of India & Ors. ... Respondents

WITH

IA NOS. 62-63 OF 2011

CIVIL APPEAL NOS.3187 – 3188 OF 1988

O R D E R

Swatanter Kumar, J.

1. Unlike natural calamities that are beyond human control,

avoidable disasters resulting from human error/negligence prove

more tragic and completely imbalance the inter-generational

equity and cause irretrievable damage to the health and

environment for generations to come. Such tragedy may occur

from pure negligence, contributory negligence or even failure to

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take necessary precautions in carrying on certain industrial

activities. More often than not, the affected parties have to face

avoidable damage and adversity that results from such disasters.

The magnitude and extent of adverse impact on the financial

soundness, social health and upbringing of younger generation,

including progenies, may have been beyond human expectations.

In such situations and where the laws are silent or are

inadequate, the courts have unexceptionally stepped in to bridge

the gaps, to provide for appropriate directions and guidelines to

ensure that fundamentals of Article 21 of the Constitution of

India (for short “the Constitution”) are not violated.

2. The Bhopal Gas Tragedy is a glaring example of such

imbalances and adverse impacts, where by court’s intervention,

poor and destitute have been provided relief and rehabilitation.

3. The Bhopal Gas Leak Disaster occurred on the intervening

night of the 2nd/3rd of December, 1984. Data reflecting the exact

number of affected persons was not available initially. Earlier, it

was felt that only a small number of persons were adversely

affected in terms of health or otherwise by the leakage of toxic

gases from the Union Carbide Unit at Bhopal. However, the

Scientific Commission for Continuing Studies on Effects of Bhopal

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Gas Leakage on Life Systems (for short the ‘Scientific

Commission’) released a Report titled ‘The Bhopal Gas Disaster:

Effects on Life Systems’ in July, 1987 which suggested otherwise.

This Report stated that for the estimated population of 2,00,000

exposed to the toxic gases in the severely and moderately affected

areas of Bhopal and the variety of long-term problems anticipated

in the crisis period, the number of exposees covered so far by the

Indian Council of Medical Research (for short the ‘ICMR’) through

the epidemiological surveys constitute less than 20 per cent of the

population. With the passage of time, this figure of the affected

population has swollen to nearly 5,00,000. By the same Scientific

Commission, it was also found that in general, the output of the

epidemiological project so far had not equalled the magnitude of

the tasks assigned to them, presumably due to lack of resources,

trained staff as well as physical inputs. An opportunity for

mounting such a massive long-term longitudinal study on a

population exposed to a one-time acute chemical stress may not

present itself again and hence it would be a pity if that

opportunity was missed. Various steps were recommended by

the Scientific Commission, from time to time, to tackle the two

main aspects of this disaster. Firstly, health care of the affected

victims and secondly, research work with the object to deal with

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the acute problems arising from this disaster on the one hand

and to suggest preventive steps on the other.

4. Writ Petition (Civil) No. 50 of 1998 was filed by the Bhopal

Gas Peedith Mahila Udyog Sanghathan as a public interest

litigation under Article 32 of the Constitution. This petition was

founded on the rights available to the victims of the Bhopal Gas

Disaster under Article 21 of the Constitution and it was prayed

that they were entitled to receive free and proper medical

assistance from the respondents, the Union of India and the State

of Madhya Pradesh. It was also prayed that the respondents be

directed to take effective steps in that regard which inter alia

included providing of free medicines and preparing a detailed plan

of medical rehabilitation that ensured the availability of basic

medical facilities to the gas victims. Lastly, it was also prayed

that the ICMR be directed to resume and conduct research

studies and to make public the reports published by it so as to

provide the basic ground for issuance of appropriate directions by

this Court.

5. This Court has been passing various directions right from

the filing of this petition and has directed certain effective and

positive steps to be taken by the Union of India as well as the

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State of Madhya Pradesh to ensure providing of appropriate

medical treatment to the gas victims. It is no use referring to the

different orders passed by this Court from time to time in detail.

However, we will be referring to some of the important orders in

brief which have a bearing on the issue now pending before this

Court and for passing of the final directions.

6. To begin with, the ICMR had undertaken certain research

works immediately after the Bhopal Disaster and appropriate

steps had been taken, as claimed by the State and the Central

Government, to deal with the medical problems of the gas victims.

However, it appears from the record and has been averred before

us that after 1994, the ICMR allegedly took an irrational decision

to disband all Bhopal Gas Disaster related medical research.

This abandoning of research work has been seriously criticised in

the present petition. Certain appeals had been filed against the

order of the High Court of Madhya Pradesh which came to be

registered as Civil Appeal Nos. 3187-3188 of 1988, which were

subsequently clubbed with Writ Petition (Civil) No. 50 of 1998.

I.A. Nos. 32-35, 36-37 in Civil Appeal Nos. 3187-3188 of 1988

titled “Union Carbide Corporation Ltd. v. Union of India” were filed

for seeking different directions, upon which and vide order dated

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15th May, 1988, this Court directed creation of the Bhopal

Memorial Hospital and Research Centre (for short ‘BMHRC’) and

the Bhopal Memorial Hospital Trust (for short ‘BMHT/the Trust’)

which was constituted for the purposes of healthcare of the

affected gas victims. This hospital initially was to run for a period

of eight years which term was extended from time to time and

then finally, vide order dated 2nd May, 2006, the term was

extended till completion of its object. Further, vide order dated

17th July, 2007, this Court also sought report from the ICMR on

various toxic effects of the leaked gas.

7. This Court also, by order dated 17th September, 2004 passed

in Writ Petition (Civil) No. 50 of 1998, ordered the constitution of

two expert committees being the ‘Monitoring Committee’ and the

‘Advisory Committee’. The latter was formed by ICMR under the

Chairmanship of Director General of ICMR and its terms of

reference were as follows:

“(i) To examine the treatment practices currently followed by medical personnel in the hospitals/clinics run by the Government for the Bhopal Gas victims for the various ailments suffered by them.

(ii) To recommend/advise on the appropriate line of treatment to be offered to the Bhopal gas victims.

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(iii) To recommend/advise on the structure and content of the research to be undertaken in order to improve the quality of the treatment being offered to the Bhopal Gas victims.”

8. The Advisory Committee has been submitting its reports

from time to time and it was assured by the State Government

that the said Committee will be provided with all facilities and

technical inputs. Then, the ICMR conducted its research

investigation in the form of 24 major research projects ranging

from epidemiology to molecular biology implemented by 15

National Institutes. Vide letter dated 17th February, 2004, from

the Director General of ICMR to the Government of Madhya

Pradesh it was indicated that with respect to future needs for

research, ICMR would facilitate the Madhya Pradesh State

Government by constituting a Committee of experts which would

look into the work carried out between 1985 to 1994 as well as

the subsequent research by the Centre for Rehabilitation Studies

under the Bhopal Gas Tragedy Relief and Rehabilitation

Department (for short, the ‘BGTRRD’), Bhopal from 1995 till date,

so as to provide guidelines for future research. On 24th June,

2010, the Union Cabinet passed a resolution directing the ICMR

to establish a new permanent research centre at Bhopal which

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was done on 11th October, 2010, namely, the National Institute of

Research in Environment Health (for short the ‘NIREH’). The

research work is being continued by the ICMR, while it submits

its report to this Court from time to time. The vision document

was duly prepared by the NIREH.

9. In the background of this vision document, it is stated that

after the Methyl Isocyanate (MIC) gas episode at Bhopal, various

research programmes were conducted by the ICMR to monitor the

research programme and also to undertake long term

epidemiological studies to record the morbidity and mortality of

the cohort of gas exposed and control population.

10. In order to ensure smooth running of the BMHT, a corpus

had been created which was provided with funds and

contributions that were invested from time to time and the total

corpus, as of now, constitutes Rs. 436.47 crores. Out of this

amount, Rs.226.61 crores has been invested in RBI Bonds in

Banks, Rs. 196.54 crores in FDRs in Banks, Rs.11.65 crores in

the short term deposits in Flexi/Quantum in Banks and Rs.1.67

crores is the bank balance.

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11. During the pendency of this petition, various directions had

been passed by this Court to ensure smooth working of the Trust

in both the fields of health care and research work. We may refer

to some significant orders passed by this Court.

12. The surveys conducted by the ICMR, including the

epidemiological survey in 1994, showed multi-organ symptoms

amongst the persons exposed and there was tremendous increase

in symptoms exhibited by the affected persons. There was even

shortage of medicines and various representations were made

requesting improvement thereof. Vide order dated 17th

September, 2004, the Court had spelt out the terms and

conditions for the Monitoring Committee and the Advisory

Committee. It related to procedural matters, functioning and

terms of reference of the respective Committees. The paramount

functions of the Monitoring Committee were to monitor suitability,

availability and maintenance of medical equipments, deployment

of adequate and competent medical personnel, more specifically

the treatment offered at the hospitals and the functioning of these

hospitals run by the Government for the Bhopal Gas victims,

purchase and availability of medicines to the affected persons etc.

Similarly, the Advisory Committee, while determining its own

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rules of procedure, was to examine the treatment practices

currently followed by the medical personnel in the hospitals run

by the Government for these victims in relation to various

ailments suffered by them. Further, this Committee was to

recommend and advice on the appropriate line of treatment to be

offered to the Bhopal gas victims. It was further to recommend

and advise on the kind of medical equipments and medicines

required to be procured to improve the quality of treatment being

offered to the victims as well as to initiate and recommend

community health initiatives in health education and community

participation for prevention and care.

13. Then vide order dated 17th July, 2007, the Court directed

the State of Madhya Pradesh to take necessary steps for

computerising the records of the hospital so that the details of the

patients and/or their ailments were made permanent record to

ensure their proper treatment in future. One of the factors which

invited the attention of the Court at that time was that the

patients who were not the victims of the gas tragedy had also

started coming to the hospital, which led to passing of an order

wherein the Court required the Monitoring Committee to submit a

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report if the treatment facilities afforded to such patients were

adversely affecting the treatment of the gas victims.

14. Various reports were submitted by the two Committees

afore-mentioned which were considered from time to time by this

Court. Vide order dated 15th November, 2007, the Court had

called upon the State of Madhya Pradesh to provide answers to

the questions which were raised by the Monitoring Committee

which was overseeing the functions of the hospital and the

research work. Report was also sought from the ICMR on various

toxic effects of the gas.

15. Thereafter, because of certain events, the Chairman of

BMHT resigned. The co-ordination and smooth functioning of

these units was found to be lacking and many applications in this

regard were filed before the Court. As already noticed, the Court

had directed setting up of a hospital for treatment of Bhopal Gas

victims vide its order dated 15th May, 1988 in furtherance to

which the hospital was established and even the Trust was

registered on 11th August, 1988. There existed uncertainty in the

decision making process. The Attorney General for India made a

statement that the Union of India had decided to take over the

BMHRC and run it through Department of Biotechnology and

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Department of Automic Energy. In furtherance to this

statement, the Court disposed of I.A. No. 58-59 of 2009 and vide

its order dated 19th July, 2010, the Court directed the Central

Government to take steps for winding up the Trust and taking

over the management of the hospital.

16. Thereafter, certain IAs came to be filed before this Court. In

these IAs, different parties had prayed for issuance of different

directions in relation to the working, management and control of

BMHRC. IA Nos.62-63 of 2011 in Civil Appeal Nos.3167-3188 of

1988 have been filed with the prayer that the Union of India be

directed to take charge of the corpus funds of the erstwhile BMHT

through its Department of Biotechnology and Department of

Atomic Energy and transfer the accounts of BMHT to the new

management. It was also prayed that the management of the

erstwhile BMHT be relieved of all its responsibilities pertaining to

management of the corpus and new authorised signatories be

appointed for its accounts. One of the petitioners in the main

petition filed an application being IA No. 14 of 2012, primarily

relying upon the letter written by Dr. Sathyamala, (Member,

Advisory Committee) to Dr. P.M. Bhargava, (Member, Advisory

Committee and Chairperson of the Task Force). It was prayed

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that the same be taken on record and the Advisory Committee be

directed to submit minutes of its meetings dated 13th August,

2009, 22nd September, 2010 and 10th December, 2011. Petitioner

Nos.1 and 3 have filed IA No.16 of 2012 wherein they have prayed

for issuance of certain directions. In this application, it has been

stated that the Monitoring Committee in its reports dated 10th

June, 2005, 31st October, 2005, 12th July, 2006, 20th December

2006, 7th August, 2007 and 27th May, 2008 have consistently

recommended computerization of the hospital records and

issuance of ‘health booklets’ to the gas victims. It is averred that

recommendations of the Advisory Committee have not been

complied with by the State Government, the ICMR and even the

Union of India. They have also made a suggestion for issuance of

‘smart cards’ to the gas affected victims besides issuance of

proper health booklets. The NIREH, as established by the ICMR,

though was a welcome step, according to these applicants much

is desired of the functioning of NIREH. The allegation is that the

decision makers at the ICMR are doing everything on their part to

ensure that the crucial issues affecting the life and health of the

gas victims remain unaddressed at a macro level. All the

concentration presently is on building the infrastructure for the

NIREH. On this premise, the applicants have prayed that the

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orders of the Court should be complied with by the State of

Madhya Pradesh as well as the ICMR for issuance of ‘health

booklets’ and ‘smart cards’ to the affected persons. They also

prayed for adoption of a common referral system among various

medical units under BMHRC and under the BGTRRD so that the

gas victims are referred to the appropriate centres for proper

diagnosis, investigation and treatment in terms of the nature and

degree of injury suffered by each one of them and also in terms of

therapeutic requirements. They also prayed that NIREH be

directed to set up completely computerized and centrally

networked Central Registry, to maintain proper medical records of

all gas victims, to streamline and intensify epidemiological studies

among the gas-affected population and to prepare treatment

protocol for treating each category of ailment that the gas victims

are suffering, such as respiratory diseases, eye-related diseases,

gastro-intestinal diseases, neurological diseases, renal failure,

urological problems, gynaecological problems, mental disorders,

etc.

17. In other IAs/ replies filed on behalf of different parties, it has

been pointed out that the Monitoring Committee should have the

jurisdiction over all hospitals, including non-governmental

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hospitals and clinics in Bhopal. They should also be vested with

powers of recommending penal action against the persons who

are found to be defaulting in carrying out the appropriate

treatment or following the directions of the Monitoring Committee

from time to time. It has also been prayed that the research work

could be carried out by private laboratories or private research

units besides the research work being carried on by the ICMR

and/or its established unit. It was also brought out from the

record before the Court that there is no co-ordination between the

various functionaries dealing with this tragedy and, in fact, the

views of the Advisory Committee are not given due weightage by

the implementing agencies, thereby adding to the suffering and

agony of the affected parties.

18. No doubt, the BMHT was established for providing medical

treatment and care to the gas victims. Both the Monitoring

Committee and the Advisory Committee, appointed by this Court,

had different earmarked areas of their respective operation,

though their aim was common. The Advisory Committee was

required to advise as per its expertise on matters which the

implementing agencies, i.e., the Trust as well as the State

Government, were expected to perform. On the other hand, the

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Monitoring Committee was required to oversee the functioning of

the research work as well as the timely providing of medical care

and treatment to the gas affected victims. Functions of each of

these bodies were sufficiently and unambiguously spelt out in

different orders of this Court. After submission of the reports by

the respective Committees, this Court had also passed various

directions for the better and improved performance of these units,

so as to ensure better medical care and requisite treatment to the

gas victims.

19. As we have already noticed, with the passage of time this

disaster has attained wider dimensions and greater concerns,

which require discharge of higher responsibilities by all the

agencies. In terms of Article 21 of the Constitution, all the gas

victims are entitled to greater extent of multi-dimensional health

care, as their sufferings are in no way, directly or indirectly,

attributable to them. It was, primarily and undoubtedly, the

negligence on the part of the Union Carbide Ltd. that resulted in

leakage of the MIC gas, causing irreversible damage to the health

of not only the persons affected but even the children who were

still to be born.

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20. The first and foremost question that arises for consideration

of this Court is as to whether this matter should be kept pending

before this Court or should it be transferred to an appropriate

forum, including the High Court, for a more effective and

purposeful management of these institutions and to ensure that

they satisfactorily serve the purpose of ‘public service and benefit’

for which they have been constituted. Various applications filed

before this Court and reports submitted by the Committees, as

afore-referred, are to provide requisite help to the gas victims, as

it is not possible for the poor victims to approach this Court for

issuance of appropriate directions from time to time. This Court

has already ordered providing of basic requirements and

constitution of Advisory Committee and the Monitoring

Committee. While the management of BMHT was taken over by

the Union of India, through Ministry of Health and Family

Welfare, the hospital was to run under the direct control of

Department of Bio-Technology and Department of Atomic Energy

and subsequently, the hospital was also placed under the control

of the Ministry.

21. In our considered opinion, it will be appropriate that day-to-

day directions are passed by a jurisdictional High Court. Such

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Court would be in a better position to appreciate the

requirements of the gas affected victims as well as to exercise

better control over the functioning of the said Committees and

organizations. Such direct control would improve the functioning

of these units and their inter and intra co-ordination resulting in

better mutual performance. Therefore, we consider it not only

desirable but also in the interest of all concerned that this matter

should henceforth be dealt with by the High Court of Madhya

Pradesh, Bench at Jabalpur.

22. In addition to the directions issued by this Court from time

to time, it is also necessary for this Court to pass some further

directions to provide clarity and precision and also to ensure

effective implementation of the various orders which shall remain

an integral part of this wide scheme sought to be enforced for the

betterment of the gas victims. As far as the argument that there

should be privatization of the research work and the Monitoring

Committee should be empowered to have control over all

hospitals where the gas victims may go for treatment, including

private hospitals and clinics of Bhopal is concerned, the same is

without any substance. We are of the considered opinion that it

would neither serve the ends of justice nor the interest of the gas

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victims. On the contrary, there would be multi-differential

research without any substantive result. Furthermore, the

Monitoring Committee has been constituted by this Court vide its

order dated 17th September, 2004, with a definite object and

specifically assigned functions and terms of reference. There is

no justification, much less any need, for expanding the scope of

its functioning or bringing the private hospitals/clinics within the

jurisdiction of this Empowered Monitoring Committee. Both these

prayers, thus, need to be declined, which we do hereby decline.

23. Certainly, there are certain other matters which require

attention of this Court. Matters in relation to better co-ordination

between the functioning of the authorities, issuance of ‘Health

Booklets’ and ‘Smart Cards’ to the gas victims, computerization of

medical records of the hospitals, taking over of corpus of the

BMHT, management of the Trust and certain matters where the

State of Madhya Pradesh has failed to effectively accept the

recommendations of the Committees, are some of the matters

where we would have to issue certain further directions. From

the record before us, it appears that the meeting of the Monitoring

Committee was held on 29th March, 2011. In this meeting, the

Committee proposed that further powers be vested in it for

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improving the quality of medical care available to the Bhopal gas

victims. The proposal of the Committee reads as under :

“The Monitoring Committee for Medical Rehabilitation of Bhopal Gas Victims proposes to have the following powers to be vested upon it by the Hon’ble Supreme Court for improving the quality of medical care available to the Bhopal Gas Victims.

1. Powers to take up matters on the basis of complaints made by any individual gas victim or representatives of organization of gas victims. Such complaints may be against any individual official of the department of Bhopal Gas Tragedy Relief and Rehabilitation or any employee in the hospital and other health care centers meant for medical care of gas victims or employed by any agency that is working under the Department of Bhopal Gas Tragedy Relief and Rehabilitation.

2. Powers to direct the concerned department of the State government to ensure facilities such as sufficient office space with furniture and furnishings, office staff including one secretary and one doctor to act as coordinating officer and one each of Hindi and English stenographer-cum- typist and one peon and for transportation of members one vehicle with seating capacity for at least five persons.

3. There should be provision of payment of honorarium to members of the committee and also to other persons

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who are assigned some specific job by the Committee. It is proposed that Rs.1,000/- per meeting or hospital inspection may be granted.

4. Powers in respect of the following matters namely :- (i) Requisitioning any official

document or inspect any official records that the Monitoring Committee finds relevant.

(ii) To ask concern institutions and/or officers for their examination and record their view.

(iii) This Committee should have the facilities of collection of sample of medicine etc as may be required from time to time for detailed examination for this drug controller may be requested for these. Collection samples of medicines, food and other items that may be necessary for assessment of quality of medical care provided at the health care facility. Drug controller may be requested to depute drug inspector for collecting sample etc. to complete the process of inquiry wherever it may be necessary.

5. Powers to recommend penal action against any officer who without any reasonable cause has failed to implement the recommendations of the Monitoring Committee within the time limit prescribed.

6. Powers to award studies to selected agencies (that could include non- government agencies) is may be

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required from time to time for proper assessment of the quality of care provided at different health care facilities within the jurisdiction of the Monitoring Committee.

7. Powers to engage the services of experts in different fields for assessment of quality of care for implementations of recommendations made by the Monitoring Committee.

8. Powers to call for public hearing for recording and redress of grievances and creating awareness about the activities of the Monitoring Committee among the Bhopal Victims.

The Monitoring Committee for Medical Rehabilitation of Bhopal Gas Victims shall have jurisdiction over all the hospitals, clinic, day care centres and other health care units and centers meant for the medical rehabilitation of the Bhopal Gas Victims including those run by the Department of Bhopal Gas Tragedy Relief and Rehabilitation.

The foregoing power and functions of the Authority shall be subject to the supervision and control of the Hon’ble Supreme Court. The direction of the Hon’ble Supreme Court dated 10.01.2011 would be taken into consideration by the Monitoring Committee.”

24. These recommendations of the Monitoring Committee have

been answered by the State by filing an independent reply. In this

reply, it has been stated that the recommendation with regard to

jurisdiction over all hospitals and clinics is contrary to the terms

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of the order of this Court dated 17th September, 2004. The power

to receive complaints from the affected parties has already been

permitted. The Monitoring Committee is also empowered to

conduct hearing and collect evidence by requisitioning of the

records and examination of the officers from various departments

and the hospital. The State also has no objection to the

Committee collecting the samples of medicines in accordance with

the provisions of the Drug and Cosmetics Act, 1940 and the Drug

and Cosmetics Rules, 1945. It is also the stand of the State

Government that they have implemented most of the directions

issued by the Monitoring Committee.

25. Another aspect that has been brought to the notice of this

Court is that adequate space for office of the Monitoring

Committee is not available. This makes it difficult for the public to

gain accessibility to the small space that has been provided by the

State to the said Committee. This is hampering its functioning in

accordance with the orders of this Court.

26. It is commonly conceded before us that the corpus money

stands completely transferred to the Ministry of Health and

Family Welfare, Department of Health Research (for short ‘DHR’)

and they have also taken over the management of BMHRC.

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27. Thus, it is necessary for us to deal with the various prayers

made in the above application and the background leading to the

filing of such application in its correct perspective. We have to

take a balanced approach which would further the cause of

accurate research and better medical care in favour of the gas

victims. The Union of India has already passed a resolution

directing the ICMR to establish a permanent research centre at

Bhopal which, as already noticed, has already been established in

the name of NIREH. This itself is sufficiently indicative of the

intent of the Government of India to provide and procure

necessary machinery for research related works as well as to

further the process of getting much needed scientific manpower

and research, which can contribute in research activities relating

to gas affected persons.

28. The Advisory Committee is performing its advisory function

continuously. Definite replies had been filed on behalf of the State

of Madhya Pradesh and the Government of India ensuring their

full cooperation and complete implementation of the

recommendations of these Committees, so as to provide adequate

medical facilities to the affected persons and the completion of the

research work.

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29. As already noticed, suggestions made by the Monitoring

Committee in its Report dated 29th March, 2011 have been

broadly accepted by the State of Madhya Pradesh, except for two

of such proposals. The reservation of the State Government on

the issue of assistance of non-governmental organisation and

experts from outside in assessing the quality of care and research

work, appears to be for valid and good reasons. We wish to make

it clear that the recommendations of the Empowered Monitoring

Committee, as afore-mentioned, shall not be deemed to have been

accepted by this Court, except where directions in that behalf

have been specifically passed by this Court in the operative part of

this order.

30. Vide letter dated 12th April, 2012, the ICMR while making a

reference to the order of this Court dated 19th July, 2010 had

informed that the administrative control of BMHRC, after winding

up of BMHT, had been transferred to the DHR, Ministry of Health

and Family Welfare, Government of India and all other matters,

including administrative, financial and legal, pertaining to

BMHRC would be dealt with by the DHR. All documents were also

admitted to have been transferred, except the corpus of the Trust.

It was suggested that the Corpus of BMHT with accumulated

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interest along with original documents/receipts be transferred to

the Secretary, DHR-cum-DG, ICMR and it was also stated that

BMHT had been wound up as per the directions of this Court with

effect from 19th July, 2010.

31. The BMHT had been constituted under the Deed of Trust

dated 11th August, 1998. Since then, it had carried on its

activities under the guidance of the Monitoring Committee, the

Advisory Committee and as per the orders of this Court. The

BMHT was to remain irrevocable for all times and the Trust Deed

was to be construed and have effect in accordance with the Indian

laws as per the terms and conditions of the Trust.

32. In terms of the clauses of this Deed, initially the Trust was to

stand possessed of the Trust property and income thereof. This

possession was to remain both during and after termination of the

said period of eight years for the purposes and objects stated

therein, which primarily were related to providing for

infrastructure of the hospital and grant of medical aid to the poor,

without distinction of race, caste or creed to the gas affected

victims.

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33. The accounts of the Trust had been audited and the

chartered accountants submitted their Report dated 15th July,

2011 pointing out no irregularity or objections to the accounts of

BMHT. This Report was submitted to the Members of the

Governing Body of the BMHT. In the opinion of the Chartered

Accountants, the balance sheet of the state of affairs of BMHT

upto 19th July, 2010 along with accounts giving the required

information, gave the true and fair view and was in complete

conformity with the accounting principles generally accepted in

India. Similar remarks have been made in regard to the Income

and Expenditure Account wherein an excess of income over

expenditure can be seen for the said period.

34. It would still be in the interest of BMHT itself, particularly

when the management and the corpus of the BMHT have been

transferred to the Union of India that the Government agency,

besides regularly inspecting the accounts of the BMHT, also gave

their final report for the period ending July 2010. The Auditor

General of the State of Madhya Pradesh would be the appropriate

authority to inspect the accounts of the BMHT regularly even

when the management and corpus thereof is transferred to the

Union of India.

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35. Having noticed in detail the factual aspect of this case, the

suggestions made by various applicants, recommendations of the

expert bodies and keeping in mind the very object for which the

present Public Interest Litigation was instituted, we are of the

considered view that issuance of certain specific directions are

inevitably called for. These orders would be to ensure proper

progress and implementation of the ‘Relief and Rehabilitation

programme’ for the penurious gas victims as well as to ensure

that the research work is result-oriented and continued with

exactitude. We make it clear that these directions shall be in aid

of the various orders passed by this Court from time to time in the

present petition and not in derogation thereto. In other words, all

orders passed by this Court with specific reference to the orders

mentioned above, shall be read mutatis mutandis to these

directions and shall remain in force. The orders-cum-directions

are :

1) This Public Interest Litigation (Writ Petition (Civil) No.50 of

1998) shall stand transferred to the jurisdictional Bench of

Madhya Pradesh High Court for better and effective control

in this case. All applications filed henceforth shall be dealt

with and disposed of by the concerned Bench of the High

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Court, in line with the various orders passed by this Court,

so as to ensure proper functioning of the ‘Relief and

Rehabilitation Programme’, working of the expert bodies

and utmost medical care and treatment to the gas victims.

2) We request the Chief Justice of the Madhya Pradesh High

Court to ensure that the case is dealt with by a Bench

presided over by the Chief Justice himself or a Bench

presided over by the senior most Judge of that Court or any

other appropriate Bench in accordance with the High Court

Rules of that Court or any special legislation governing the

subject in that behalf.

3) Since the space already provided appears to be insufficient,

the State of Madhya Pradesh is hereby directed to ensure

provision of proper and adequate office space for the

Monitoring Committee and the Advisory Committee, to

perform their functions effectively. The space so provided

should be accessible to public so that the gas victims can

conveniently approach the Monitoring Committee for

redressal of their grievances and difficulties.

4) We also direct the State Government to provide proper

infrastructure to the Committees in the independent office

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space provided to it. The members would also be entitled to

receive Rs.1,000/- honorarium for each effective meeting.

However, no honorarium shall be payable on a day when

the meeting is adjourned or no effective business is

performed in the meeting of the Committee.

5) The Monitoring Committee has already been authorised and

it is hereby clarified that it would hear the complaints and,

if necessary, can even call for the records from the

concerned hospital or department, record the statements of

Government servants or employees of the hospital and

make its recommendations to the Government for taking

appropriate steps. If no action is taken by the State

Government even upon a reminder thereof, the Committee

would be well within its jurisdiction to approach the High

Court for appropriate directions. We make it clear that the

Empowered Monitoring Committee shall have no penal

jurisdiction. It shall discharge its functions strictly within

the framework of the powers vested and functions awarded

to it under the orders of this Court. Such suggestions of the

Monitoring Committee shall be primarily recommendatory

and reformative in their nature and content.

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6) The Empowered Monitoring Committee shall have complete

jurisdiction to oversee the proper functioning of the

hospital, i.e., BMHRC as well as other Government

hospitals dealing with the gas victims. This jurisdiction

shall be limited to the problems relateable to the gas victims

and/or the problems arising directly from the incident or

even the problems allied thereto. We make it clear that the

Empowered Monitoring Committee shall have no

jurisdiction over the private hospitals, nursing homes and

clinics in Bhopal. However, it does not absolve the State of

Madhya Pradesh and the Medical Council of India from

discharging its responsibilities towards the gas victims who

are being treated in private hospitals, nursing homes or

clinics. We do expect these authorities to hear the

grievances of the complainants as well as to ensure

maintenance of due standards of treatment in these

hospitals, nursing homes or clinics.

7) We direct the ICMR as well as NIREH to ensure that the

research work is carried on with exactitude and

expeditiousness and further to ensure disbursement of its

complete benefit to the gas victims. We do not permit the

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research work to be carried out by any private/non-

governmental institution, except the ICMR and NIREH.

8) The Government of India has already resolved to establish

the NIREH and carry on the research work, for which it has

been provided due infrastructure. Thus, we see no reason

why the research work should not progress at the requisite

pace in all fields while providing benefits for proper care

and treatment of patients in the various hospitals in

Bhopal. We further issue a clear direction to the Union of

India and the State of Madhya Pradesh to render all

assistance, financial or otherwise, to ensure that there is no

impediment in the carrying on of the research work by the

specialized institutions.

9) The Monitoring Committee must operationalize medical

surveillance, computerization of medical information,

publication of ‘health booklets’ etc. The Monitoring

Committee shall also ensure that the ‘health booklets’ and

‘smart cards’ are provided to each gas victim irrespective of

where such victim is being treated. This direction shall

apply to all the hospitals run by the Government or

otherwise, in Bhopal. We direct the State Government to

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provide assistance in all respects to the Empowered

Monitoring Committee and take appropriate action against

the erring officer/officials in the event of default.

We also direct complete computerization of the medical

information in the Government as well as non-government

hospital/clinics, which should be completed within a period

of three months from today.

10) We are informed that there are large number of vacancies of

doctors and supporting staff in the hospitals and allied

departments. In the BGTRRD, 80 per cent posts of

specialists and 30 per cent of doctors are lying vacant.

Some posts are also lying vacant in the Fourth Grade staff.

Thus, we direct the concerned authorities to take

appropriate steps in all respects not only to fill up these

vacancies but also to provide such infrastructure and

facilities that the doctors are not compelled to or prefer to

resign from BMHRC employment and its various

departments, due to inadequate facilities.

11) The Union of India, the State Government and the ICMR

should even consider the proposal for providing autonomy

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to BMHRC and even make it a teaching institution so as to

provide attractive terms, studies and job satisfaction

therein. This will not only help in providing better

opportunities of employment but would better serve the

purpose of providing care and treatment of high quality to

the gas victims.

12) It is indisputable that huge toxic materials/waste is still

lying in and around the factory of Union Carbide Corp. (I)

Ltd. in Bhopal. Its very existence is hazardous to health. It

needs to be disposed of at the earliest and in a scientific

manner. Thus, we direct the Union of India and the State

of Madhya Pradesh to take immediate steps for disposal of

this toxic waste lying in and around the Union Carbide

factory, Bhopal, on the recommendations of the Empowered

Monitoring Committee, Advisory Committee and the NIREH

within six months from today. The disposal should be

strictly in a scientific manner which may cause no further

damage to human health and environment in Bhopal. We

direct a collective meeting of these organizations to be held

along with the Secretary to the Government of India and the

Chief Secretary of the State of Madhya Pradesh within one

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month from today to finalize the entire scheme of disposal

of the toxic wastes. The above direction is without prejudice

to the appropriate orders or directions being issued by the

court of competent jurisdiction.

13) The Advisory Committee, the Monitoring and the NIREH

shall continue to file their respective quarterly reports

before the High Court of Madhya Pradesh. These reports

shall be dealt with and appropriate directions be passed by

the High Court in accordance with law.

14) We have already noticed that the management of BMHT has

already been vested in the Ministry of Health and Family

Welfare, Government of India and the working of BMHT has

come to an end. We, thus, direct that the Union of India

and the State of Madhya Pradesh shall take appropriate

steps to ensure the dissolution of the Trust in accordance

with law. The BMHT was initially formed for a period of

eight years and then was constituted for an indefinite period

under the orders of this Court. In the facts and

circumstances of the case and the subsequent events, we

direct that BMHT shall stand dissolved. All concerned to

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take steps in accordance with law, under which it was

created and/or registered.

15) The corpus of BMHT has already been ordered to be

transferred to the Government of India and would remain

under the control of the Ministry of Health and Family

Welfare. If any other steps are required to be taken, they

shall immediately be taken by the concerned Ministry. We

further issue a clear direction that all the Fixed Deposit

Receipts, RBI Bonds, Short Term Deposits and the bank

balance of the BMHT, Bhopal, shall stand transferred and

be under the control of the said Ministry. If any steps even

in this regard are required to be taken, we direct all

concerned to take appropriate steps.

16) Accounts of BMHRC and the allied departments, as far as

they are subject matter of the present writ petition, shall be

audited by the Principal Accountant General (Audit),

Madhya Pradesh. It shall also examine the accounts and

the audit report dated 15th July, 2011 submitted by M/s.

V.K. Verma and Company within three months from today.

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17) We also direct the State Government and the Monitoring

Committee to evolve a methodology of common referral

system amongst the various medical units under the

erstwhile BMHRC and BGTRRD to ensure that the gas

victims are referred to appropriate centres for proper

diagnosis and treatment in terms of the nature and degree

of injury suffered by each one of them.

18) We also direct that the Monitoring Committee, with the aid

of the Advisory Committee, NIREH and the specialized

doctors of BMHRC, issues a standardised protocol for

treating each category of ailment that the gas victims may

be suffering from. This shall be done expeditiously. It will

be highly appreciated if the Committee also prescribes

scientific categorization of patients and injuries.

19) Lastly, we direct all concerned in the Union of India, State

of Madhya Pradesh, Empowered Monitoring Committee,

Advisory Committee, ICMR, NIREH, BMHRC and all other

Government or non-government departments/ agencies

involved in the implementation of Relief and Rehabilitation

Programme and research activity, to carry out the above

directions expeditiously and without demur and default.

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We grant liberty to the applicants and/or the petitioners or

any other affected person to move the High Court of

Madhya Pradesh, Bench at Jabalpur, in the event of

violation, non-compliance or default of any of the above

directions or any other orders passed by this Court.

36. Before we part with this matter, we consider it our duty to

place on record our appreciation for the able assistance rendered

by the learned counsel appearing for the respective parties and

the functions performed by the various Chairpersons and

Committees constituted under the orders of the Court, including

the Bhopal Memorial Hospital Trust.

37. This writ petition is transferred to the High Court of Madhya

Pradesh in the above terms. All applications are disposed of

accordingly.

38. Keeping in view the provisions and scheme of the National

Green Tribunal Act, 2010 (for short the ‘NGT Act’) particularly

Sections 14, 29, 30 and 38(5), it can safely be concluded that the

environmental issues and matters covered under the NGT Act,

Schedule 1 should be instituted and litigated before the National

Green Tribunal (for short ‘NGT’). Such approach may be

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necessary to avoid likelihood of conflict of orders between the High

Courts and the NGT. Thus, in unambiguous terms, we direct that

all the matters instituted after coming into force of the NGT Act

and which are covered under the provisions of the NGT Act

and/or in Schedule I to the NGT Act shall stand transferred and

can be instituted only before the NGT. This will help in rendering

expeditious and specialized justice in the field of environment to

all concerned.

39. We find it imperative to place on record a caution for

consideration of the courts of competent jurisdiction that the

cases filed and pending prior to coming into force of the NGT Act,

involving questions of environmental laws and/or relating to any

of the seven statutes specified in Schedule I of the NGT Act,

should also be dealt with by the specialized tribunal, that is the

NGT, created under the provisions of the NGT Act. The Courts

may be well advised to direct transfer of such cases to the NGT in

its discretion, as it will be in the fitness of administration of

justice.

40. Normally, we would have even transferred this case to NGT.

However, as it does not involve any complex or other

environmental issues and primarily requires administrative

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supervision for proper execution of the orders of the Courts, we

have considered it appropriate to transfer this case to the High

Court of Madhya Pradesh. We may notice that the supervisory

work concerns itself with regard to the proper functioning of the

various Committees, which were constituted under the orders of

the Court, to ensure proper running of the hospital established by

the government and health care facilities available to the Bhopal

Gas victims. Thus, the matter should be heard and supervisory

jurisdiction be exercised by the High Court to better serve the

ends of justice.

41. The Registry is directed to transmit the records of the Writ

Petition No. 50/1998 to the Madhya Pradesh High Court, Bench

at Jabalpur, forthwith and also send copies of this order to all

concerned quarters of the Union of India, the State of Madhya

Pradesh, the Monitoring Committee, the Advisory Committee,

ICMR, BMHRC and the NIREH for compliance of these directions

without delay and default.

….…………......................CJI. (S.H. Kapadia)

…….…………......................J. (A.K. Patnaik)

...….…………......................J.

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(Swatanter Kumar) New Delhi August 09, 2012