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
IN
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
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