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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 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.

REPORTABLE

Indian Council of Medical Research

Indian Council of Medical Research (Photo credit: Wikipedia)

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
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 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 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 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 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.
(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 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.

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 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 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 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 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 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 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 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.

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 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 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 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 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 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 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.

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.

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 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.

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.

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 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 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.

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 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 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 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 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 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.

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. 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 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 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.
(Swatanter Kumar)

New Delhi
August 09, 2012

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