Orphans of Bhopal

Print edition : August 24, 2012

A second generation victim of the 1984 Bhopal gas tragedy taking part in the "Bhopal Special Olympics 2012" on July 26. Survivors of the gas leak held their own special version of the Olympic Games as a protest against the sponsorship of the London Games by Dow Chemical, the new owner of Union Carbide.-RAJ PATIDAR/REUTERS

Justice continues to elude the victims of the Bhopal gas disaster even after 28 years and little has been done to monitor their health status.

THE survivors of the worlds worst chemical disaster, the Bhopal gas tragedy, which happened on December 3, 1984, continue to remain victims of apathy and neglect, mostly because of utter indifference on the part of the Madhya Pradesh government and the Centre towards their well-being. The man-made disaster resulted from the escape of methyl isocyanate (MIC) gas from one of the three partially underground storage tanks, which contained about 42 tonnes of the highly toxic and reactive chemical, from the premises of Union Carbide India Limited (UCIL), a subsidiary of Union Carbide Corporation (UCC), United States.1

Institutions under the Council of Scientific and Industrial Research (CSIR) and the Indian Council of Medical Research (ICMR), which initially took an active interest in unravelling all the ramifications of the disaster, have failed to live up to their potential in this regard. The brazen manner in which the ICMR discontinued all medical research relating to the disaster as early as 1994 speaks volumes about the indifference of the premier health research institution in the country towards the health needs of the gas victims. (In 2010, the organisations fighting for the cause of the victims succeeded in forcing the ICMR to reopen its Bhopal centre, now named the National Institute for Research in Environmental Health, or NIREH.) However, the ICMR is frantically trying to limit the commitment of the NIREH to health issues arising from environmental contamination caused by UCC/UCIL before the 1984 disaster and is, therefore, making every attempt to ensure that the NIREH refrains from tackling health issues relating to the 1984 disaster. While efforts at proposing ways and means to remediate the contaminated environment are most welcome, to use the issue of environmental damage as a cover for glossing over the impact of the MIC disaster is wholly unwarranted.

What is equally bad is that a period of nearly three decades has apparently not been enough for the judicial system both at the lower and higher levels to dispense justice to the hapless victims. As far as the national media are concerned, they highlighted the plight of the victims for the first time ever in 2010. But thereafter the fate of the victims has practically remained a non-issue, unworthy of media attention. In short, for all practical purposes, the more than five lakh survivors of the disaster continue to remain orphans within the Indian polity.

Despite causing the death of over 20,000 innocent people, the perpetrators of the tragedy seem to have hardly lost any sleep over it. The maximum discomfiture the accused have had to suffer in the past 28 years was detention for a period ranging from barely six hours to 12 days way back in December 1984. It has been business as usual for them ever since.

The Whitewash Job

Immediately after the disaster, UCC and UCIL did everything within their powers to underplay the gravity and implications of the disaster. Not only did their officials fail to forewarn the local population of the precautionary measures to be taken in case of an accidental release of MIC, but after the disaster they tried to mislead local doctors about the grievous impact of exposure to MIC. Says a report published in 1985:

As victims crowded into the Hamidia Hospital, L.D. Loya, the companys medical officer, told the frantic doctors: The gas is non-poisonous. There is nothing to do except to ask the patients to put a wet towel over their eyes.2

SURVIVORS OF THE gas disaster and activists take part in a protest in New Delhi on July 12 demanding adequate compensation for the damage to health caused by the gas leak from the Union Carbide plant.-RAVEENDRAN/AFP

In fact, local Carbide officials kept on insisting that MIC is only an irritant and not lethal.3 Apparently, a section of the local medical fraternity and the local administration, too, actively colluded with Carbide officials in misleading the public. Later, when post-mortem reports started revealing that many of the deaths may have occurred because of cyanide poisoning, the insidious propaganda to conceal the truth further intensified. The underlying reason for this was that since cyanide was well known as a highly poisonous chemical, Carbide officials did not want people to associate MIC with cyanide. The concerted attempts at spreading such misinformation had serious repercussions. For example, it resulted in non-administration of sodium thiosulphate the only known antidote to cyanide poisoning to the vast majority of the exposed victims when timely administration of the same may have saved many lives and prevented aggravation of injuries.

The pro-Carbide lobby also managed to scuttle the attempt at assessing the overall impact of the disaster on the people. It so happened that in collaboration with the State government, a voluntary initiative was made by the Tata Institute of Social Sciences (TISS), Mumbai, in this direction through a house-to-house survey in the gas-affected areas of Bhopal with the help of over 500 student and teacher volunteers from several schools of social work across the country. However, after a considerable volume of data was collected in January-February 1985 from about 25,000 households, or about one-fourth of the total affected population (as per ICMR estimates), the State government arbitrarily disbanded the TISS survey.

As a result, the opportunity to make a comprehensive assessment of the impact of the disaster immediately after it had occurred was lost. It was left to individuals to prove that they (or their kin) were victims, by filing individual claims for compensation a tedious process that began only after September 1985 with the promulgation of the Bhopal Gas Leak Disaster (Registration and Processing of Claims) Scheme. Earlier, following public pressure, the State government had instituted a public inquiry three days after the disaster. It set up the Bhopal Poisonous Gas Leakage (1984) Inquiry Commission under the chairmanship of Justice N.K. Singh, who was then a sitting judge of the Madhya Pradesh High Court. To the utter dismay of the gas victims and all concerned, the government, after having dithered in its submissions before the commission until December 12, 1985, terminated the commission on December 17, 1985. In short, while every attempt was made to underplay the magnitude and grievousness of the disaster, very little effort was made either to compensate the victims adequately or to ensure that the guilty officials of UCC, Union Carbide Eastern (UCE) and UCIL were punished for their horrendous crime.

The Unjust Settlement

Initially, it did appear that the Central government was totally committed to the cause of the gas victims when in para 6 of the complaint against UCC, which was filed before the New York Southern District Court on April 8, 1985, it had stated as follows:

Because of the massive unprecedented magnitude of the Bhopal disaster, the Union of India brings this action as parens patriae by virtue of its interest and duty to secure the health and well-being, both physical and economic, of all victims of the disaster (including future generations of victims), almost all of whom are physically and/or financially or otherwise incapable of individually litigating their claims against the defendant, a monolithic, multinational corporation.

DECEMBER 4, 1984: Soldiers guard the entrance to the Union Carbide factory in Bhopal after the toxic gas leak the previous day.-AFP

On May 12, 1986, the New York court dismissed the Indian governments plea while directing UCC to submit to the jurisdiction of the Indian courts. Consequently, on September 5, 1986, the Government of India filed an almost similar suit (No.1113/86) for damages in the Bhopal District Court. However, UCC had no intention of facing trial in India and, therefore, it attempted to sell off its global assets as a way of evading liability. After the government brought this reported move on the part of UCC to the attention of the Bhopal court, it issued a temporary injunction on November 17, 1986, barring UCC from selling assets, paying dividends or buying back debts. After the Centre indicated that its claim for damages from UCC would exceed $3,000 million, the Bhopal court passed an order on November 30, 1986, lifting the injunction on the condition that UCC would maintain unencumbered assets of a fair market value of 3 billion dollars to meet the decree if any that may be passed by this court.

Later, in response to a proposal from victim groups and at its own initiative, the Bhopal court ordered UCC on December 17, 1987, to pay an interim compensation of Rs.350 crore (then $270 million) to the victims. However, on UCCs appeal, on April 4, 1988, the High Court modified the order of the Bhopal court and ordered UCC to pay an interim compensation of only Rs.250 crore. After both UCC and the Government of India opposed the decision, the Supreme Court, on September 8, 1988, admitted both UCCs and the Union of Indias special leave petitions (SLPs) against the High Courts order as civil appeals (C.A. Nos.3187-3188 of 1988).

What is most intriguing is that during the hearing in the Supreme Court on the civil appeals, on February 14/15,1989, the court ordered settlement of the main suit itself, which was then pending before the Bhopal court. As is evident from the article titled The Crime of Union Carbide published in Counterpunch, the biweekly American newsletter, the settlement took place on the very day the U.S. government granted permission to Indias Central Bureau of Investigation (CBI) to inspect UCCs pesticide manufacturing site at Institute in West Virginia, U.S. But the abrupt settlement effectively prevented the CBI from inspecting the safety systems installed at the plant, which would have proved beyond doubt that UCC had installed substandard safety systems at its Bhopal plant.

The wholly unjust terms of the settlement were quite appalling, too. The settlement discharged the undertaking given by UCC to maintain unencumbered assets worth $3 billion pursuant to the Bhopal courts order dated November 30, 1986, which was a great relief to UCC. Moreover, the settlement, on the one hand, resulted in the withdrawal of all pending criminal cases against the UCC and its accused officials. On the other, the quantum of the settlement amount was limited to $470 million (then about Rs.705 crore) which was less than one-sixth of the Government of Indias original claim of $3,000 million on the baseless assumption that the total number of human casualties were only around 105,000 (including 3,000 dead). While the settlement did provide instant and substantial relief to UCC, justice continues to elude the gas victims.

Challenges to the settlement

As a result of the review and writ petitions filed in March 1989 by the Bhopal Gas Peedith Mahila Udyog Sangathan (BGPMUS), the Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS) and others, the Supreme Court did revive all the criminal cases against the accused vide its order dated October 3, 1991. However, the court continued to justify the quantum of the paltry settlement amount by advancing the argument that the victim groups had failed to place before it higher casualty figures contrary to those on which the settlement was based. That the court was wholly wrong on this count has been proved by subsequent developments. The fact was that the process of adjudication of claims began only in the middle of 1992 a process that went on for the next 12 years until 2004 (and completed only by 2006 when all the appeals were disposed of as well). So, before the completion of the adjudication process, there was no question of victim groups being in a position especially between 1989 and 1991 to place before the court casualty figures that were contrary to those on which the settlement was based.

Through interlocutory applications (I.A. Nos.48-49 of 2004) dated September 13, 2004, the BGPMUS and the BGPSSS informed the Supreme Court that adjudication of all claims had established that the total casualty figure was well over 560,000 (excluding claims then pending in appeal), which was five times more than the casualty figure that had formed the basis of the settlement. The said I.As were, however, dismissed by the court on May 4, 2007, without going into the merits of the case. As events have unfolded, it has been proved beyond doubt that there was ample merit in the said I.As filed by the BGPMUS and the BGPSSS since the Government of India itself has now come forward to challenge the settlement order of February 1989. By filing a curative petition (Nos.345-347 of 2010) before the Supreme Court on December 3, 2010, the Government of India has sought from UCC/Dow Chemical Company substantial enhancement of the compensation amount (an additional Rs.7,728 crore) due to higher casualty figures and for environmental damage.

While the Government of India has explicitly admitted in the curative petition that the total number of dead and injured is actually 573,588 (instead of the purported figure of 105,000, which was the basis of the settlement), it continues to insist that the bulk of the gas victims (527,894) have suffered only temporary/minor injuries. The government is basing its argument solely on the outcome of the adjudication process carried out by the claim courts, which had placed the onus of producing medical documents in support of each claim on the victim concerned. On the contrary, it was actually the duty and responsibility of the ICMR and the Bhopal Gas Tragedy Relief and Rehabilitation Department (BGTRRD), under the State government, to ensure that each gas victim was provided a health booklet with his/her complete medical record, a vital task that the two organisations failed to fulfil. It is totally unjust on the part of the Central government to equate absence of the health booklet with absence of serious injury, especially when the onus of supplying such booklets was on the ICMR and the BGTRRD.

The failure to create a central registry for gas victims, disinclination to monitor and record the health status of each victim, and aversion to providing a copy of his/her complete medical record to each victim, among other things, constitute nothing but complete dereliction of duty on the part of the ICMR and the BGTRRD. What is equally shocking is that a proper protocol for treating the victims has not been evolved to date and all kinds of drugs continue to be administered to them on a symptomatic basis. The gas victims have also been subject to secret and illegal drug trials for which no one has been held accountable until now. Thus, while the claim courts have declared that the bulk of the gas victims suffered only temporary/minor injuries, the fact is that a sizable section of them are still undergoing medical treatment for injuries they suffered in the gas leak.

The Government of India has a lot of explaining to do as to why it refrained from making available all the necessary ICMR reports to the claim courts, which would have been of great assistance to the courts in adjudicating the claims. In fact, the Welfare Commissioner, in para 28 of his order dated January 31, 2009 (in response to the petition filed by nine members of the BGPMUS and the BGPSSS on August 28, 2008), has confirmed that the ICMR Report has not been placed before the Tribunal. The Welfare Commissioner went on to add: In future any such report, if it is published or made public, it will be for the Union of India, as a Welfare State, to consider the same and take action accordingly.

WARREN ANDERSON, THE head of Union Carbide Corporation at the time of the gas disaster.-AP

The failure to make available the necessary ICMR reports to the claim courts (and the absence of complete individual medical records in the form of health booklets in a vast majority of cases) has resulted in the claim courts grossly underestimating the seriousness of the injuries suffered by the gas victims. Earlier, the ICMR had estimated that: Out of the total population, nearly 1.6 lakh people present within a radius of 3 km from the factory were exposed presumably to a higher concentration of gas and also perhaps for a longer period of time. It had also noted that: It is also a safe assumption that higher the concentration of the Toxic Gases inhaled, the more severe would be the mortality and greater the morbidity.4 In short, according to the ICMRs findings in 1984, no fewer than 168,686 gas victims would have suffered serious injuries.5 Whereas, after completing the adjudication process without the requisite documents in 2006, the claim courts could identify only 4,944 seriously injured victims.

Indeed, it is now apparent that without access to the ICMR reports, the claim courts could not have known about the toxic nature of MIC and its derivatives, about the way in which the toxic cloud had spread across Bhopal, or about the manner in which death and injuries had occurred. If the courts were ignorant of these facts, how could they have judiciously assessed the degree of injuries sustained by the victims? Therefore, there could be little doubt that the claim courts, in pronouncing their verdicts, were mostly dependent on reports from the BGTRRDs shoddy medical documentation and categorisation exercise that was conducted between 1987 and 1991 (mostly four to six years after the disaster) and on other medical and related documents, which some individual victims had produced before the courts. That the medical documentation exercise was carried out shoddily was demonstrated by a group of activists who had analysed the method and the lackadaisical manner in which the documentation was being conducted and had brought out a critical report titled Against All Odds in December 1989. The report was submitted to the Supreme Court in 1990 through the BGPMUS and the BGPSSS during the hearing in the review and writ petitions filed against the settlement. The conclusion of the report was as follows:

By inadequately examining the claimants (clinically and through investigations) and by evaluating the injuries and categorizing them with the use of faulty tools biased against the gas victims, the Directorate of Claims, Bhopal [BGTRRD] has defined away the injuries of more than 90% of the victims as no injury or temporary injury.

To place an injury that continues to persist even four to six years after the disaster under the temporary injury category is preposterous. Such an inept and insensitive method of evaluation and categorisation clearly exposes the sheer mindlessness of that exercise. Indeed, if this exercise had been carried out even with a semblance of honesty of purpose, the ICMR and the BGTRRD would have made every effort to continue to monitor the health status of the victims on a periodic basis at least from 1991 onwards. However, that has not been the case despite a specific direction from the Supreme Court in this regard, which was as follows:

We are of the view that for at least a period of eight years from now the population of Bhopal exposed to the hazards of MIC toxicity should have provision for medical surveillance by periodic medical check-up for gas related afflictions. [Para 203, Order dated 03.10.1991, (1991) 4 SCC 683.]

Denial of Health Booklets

Even earlier, in response to Writ Petition No.11708 of 1985, which was filed on behalf of the organisations representing the victims, the Supreme Court, in an order dated November 4, 1985, had observed as follows:

It is desirable that some independent machinery must be set up which would carry out a proper epidemiological survey and also a house-to-house survey of the gas affected victims both of which will also be necessary for the purpose of determining the compensation payable to the gas affected victims and their families. It would be necessary for the purpose of ensuring proper medical facilities to the gas affected victims.

Yet, over the years, there was little attempt at systematically identifying all the victims, providing them proper medical care, and monitoring their health status. Utterly frustrated with the ICMRs indifference towards the victims, the BGPMUS, the Bhopal Group for Information and Action (BGIA) and the BGPSSS filed a writ petition (No.50 of 1998) on January 14, 1998, before the Supreme Court urging it to direct the ICMR to restart medical research relating to the Bhopal disaster. The petitioners also prayed that the ICMR and the BGTRRD be directed to expand medical infrastructure for the victims, provide proper medical care to all of them, and issue a health booklet to each of them with his/her complete medical record. As a result, the Supreme Court on July 25, 2001, issued the following directions:

DECEMBER 5, 1984: Children blinded by the MIC gas leak being carried to hospital in Bhopal.-

With regard to those gas victims who are entitled to receive free medical aid throughout the life, permanent cards will be issued, while in other cases where claims are under process, provisional cards will be issued pending final outcome of their eligibility.

Despite two further orders in this regard dated July 17, 2007, and November 15, 2007, the ICMR and the BGTRRD are continuing to flout the courts orders with impunity. While hearing in Writ Petition No.50 of 1998 was complete on April 27, 2012, the Supreme Court has reserved its order on the petition. Victim groups are deeply aggrieved that even 14 years after filing the writ petition, they have been unable to secure justice for the victims regarding such relatively simple issues such as ensuring a health booklet to each gas victim with his/her complete medical record and restarting disaster-related medical research, which the ICMR had abandoned in 1994. Even so, the 23-year-old legal battle against the unjust settlement is still being waged intensely before the Supreme Court despite the fact that the court had rejected the pleas for augmenting the settlement sum on two occasions in 1991 and 2007. Since then prima facie evidence has mounted and the court has admitted the SLP (No.12893 of 2010), which members of the BGPMUS and the BGPSSS had filed on March 17, 2010, for enhancing the compensation amount. In addition, the decision of the Government of India to file a curative petition on December 3, 2010, against the meagre settlement amount has fully validated the contention of the BGPMUS and the BGPSSS in this regard. Under the circumstance, the undue delay in disposing of these matters relating to the settlement of 1989 and denying them timely justice is needlessly prolonging the agony of the gas victims.

Crime and No Punishment

Since the CBI seems to be in no hurry to expedite the proceedings in the criminal case, it is highly unlikely that the accused will ever be prosecuted in their lifetime. The fact that the criminal cases against UCIL and its seven accused officials are still pending before the Bhopal Sessions Court is testimony to the states extremely callous attitude towards the concerns of the victims and the soft corner it has for the accused. Similarly, no serious attempt has ever been made either to bring the absconding accused, Warren Anderson, and other officials of UCC/UCE to justice or, after the revival of the criminal cases, to inspect UCCs plant at Institute for purposes of comparing its safety standards with those at its Bhopal plant, after the first such attempt was thwarted through the settlement.

UCC, which is accused No.10 in the Bhopal disaster criminal case, has again tried to evade its liability by becoming a wholly owned subsidiary of The Dow Chemical Company (TDCC), U.S., on February 6, 2001. In order to foil UCCs game plan, the BGPSSS, the BGIA and the BGPMUS filed an application on September 7, 2001, before the Chief Judicial Magistrate (CJM), Bhopal, urging the court to serve notice on TDCC to appear on behalf of UCC in the pending criminal case. UCC had already been proclaimed an absconder by the CJM vide order dated February 1, 1992, for repeatedly failing to respond to summons. After several hiccups, the CJM on January 6, 2005, issued an order directing TDCC to appear before the court on February 15, 2005. However, on March 17, 2005, the High Court at Jabalpur stayed the order of the CJM in response to an appeal filed by Dow Chemical International Private Limited (DCIPL), Mumbai, despite DCIPL claiming that it has no direct nexus either in terms of holdings or in terms otherwise with TDCC, USA and/or UCC.6

If, indeed, DCIPL did not have any nexus with TDCC, under which section of the Criminal Procedure Code (CrPC) could the High Court have granted the stay to TDCC on an appeal filed by DCIPL? Although the BGPSSS and the BGPMUS did file a preliminary objection on April 21, 2005, questioning the locus of DCIPL and seeking immediate vacation of the stay, no orders have been passed for vacating the stay for the past seven years despite the matter (MCRC No.1377 of 2005) being listed before the High Court on more than 38 occasions (including 25 times for Final Hearing). The repeated pleas of the BGPMUS and the BGPSSS to the State government to set up a special court for speedily disposing of the criminal cases have also fallen on deaf ears. With no one in the establishment apparently willing to speak up for the gas victims, their tenuous existence as orphans is becoming more and more pronounced with each passing day.

N.D. Jayaprakash is the joint secretary of the Delhi Science Forum and co-convener of the BGPSSS, Delhi.

End Notes

1. For details regarding the circumstances and causes of the disaster, see The Crime of Union Carbide at https://www. counterpunch.org/2010/09/07/ the-crime-of-union-carbide/.

2. https://cseindia.org/userfiles/THE%20BHOPAL%20DISASTER.pdf, p.206.

3. Ibid, p.219.

4. See: https://www.icmr.nic.in/final/BGDRC-TEchnical%20Report.pdf p.46 & p.40.

5. Ibid, p.17. 6. DCIPLs affidavit dated September 3, 2004.

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