Healthy intervention

Print edition : September 21, 2012

-A.M. FARUQUI

The Supreme Court directs the Central and Madhya Pradesh governments and the ICMR to address the health needs of the Bhopal gas victims.

THE Supreme Court of India has passed on August 9 a major judgment addressing several aspects of the health needs of the Bhopal gas victims that had largely been ignored in the past 28 years. However, ensuring its implementation is yet another challenge before the gas victims. The eagerly awaited judgment was delivered in Writ Petition No.50 of 1998 (see Orphans of Bhopal, Frontline, August 16) {+1}.

Through Writ Petition No.11708 of 1985, which was filed on August 1, 1985, Dr Nishit Vohra and Dr C. Sathyamala had brought to the attention of the Supreme Court the various problems faced by the gas victims due to the lack of proper health-care facilities and the poor state of health care. In response to this, the Government of India set up on August 8, 1985, the Scientific Commission for Continuing Studies on Effects of Bhopal Gas Leakage on Life Systems, headed by Dr C.R. Krishna Murti (former Director of the Indian Institute of Toxicology Research). The commission submitted its report to the Central government in July 1987. It was disbanded immediately thereafter, but the report was not made public until about a decade later. Commenting on the report, the court has observed, in paragraph 3 of the judgment, as follows:

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.

Then why did the Central government fail to act on these recommendations, especially those relating to research work, in the past 25 years? This question has been left unanswered and the government has not been taken to task for its gross negligence in this regard. Independently, in response to Writ Petition No.11708 of 1985, the Supreme Court, on November 4, 1985, set up a committee of seven experts to make recommendations regarding medical relief to and other related matters of the gas victims. The committee consisted of three representatives of the Indian Council of Medical Research (ICMR), two of the government, and two of the gas victims, namely Dr Anil Sadgopal and Dr Sujit Das. Since the committee could not come to a consensus, Dr Sadgopal and Dr Das submitted several reports during 1987-88 and sought directions from the court. Unfortunately, the well-considered recommendations made in the Final Report on Medical Relief and Rehabilitation of Bhopal Gas Victims, which they submitted on August 30, 1988, were ignored by the court at that time. (However, after an avoidable gap of 24 years, most of the recommendations in their final report have been accepted by the court in its verdict on the present writ petition.)

Settlement and After

Subsequently, following the unjust settlement of February 14/15, 1989, concerted pressure was mounted on the ICMR by organisations representing the gas victims (the Bhopal Gas Peedith Mahila Udyog Sangathan, or the BGPMUS; the Bhopal Group for Information and Action, or the BGIA; and the Bhopal Gas Peedith Sangharsh Sahayog Samiti, or the BGPSSS) to make public the results of the various studies that the ICMR had undertaken. By the time some information began to trickle down, the ICMR was already in the process of abandoning all disaster-related research, which it finally did in 1994 (that too contrary to the explicit direction of the Supreme Court in the judgment of October 3, 1991). Meanwhile, considerable efforts were made by the BGPMUS, the BGIA and the BGPSSS to dissuade the ICMR from betraying the cause of the gas victims. With the help of the International Institute of Concern for Public Health (Canada) and the Permanent Peoples Tribunal (founded by Bertrand Russell and based in Italy), they succeeded in constituting a 15-member International Medical Commission on Bhopal (IMCB) in 1993 composed of experts from 12 countries, with Dr Rosalie Bertell and Dr Gianni Tognoni as co-chairs, to assess the current health status of the gas victims and to make necessary recommendations. The IMCB, which held its sitting in Bhopal in January 1994, later interacted with the representatives of the ICMR as well. The IMCB made many notable recommendations, which were brought to the attention of the Supreme Court by the BGPMUS, the BGIA and the BGPSSS during 1995-1998 when the court was dealing with another health-related matter. This resulted in the expansion of health infrastructure for gas victims in the form of the Bhopal Memorial Hospital & Research Centre (BMHRC). However, the IMCBs recommendations too were largely disregarded by the court in 1998 (although effectively several of them have been incorporated in the present judgment).

Since all attempts at persuading the ICMR to restart disaster-related medical research had failed, the BGPMUS, the BGIA and the BGPSSS had no option but to file the present writ petition (No.50 of 1998) seeking various reliefs. After a lot of effort, the petitioners did manage to convince the court about the need to set up two committees the Advisory Committee and the Monitoring Committee to assist the court in the matter. The committees, which were set up in September 2004, were to make necessary recommendations to the court regarding research, documentation, health infrastructure, health services, grievances of the gas victims, and so on. The committees consisted of the representatives of gas victims, the ICMR and the Madhya Pradesh government. Although the committees made several recommendations and the court gave necessary directions, nothing really seemed to change because the ICMR and the State government effectively chose to ignore those directions. Since there was no justification for this matter relating to the health needs of the gas victims to have remained pending before the court indefinitely (for 14 years), the petitioners pleaded with the court to dispose of the matter speedily.

IN THIS PHOTOGRAPH taken in November 2009, a man carries his 10-year-old son to the Chingari Trust, which provides medical care to children with gas-related congenital deformities in Bhopal.-RAVEENDRAN/AFP

Fast Track

Chief Justice S.H. Kapadia and Justices A.K. Patnaik and Swatanter Kumar responded to the pleas of the petitioners and decided to expedite the matter. Under the courts direction, final submissions were made and hearing in the matter was concluded on April 27, 2012. Justice Swatanter Kumar, who wrote the judgment, took due note of the detailed letter written by Dr C. Sathyamala (co-convener of the BGPSSS and Member of the Advisory Committee) to the ICMR on January 7, 2012, and the various affidavits filed by the BGPMUS and the BGPSSS in the case, which had summarised the issues confronting the gas victims. The judges observations, which are stated in paragraph 16 of the judgment, are as follows:

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 [set up by the ICMR]). 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 computerisation 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 [National Institute for Research in Environmental Health], 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 [Bhopal Gas Tragedy Relief and Rehabilitation Department] 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 computerised 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. {+3}

In addition, the petitioners had supported the Monitoring Committees plea for empowering it and also sought to draw the attention of the court to the pre-disaster problem confronting the gas victims in the form of environmental contamination an abhorrent legacy resulting from the highly irresponsible manner in which the Union Carbide Corporation (UCC) had operated its Bhopal plant.

The Judgment

Taking all these factors into consideration, the court passed a comprehensive judgment with clear directions to the Government of India, the Government of Madhya Pradesh, and the ICMR to comply with a variety of tasks. The directions that have far-reaching implications are:

1. The ICMR and the NIREH have been directed to ensure that research work is carried on with exactitude and expeditiousness and further to ensure disbursement of its complete benefit to the gas victims.

2. The Monitoring Committee has been directed to operationalise medical surveillance, work out modalities for computerisation of medical records, and ensure that health booklets and smart cards are provided to each gas victim.

3. The Monitoring Committee has been granted complete jurisdiction to oversee the proper functioning of BMHRC and other BGTRRD hospitals, with regard to problems relatable to gas victims.

4. The Monitoring Committee has been directed to prepare a standardised protocol for treating each category of ailment that the gas victims may be suffering from and also to scientifically categorise patients and injuries, with the aid of the Advisory Committee, the NIREH, and specialised doctors of the BMHRC.

5. The State government and the Monitoring Committee have been directed to evolve a methodology of a common referral system amongst the various medical units under the BMHRC and the BGTRRD in order 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.

6. The authorities concerned have been directed to take appropriate steps in all respects not only to fill vacancies of doctors and supporting staff but also to provide such infrastructure and facilities that doctors are not compelled to or prefer to resign from employment owing to inadequate facilities.

7. The Government of India and the Government of Madhya Pradesh have been directed to take immediate steps for the disposal of toxic waste lying in and around the Union Carbide factory in Bhopal, on the recommendations of the Monitoring Committee, the Advisory Committee and the NIREH within the next six months.

A major dampener, however, is the direction of the court to transfer the matter to the Madhya Pradesh High Court for dealing with issues relating to the execution of this judgment. That is because in the absence of requisite infrastructural support, it would place on the victims the additional burden of pursuing the case there. It may also be noted that it was with the intention of disposing of the case speedily that the Supreme Court in 1989 had ordered the settlement. The decision to send the case to the High Court might mean delaying the entire process further because there is every possibility that the matter will again revert to the Supreme Court as an appeal.

The judgment is a damning indictment of the Government of India, the Government of Madhya Pradesh and the ICMR. Eighteen years after it had abandoned all disaster-related medical research, the ICMR has been compelled to restart such research. Moreover, the ICMRs attempt to limit research work at its Bhopal centre (NIREH) to just environmental issues too has been quashed. However, no questions have been asked as to why such research was abandoned in the first place, nor has anyone been taken to task for such an unpardonable act.

The failure to place all the gas victims under medical surveillance from the very beginning was yet another serious lapse. While several attempts at computerisation, issuance of health-booklets, and so on, were ostensibly made earlier, the matter was never pursued seriously by either the ICMR or the State government. The failure to obtain health booklets with complete medical records has robbed a large number of seriously injured gas victims of adequate compensation because of their inability to prove before the claim-courts the degree of injury they suffered. Hopefully, the implied threat of punitive action against erring officials in the event of default in the upkeep of records should elicit the desired result.

THE BHOPAL MEMORIAL Hospital & Research Centre in Bhopal. A Monitoring Committee has been granted jurisdiction to oversee the functioning of the BMHRC with regard to problems relatable to gas victims.-A.M. FARUQUI

The urgent need for standardised protocol in treating each category of ailment has been recognised. The IMCB had earlier noted that therapies prescribed are aimed at symptomatic relief rather than long-term amelioration of a chronic disease process. The gas victims were invariably over-drugged with a lot of irrational drugs (including unnecessary prescriptions and hazardous drugs banned in other countries) which did little to ameliorate their problems, let alone cure them. Some of those drugs, while providing temporary relief, may in fact have had contrary effects in the long run. Also, no efforts were made to categorise patients on the basis of the type and gravity of injuries. As a result, even after 28 years, there are no data available about the number of patients under different types of ailments.

Some of the crucial departments, especially at the BMHRC, have been closed down because of lack of specialists. Recruiting specialists was a problem due to the low pay package and the absence or poor upkeep of essential medical equipment. Hopefully, at least now, appropriate steps will be taken to remedy these problems. Similarly, the direction to clean up speedily the contaminated environment in and around the Carbide factory is welcome. However, in the absence of a proper study to estimate the actual extent and types of contamination, it is doubtful if the site could be remediated within the next six months.

Nonetheless, it is a huge relief to the gas victims that the Supreme Court has decided to pass a comprehensive judgment to ensure that all necessary medical relief will be provided to the gas victims despite the long delay. It is their fervent hope that the Central and State governments will execute these directions expeditiously and without demur and default, as the court has decreed.

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

REFERENCES

2. https://judis.nic.in/supremecourt/ chejudis.asp

3. Ibid

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