‘Court abdicated its responsibility’: Rachna Dhingra on the Bhopal gas tragedy

The social activist discusses several critical issues concerning the disaster from the survivors’ perspective.

Rachna Dhingra, social activist. | Photo Credit: By Special Arrangement

The highly toxic methyl isocyanate gas leak from the Union Carbide Corporation’s (UCC) pesticide plant in Bhopal injured over half a million people and has killed over 25,000 since 1984. The world’s worst industrial disaster is far from over and continues to ravage local communities.

Rachna Dhingra, a Bhopal-based activist, has been working with the Bhopal disaster survivors for over two decades. Her activism brought to the limelight the ongoing mass-scale contamination of soil and groundwater in Bhopal in the aftermath of the reckless dumping of toxic waste by the UCC. A core team member of the Bhopal Group for Information and Action, Dhingra provides legal, media, scientific, research, medical, and community support to the survivors and the residents of contamination-exposed communities in Bhopal.

In 2010, the Union government filed curative petitions seeking additional compensation from UCC, which the Supreme Court rejected in March 2023. Against this backdrop, Dhingra discusses several critical issues concerning the Bhopal Gas Disaster from the perspective of the survivors and supporters’ organisations in this interview. Excerpts:

The Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, gave the Union government the exclusive right to represent the affected people and empowered it to ensure that the claims relating to the disaster were dealt with “speedily”, “effectively”, “equitably”, and to the “best advantage” of the victims. In 1989, an out-of-court settlement was negotiated, and the UCC paid $470 million in damages. Was justice delivered to the victims of the world’s worst industrial disaster?

As a significant shareholder (24 per cent) in Union Carbide India Limited (UCIL)—UCC’s Indian subsidiary—the government had a keen interest in the long-term viability and prosperity of UCIL. The government’s joint-tortfeasor liability (as a minority shareholder in UCIL) and its failure to adequately enforce safety regulations at the Bhopal plant, or maintain an effective licensing regime was a blatant conflict of interest that led to denial of justice for the disaster survivors.

Glaring evidence shows direct complicity between Carbide and the government—both acting together against the interests of the survivors. Soon after the disaster, the Carbide CEO, Warren Anderson, visited Bhopal where he was briefly held under house arrest before being unlawfully bailed from non-bailable criminal charges and flown to Delhi to meet government officials. Anderson never returned to India to face trial and was later declared a fugitive. 

Over a month before publishing its report on the disaster in March 1985, Carbide gave a copy to Indian officials. Around the same time, the Indian consular officials met Anderson in Washington and communicated an openness to settlement. On February 20 that year, the government promulgated an ordinance giving itself the sole right to represent civil claims for the disaster. Eight days later, officials from the Ministry of Chemicals called Carbide’s Rolf Towe to discuss the settlement terms. He followed up with a written offer—classified as “Top Secret”—which he handed over to the officials in person on March 4, 1985. This event occurred over three weeks before the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, passed into statute. 

The compensation scheme Carbide proposed in March 1985 formed the basis of the compensation scheme the Supreme Court set out almost exactly four years after the deal struck in secret between India and Union Carbide. Not a single victim was consulted before finalising the $470 million settlement, which was merely one-seventh of the $3.3 billion that India had claimed throughout the civil proceedings.

As for the claims being dealt with “speedily”, “effectively”, “equitably”, and to the “best advantage” of the victims, 93 per cent of the survivors (5,22,000) have received only Rs.50,000 as compensation. Even to get this paltry amount, it took them eight to 20 years. Justice has eluded the survivors of the Bhopal disaster who have suffered miserably at the hands of Union Carbide and the government.  

In 2010, the government filed curative petitions seeking additional compensation from UCC. It claimed Rs.7,844.92 crore under three categories, which was revised to Rs.13,998.54 crore in 2022. What were these claims, and why did the government seek to reopen the settlement issue two decades later?

The Central government filed the curative petitions in response to the intense public pressure following the paltry sentences handed to the Indian officials of Union Carbide in June 2010 in criminal prosecutions. 

The government sought additional compensation of Rs.7,844.92 crore under three categories. The first concerned incorrect data on deaths, which by successful awards had almost doubled; injuries, which were five times greater than calculated in 1989; and other categories of compensation. The second concerned the reimbursement of public monies spent by the government on relief and rehabilitation schemes for survivors. The third sought compensation for environmental degradation around the Bhopal factory, which was not part of the original settlement.

The 2022 revision upwards to Rs.13,998.54 crore included aggregated interest on claims since 2010; ex gratia payments made to over 64,000 people since 2010 for deaths, disabilities, severe injuries, cancers, and kidney diseases; additional funds spent on rehabilitation and medical research; and money spent on contamination studies and measures since 2010. 

A woman blinded by the toxic gas that leaked from the Union Carbide factory in Bhopal, waits for care, on December 4, 1984. | Photo Credit: AFP

Why did the Supreme Court dismiss the petitions on March 14?

Curative petitions exist to remedy injustices caused by Supreme Court orders. The 1989 settlement was a gross injustice to the victims of the Bhopal Gas Disaster. The evidence submitted by survivors’ groups exceeded every criterion for a successful curative petition. However, the judicial bench decided otherwise. It abdicated its responsibility to use its extraordinary powers, arguing thus: “The learned Attorney General’s response has been that a method for ‘topping up’ the settlement amount be devised under Article 142 of the Constitution of India. We believe this would not be an appropriate course of action or a method to impose a greater liability on UCC than it initially agreed to bear.”

To make this abdication appear reasonable, the bench flagrantly excluded all evidence of major/residual injury to Bhopal victims from its reasoning. Science and data circumscribing the medical scale of the disaster, for instance, the evidence of permanent multisystemic illnesses suffered by 95 per cent of the exposed population—5,31,881 people—was overlooked. It excluded all evidence of Union Carbide’s knowledge that injuries would be “major” and “residual”. It also excluded all legal arguments that directly contradicted its conclusion that disturbing the settlement would open a Pandora’s box, to “the detriment of survivors”. 

Having made invisible all evidence of the still unfolding magnitude of human suffering, all evidence of fraud concerning Union Carbide’s misrepresentation of methyl isocyanate toxicity to secure a cheap settlement, and all counterarguments relating to the possible adverse outcomes from a disturbed settlement, the bench saw no reason to apply the court’s extraordinary powers under the Constitution to serve the needs of natural justice. 

How do the survivors feel about the Supreme Court’s judgment? 

The survivors had pinned their hopes on the Supreme Court. But the court’s sympathy for Union Carbide’s forbearance has not been balanced by any real consideration for its victims. This judgment slams the door of justice in the face of survivors, denying them any meaningful acknowledgment or remedy for their plight. Therefore, the verdict is a deliberate, calculated, egregious act of erasure, one which cements for all time an injustice, which, in its nature and scale, the world has not seen before or since. 

What roles have the survivors’ and supporters’ organisations, such as yours, played in the struggle for justice?  

Bhopal-based organisations, such as ours, have successfully battled the corporation and government in erasing the Bhopal Gas Disaster from the public memory. Union Carbide and its owner Dow Chemical hired top PR agencies to invisibilise the ongoing disaster in Bhopal and to destain themselves from the crimes. But the organisations campaigning for justice for the victims have foiled all those attempts. For instance, an Early Day Motion (621) was recently tabled in the 2022-2023 session of the British parliament, seeking justice for the survivors, and reviving the memories of the global community. Similarly, the Indian government would have long back closed the “Department of Bhopal Gas Tragedy Relief & Rehabilitation” if not for the pressure from the organisations.

The organisations helped survivors access the US judiciary and international fora, such as the International Court of Justice and the United Nations. They assisted the prosecution, the Central Bureau of Investigation, and other agencies in India. 

The organisations accessed vital official records using the Right to Information Act, exposing government officials’ and agencies’ false claims and dubious assertions. They also collected and generated invaluable information on the disaster’s medical, social, and environmental aspects that have successfully challenged the biased and motivated studies conducted by government scientific agencies.

The organisations helped survivors understand the legal, technical, and environmental issues concerning the disaster to make informed decisions on crucial issues affecting their health and lives. They also helped the victims unite as a community and join hands with similarly placed communities victimised by corporations and governments outside Bhopal, nationally and internationally. 

The journalist Rajkumar Keswani  had sounded a timely warning about the impending disaster. Yet, the authorities chose to look the other way. Is history repeating itself in Bhopal? How alarming is the issue of contamination of groundwater aquifers around the abandoned Union Carbide factory site that the survivors’ and supporters’ organisations continue to draw attention to? 

The story of Bhopal’s second (and possibly larger) environmental disaster is clearly a case of history repeating itself. Just as the government remained inactive and apathetic even after Keswani’s revelations about the hazardous conditions within the factory, the Union and State governments continue to remain unmoved by the successive revelations regarding the nature, depth, spread and effects of contaminants in the groundwater in and around the abandoned factory.

Numerous government and non-government agencies have tested samples of groundwater since the 1990s. Nine chemical contaminants reported by government agencies fall in the list of Persistent Organic Pollutants (POPs)— chemicals whose production the Stockholm Convention, signed by 152 countries, aims to eliminate or restrict due to their long-term and severe impact on health and the environment. The POPs found in the Bhopal groundwater persist in the environment for long periods. They can transport long-range, bioaccumulate in human and animal tissue, and bio-magnify in food chains. 

In addition to POPs, other poisonous chemicals, pesticides, and heavy metals such as mercury and chromium have been reported in alarmingly high concentrations by no less than eight government agencies.

What are the health risks people face due to aquifer contamination? 

The analysis of breast milk of mothers chronically exposed to contaminated groundwater at the laboratory in IIT Kanpur has shown very high concentrations of toxic chemicals being passed on to their newborns. Exposure to these chemicals is known to cause cancers, congenital disabilities, dysfunctional immune and reproductive systems, diminished intelligence, and other health problems. Health surveys in the affected communities have found significantly higher rates of cancers and congenital disabilities as well as chronic illnesses of the lungs, brain, liver, and kidneys in the population with a history of chronic exposure to contaminated groundwater.

What is the extent of the contamination?

In 1991, when the issue was first brought to light, the contaminated groundwater affected less than 5,000 people. In 2004, the Supreme Court acknowledged the contamination in 14 communities in the factory’s vicinity. The latest report of the CSIR-Indian Institute of Toxicology Research states that the number of affected communities has gone up to 48, with an affected population of over two lakh. According to this report, the contamination has gone well beyond three kilometers from the factory and is moving towards the centre of the city and the lakes. 

How will history remember the Bhopal Gas Disaster?

The Bhopal Gas Disaster disgraces all whose solemn duty has been to uphold people’s rights regardless of caste, class, race, gender, religion, or nationality. A foreign corporation’s greed made hundreds of thousands of innocent people incurably ill. They are left to suffer alone for the rest of their lives—all in the name of India’s foreign investment climate. The Bhopal Gas disaster was a people’s disaster—it will always be theirs.    

Ajay Saini is Assistant Professor, Indian Institute of Technology Delhi. He works with remote indigenous communities.