Bhopal: The disaster continues
Bhopal: The escape of about 40 tonnes of methyl isocyanate (MIC) – a highly toxic chemical – from a storage tank on the premises of the pesticide plant of Union Carbide India Limited (UCIL) in Bhopal – the capital of the State of Madhya Pradesh – on the night of 02/03 December 1984 resulted in a horrendous disaster. Due to criminal negligence and utter callousness on the part of the plant management in taking adequate safety precautions, water and other impurities – that cause MIC to react violently – entered one of the MIC storage tanks resulting in exothermic reactions and forcing MIC and its reaction products to escape in the form of froth and lethal gases. The escaping poisonous gases, which were heavier than air, spread across 40 sq. kms of area of Bhopal, covering about 36 of the 56 municipal wards, leaving in its wake more than 20,000 dead (over several years) and inflicting injuries in varying degree on about 550,000 others. About 900,000 persons had inhabited Bhopal then. The pernicious impact on flora and fauna in the affected area was equally grave. UCIL was then under the control of Union Carbide Corporation (UCC) – a U.S. multi-national company, which is currently wholly owned by the Dow Chemical Company (DOW), USA.
Giving thIs background and tracing the disastrous impact of the Union Carbide gas disaster that struck the capital of the centeal Indian State of Madhya Pradesh in December 1984, a draft statement that is dated November 30, 2015 but already has been circulated widely on social media and issued jointly by Abdul Jabbar Khan and N.D. Jayaprakash representing two organisations working for the cause of the survivors of the worst industrial catastrophe – Bhopal Gas Peedit Mahila Udyog Sangathan (BGPMUS) and Bhopal Gas Peedit Sangharsh Sahyog Samiti (BGPSSS) – goes on to note on the eve of the 30th anniversary of the disaster that even after three decades, neither the State nor the Central Government has attempted either to undertake a comprehensive assessment of the ramifications of the disaster or to take necessary remedial measures. The unjust Settlement of 14/15.02.1989 was a complete sham with each gas-victim being finally awarded less than one-fifth of the sum allotted under the settlement. As a result, the gas-victims have had to wage concerted struggles in their quest for medical relief & rehabilitation, compensation, environmental remediation and justice. There was little progress during 2015 on the most pressing issues concerning the Bhopal gas-victims, which is a matter of serious concern.
On the current status of issues such as health care, enhancement of compensation, rehabilitation, prosecution of the accused, and remediation of the environment., BGPMUS and BGPSSS have jointly recounted the following:
1. HEALTH: The gross indifference on the part of the State and Central Governments to the health needs of the gas-victims continues to be as grim as ever. Apart from the fact that a fairly large health-infrastructure has been built in terms of buildings and number of hospital beds because of pressure exerted over the years by organizations supporting the cause of the Bhopal gas victims, the quality of health care in terms of investigation, diagnosis, treatment, research and record-keeping continue to be abysmal as ever. The persistent apathy of the Indian Council of Medical Research (ICMR) and the Government of Madhya Pradesh in monitoring the health status of the Bhopal gas victims is shocking to say the least. They have failed to maintain proper medical records of hospitals and clinics through computerization and networking and have failed to supply health-booklet to each gas-victim with his/her complete medical record. That a proper protocol for treatment of each gas-related ailment has not been evolved even 31 years after the disaster speaks volumes about the apathetic attitude of the concerned authorities in this regard. Mere symptomatic treatment, over-medication due to lack of proper monitoring, and dispensing of sub-standard and spurious drugs has resulted in increasing number of renal failures among gas-victims. Bhopal-disaster-related medical research, which the ICMR had thoughtlessly discontinued in 1994 and which the ICMR was compelled to revive in 2010, is yet to be pursued with necessary vigour. The fact is that neither the ICMR nor the State Government has any idea of the number of gas-victims suffering under each category of disease arising from respiratory, ophthalmic, gastro-intestinal, neurological, psychiatric, and other problems. What is equally shocking is that even 31 years after the disaster, most of the gas-victims seeking treatment continue to be classed as suffering from temporary injury in order to deny them compensation for permanent injury.
1.1 It was because of this utter insensitivity on the part of the Union of India and the State of Madhya pradesh that BGPMUS, the Bhopal Group for Information & Action (BGIA) and BGPSSS – as Petitioners Nos.1, 2 and 3 – filed a Writ Petition (No.50 of 1998) before the Supreme Court on 14.01.1998. The Petitioners pleaded for restarting of disaster-related medical research, monitoring & recording the health status of each gas-victim, improvement in health care facilities, appropriate protocol for treatment of each disaster-related ailment, etc. After 14 years of litigation, and after several interim directions, the Supreme Court finally issued a comprehensive Order on 09.08.2012 acceding to the above prayers of the Petitioners and issued necessary directions to the Union of India, the State of MP and to concerned institutions in this regard. The Petitioners were further directed to pursue the matter before the High Court of Madhya Pradesh (as Writ Petition No.15658 of 2012), a task that BGPMUS & BGPSSS are actively engaged in at present. However, the fact remains that even 39 months after the Supreme Court had passed the said Order dated 09.08.2012, neither the UOI nor the State Government has taken the necessary steps to comply fully with all the directions of the Court. What is most appalling and disheartening is that even 31 years after the disaster, proper health records of the gas-victims are not being maintained and, although claims are being made to the contrary, the fact is that gas-victims do not have a hard copy of his/her complete medical record in his/her possession.
1.2 Because of the failure of the Respondents to comply with the said Order of the Supreme Court dated 09.08.2012, BGPMUS & BGPSSS were compelled to file a Contempt Petition (No.832 of 2015) on 15.05.2015 against the concerned officials of UOI, State of MP and allied institutions such as ICMR, NIREH and BMHRC. After admitting the Contempt Petition on 27.10.2015, the MP High Court issued notice to the Respondents. Meanwhile, the Chief Secretary, Government of MP, and the Secretary, Bhopal Gas Tragedy Relief & Rehabilitation Department (BGTRRD), who are Respondent Nos.3 &4, had already filed their Reply to the said Contempt Petition on 16.09.2015. Therefore, the Court also directed BGPMUS & BGPSSS to file a Rejoinder to the same. Since, the responses in the Reply filed by the said Respondents were mostly false and misleading, Petitioner No.2 not only filed a Rejoinder on 30.11.2015 but also filed an application under Article 266 of the Constitution urging the High Court to take suo motu action against Respondent Nos.3 & 4 under Sections 191 and 193 of the Indian Penal Code for committing perjury.
1.3 A shocking and disgraceful act that came to light in 2008 was the illegal manner in which secret drug trials were conducted on gas-victims at BMHRC during 2004-2008. After the matter become public, the authorities at BMHRC have been making every effort to shield the culprits. BGPMUS & BGPSSS have sought detailed inquiry into this unsavory incident of using gas-victims as guinea pigs and have demanded stringent action against the guilty. For pursuing the matter, BGPMUS & BGPSSS have become interveners in Writ Petition (C) No.33 of 2012, which was filed to oppose unregulated drug trials in the country, especially by multinational drug companies, and it is currently pending before the Supreme Court.
2. COMPENSATION: Twenty-one years after the unjust Bhopal Settlement of 14/15 February 1989, the Union of India had decided to file a curative petition [Curative Petition (Civil) Nos.345-347 of 2010] before the Supreme Court on 03.12.2010 against the terms of the Settlement on the plea that the Settlement was based on underestimated figures of the dead and injured. The UOI has sought enhancement of compensation by an additional Rs.7728 crores while the 1989 Settlement amount was merely about Rs.705 crores. The petition has been admitted but has not yet been taken up for hearing. BGPMUS and BGPSSS do support the UOI’s Curative Petition in principle regarding the total casualty figure (i.e., 5,73,586 victims, including dead and injured) and regarding the modalities for enhancing compensation (i.e., that it should be based on the Dollar-Rupee exchange rate that prevailed at the time of the Settlement). However, BGPMUS and BGPSSS have serious differences with the UOI’s stand regarding the number of dead (just 5295 according to the Curative Petition) and the seriously injured (just 4944 according to the Curative Petition) and regarding the UOI’s paltry claims for relief & rehabilitation and for environmental remediation. The stand of BGPMUS & BGPSSS regarding the number of dead (20,000+) and seriously injured (150,000+) has already been explained in the Special Leave Petition (SLP) that is currently pending before the Supreme Court as SLP (C) No.12893 of 2010, which will be heard only after the disposal of UOI’s Curative Petition. On 24.10.2013, BGPMUS & BGPSSS have filed an Interlocutory Application in UOI’s Curative Petition (C) Nos.345-347 of 2010 to point out the inadequacies in the same and praying for granting appropriate relief. It is astonishing that the Union of India had made no attempt to place the relevant ICMR reports before the Claim Courts to enable the Claim Courts to assess fairly the types and gravity of injuries suffered by the Bhopal gas victims. In the absence of proper health booklets, which the ICMR and the State Government had failed to provide to each gas-victim, circumstantial evidence would have been very valuable in determining the likely degree of injury suffered by a gas-victim. BGPMUS & BGPSSS hope that the said Curative Petition, which has been pending before the Supreme Court for the last five years, would be disposed of without further delay but after health booklet with his/ her complete medical record is issued to each gas-victim. Compensation is supposed to be awarded in terms of the category and degree of injury but as of now gas-victims are left without the means to prove the same!
3. CRIMINAL CASE: The criminal cases against the accused are supposedly proceeding at two levels: one against the three absconding accused and the other against the eight accused who appeared before the Chief Judicial Magistrate (CJM), Bhopal, to face trial. Through Judgment and Order dated 07.06.2010, the CJM had prosecuted the said eight accused persons under Section 304-A, 336, 337 and 338 of IPC. The CBI, the State of MP and BGPMUS & BGPSSS had filed Criminal Revision Petitions against the said Judgment before the Sessions Court, Bhopal. By completely overlooking the plea of the Prosecution and by upholding the contentions of the accused in toto, the Sessions Court, on 28.08.2012 had dismissed the CBI’s Criminal Revision Petition No.632 of 2010 against the said Judgment because of it “being not maintainable and barred by limitation”. The CBI had sought enhancement of charges against Keshub Mahindra and 7 other accused from Section 304-A to Section 304 Part-II of IPC based on evidence already before the CJM. Thus, the ray of hope that was visible in the Supreme Court’s Order dated 11.05.2011 in Curative Petition (Cr.) Nos.39-42 of 2010, which was that the misreading of its Order dated 13.09.1996 in Criminal Appeals Nos.1672-1675 of 1996 by the CJM “can certainly be corrected by the appellate/ revisional court”, has suffered a serious setback. Moreover, the fervent hope that similar Criminal Revision Petitions that the State of MP as well as BGPMUS & BGPSSS had filed, which were certainly not barred by limitation, would receive favourable consideration were also thwarted when the Sessions Court summarily dismissed the said Revision Petitions after keeping the same pending unduly for over three years. BGPMUS & BGPSSS have already expressed their utmost displeasure at the extremely slow pace at which the criminal case has been proceeding and their demand for setting up a special court to speed up the proceedings has not yet been acceded to by the State Government. The CBI too is least bothered about speeding up the proceedings.
3.1 As of now, BGPMUS & BGPSSS, which by filing an appeal and a writ petition against the unjust settlement of 14/15.02.1989, were instrumental in reviving the criminal cases against the accused in 1991, are barred from the proceeding in the criminal cases against the Indian accused, which is pending before the Sessions Court. Ten to fourteen days imprisonment at the time of arrest in 1984 is the only privation that seven of the accused (Nos.2 to 9) have suffered so far (accused No.4 has not faced even that inconvenience to date)! Under the circumstances, the culprits are least perturbed about the likelihood of being imprisoned any further in their lifetime and the next of kin of the dead and the surviving victims are left with not even the faintest hope that justice would be rendered to them in their lifetime for the loss & suffering they have had to endure during the last 31 years, which speaks volumes about the pathetic state of the criminal justice system in the country that renders justice only on selective basis.
3.2 The criminal case against the three absconding accused, namely accused Nos.1, 10 and 11, which has been pending before the Court of the CJM, Bhopal, as Miscellaneous Judicial Case (MJC) No.91 of 1992 has also been proceeding at an equally tardy pace. After acceding to the plea of BGPSSS, BGIA and BGPMUS dated 07.09.2001, the CJM had issued notice to the Dow Chemical Company (DOW), USA, on 06.01.2005 to appear in the criminal case on behalf of the absconding accused No.10, Union Carbide Corporation (UCC), USA, which had become a wholly owned subsidiary of DOW in 2001. However, on 17.03.2005, the MP High Court at Jabalpur had stayed the said order of the CJM at the urging of a purportedly non-party in the matter. The stay was vacated only seven years later on 19.10.2012, when the High Court finally upheld the validity of the CJM’s Order dated 06.01.2005. After BGPSSS & BGPMUS brought the ruling of the High Court to the attention of the CJM, Bhopal, through an Application dated 30.11.2012 in MJC No.91/1992, the CJM re-issued notice to Dow on 24.07.2013 and on 12.11.2014. However, Dow has repeatedly failed to reply to the notice. Meanwhile, the proceedings against accused no.1, Warren Anderson, have become infractuous after his demise on 29.09.2014. The next date of hearing before the CJM is 19.12.2015. The lackadaisical manner in which the trial against the accused in the Bhopal disaster criminal case has proceeded for the last thirty-one years makes a mockery of the criminal justice system in the country. Neither the Central Government nor the State Government appear to be serious in pursuing the criminal cases against the accused, including Dow Chemicals, which is indicative of their total lack of commitment to the cause of the gas-victims.
4. ENVIRONMENTAL REMEDIATION: Toxic waste that was generated during UCIL’s operation from 1969 to 1984 was dumped in and around the plant leading to severe soil and water contamination. A comprehensive study to estimate the extent and gravity of the damage has not been carried out by the Centre or the State Government to date. Instead, the magnitude of the problem has been grossly underestimated by making it appear that the total toxic waste that needs to be safely disposed of is only about 345 tonnes that is stored at the plant site. The matter is pending before the Supreme Court as SLP (C) No.9874 of 2012 and as a part of the Curative Petition (Civil) No.345-347 of 2010. The current proposal to incinerate/bury the toxic waste near Indore is wholly misconceived and it would only result in shifting the problem from Bhopal to Indore. On the contrary, in a preliminary study that was jointly carried out by the National Environmental Engineering Research Institute (NEERI), Nagpur, and the National Geophysical Research Institute (NGRI), Hyderabad, during 2009-2010, it was estimated that “the total quantum of contaminated soil requiring remediation amounts to 11,00,000 MT [metric tonnes]”(p.68). Since the Government of India has submitted that the private incinerator at Pitampur (Indore) has been suitably upgraded to prevent any toxic emission, the Supreme Court has permitted test-incineration of toxic waste currently stored at the Bhopal plant. The results of the tests are awaited. Based on the “Polluter Pays Principle”, it is the duty and responsibility of the Dow Chemical Company, USA, which currently owns UCC, to meet the cost of remediating comprehensively the affected environment in and around the UCIL plant with the latest available remediation technology. Similarly, the cost of providing safe-drinking water to the affected population residing in and around the former UCIL plant too has to be borne by DOW. However, the responsibility for providing safe drinking water to the affected population is entirely that of the State Government. However, the State Government is yet to fulfill that responsibility since supply of safe-drinking water to the affected areas is still very erratic. Moreover, the victims of contaminated water have still not been made eligible for free medical treatment.
4.1 Remediation of the estimated 11,00,000 MT of contaminated soil is a far more difficult task. At the initiative of the Centre for Science and Environment (CSE), Delhi, a preliminary attempt was made in April 2013 to bring together on a common platform the various stakeholders (including BGPMUS & BGPSSS) and experts to prepare an Action Plan to remediate the degraded environment. While a draft Action Plan has been worked out, it requires further refinement as well as inputs from other experts and stakeholders, including the Government of Madhya Pradesh. The stoic indifference of the State Government to this daunting task is alarming. In situ decontamination of the toxic waste (including the contaminated soil & groundwater) using closed-loop remediation technologies is a possibility. With inputs and technical help from UN Environment Programme, cleaning up of the contaminated site in Bhopal is quite feasible. However, the entire costs for the cleanup should be ultimately borne by Dow Chemicals.
5. RELIEF & REHABILITATION: The State Government has failed to address adequately and with sensitivity a host of socio-economic problems that confronts the chronically sick, the elderly, the differently abled, the widowed, and other vulnerable sections among the gas-victims. The pittance, which was disbursed as compensation in most instances to these sections was never enough to take care of their daily needs. Finding gainful employment in accordance with the reduced capacity to work and to lead a dignified life has been a serious challenge. The State Government has to give far more attention and provide far larger support to the most vulnerable sections of gas-victims than in the past.
On the 31st anniversary of this man-made-disaster, the Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS) and the Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS) pay their homage to the deceased victims and reiterate their determination to continue to uphold the cause of the survivors and to seek justice for the hapless victims.