Bhopal 25 Years Later -- The Continuing Tragedy

I. Introduction: Twenty five years ago, on the night of 2-3 December 1984, a lethal cloud of gases escaped from the pesticide plant of Union Carbide India Limited (UCIL) in Bhopal and enveloped the surrounding densely populated localities where the poorer sections of people reside. As a result, more than 500,000 people suffered varying degrees of injuries, of which over the years an estimated 20,000 victims have died due to the grievous effects. UCIL was a subsidiary of Union Carbide Corporation (UCC), a US multinational company. Subsequent investigations by governmental and non-governmental agencies clearly established that it was criminal negligence of Union Carbide management that caused uncontrolled reaction in a storage tank (No.610) containing 41 tonnes of methyl isocyanate (MIC, a highly toxic chemical)] resulting in a cocktail of very poisonous gases and chemicals bursting out. This US multinational (which has since been taken over by Dow Chemical Company, another MNC behemoth) had knowingly flouted all safety norms to cut costs at its Bhopal plant while maintaining much better safety standards at its main pesticide plant in the US, thus revealing its complete disregard for the lives of Indians.

The tale of this shocking mass killing does not end here. Redress and compensation was sought from UCC through legal means, which it evaded and blocked for years until matters were taken up in the Supreme Court of India. Even as investigations to assess the true extent of damage to lives and environment were dragging on, the Supreme Court, much to the satisfaction of UCC, brokered a settlement between the Govt. of India and UCC in 1989. Under the terms of the settlement, UCC promised to pay 470 million US Dollars (about Rs.705 crores at the then rate of exchange) as compensation, while the Govt. of India agreed to withdraw the criminal cases instituted against the company and its officials for causing the disaster. Compensation was to be paid for arbitrarily estimated 3000 fatalities and over 1 lakh injured.

The sum of 470 million dollars was very close to the 450 million insurance that Carbide carried, meaning that Carbide had to pay only 20 million beyond what the insurance companies paid out, makning it one of the cheapest damages settlement everv for any major chemical accident.

Over 25 years have passed since this arbitrary and unjust settlement was imposed on the victims. During this period, about 50 percent of the settled compensation amount has been distributed among five times the number it was originally (and erroneously) meant for. Families of those who died have received about Rs.57,000 each and those who were injured, about Rs.26,000 each as compensation. Distribution of the balance began recently, on 15 November 2004. Thousands of victims still continue to suffer from serious ailments and disabilities directly attributable to the gases; on an average about 6000 victims continue to visit medical facilities every day. A whole generation of people debilitated by the toxic gases struggled through these years bringing up children who suffered from its harmful effects, fighting declining physical capacities to earn their living, and awaiting justice. In the latter half of the 1990s, persistent investigations revealed that UCIL had been poisoning the surrounding areas by freely dumping toxic waste produced in the routine operation of the pesticide plant since 1969. Ground water contamination and other continuing environmental damages are yet to be properly assessed.

In other words, successive governments (at the state or central levels) have floundered in dealing comprehensively with the real extent of the disaster that struck Bhopal twentyfive years ago and the environmental damage that was caused even prior to that. On the other hand they have bent over backwards to accommodate and appease the killer company in diverse ways. Prosecution of the companies and its top officials was relaunched in 1993 after being quashed under the settlement. Criminal charges against the accused have been reduced from culpable homicide not amounting to murder to causing death by rash and negligent act. It was only in 2004 that the Govt. of India finally requested extradition of Warren Anderson, Chairman of UCC in 1984, after he failed to appear in court for twentyfive years. UCC, a proclaimed offender in India, set up a Trust in London and was allowed to take away Rs.11.7 crores for 'administrative expenses', including daily personal charges of the Chairman which were more than the compensation for death in 1984. The erstwhile NDA government even listed Keshub Mahindra, one of the accused, for being awarded the Padma Bhushan - fortunately the ensuing public outrage prevented this. The Bhopal settlement and later legal shenanigans clearly reveal the collusion of successive governments with multinational corporate interests.

Although twentyfive years have gone by, the Bhopal Gas Disaster is still a live issue not only for the thousands of residents of Bhopal but also for all those concerned about these issues. For many, the developments following the disaster are a complex maze of legalities while for a vast number of people the true import of the events never became clear. Hence, the All India People's Science Network (AIPSN) have decided to observe the 25th Anniversary of the Disaster through mass campaigns of diverse kinds across the country, to highlight the predatory nature of MNCs operating in third world countries and their callous disregard for the people whom they exploit brutally for super-profits. The connivance and servility of the legal, juridical and administrative powers that be also stands exposed in connection with Bhopal, and serves as a warning for the people of the country.

It is in this context that the present booklet is being published. It may be recalled that several members of AIPSN, including DSF, Eklavya, KSSP, MPVS etc., have been deeply involved in the Bhopal disaster right from December 1984. This booklet draws upon the experience of all these organisations, as also other democratic sections working in Bhopal, or working in solidarity elsewhere. Much of the material consulted in preparation of this document has emanated from the legal battles that have been so relentlessly fought by various victims' organisations as part of the quest for justice for Bhopal.

II. The Cloud of Death

U
CIL was manufacturing the pesticide 'Sevin' (1-Naphthyl N-methyl carbamate). at Bhopal. The pesticide plant was located very close to the most densely populated areas of old Bhopal, home to the poorer sections of the city, including daily wage labourers, informal sector workers etc.

All the ingredients that go into making of carbamate pesticides at UCIL, Bhopal, were highly toxic. At various stages of production, the plant used carbon monoxide, chlorine, phosgene, methylamine, chloroform, MIC, alpha-naphthol, carbon tetrachloride, etc. When production started in 1969, MIC was being imported from UCC's plant in USA. However, from 1980, MIC began to be manufactured in the Bhopal plant, using know-how and basic designs supplied by UCC, USA. MIC is not only a very poisonous compound but it is extremely reactive with diverse kinds of chemicals, and its reactivity is enhanced in the presence of a wide range of trace catalysts. Most of its reaction products, including hydrogen cyanide and carbon monoxide, are in turn extremely poisonous. Phosgene is a well-known chemical weapon, which was used during World War I.

MIC was stored in three underground tanks at the Bhopal plant. It was supposed to be kept at temperatures less than 5 deg C, preferably at 0 deg C. Several safety precautions needed to be taken to prevent any foreign substance from entering the tank, especially water, since MIC reacts with it explosively. Moreover, contingency measures for controlling any leakage needed to be kept ready, with regular monitoring.

Right from the beginning, the plant was beset with accidents. On 25 December 1981, plant operator M.A.Khan died after being exposed to leaking phosgene the previous day. On 10 February 1982, another leak of phosgene took place severely injuring 16 workers who swung between life and death for several days. A couple of months later, in April, ten accidents were reported within a week. On 5 October 1982, MIC escaped from a leaking valve causing serious injuries to four workers. People in nearby colonies complained of burning sensation in the eyes and choking, causing hundreds to flee in panic. There was a growing sense of insecurity among the workers and the surrounding population. Local newspapers warned of an impending disaster. The workers' union complained to the management of the danger. A local lawyer served legal notice to the UCIL management. But, both the government and the UCIL top brass were unfazed. They vigorously asserted that there was no threat to anybody from the chemicals used in the plant and described all allegations as baseless.

The shutting off of the refrigeration system of the MIC unit in June 1984 signaled the beginning of the final journey to disaster. Remember that MIC needs to be kept at very low temperatures to prevent reactions. Shutting off the refrigeration meant that the contents of the tank would be heating up to ambient summer temperatures of over 40°C. The second line of defense was the vent gas scrubber (VGS). It would de-toxify any escaping gas by passing it through a spray of caustic soda solution. However, at the time of the disaster, the VGS was not in an operating mode. The third line of defense was the flare tower to burn toxic vent gases from the MIC and other units and the gases that escape chemical treatment in the VGS. The flare tower too had been dismantled for repairs. Thus, totally contrary to the prescribed safety norms, all the three critical safety systems were dysfunctional at the time of the disaster.

The method of preventing entry of foreign matter into the MIC tank was to keep the tank under constant pressure, using nitrogen gas. Any reduction of pressure below the prescribed level of 1 kg/cm2g would have indicated a leakage and alerted the maintenance staff of the possibility of entry of foreign matter into the tank. This pressure was also used to transfer MIC for further processing as and when required. However, from 22 October 1984 onwards, the pressure in the tank had reduced to near normal atmospheric pressure which indicated that there was a leakage. Also, lack of pressure would open the way for any contaminant, like water or corroded materials from the carbon-steel pipelines, to enter the tank through the path of leakage. During the night shift of 30 November 1984 attempts were made to pressurise tank No.610 with nitrogen but failed. This clearly showed that there was some leakage occurring and the status continued till the fateful night of 2 December 1984. No inspections were undertaken; no alarms went off; and no attempt to rectify the problem was made - it was business as usual at UCIL.

The only warning system operational was the workers' senses. At about 11:30 on the night of 2 December 1984, workers felt a burning sensation in their eyes and reported to the management. They were told to spray water at the suspected point of leakage. At 12:15 am, the rupture disc burst under intense pressure and the safety relief valve, which was connected to the VGS opened. The escaping poisonous gases passed through the defunct VGS without being de-toxified by chemical treatment. A field operator noticed a cloud of gas emanating from the shaft of the VGS. The siren was sounded at 12:30 am and water spraying was started. It could however not reach the top of the stack from where the gases were coming out. By 3:00 am, due to the decreasing pressure in the tank, the safety relief valve collapsed shutting out any outflow. This meant that the gases being produced due to uncontrolled and heat generating reactions were building up inside the MIC tank. Temperatures must have reached upto 350 deg C, later analysis showed. Inevitably, the tank burst. In two hours, about 40,000 kgs of lethal gases had assembled in a cloud above the plant. This cloud of death comprised about 40% MIC while the rest was a cocktail of equally lethal mostly other reaction products.

Helped along by a gentle breeze, the cloud drifted over and into the homes of sleeping people in the densely populated localities of old Bhopal. Ultimately 36 of the 50 municipal wards of the city were affected, i.e. about 65% of the over 9 lakh population. People woke up with burning eyes, vomiting and choking, which steadily worsened to chills, stupor, paralysis and death. Autopsy findings revealed oedema (filling up of fluids) in the brain and lungs; massive destruction of lung tissues; damaged liver and kidneys; large amounts of blood coagulated in some parts leaving other parts completely drained of blood; and high blood urea. Independent and reliable estimates put the number of people who ultimately died, at about 20,000 and the number of those who suffered injuries at over 5 lakhs. In the severely affected areas, dead fish floated in lakes while cattle and other animals also perished in large numbers.

The administration was completely unprepared for the scale and nature of the disaster. It took days for any kind of order to be restored. People fled in thousands immediately after the gas entered the localities. There are innumerable stories of individual heroism - people ferrying women and children out or rushing them to clinics and hospitals, of others who worked continuously for days rescuing and treating injured, till they themselves collapsed. Armymen, railway employees, employees of BHEL plant and several other social organisations plunged into rescue and relief work often suffering injuries themselves. Treatment was hamstrung because nobody knew what the constituents of the gas cloud were and UCIL did not reveal any antidotal measures. So, local doctors and hospitals applied symptomatic treatment. Speculative diagnosis and treatment was being carried out, often enmeshed in controversy.

Besides the impact on human life and health, flora and fauna in the surrounding areas showed considerable damage and mortality due to the toxic gases. The Krishna Murti Commission has revealed that in the first 11 days after the disaster, 3610 animals including cattle, goats, horses, pigs, dogs etc. were recorded dead. As per reports collected by veterinary officials 11,351 animals had died by 11 February 1984, suffering terrible convulsions, gasping and choking, spontaneous abortions etc. Several hundred others were afflicted with ailments. Birds and fish too died in large numbers. The Commission also reported that vegetation in the surrounding areas exhibited scorching and foliage shedding. This clearly indicates that the gases had a chemical defoliant effect, like the infamous Agent Orange used by US in Vietnam.

Thus did the worst ever industrial 'accident' take place. Twentyfive years have passed since then. Gas related injurious effects are being still discovered in second generation gas victims. There is doubt over the quality of ground water which the people drink in the absence of municipal supply. Shattered families with disabled or weakened earning members have been pushed further into poverty. The search for justice is still on.

III. The Reasons: Chronicles of a Disaster Foretold

W
hy did this tragedy occur? Who is responsible? We now turn our attention to these crucial questions. Many of the issues relating to reasons for the deadly gas leakage were identified immediately after the tragedy by independent investigators, including DSF (which published the first technical report on the Disaster). Over the years they have only been further substantiated by evidence that has come to light. What is revealed is a shocking tale of criminal disregard for the lives of both workers at the plant as also the surrounding populace, by both the UCC and the government. The successive actions of the [UCIL] plant management, taken in full knowledge of the parent company, and the fact that the government machinery turned a blind eye to them, inevitably led to the disaster - it is a chronicle of disaster foretold.

Faulty Design

The Bhopal plant had virtually no safety system worth the name which could handle contamination and runaway reactions in the MIC tank. The basic safety system was the vent gas scrubber in which sodium hydroxide (caustic soda) was used to neutralise small leakages originating from the MIC process plant and normal vents from the MIC tanks. The rate and pressure of discharge from the tank under conditions of a runaway reaction resulted in a situation where pump used for caustic soda recirculation became completely ineffective. As a result, 30 tons of MIC under a pressure of 11-13 kg/cm2g tore through the scrubber and spewed forth into the atmosphere. The flare tower was used primarily for incineration of routine discharge of carbon monoxide and monomethyl amine vapours. It was not sized for handling MIC discharges from a run-away reaction, a fact that was widely known within Union Carbide. The chilling unit was of only 30-ton capacity and had no stand-by unit for operation during maintenance or breakdowns. The water curtain was for knocking down MIC vapours, again not designed for sufficient height: if the leakage of MIC took place from pipes above a certain level, the water curtain would not reach it. For a plant which stores such a large inventory of a toxic intermediary like MIC, the safety system was utterly inadequate. All this shows that Union Carbide had been criminally negligent in designing the Bhopal plant.

It needs to be emphasised that UCC was aware of the possibility of tank contamination and runaway reactions. On 11 September 1981, a report by their internal safety engineers had pointed out this possibility. Their own Operating Manual and Safety Procedure Manuals repeatedly talked of the danger of contamination in the tank. The most clinching evidence of UCC's disregard to Indian lives is provided by the fact that UCC was following different standards for their plants in Bhopal and West Virginia (USA). The latter had two scrubbing systems sized for much larger discharges and would have been "adequate" to handle runaway reactions. The chilling unit at West Virginia was keeping the MIC tank always below 0ºC. It also had a stand-by refrigeration unit, unlike that at the Bhopal plant. The entire safety system was automatic in the West Virginia plant whereas it was manual in Bhopal plant. The West Virginia plant had a completely computerized alarm system. There were no sensors on the venting system of the MIC tank in Bhopal plant. As a result, even in the normal course, noxious MIC fumes were discharged into the atmosphere, without any warning. The gas detection system of the Bhopal plant was the workers' eyes, which are sensitive to MIC only at 2 ppm - 100 times the permissible exposure limit of MIC! This may be contrasted to the computerized gas detection system at the West Virginia plant. At West Virginia, UCC had been following the routine procedure of informing residents every year since 1975 of emergency precautions through letters. No such procedure was ever followed in India. In fact, in the US, under the Dyer's Programme all plants where runaway reactions could occur were made to install "total containment" systems in order that there is virtually no effect on the surroundings. UCC did so in W. Virginia but not in Bhopal.

In any case, much safer routes for making the same end product without involving such dangerous gases as MIC were known. They were not adopted as it was more expensive. Neither was storing such large amounts of hazardous gases necessary. The choice of the route as well as the inventory were choices made keeping only profits in mind and not safety., a decision that copst the prople of Bhopal dear.

Poor Maintenance

The maintenance of the plant was extremely poor and not in conformity with the requirements of a hazardous plant of this type. It is imperative that while dealing with corrosive chemicals, the pump seals, valve seats and plugs, flanges and other fittings be periodically inspected for corrosion and replaced after a specific period. UCIL rarely held inspections and replacement of vital parts was delayed by as much as two years. If fact, UCIL had started a massive economy drive soon after commencing operations at the Bhopal plant. Thus, many of the primary sensors, which were prone to failure and required periodic replacement, were inoperative at the time of the accident. The vital control panel which monitored the storage tanks was not functioning on that day. The safety valve discharge piping to the Relief Valve Vent Header from 4 MIC process filters was being washed shortly before the incident without a slipblind. Such a procedure is necessary so as to isolate the pipe being washed and prevent water ingress. In all probability, this was the route of water ingress leading to the accident. The leaking valves and the non-use of the slipblind show clearly the impact of poor maintenance and operating practices on the accident.

Economy Drive

In order to reduce running costs, workers' strength had been reduced from 850 to 642 over the preceding two years, operator strength had been reduced by half in potentially dangerous operations and poorly trained workers and supervisors had been placed in vital sections of the plant, specifically the MIC unit. At the time of the accident, the supervisor present had no previous training in such operations, having been transferred from Carbide's battery plant only two months ago. The number of operators on the 15 feet long control panel was reduced from two to one although it is impossible for a single operator to monitor such a long panel especially during emergencies. Contrast this to the "buddy" system mandatory in the US where there is always a standby, in order that the control panel is not left unmanned even for a moment. Reduction of workforce meant increased work-load on those retained. Running the plant with such untrained manpower and with increased workload was surely risky. However, the fate was sealed by UCIL when it rendered inoperative all three safety systems:

 The refrigeration unit for cooling the MIC storage tank was shut down in June 1984. Ostensibly, the reason was cost-cutting. UCIL had proudly claimed a saving of 18% in energy expenditures the previous year. This meant that for nearly five months (including the over 40 C temperature summer heat) this lethal chemical was waiting to explode.
 The inadequate vent gas scrubber had been removed from an operational mode to a standby mode on 23 October 1984 even though over 85,000 kgs of MIC was stored in the tanks. Thus, even the meagre protection offered by this device was non-functional.
 The flare tower which is used to burn any escaping gases had been removed from service and was under repair.
 Incidentally, while cutting costs in such crucial areas, UCIL continued to pump in money for its dubious research programme in a nearby unit.

Secrecy

UCC never revealed to Indian authorities the know-how and equipment required to tackle emergencies like sudden release of toxic gases, and information relating to the stability, toxicity, possible reactions of, and antidotal measures for MIC poisoning, although reportedly, the Mellon Institute in USA, run by UCC, had considerable information in this regard. Such a lack of information had a telling effect on subsequent disaster management. While such essential aspects had been ignored, UCIL was pursuing research in the grey area between civilian and military applications. The R&D centre at Bhopal was testing chemicals whose composition was never disclosed to the Indian authorities, and passing on the research data generated back to the parent firm, all without the necessary high level governmental clearance.

Negligence of Government

So, what was the govt. doing all this while when UCIL was openly flouting safety norms and lying about it shamelessly? In the first place it needs to be emphasised that the govt. (both state and central) committed a gross error by allowing UCIL to set up the plant so close to densely populated areas. Moreover, it was a serious omission on their part to not properly screen and evaluate the risky and deficient technology package to be deployed at the plant. The government also failed in conducting a proper evaluation in 1983 when the collaboration agreement was renewed. Their was no insistence on 'full disclosure' of technical details, which would have revealed the composition of the gases that leaked and helped in treatment. No comparison was done with the existing plant at W. Virginia, set up earlier. This is all the more shocking, given that several accidents took place in the plant after it's commissioning.

The state govt. was armed with several laws to deal with environmental protection, use of hazardous substances in manufacturing and safety: Factories Act, 1948; Insecticides Act 1968; Water Pollution Act, 1974 and Air Pollution Act, 1982. Despite this, it failed to take necessary measures for monitoring and evaluation of safety aspects in such a facility which stored and handled large quantities of highly toxic chemicals. The government 's failure in disaster-management also contributed greatly to the death-toll and the extent of causalities. The clamp-down by government on vital information created problems both for disaster management and for medical personnel. Total confusion prevailed regarding the provision of medical relief victims throughout the period.

We thus have a sordid and shocking picture of the callous indifference with which both UCIL and the concerned governments treated the issues of safety and protection of workers in the factory and the people living in the vicinity. UCIL and UCC were fully aware of the deadly consequences, they were conscious of the danger and risk, and yet they chose to sacrifice thousands of people for a few more dollars. The govt. on its part, typically, chose to genuflect to foreign investors, allow flouting of safety and monitoring norms, and turned a blind eye to the hapless people of Bhopal who are still paying the cost. However, the saga of their misdeeds and the sufferings of people does not end here. After the disaster, the conduct of both UCIL, its parent company UCC and the various governmental and judicial institutions in India have continued to display a similar disregard.

IV. Toxic Legacy

I
nitial estimates of immediate deaths ranged from 2500 to 5000. Officially, 36 municipal wards with a population of over 5 lakhs were declared gas affected. The suffering of the people was compounded by the chaos, indifference and directionlessness that prevailed in providing medical relief, rehabilitation measures, research and documentation. Union Carbide spared no effort at spreading erroneous and partial information and refused to shed light on possible composition of gases or their antidotes. Consequently, no positive line of treatment was ever developed and neither was any breakthrough made in researching and evolving one. The clamp down on scientific information both by Carbide and the govt. was primarily responsible for the state of affairs.

Severe Damage to Health

However, direct observation of the gas victims over the years, and scientific studies carried out by various organisations, have clearly established that apart from the well-known damage to eyes, lungs and other organs, there were lasting effects on the immunological, psychological and other systems. The Indian Council for Medical Research (ICMR) carried out 25 research studies in Bhopal during 1985 to 1994, after which they were abruptly terminated for reasons unknown. Of the patients treated at the only hospital in the area at the time (Hamidia), 98.9% suffered from breathing problems, 85.8 had eye problems and 91% had gastro-intestinal problems. There were 16 other problems reported in varying degrees. In addition, complaints of menstrual irregularities, spontaneous abortions, neorological problems and mental disorders also surfaced. Toxins from the gases had also crossed the placental barrier causing foetal poisoning. According to a preliminary report published by ICMR in 1986, psychological trauma, immunological disturbances with unforeseeable susceptibility to infections and even chromosomal abnormalities were observed. Biannual morbidity surveys showed that the number of people with exposure related symptoms was actually increasing. According to one study the number of persons with breathing problems had increased by three times between 1987 and 1991. Prevalence of early-age cataract (below 54 years) was also three times more in the exposed population. Chronic conjunctivitis and trachoma were also found to be widely occurring. Pregnancy related studies have established that among gas exposed women spontaneous abortion rate was almost three times more, perinatal mortality was two times more and neonatal mortality 1.5 times more than the respective national averages. Studies of children whose mothers were exposed to the gases during pregnancy revealed that several children had delayed motor and language sector development of the brain. A detrimental effect on the immune system has been recorded among gas victims. Immunoglobulin levels were significantly raised, number of T cells depressed and Ta4/T8 ration reversed indicative of immuno-suppression. Prevalence of mental health disorders were found to be two to three times higher among gas victims, with anxiety and neurotic depression the most common ailments.

The report of the Krishna Murti Commission set up by the Govt. of India to study the continuing effects of the gas tragedy on life systems (published in 1987) established that apart from the symptoms related to eyes, lungs and digestive system, the survivors show easy fatigability, muscular weakness and inability to perform even simple exercises, even if they have no serious lung involvement. It quoted an ICMR study which showed that 22% of the patients attending clinics in Bhopal suffered mental disorders. A subsequent study, also quoted by the Commission, covered 6000 people through two sets of tests and concluded that prevalence rate of mental disorders was inordinately high: 60-133 per thousand as compared to 25 per thousand in non-affected persons. Majority of the patients were female and over 80% were below 45 years. Thus it was clearly indicated by very competent authorities that there were going to be long range and unforeseen effects on the gas victims and their progeny. Despite this, all research and documentation work by official agencies like ICMR was wound up by 1994.

The only official medical study still continuing is an epidemiological survey regularly carried out by Centre for Rehabilitation Studies (under the Bhopal Gas Tragedy Relief & Rehabilitation Department, Govt. of Madhya Pradesh) and a cancer registry. The Annual Report of the dept. released in December 2003, provides a shocking glimpse of the health of the survivors, on the basis of the XV round of survey by CRS. While morbidity rate (occurrence of an ailment) is only 5.16% among the unaffected population, it is 19.71% among people in the gas affected areas. Thus, approximately over 1.5 lakh people are still suffering from various ailments even 25 years after the tragedy.

The Annual Report also gives statistics of visits to hospitals and clinics made by gas victims. In 2002, a total of 1,505,687 visits were made by the victims, i.e., on an average 4127 victims were visiting the various hospitals & cinics every day. These figures do not include patients visiting the huge Bhopal Memorial Hospital & Research Centre and its outreach units. It is evident that gas victims continue to suffer health problems in a most marked manner.

Studies carried out by voluntary organisations indicate that the ICMR studies might have underestimated or even overlooked the effects of toxic gases. For instance, a pregnancy outcome survey conducted by Medico Friends Circle in September 1985 showed that spontaneous abortion rates among gas exposed women were several times higher than reported by ICMR. A survey carried out in 1989 by doctors from the J.J. Group of Hospitals in Mumbai found that over 40% of gas victims suffered from post-traumatic stress, a condition not studied by ICMR. In January 1994, the International Medical Commission on Bhopal composed of specialists in 14 fields concluded that there was significant lung damage, marked reduction in limb control and reduced memory functions among the victims. They found evidence of wide ranging toxic damage to the neurological system. Private doctors working at infertility clinics report 3-4 fold rise in infertility cases among gas exposed women.

Response of the Government

Given this shocking state of the victims health, it is not surprising that 10-15 persons die of gas related ailments every month. A large number of victims continue to suffer acutely from log-term health effects of the toxic gases. It must be noted that most of these persons were dependent on hard physical labour for survival. Incapacitation due to toxic effects of gases has meant a rapid descent into dire poverty with all its attendant consequences. The compensation amounts have been partial and meagre, completely insufficient to meet the needs of medical care. Thus there was the most urgent necessity for large scale govt.-sponsored measures for medical treatment of gas victims. But, as usual, the response of the Madhya Pradesh state govt. has been callous and apathetic.

Five additional hospitals with a total of 740 beds were built over the years to meet the needs of gas victims. Most of them slowly became functional only in the mid nineties, 10 years after the disaster. There was so much corruption and delay involved in the construction that even the CAG noted it critically. 8 clinics were also established. Even in 1990, when there were only 2 hospitals for gas victims, it was reported in a study that 35% of the patients were being given irrational, unnecessary or even hazardous medicines. 72% of the patients said that the medicines were not satisfactory. The International Medical Commission had also noted that hospitals were providing symptomatic medication for temporary relief rather than long term therapies. In 1997, the govt. cut down the number of doctors working in these hospitals by 20%. Most of the medicines prescribed by these hospitals are never available in them. A study of J.N.Hospital conducted in 1997 showed that nearly 80% of the medicines required to be supplied to the victims were not available. Only 3 out of 114 medicines were available in quantities required for the next three months. As on 17 October 1997, the stock record of the Chief Medical & Health Officer (Gas Relief) showed that over 57% of the medicines required for treatment of gas victims were out of stock. Similarly, costly equipment lay non-functional in many hospitals.

Non-appointment of specialist doctors to fulfil existing vacancies, supply of sub-standard medicines and shortage of qualified technicians to operate and maintain many of the costly equipment are some of the other recurring problems. The existence of two parallel systems of medical care for the gas victims - one run by the Gas Relief Department and the other by the BMHT - had also complicated matters. According to the BMHT currently there are over 254,000 registered gas victims, who are regularly visiting the various hospitals and clinics. They have been provided with "smart" health cards that can only be activated with the help of special computers, which are not available in many of the medical centres of the Gas Relief Department. Moreover, the victim does not have access to a hard copy of his/her medical record. Thus, there is the potential danger of not only misuse of the valuable data by anyone who has access to that data but also the possibility of manipulation of the data itself. While there is an immediate need to make the two parallel systems compatible with each other so as to avoid duplication of work and also to help evolve a common medical protocol for treatment, the state government is moving altogether in a different direction. Right now they are planning to subsume the Gas Relief Department under the Health Department, which is already in a far worse state.

A direct result of this sad state of affairs is that the treatment of gas related maladies has practically passed into the greedy hands of private practitioners, over 70% of whom (among those located in the most affected localities) are not even qualified.

No Guidelines for Treatment

Mention has been made earlier of the fact that UCC refused to reveal the exact composition of the escaped gas cloud thereby obstructing immediate medical treatment. However, after the passage of several years, and irrespective of this, a broad line of treatment could have been evolved by the govt. through its experts and specialists. The various manifestations had become apparent and treatment guidelines would be obvious. These would not only include symptomatic treatment for permanently damaged organs like lungs, but also rehabilitation measures for those with severely compromised lung capacity and such other manifestations including eye problems, gastro-intestinal problems and psychiatric disorders. This approach would also take into account increased susceptibility to secondary infections. No such guidelines have ever been issued by the govt. In fact, even medical cards were not issued for identification and sustained treatment. So, the field was open for everything from quackery to inflamed imagination. Increasing attention has been paid towards treatment of cancer and tertiary levels of care rather than addressing basic problems.

These issues have been raised time and again by the victims' organisations at various levels right upto the Prime Minister of the country but to no avail. A writ petition under Art 32 of the Constitution demanding provision of essential medical facilities and care as part of the fundamental right to health has been pending with the Supreme Court since 1998. In August 2004, the Court ordered the setting up of two committees: a national-level Advisory Committee which would review all research and investigation on health aspects and recommend a suitable policy, and a Bhopal-level Monitoring Committee to supervise the day to day healthcare of victims.

Rehabilitation

Areas worst affected by the toxic gases were predominantly inhabited by the poorer sections of Bhopal's population. The Government had initially provided free food rations for about a year to over 78,000 such gas affected families. Many of the poorest among them were daily-wage earners whose work involved vigorous physical labour. The impact of the exposure to the toxic gases had drastically reduced their capacity to engage in heavy work. The Government therefore floated several plans to economically rehabilitate them by providing alternate employment involving less strenuous work. An industrial training institute and about 152 large work-sheds were constructed for the purpose. After expending over Rs.25 crores, just over 8000 victims were given technical training and only about 2500 of them have obtained gainful employment till date. Another Rs.4 crores has been routed through 27 voluntary organisations to generate self-employment among some 2000 gas victims. However, the Government is totally silent on the magnitude of the problem of unemployment among gas victims, especially when their capacity for physical work has become compromised to varying degrees.

The Government also claims to have spent over Rs.45 crores for social rehabilitation of gas victims. Expenditure statement shows that most of it was expended for providing pensions to widows, for taking care of orphans, for distributing nutrition supplements to expectant mothers and children below 6 years and in constructing about 2500 houses which were handed over free of charge to families of victims who were homeless. Apart from spending the money, as to whether these problems are adequately addressed is left unsaid. Hardly any attention seems to have been paid to the problems facing the mentally and physically challenged gas victims.

About Rs.26 crores was further spent on "environmental rehabilitation". A substantial portion of this was frittered away in the name of "beautification" of the city. A mere Rs.2.5 crores - instead of the required Rs.8.5 crores - had been spent till December 2003 for providing safe drinking water to residents in the areas near the former UCIL factory, where the groundwater is highly contaminated due to the dumping of toxic waste from the factory prior to the disaster. This is a typical example of the lop-sided priorities of the government! In short, relief and rehabilitation of the Bhopal victims has been woefully inadequate and exhibits wilful negligence on the part of successive state govt.'s.

Chemical Contamination

Apart from the direct effect on human life and health, there is another deadly aspect which came to light much later. This is the consequence of the normal functioning of the plant even before the disaster in 1984.

In 1996, a report by the Bhopal Group for Information & Action (BGIA) pointed out that during the operation of the plant between 1969 and 1977, all the effluent was dumped in an open pit near the eastern boundary wall of the factory. Between 1977 and 1984, the effluent was discharged into 'Solar Evaporation Ponds' which were merely smaller pits lined with a film of polythene, constructed outside the northern boundary wall. The effluents would have undoubtedly contained deadly and corrosive toxins which would inevitably have destroyed the polythene film. Thus for Twenty years these toxic chemicals must have been seeping into the ground. This was confirmed by tests on soil and water samples conducted in 1990: they were found to have highly toxic and cancer causing chemicals.

The closure of the plant in December 1984 did not put an end to this poisoning. The attempt by UCIL management in 1994 to dismantle and carry away useful parts from the plant led to a public outcry, which resulted in inspection of the plant site by a team of experts. What they discovered was another shocking act of criminal negligence and disregard for human lives. 44,000 kgs of tarry residues generated during manufacture of Sevin, and 25,000 kgs of alpha-napthol, which was collected in drums, troughs and bags, had been lying in the open for 10 years since the plant's closure. Several more expert committees of the govt. followed. They reported that the drums and bags were in a dilapidated condition, the residues were melting and spreading on the floor, and during rainy reason they must have been carried away with water, thereby spreading the contamination. It was 1997 by the time, all the experts had visited the site and reported about their observations: so for 13 years the chemicals had been lying there freely contaminating the soil and ground water.

Another study was carried out by Greenpeace International in November 1999. They collected and analysed soil and ground water samples from around the factory and from wells in the nearby slums. It revealed very high levels of free mercury and elevated levels of chromium, copper, nickel and lead. Toxic organochlorenes were also found. The Report pointed to the need for cleaning up the groundwater sources urgently, by removing the toxic wastes.

In 2002, Srishti, a voluntary organisation, published the results of a study that was carried out with the help of test-facilities at IIT (Kanpur) during 1999-2000 of the trajectory of chemical pollutants through food chains. It was found that soil, groundwater, vegetables and even human breast milk were contaminated with toxic chemicals and heavy metals. Significant concentration of cancer causing volatile organic compounds and benzene hexachloride were found in mother's milk. The study pointed out that these pollutants could only have originated from the UCIL plant as there were no other factories using these or related chemicals in a 3-5 kms radius.

Another study was carried out by the People's Science Institute, Dehradun in September 2001. They collected groundwater samples from 14 hand pumps and tube-wells located in different residential areas surrounding the plant, the Solar Evaporation Ponds (SEPs) and an open well. High mercury levels were discovered in all these samples.

The revelations regarding toxic contamination and the related issue of disposal of the dangerous chemicals lying unattended in the complex at Bhopal has become the subject matter of considerable international attention. In 1999, a suit was filed by some victims and five victims' organisations in the Southern District Court of New York for cleaning up the contaminated site and payment of compensation to the victims of this environmental contamination. Although the court initially rejected the plea, the US Appeals Court directed the lower court in March 2004 to admit the case. Under pressure from the various concerned organisations, the Govt. of India filed a statement before the New York District Court that it had no objection to the clean up. The case continues. The Govt. of India is yet to decide whether to directly intervene in it or not.

V. The Legal Maze

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arly in the morning of 3 December 1984, the Station House Officer (SHO) of Hanumanganj Police Station, Bhopal, noticed hundreds of people and animals dying a tortured death. He decided to register an FIR against UCIL because he suspected that the poisonous gas that had apparently killed them could only have leaked from its plant. Invoking Section 304-A of the Indian Penal Code (causing death by rash and negligent act), he arrested five officials of the company. This was the beginning of a legal battle that continues to this day. From a legal point of view there are two streams of this battle: the civil, which involves claims of compensation to victims; and the criminal, which attends to fixing criminal responsibility and meting out suitable punishment. Both streams, in a bizarre turn of events were welded together by the Supreme Court in 1989, while ordering the settlement, but fortunately they had to be again separated under intense public pressure. Litigation extended from the Claims Courts of Bhopal, which handles individual claims for compensation, to the Supreme Court via all intermediate levels. In fact, litigation spilled over into the international arena: cases were heard in the US too.
Another aspect of the legal intervention was the diverse probes and investigations that were launched by the govt. Their trajectory is also complex but not like the litigation, mainly because most of these were given short shrift by the govt., except for the investigations being carried out by agencies like the CBI. Let us look at the fate of these probes first, for it is these which were supposed to establish the facts.

Investigation and Research

On 5 December 1984, the central govt. set up a scientific committee headed by Dr.S.Vardarajan, the then Director General of CSIR, to study the scientific and technical aspects of the disaster. It submitted its report in December 1985. To conduct a judicial probe into the disaster, the Govt. of Madhya Pradesh, on 6 December 1984, appointed Justice N.K.Singh, a serving judge of the MP High Court, as a single member inquiry commission. However, it was abruptly wound up in December 1985, even before it could complete its enquiry or submit its report. In 1985, the central govt. appointed the Krishna Murti Commission for continuing studies on effects of Bhopal gas leakage on life systems, and an executive summary of its findings was published in 1987. ICMR initiated a series of investigations, including long range projects to study the impact on health. A preliminary report of these studies was published in 1986. ICMR continued its work for some years but, by 1994, all its projects were terminated. Various other scientific institutions run by the central govt. like Industrial Toxicological Research Centre (Lucknow), Indian Agricultural Research Institute (Delhi), Indian Veterinary Research Institute (Izzatnagar) and Central Board for Prevention & Control of Pollution (Delhi) too had been involved, but neither their findings nor the fate of their activities is clear. Presumably, they followed the ICMR into withdrawal. Tata Institute of Social Sciences (TISS), Mumbai, carried out an extensive household survey that was also suddenly called off, and its results are not known. The only other Report that is available in the public domain is the one that was submitted in August 1988 by the minority of the 7-member Committee appointed by the Supreme Court in November 1985, to recommend medical relief and rehabilitation measures.

There are a number of non-governmental reports and studies on the disaster and its consequences covering the entire time period. As the magnitude of the disaster dawned upon the world, a plethora of national and international organisations, groups, institutions, even corporate entities became interested and studied and/or undertook relief/rehabilitation work. Most of these are publicly available and, pieced together, provide a chilling picture of the disaster in all its dimensions. However, it needs to be stressed that the scale of disaster was of such magnitude that only the Govt. of India could have nodalised a thorough and comprehensive enquiry. The demand for a National Commission to carry out this task was raised quite early (for instance in the first scientific study released on 18 December 1984 by DSF, but to no avail.

The third angle of enquiry or probe may be said to be that of Union Carbide itself. This was more in the nature of a cover-up with the objective of escaping responsibility and saving its credibility. A UCC team arrived in Bhopal on 6 December to investigate the causes of the gas leak. Its findings were announced later at a press conference in the US. The substantive claim of UCC was that water had seeped into the MIC tank through the nitrogen pipes when the area was being washed that day. This ludicrous assertion, which could never be substantiated, was later changed to the more aggressive allegation that the whole accident was caused by the actions of a disgruntled employee - an allegation that UCC, its top-notch lawyers and 400 public relation experts have maintained ever since. The thrust of the UCC maintained that the company's original plant in West Virginia had much more advanced, safety and warning systems with operational strategies of total containment. This reassurance to the US citizens and law agencies was, of course, an admission that its plant in India did not have all these safety measures.

Such was the nature of the various investigations after the disaster. Thus, it was left to either peoples' organisations to find out the truth or to pressurise the official investigative agencies through legal means to do so. In other words, the unraveling of truth became intertwined with the complex course of litigation in the Indian courts.

Beginnings of Judicial Maze

In the immediate aftermath of the disaster, ambulance-chasing lawyers from the US persuaded nearly 200,000 ignorant gas victims to file cases (through 145 class-suits in 13 different courts) in the US, promising them millions in compensation. In February 1985, all these cases were joined and assigned to the Southern District Court of New York. Meanwhile, in India, the central govt. passed the Bhopal Gas Leak (Processing of Claims) Act in May 1985, under which the it acquired exclusive rights to represent and act on behalf of all claimants relating to the Bhopal gas disaster. Accordingly, the govt. filed a complaint in the same court setting forth the claims for relief. However, the Court dismissed the complaint on the condition that UCC submits to the jurisdiction of Indian courts. Thereafter, the Govt. of India filed a civil suit in the court of District Judge, Bhopal in September 1986. In the amended plaint, the govt. had claimed compensatory damages, punitive damages, interest and costs of Rs.3,900 crores (approx. US$3 billion). In December 1987, the District Judge at Bhopal proposed that an interim compensation of Rs.350 crores be paid to the victims by UCC. Aggrieved by this order, UCC appealed to the MP High Court, which reduced the amount to Rs.250 crores. Both parties appealed against this to the Supreme Court in October 1988. So, it came about that the highest court of the land began hearing in detail the issue of whether it was correct for the MP High Court to order payment of Rs.250 crores. All this however came to a sudden and surprising end in February 1989 with the ordering of a settlement by the Supreme Court.

Claims for Compensation

In September 1985, the govt. framed a scheme "for registering and processing of claims arising out of the disaster" under the newly passed Bhopal Act. In the absence of any comprehensive and authoritative survey of gas affected people, it was left to individuals to file compensation claims. This procedure was in itself faulty and discriminatory. People did not know what to state and claim. Over 6 lakh claims were filed initially. These included cases of death, injuries of various kinds, property loss, livestock loss etc. The govt. was completely at sea with regard to the processing of these claims. There were no proper guidelines for categorisation of injuries, and disputes arose over this. There have been hundreds of cases where genuine victims had their claims summarily rejected for some technicality or other. Of course, a few people might have falsely claimed compensation too. But the overall system was working against the genuine victims and survivors. At the time of the settlement brokered by the Supreme Court in 1989 (see later), only 29,000 claims had been categorised by the concerned department!

Criminal Charges

Criminal prosecution of UCC and its Indian subsidiary was meanwhile proceeding on a separate and equally tortuous trajectory. On 7 December 1984, Warren Anderson, Chairman of UCC, USA along with senior personnel of UCIL were arrested when they arrived in Bhopal under several sections of the IPC, including Sections 304 Part-II (culpable homicide), 426 (causing mischief), 429 (causing mischief by killing or maiming animals), 278 (making atmosphere noxious for health), 284 (negligent conduct with respect to poisonous substances) and 120-B (criminal conspiracy). However, the attitude of the government became clear right away: Anderson was detained only for 6 hours in a posh guest house, granted bail for Rs.25,000 and then flown to Delhi in a State Govt. aircraft. He immediately fled to USA, never to return. Meanwhile, the other arrested UCIL officials were granted bail in a few days by the MP High Court.

The CBI, which took charge of the Bhopal case on 9 December 1984, filed charge sheet against 12 accused before the Chief Judicial Magistrate of Bhopal three years later, on 1 December 1987. Three accused - Anderson, UCC (USA) and UCE (Union Carbide Eastern, Hongkong, the holding company linking UCC with UCIL) have never appeared in court in the past twentyfive years. The case proceeded in the manner usual to all Indian matters in the lower courts, with top lawyers appearing for UCIL top brass.

Meanwhile the CBI applied to the Court for issuing a 'letter rogatory' (a permission) for conducting a comparative summary of the safety systems in USA and Bhopal. After extended procedural formalities involving the US Justice Department, permission was finally granted by it for carrying out such an inspection on 14 February 1989.

However, this was not to be. The Supreme Court declared on 14 February 1989 itself that UCC and the Govt. of India had agreed upon a mutual settlement with the sanction of the Court. In one fell stroke, everything was settled: the claims for compensation, the criminal cases and all other subsidiary matters. This bizarre turn of events and what it meant for the gas victims specifically, or for Indian jurisprudence in general, requires a closer look.

However, in 1991 the Supreme Court of India in revived the criminal cases against all the accused in the Bhopal gas leak disaster case. The CBI again sent a formal letter to the Indian Embassy in Washington, DC, to approach the U.S. Administration for reviving the permission granted to the CBI in 1989 to inspect the safety systems of UCC’s pesticide plant in West Virginia. However, since the Government of India has not shown any interest in the matter, the embassy officials have taken no further action in this regard.

The Government of India has also not taken adequate steps to execute the non-bailable warrant of arrest issued by the CJM, Bhopal in 1992 to seek extradition of Warren Anderson, the former Chairman of UCC and accused No.1 in the criminal case, from the United States. In fact, the CBI, under directions from the Ministry of External Affairs (MEA), filed an application before the CJM, Bhopal in 2002 for reducing criminal charges against Warren Anderson, which practically amounted to withdrawal of the charge under which Anderson could be extradited to India. The CJM upheld the plea of the victims-organisations and refused to accede to the CBI's request.

After Union Carbide, USA, became a wholly owned subsidiary of The Dow Chemical Company, USA, in 2001, victims’ organisations filed an application before the CJM, Bhopal, in 2001 imploring the Court to serve notice on Dow Chemicals Company, USA, to appear on behalf of UCC in the ongoing criminal case. In response, the CJM, Bhopal, in 2005, issued notice to Dow Chemical Company, USA, to appear before the Court. However, on 17 March 2005, the MP High Court at Jabalpur stayed the notice of the CJM, Bhopal on the basis of an application filed by Dow Chemical International Pvt. Ltd, Mumbai (a party that had claimed before the CJM, Bhopal, that it had no connection with the Dow Chemical Company, USA!). While it took four years and several pleadings to pursue the CJM, Bhopal to issue notice to Dow Chemical Company, USA, the matter was disposed of by the MP High Court in favour of Dow Chemical Company within five weeks without hearing the victims’ organisations on the matter!

Litigation in the US

On 08.04.1985, legal proceedings for the recovery of compensation for the victims of the Bhopal disaster were initiated by the Union of India (UOI) against UCC in the New York Southern District Court. However, on 13.05.1986, Judge Keenan dismissed UOI’s suit on the ground of forum non conveniens, i.e., that the U.S. courts were not the right forum to seek justice and that the Indian courts were the right forum for that purpose. On 10.07.1986, UCC filed an appeal before the U.S. Court of Appeals for the Second Circuit challenging the order of Judge Keenan dated 13.05.1986. On 14.01.1987, the US Court of Appeals affirmed the decision of Judge Keenan with certain modifications.

Nevertheless, on 15.11.1999, seven individual victims, including Sajida Bano, Haseena Bi and Sunil Kumar, and five organisations representing gas-victims, including BGPSSS, BGPMUS and BGIA, filed a suit before the New York Southern District Court against UCC and its former CEO, Warren Anderson, under the U.S. Alien Torts Claims Act (ATCA). The suit was filed with the support of the International Coalition for Justice in Bhopal. The suit sought damages for death and injuries due to the disaster of December 1984 as well due to pollution and contamination of soil and ground water in and around the Bhopal plant because of dumping of chemical waste during operation of the plant prior to the 1984 disaster. The trial court dismissed the lawsuit on 28.08.2000. On appeal the U.S. Court of Appeals for the Second Circuit on 15.11.2001 reinstated parts of appeal relating to pollution and contamination prior to 1984.

On 18.03.2003, the trial court dismissed the claim that UCC was responsible for the pollution and contamination. On 17.03.2004, the Second Circuit reversed that decision in part. It held that while personal injury claims were time-barred, property damage claims were not. The trial court dismissed the lawsuit on 05.10.2005. An appeal against the dismissal was again filed before the US Court of Appeals for the Second Circuit, which finally dismissed the case on 20.08.2006. Meanwhile, on 08.11.2004, another related lawsuit was filed on behalf of several individual plaintiffs injured by UCC’s water pollution at Bhopal. While the lawsuit was dismissed at an early stage, the U.S. Court of Appeals for the Second Circuit reversed the dismissal on 03.11.2008. The case is currently pending before the Southern District Court of New York.

VI. The Bhopal Settlement

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Division Bench of the Supreme Court headed by Chief Justice R.S. Pathak passed a series of orders on 14-15 February 1989, which set out the conditions of the settlement. The salient features were:

 UCC would pay $470 million (about Rs.705 crores at the prevailing exchange rate) as compensation to the gas victims and survivors, which were stated to be 3000 dead and 102,000 injured. The amount was to be deposited in a dollar account with RBI and disbursement would be done by the government on the basis of a stated categorisation scheme.

 All pending cases against UCC or its subsidiaries including all criminal cases were terminated.

There were vehement protests at this announcement, and so the Supreme Court declared the reasons for arriving at this settlement in May 1989. These confirmed the suspicion of most concerned people that the settlement was flawed, to say the least, and many alleged that it was a sell out to UCC. So, what was wrong with the settlement? The main flaws are summarised below.

The Amount

In the amended plaint filed before the District Court, Bhopal in 1988, the central govt. had itself stated that the total claim would exceed Rs.3,900 crores. Thus, UCC got away by paying up only one fifth of what the Government had initially claimed. The calculation of this amount itself was very peculiar. The settlement set out that various categories of victims/survivors will be paid amounts as shown in the following Table.

Category of Case No. of Persons Rate (Rs. Per person) Total Amount (Rs. Crores)
Deaths 3,000 1 to 3 lakhs 70
Permanent Disability 30,000 50,000 to 2 lakhs 250
Temporary Disability 20,000 25,000 to 1 lakh 100
Utmost Injuries 20,000 4 lakhs 80
Minor Injuries 50,000 20,000 100
Loss of Property 50,000 15,000 75
Loss of Livestock 50,000 10,000 50
Medical Infrastructure -- -- 25
Total -- -- 750

As can be seen, the total set out for various categories is Rs.750 crores whereas UCC actually paid only about Rs.705 crores. Where would the balance Rs.45 crores come from? The Court, in its wisdom, declared that distribution of compensation would take several years and interest would accrue in the intervening period. This would amount to about Rs.45 crores over 3-4 years. This bit of Shylockian calculation, presumably done by the legal shysters of UCC, thus saved the company a further $30 million dollars! In the process of doing so, the Court virtually decreed that the distribution of compensation should be dragged out for a 'reasonable period of time" in order that the shortfall would be made up through interest accruals. In any case, the amounts fixed for various categories are a pittance. Compare this to, for instance, the Uphaar fire tragedy in Delhi where 59 persons were killed due to asphyxiation after a fire in a cinema hall in 1997. The Delhi High Court awarded Rs.15 lakhs and Rs.18 lakhs each to next of kin of respectively minor and major victims, along with 9% interest starting from the day of the tragedy.

Number of Claimants

The basis on which the number of persons in various categories was arrived at was a complete mystery. As mentioned earlier, no thorough and scientific survey was ever carried out, leaving the field open to all kinds of speculative estimates. However, the Court appeared to have taken a very conservative estimate. 6 lakh claims had been filed in the Claims Court at the time of the settlement. 36 wards with a population of nearly 6 lakhs were declared affected. So what was the rationale for declaring the number of victims to be only 3000 dead and 1.2 lakh affected? Moreover, it was sufficiently clear by 1989 that the poisonous gases had caused serious injuries, which would have long term consequences, including effect on the next generation. So, how could an arbitrary decision of fixing a number in each category be taken? The gross error committed on this account has been shockingly confirmed by figures for claims which touched 1,022,872 on 31 October 2003, and more categorically by the fact that compensation was awarded to over 15,000 claims arising out of death and to over 5.72 lakh cases of injuries. In other words, more than five times the number of victims as assumed by the Court in the settlement of 1989 have justifiably claimed and received compensation. It appears that in order to settle the claims at one fifth the amount, the number of victims was also roughly adjusted to one fifth the actual number!

Freedom from Criminal Liability

The most shocking aspect of the settlement was that the Supreme Court, in its hurry to hammer out a compromise, directed that all criminal cases against UCC or its subsidiaries would be dropped forthwith. Thus, there would be no punitive action under Indian laws for what amounted to major criminal offences, which took thousands of Indian lives and left lakhs maimed or debilitated, besides loss of property. This aspect of the settlement caused a storm of protest as an aghast nation watched Carbide's glee and relief. Review petitions were filed against the settlement and the Supreme Court revoked the quashing of criminal cases in October 1991, effectively reviving the criminal cases in the Bhopal District Court. These are still continuing, but that is another story (see later).

Why this Settlement?

The Supreme Court, on its part, lamented the tragedy that had befallen the people of Bhopal, rued the fact that compensation claims settlement was tardy and generally claimed to be acting in the larger interest of everyone involved. While it is true that the government had made a complete mess of handling the disaster as also the subsequent relief and rehabilitation measures, that in no way justified the surrender to UCC interests. So, why did UCC want the settlement, and therefore manipulate both the Indian government and the judicial process into arriving at this settlement? Permission had been granted by the US Justice Dept. to CBI for carrying out an inspection of the West Virginia plant of UCC to compare the safety measures there with those in Bhopal. This would have revealed to the world that the whole design of Bhopal plant was faulty and risky, while the US plant had much better safety and warning systems. Another reason for UCC striving for a settlement was that the Bhopal District Court had on 9 February 1989 issued non-bailable warrants against Warren Anderson because of continued absence from the court where proceedings in the criminal cases were under way. This happened after service of normal summons and bailable warrants were ignored by the accused. However, the most compelling reason was that UCC got away so lightly, paying only one fifth of the potential compensation payable and with all criminal cases quashed. Its sordid record with regard to the use of dangerous and lethal chemicals in a flawed production facility, its disregard for human lives in the face of clear evidence that the toxic gases might leak, its cost-cutting which pushed the plant inexorably towards disaster - all this would have become public knowledge attested to by courts of law, had the litigation continued. Finally, it may have had to pay a much bigger amount, which would have driven it to near bankruptcy. Its image had already taken a severe beating worldwide and by the end of the legal battle, it would have been an international pariah. All these considerations must have weighed with its top brass. So, it is understandable why a greedy and predatory US company like Carbide should go in for settlement.

What is of more interest is why the Government of India (then led by Sh. Rajiv Gandhi) agreed to this unjust settlement, and why the Supreme Court vouched for it. It can only be speculated that the Government succumbed to unknown pressures from UCC, or even the US govt. itself, acting on behalf of the company. This would not be an unprecedented occurrence considering that in so many cases the govt. bows down to external pressure, which is inimical to the interests of the people of the country. The nature of such pressure and any trade-off that might have been agreed upon behind the scenes remains unveiled.

VII. Post-Settlement: The Misery Continues

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eanwhile, even as the legal battle headed for this unexpected climax in the shape of a 'final' settlement, the gas affected victims in Bhopal were waging a losing battle against disease and deprivation, frustrated by apathy, duplicity and wrangling. The sole reason for a settlement is quick relief to the victims have not been fulfilled, defeating the rationale for such a settlement.

25 years after the disaster, on an average, everyday no less than 6000 gas-victims continue to visit the various medical centres in Bhopal, which have been specifically set up for the gas-victims. Victims suffer from a variety of ailments relating to respiratory system, eyes, nervous system, gastro-intestinal system, etc. The state of medical record keeping is abysmal. Despite specific directions of the Supreme Court in this regard, the State Government has not yet completed the task of computerisation of medical records. Shortage of essential medicines, malfunctioning and breakdown of critical medical equipments, shortage of medical specialists, etc., continue to be recurring problems.

The Indian Council of Medical Research (ICMR) had discontinued all medical research relating to the disaster way back in 1994. Due to the persistent demand of the organisations representing the gas victims, the Supreme Court passed an Order on 17.8.2004 to set up an Advisory Committee on Medical Research under the aegis of ICMR to review and set out the renewed agenda for research on Bhopal. Unfortunately the committee met only thrice and was unable to pursue its own recommendations. However, the new Director General of ICMR, Dr.V.M.Katoch, has promised to restart research work under the guidance of the Advisory Committee.

Compensation

The Bhopal Gas Peedith Sangharsh Sahayog Samiti – BGPSSS (of which AIPSN is a constituent) and the Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS), were the major groups that filed review/writ petition opposing the Settlement not only because the Settlement amount was totally inadequate as compared to the magnitude of the disaster but also because of revocation of criminal cases instituted against the accused. Thereafter, in 1989, the Supreme Court had assured the victim-groups that if the total number of dead and injured turned out to be more than the number on which the Settlement was based, the Settlement was liable to be reopened. In 2004, when the Supreme Court acknowledged the fact that the total number of gas-victims were more than 5,73,000, BGPSSS & BGPMUS filed an application dated seeking enhancement of compensation by a factor of five. However, in 2007, the Supreme Court rejected the plea on the ground that the task of determination facts was that of the Welfare Commissioner, Bhopal.

Subsequently, nine gas-victims belonging filed a joint petition before the Welfare Commissioner, Bhopal, on 28 August 2008 urging the Welfare Commissioner to pay compensation to the victims at least at the value of the rupee prevailing on the date of the settlement. The said petition was filed on behalf of 101,000 gas-victims, who had earlier petitioned the Supreme Court in this regard in 2007. The Welfare Commissioner, Justice R.S.Garg rejected the petition in 2009. The petitioners are now in the process of filing a Writ Petition before the MP High Court to challenge the order of the Welfare Commissioner.

Environmental Pollution

It is indeed a crying shame that there is no proper health-monitoring of the victims of environmental pollution resulting from the dumping of toxic waste in and around the Union Carbide factory site even prior to the 1984 disaster and from the leaching of the various toxic chemicals stored at the plant site into the ground, thereby, polluting groundwater resources. It is recognised that many of the residents in and around the factory site, who were dependent on the polluted ground water as their main source of drinking water, have been afflicted with various toxin-related ailments. Despite the Supreme Court’s direction dated 07.05.2004 to supply safe piped-drinking water through overhead tanks, the State Government has yet to fully comply with the directions.

The remediation of the contaminated soil and ground water in and around the closed Union Carbide factory should be the responsibility of Dow Chemical Company, USA, which is the present owner of Union Carbide Corporation (UCC). As per the recommendation of the Technical Sub-Committee of the Task Force for Removal of toxic Waste lying in Union Carbide, Bhopal, dated 26.8.2006, the entire toxic waste lying in and around the Union Carbide factory site at Bhopal was to be transported to USA for appropriate remediation. The State Government and the MP Pollution Control Board are trying their level best to sabotage the recommendations of the Technical Sub-Committee.

VIII. Looking Forward: Lessons & Demands

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fter twentyfive years, let us look back and understand what the Bhopal disaster means for the people of this country. This has a bearing on not only the quest for justice by victims of the gas disaster, but for all people of the country.

The transfer of obsolete, faulty and hazardous technology and gross violation of safety standards by UCC and its subsequent attempts to evade responsibility clearly show the contempt in which such MNCs hold the people, especially of third world countries like India. In the current era of imperialist globalisation, this predatory drive for profits at any cost by international capital needs to be highlighted. It is the same drive that makes poor people work for a pittance in countries round the world, so that super-profits can be expropriated by corporate behemoths. It is the same drive that intervenes economically, diplomatically and even militarily in country after country to expand and perpetuate harsh and unjust exploitation. And ultimately, it is the same drive that caused Hiroshima and Nagasaki in Japan, unleashed Agent Orange on the Vietnamese people, and has caused unimaginable hardship and misery for the people of Iraq and elsewhere.

The compromises and vacillation of the Govt. of India, the state govt. and various arms of the State machinery, in connection with the Bhopal disaster, reveals their disregard towards the well-being and lives of people, and proclivity towards connivance and bargaining with international capital in all its manifestations and actions. This tendency has grown considerably in the past twentyfive years, and in the current ethos of FDI worship, it has acquired almost an institutional status.

Bhopal also brought forth the important issues relating to location of industries, especially hazardous ones, the need for a strict mechanism for environmental impact assessment and disclosure of technological details, strengthening laws and regulations relating to use of hazardous material and liabilities arising thereof. Special attention needs to be paid towards evolving a regulatory framework for MNCs and their activities on Indian soil.
The people of Bhopal have fought for two decades for justice and managed to get only paltry concessions. However, several life and death issues still remain unaddressed even as they continue to struggle through legal and other avenues. Their struggle has been consistently supported by democratic forces all over the country (as also internationally). But this struggle of solidarity needs to be vastly strengthened in order to, both, ensure that justice is done for Bhopal as well as to raise the level of vigilance against ideologies and economic systems that caused Bhopal twentyfive years ago and continue to flourish even today.

So, what can be done now for securing justice to the people of Bhopal, and ensuring that such a disaster does not strike elsewhere? Some of the crucial demands are:

For the People of Bhopal

 Rehabilitation: Develop a comprehensive strategy for assuring suitable employment to families of victims, including training, credit for working capital etc. Compromised physical capacity should be kept in mind for choice of vocations.
 Medical care: A comprehensive survey to establish current status of health of gas victims, victims of toxic contamination, progeny, and even those categorised as unaffected should be carried out under expert supervision by a suitable govt. agency. A broad framework of treatment for gas effects and toxic contamination should be evolved and prescribed, under a unified delivery system. Various neglected aspects such as mental health should also be covered. All research findings including ICMR studies should be made public. ICMR should forthwith restart all medical research pertaining to effects of the toxic gases on life systems.
 Clean up: Govt. of India should take over the task of cleaning up the former UCIL plant site in a transparent manner, involving suitable experts and specialists. Suitable steps should be taken to ensure that Dow Chemical Company, US bears the expenses. GOI should intervene and support the pending cases filed by the Bhopal victims in the US Court.
 Drinking water and sanitation: Safe drinking water should be provided to the all citizens of Bhopal, with special emphasis on the gas affected and environmentally contaminated areas. Sanitation system should be rejuvenated and revamped.
 Public Distribution System: Special ration cards should be issued for victims and all essential commodities should be made available at controlled prices through suitably located fair price shops in Bhopal.
 Fast-track special court for criminal cases: A dedicated special court should be set up for speedy trial of the criminal cases in order that the guilty are brought to justice forthwith. The extradition of Anderson and other accused from the US should be vigorously pursued and diplomatic pressure exercised on the US through bilateral and multilateral fora for forcing the US to comply to the demand.
 Right to Information: All previous and on-going research/investigative reports should be made public and a transparent system be established for future.
 Settlement & Compensation: The Central Govt. should respond positively to the demand for reopening of the Bhopal Settlement and undertake the necessary legal measures towards that end. It should demand additional compensation from UCC/Dow for disbursement among victims after re-categorisation, inclusion of second generation victims and fresh fixation of amounts. Victims of toxic contamination too should be adequately compensated and rehabilitated.
 Monitoring: In order to monitor the speedy implementation of these and any other related measures, a functional Apex Committee comprising experts and people's representatives should be formed and adequately empowered.

To protect the Rights of People in General

 National Commission: In order to collect all existing information related to the gas disaster and contamination, and to make policy recommendations for the future, an appropriately empowered National Commission on Bhopal should be established, with time-bound terms. It should invite depositions from the public as also submissions from all concerned scientific institutions, NGOs, govt. departments etc.

 Location of hazardous industries should be subject to a principled policy applicable all over the country, with which local zoning laws need to be in consonance. Such policy should prohibit location of categorised industries in inhabited areas, lay down mandatory measures for safety as also containment, and place the onus on the industry. Monitoring mechanism, through tripartite statutory bodies, measures for workers safety, compensation etc. should also be included in this. Well-defined penalty provisions and the principle of "polluter pays" should be clearly and legally established. Environmental Impact Assessment (EIA), with complete transparency and participation of local people in hearings, needs to be made mandatory in such cases.
 All technology transfer cases from foreign countries should be subject to stringent screening by expert committees, with workers representatives. Complete disclosure of technical details including raw materials, processes, potential hazards, methods of prevention and containment should be mandatory.
 Laws relating to industrial safety and occupational health should be strengthened in the light of Bhopal and general development of industrial technologies. These include labour laws as well as environmental statutes.

References

Information contained in the foregoing sections has been derived mainly from the following documents and publications, for which the respective authors and publishers are gratefully acknowledged.

Reports by governmental bodies

1. Vardarajan Committee Report: Report on Scientific Studies on the Factors Related to Bhopal Toxic Gas Leakage; Cabinet Secretariat, GOI, New Delhi, 1985.
2. Krishna Murti Commission Report (Executive Summary): The Bhopal Gas Disaster: Effects on Life Systems; Cabinet Secretariat, GOI, New Delhi, 1987.
3. Bhopal Gas Tragedy Relief & Rehabilitation Department (Govt. of MP): Annual Report; December 2003.
4. ICMR: Health Effects of the Bhopal Gas Tragedy; Indian Council of Medical Research, New Delhi, 1986.
5. ICMR: The Health Problems of Bhopal Gas Victims: Assessment & Management, Working Manual 2; Indian Council of Medical Research, New Delhi, 1989.

Study Reports and Books

1. DSF: Bhopal Gas Tragedy: Looking Beyond; Delhi Science Forum, December 1984.
2. Upendra Baxi & Amit Danda: Valiant Victims and Lethal Litigation: The Bhopal Case; N.M.Tripathi Pvt. Ltd., Bombay, 1990.
3. B. I. Castleman & P.Purkayastha: 'The Bhopal Disaster as a Case Study in Double Standards', in Jane H. Ives (ed.), The Export of Hazard; Routledge & Kegan Paul, London, 1985.
4. UCC: Mythyl Isocyanate - F-41443A; Union Carbide Corporation, New York, 1976.
5. UCC: Bhopal Mythyl Isocyanate Incident; Investigation Team Report released to the press on 20 March 1985, Danbury, CT (USA).
6. L.A.Kail, J.M.Paulson, C.S.Tyson: Operational Safety Survey, CO/MIC/SEVIN Units, Union Carbide India Ltd., Bhopal Plant, May 1982; UCC, S.Charleston, W.Virginia (USA).
7. I.Labunska, A.Stephenson, K.Brigden, R.Stringer, D.Santillo and P.A.Johnston: The Bhopal Legacy (Toxic Contaminants at the former Union Carbide Factory Site, Bhopal, India: 15 Years after the Bhopal Accident), Technical Note No.4/99, Greenpeace Research Laboratories, Dept. of Biological Sciences, University of Exeter, Exeter (UK); November 1999.
8. R.Agarwal, Dr.A. Nair & K.Wankhede: Surviving Bhopal: Toxic Present - Toxic Future; Srishti, New Delhi, January 2002.
9. PSI: A Report on Mercury Contamination of Groundwater Near the Union Carbide Factory at Bhopal; Peoples' Science Institute, Dehradun, Uttaranchal;

Legal petitions, orders, applications, case reports, etc.

1. SCI: Civil Writ Petition 293 of 1989; BGPSSS vs. UOI & anr.
2. SCI: IA No. 36-37 of 1995 Union Carbide vs. UOI
3. SCI: Criminal Appelate Jurisdiction: CRML-1997; Review Petition, 1996; in Cr. Ap. 1672, 1673, 1674 & 1675 of 1996; Keshub Mahindra vs. State of MP; for review and recall of judgement of SCI of 13/9/96
4. SCI: IA No. 36-37; Civil appeal No.3187-88 of 1988; Union Carbide vs. UOI; in the matter of Bhopal Hospital Trust through its sole trustee Ian Percival; and BGPSSS, BGPMUS: Application for Directions and Rejoinder Affidavit
5. SCI: Civil Original Jurisdiction; Writ Petition (Civil) No. 50 of 1998 (under Art 32 of Constitution of India); for directions reharding medical care etc.; BGPMUS, BGPSSS & BGIA vs. UOI
6. SCI: Petition No.50 of 1998; BGPMUS vs. UOI
7. SCI: Writ Petition No. 11708 of 1985; Dr.N.Vohra & others vs. State of MP & others; Final Report on Medical Relief & Rehabilitation of Bhopal Gas Victims, August 1988.
8. CJM: MJC 91/92; State vs. Warren Anderson & Others; Application by intervenor organisations BGPSSS, BGIA & BGPMUS for issuing summons to Dow Chemical Company, USA
9. SCI: Civil Appelate Jurisdiction: IA No. 48-49 of 2004 in Civil Appeal Nos. 3187-3188 of 1988; UCC vs. UOI
10. 1991: 4 SCC 638
11. 1996: SCALE 529, 545, 546
12. 1996 (6): SCALE 536, 538, 539