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For many of us, breaking news last a day or two and if we happen to be a part of it, then for a few years or may be a lifetime. But for many in the city of Bhopal, the breaking news of gas leakage on the eve of December 3, 1984 will haunt for generations to come.
On that day, the poisonous Methyle Isocyanate gas which engulfed the city, not only killed 25,000 people and affected 5,00,000 more with permanent injuries over the years, it has also affected children born to exposed parents with unknown and undiagnosed cognitive diseases. Moreover, children born even today, after a quarter of a century has lapsed, are born with congenital defects of varying degrees. The gas has contaminated the groundwater to such an extent that the city still suffers from toxin-related problems. Survivor stories of woe, series of heart-wrenching pictures, mind-numbing statistics, and details of protracted litigation for justice have all been in the media glare over the years, as a reminder that Bhopal was indeed the worst disaster mankind has ever seen.
In the last week, the Chief Judicial Magistrate’s Court in Bhopal, in one of the many criminal cases instituted against functionaries of Union Carbide sentenced 7, including UCIL chairman Kesub Mahindra to 2 year imprisonment and then grant them bail on a bond of Rs. 25,000/-. While the nation is expressing its outrage on the outcome of the trial and revelations of how the Indian government itself allowed the main perpetrator to go scot-free, the story of Bhopal is much beyond that nightmare which started in 1984. The nation not only prevented arrest of the-then Chairman of Union Carbide Corporation (UCC) Warren Anderson but has failed to deliver any relief, respite or justice to its affected people.
Bhopal Gas Tragedy is a story of collective failure of all the machineries of a state before its own people and the rest of the world.
The story of Bhopal is full of horrors with multi-dimensional layers. At one layer is the causal reason behind the disaster, a multinational’s disregard for the life and safety of people, wide-spread devastations caused and the attempt to compensate for it with handful of money. At another layer is the toxic waste produced, which no one, not even the present owner, Dow Chemicals is willing to clear up and which contaminates the surrounding even today. Yet, another layer is the torturous legal battle culminating in last week’s mockery of justice, subversion of judiciary in the face of politics. In the end, all these layers build up the story of a mass murder perpetrated by a multinational corporation, with the aid of the home state.
Initially the proposed site plan was to be the far-flung and more deserted Jagdalpur, but the-then Industries Minister Shankar Dayal Sharma, who later became President of India wanted it to come up in Bhopal, his own constituency.
In 1981, Ashraf Muhammad, a worker in UCIL was found drenched in phosgene gas and did not survive till he could be taken to the shower. His death failed to prompt the management to take notice of the situation, just as frequent outbursts of gas leakages till then had failed to be taken seriously. In the words of Kumkum Saxena, a medical officer with UCIL who quit her job in 1982, “There was exposure to chemicals at totally unacceptable levels. There’d be a bag full of acid sitting there waiting to kill somebody. Silica and hydrocarbon levels were higher than prescribed. Sometimes there would be a leak not fixed, and yet the personnel were allowed to go there.”
After the death of Ashraf Muhammad, Union Carbide management sent a team of US engineers to conduct a ‘business confidential’ safety audit. The May 1982 report identified 61 hazards, 30 of them major and 11 in the dangerous MIC unit. Safety measures were improved at UCC’s MIC plant in West Virginia, but not in Bhopal, where, incredibly, Carbide intensified its cost-cutting in the most dangerous areas of the plant.
The UCIL pesticide plant was set up in 1969 as a joint venture between UCC owning 50.9% and various Indian investors and public sector financial institutions owning 49.1% to manufacture pesticide carbaryl, to be sold under the trademark Sevin. Initially the proposed site plan was to be the far-flung and more deserted Jagdalpur, but the-then Industries Minister Shankar Dayal Sharma, who later became President of India wanted it to come up in Bhopal, his own constituency. RK Sahi, who was then Deputy Director in the ministry, confirmed this when he told The Hindu that the entire department was against granting the industrial licence. “We knew that discarded technologies were being transferred to India. It was obsolete in the US, but it was being dumped in our country. We all knew that,” he said. “These things were finally decided at a high level. There was a lot of talk of political interference in those days. Union Carbide had been trying for a licence since 1970. They only got it during the Emergency, which was not a democratic government. So, whatever somebody wanted to do, he or she did it then.” Union Carbide applied for a licence on January 1, 1970. Mrs. Gandhi invoked Article 352 to declare the Emergency on June 25, 1975. The licence was granted on October 31, 1975.
Methyl Isocyanate (MIC), an intermediate in carbaryl manufacture, was used instead of less hazardous but more expensive materials. UCC had not originally manufactured MIC in Bhopal, but used to import it from the US. In 1973, the Indian government enacted the Foreign Exchange & Regulation Act (FERA), capping foreign equity in Indian companies at 40%. An alarmed UCC which owned 60% of UCIL’s shares, then proposed to the Indian government that it should start manufacturing MIC in Bhopal. In return, Carbide asked to be exempted from FERA. The exemption was granted, enabling UCC to retain majority control.
On the eve of December 3rd, 1984, large amounts of water entered tank 610, containing 42 tons of methyl isocyanate. The resulting exothermic reaction increased the temperature inside the tank to over 200 °C (392 °F), raising the pressure to a level the tank was not designed to withstand. This forced the emergency venting of pressure from the MIC holding tank, releasing a large volume of toxic gases into the atmosphere. The gases flooded the city of Bhopal, causing great panic as people woke up with a burning sensation in their lungs. Thousands died immediately from the effects of the gas and many were trampled in the panic. Water dissolves the gas and so many immediately put wet handkerchiefs on their faces. But a lack of widespread awareness of such simple safety rules resulted in mounting death toll.
If the gas leak from the plant produced actual and toxic impacts on the people of Bhopal, the fight for justice which ensued, aggravated and accentuated their agony for years. At the end of it all, the outcome was nothing but the biggest travesty of justice.
India articulated a new concept of parens patriae by which it assumed the role of litigant on behalf of all the victims under the newly formulated Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 and sued the UCC before the US court. All the claims of the Indian government were dismissed by Keenan J. on the ground of ‘forum non conveniens’, meaning improper forum. The reasons cited by him were primarily that the catastrophic industrial accident in Bhopal had only a ‘tenuous connection’ with New York, and it would impose a considerable burden on the court system and would ‘tax the time and resources of citizens’.
A corporation incorporated in the US has a wholly owned Indian subsidiary, which fails to take adequate safety measures against toxic gases stored in its premises and unleashes a human tragedy in an entire city and the US Courts easily dismisses the case as having little nexus with it!
“The Union of India is a world power in 1986 and its court(s) have the proven capacity to mete out fair and equal justice.” – Keenan J., United States of America
The US Court also said that India had a “very strong interest in the aftermath of the accident and the litigation would offer a developing nation the opportunity to vindicate the suffering of its own people within the framework of a legitimate legal system”. Repelling India’s contention that ‘the courts of India are not up to the task of conducting the Bhopal litigation’, Judge Keenan further observed that “The Union of India is a world power in 1986 and its court(s) have the proven capacity to mete out fair and equal justice. To deprive the Indian judiciary of this opportunity to stand tall before the world and to pass judgment on behalf of its people would be to revive a history of subservience and subjugation from which India has emerged.” 
Surely, a very admirable stance taken by the US Courts! Its a real shame that the Indian courts failed to meet the expectations of not only a Judge sitting in an US court, but that of its own people as well.
India filed all claims not against UCIL, but against UCC, the parent company, which it contended, was the multinational operating the pesticide plant in Bhopal with full control over its management and affairs. It also took recourse to the principle of absolute liability, which has been propounded in the 1986 Delhi Oleum Gas leak case, whereby any corporation storing hazardous substances in its factory premises would be absolutely liable for any untoward consequence. The defences taken by UCC were varied: Firstly, they argued that UCIL was an independent Indian corporate entity, not under the control of UCC. Secondly, it was argued that the principle of absolute liability was not recognized in tortuous jurisprudence and hence not applicable to UCC. Thirdly, Methyl Isocyanate gas was not ‘ultra hazardous’ and even if it was so, India stored such toxic gases in profound quantities as a matter of its industrial policy. Fourthly, Indian government and the state government of Madhya Pradesh were also argued to have been equally liable.
As against the billion dollar claim, the Indian government entered into an out-of-court settlement with UCC whereby UCC agreed to pay a compensation of Rs. 713 crores to the victims and the Government agreed to drop all criminal and civil charges against the Corporation. After five years of prolonged human suffering, the Supreme Court of India finally held the UCC absolutely liable for the mass disaster, but recorded the compensation as an act of mercy ‘for the benefit for the claimants and not as fines, penalties or punitive damages’.
This largely reflects the utmost failure on the part of the Indian government who gave in to the influence and pressure of UCC, without the consent of the survivors whom it was representing and the judiciary who stamped its approval on an wholly unconstitutional deal. It violated the established norm ‘criminals cannot pay their way out’ and here UCC has done just that.
Even the statistics of the injured and the dead were manipulated. The 470-million dollar compensation was meant for only one lakh and eight thousand victims, quoted at that time by the government despite wide spread protest against this underestimation.
Eventually, the number of those affected was increased to nearly six lakhs. But the compensation money was not, so each victim got far less than they should have and there were many who did not even get a single penny. Of the Rs 713 crores, Rs 113 crores was for loss of livestock and property. The balance Rs 600 crore distributed among 5.74 lakh persons works out to about Rs 12,410 per victim on average. Moreover, shocking news reveal how people from other states went and registered themselves as gas leak victims, in order to lay their hands on the compensation package. Two installments of compensation — of up to Rs 25,000 each — have been given till now to the injured, one in 1994 and the next in 2004. No wonder, lakhs of genuine gas leak victims are still languishing, without any monetary compensation. The state machinery has utterly failed in its responsibilities. First, by striking a deal with the main accused and dropping all charges and then by failing to ensure that monetary comfort reached the needy. When the Indian government assumed charge of fighting for justice on behalf of the victims, it was hailed as a unusual move, almost laudatory. Neither could it achieve justice by nailing the accused, nor could it make use of the deal that it struck at the price of justice. It was a resounding failure of the government from all sides.
However, the Bhopal victims filed proceedings to overturn the settlement in a case that went all the way to the Indian Supreme Court. Citing inaccurate statistics for the number of dead and injured victims, the Apex court ruled in 1991 that the quashing of criminal charges was unconstitutional and that the criminal cases against Carbide, its CEO Warren Anderson, and other officials must be reinstated. The settlement amount was allowed to stand. In characterising this judgement as “full and final settlement”, Union Carbide and Dow carefully avoid mentioning the reinstatement of criminal charges. They were not mentioned even in Dow’s SEC filings during the process of its takeover of Union Carbide.
In 2001, Union Carbide was bought by Dow Chemicals, a company with its own history of human rights violations. It was one of the primary manufacturers of Agent Orange, used by the U.S. military in its herbicidal warfare program during the Vietnam War from 1961 to 1971, and faces lawsuits for manufacturing silicone breast implants which caused systemic health problems and a soil fumigant with a chemical component known as DBCP, which caused male sterility among its workers.
As per the “Polluter Pays” principle under Environmental Law, UCC or its successor Dow Chemicals should have caused the cleanup of the toxic waste still in the factory premises. Indeed, immediately after the acquisition, Dow set aside $2.2 billion to meet Carbide asbestos liabilities in the US. However it bluntly refuses to accept Carbide’s liabilities in Bhopal – or even admit that they exist. According to Dow, the agreement with the Indian government clearly absolves it of all its liabilities of UCIL. Dow’s sensitivity for a third world country like India was best summed by its PR officer Ms. Kathy Hunt in response to the fact that the average ‘lifetime compensation’ for each victim has been reduced to $500, “You can’t really do more than that, can you? $500 is plenty good for an Indian.“
By not forcing Dow to take responsibility for cleanup of UCC’s crime, the Indian government has managed to fail the expectations of its people. Not for a single instance, did Indian government push for enforcement of the “Polluter Pays” principle by Dow. Instead, to please Dow Chemical, a special Technical Committee under a Government Task Force, directed 40 metric tonnes of the lethal waste from the Bhopal factory to be disposed of in an incinerator and storage facility at Pithampur, near Indore, run by Ramky Enviro Engineers Limited. The Central Pollution Control Board (CPCB) has made several adverse remarks during its inspections about leaking drums, spillages, unscientific evaporation ponds and the general shoddiness of the Pithampur facility and also noted that the Tarapur village is right next door. When the court ordered that surface hazardous material at the Bhopal factory should be packed and put away somewhere safe, Ramky hired some local labourers and got barefooted men and women, with accompanying children, to handle and sweep all the waste — without even the charade of protective gear.
“Lucky were those who died on that day; the one’s who were left to die a slow and painful death are living nightmares everyday” – a survivor
In the whole epic that is Bhopal Gas tragedy, there is just one entity which can be assailed as guilty. It was not the Union Carbide Corporation whose callous attitude towards Indian lives marked the lives and times of innumerable victims with sufferings; it was also not Dow Chemicals, which inherited only the assets and liabilities in the US, but steadfastly refused to acknowledge the aftermath of the disaster. It is only the Indian Government along with all its machineries, which is guilty. It is guilty of breaching the fiduciary duty which was reposed by hapless victims to represent them in the trials. It is guilty of extracting only a nominal amount as compensation package and agreeing to withdraw all charges in exchange. It is guilty of letting the main perpetrator go scot-free under State hospitality. It is guilty of not ensuring a reasonable compensation for all the genuine victims. It is guilty of reducing the charges from ‘culpable homicide amounting to murder’ to mere ‘death caused by negligence’, a section meant to book accused in car accidents. It is guilty for bending so low before the multinational corporations that they have flagrantly violated all norms while doing business in India. It is guilty of putting international investment before lives of its own citizens.
“You can’t really do more than that, can you? $500 is plenty good for an Indian.” – Ms. Kathy Hunt, PR Officer of Dow Chemicals
Even before the Bhopal horror has sunk in, India is pushing for a potentially dangerous Nuclear Civil Liability Bill that excuses foreign suppliers from all criminal liability and seeks to cap their maximum financial liability at Rs 500 crore in the event of a nuclear disaster. It further states that potential victims will have no right to take foreign suppliers to court and only the Indian operator — Nuclear Power Corporation of India Ltd (NPCIL) — can sue the suppliers if it so wishes. It allows victims only 10 years within which to make claims and it deems that all nuclear disaster related litigation will be outside the purview of ordinary Indian courts, claims and civil cases will only be entertained in a Nuclear Damages Commission.
With India relentlessly pursuing such a law, there will be no end to the nightmare that started in 1984. India shall always remain guilty of its own people.
All images from the Internet; copyright belongs to the respective authors
1. The deserted Union Carbide factory in Bhopal
2. Jars containing deformed foetuses preserved from the 1984 Bhopal gas disaster at the forensic department of Gandhi Medical College in Bhopal
3. Protestors on the road against Dow’s reluctance to clean up toxic waster in Bhopal
 Upendra Baxi, Inconvenient Forum and Convenient Catastrophe- The Bhopal Case, 69 (1986)
 M C Mehta v Union of India. The Supreme Court propounded this principle in a case of gas leak in a Delhi factory, mainly keeping in mind the ongoing Bhopal litigation.
This cover story is for the Tiger Trails Magazine “The Sunday Roar” published on the occasion of Super 4 Round in Bloggers Premier League
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