- 29 Year Anniversary
- 3 Months in Bhopal
- Bhopal for Dummies (briefly)
- The Crime of Union Carbide
- What Bhopal Started
- the Olympics and Dow
- The Orphans of Bhopal
- Boats and Ropes
- Jango Music
- Work Related Health
- 9/11 - thoughts
- Sport can be Dangerous to your Health
- Soft Tissue
- "My Chiropractor"
- The Prostate Page
- Post Polio Syndrome
- The Sound of Silence
Hello, this is the 'blog' page on my site. I will jot down thoughts, ideas and stories, not every day but on a variably frequent basis. Many of the entries will be about bodies (your physical reality?) or bodywork but some will be on a variety of other topics depending on what I am thinking about.
The Bhopal story continues; the disaster continues. I have composed my weeekly diaries into a book with pictures, thoughts, musings etc . You can read a little about it in the the 'Bhopal for Dummies (briefly)' entry, just a single click away. It is not a polemic about Dow Chemical, politics or law; it is about what is happening now to the people and what work is going on in Bhopal itself.
All purchases will help to fund the work supporting the people - not for politics.
The older topics are still there for debate, including my thoughts on Prostate HEALTH - it is not just cancer that affects this gland in men, nor is cancer the most common problem. I would love you to make your contribution whether you agree or disagree. It is good to discuss ideas openly on the basis that no-one will change their view unless another is opened for them. So, I will still enjoy your thoughts that differ from mine. And I may even post ideas that are contrary to my own - just to play the devil's advocate a bit.
I don't promise to respond to everything, after all I do have a life elsewhere but I will read everything that is posted.
I hope that what I write will stimulate a few people to new thoughts or investigations.
with much love
BHOPAL GAS PEEDITH MAHILA UDYOG SANGHATHAN (BGPMUS)
51, Rajender Nagar, Bhopal 462010
BHOPAL GAS PEEDITH SANGHARSH SAHAYOG SAMITI (BGPSSS)
C/o Delhi Science Forum, D-158, Saket, New Delhi 110017
STATEMENT ON THE OCCASION OF
THE 29TH ANNIVERSARY OF THE BHOPAL GAS LEAK DISASTER
02 December 2013
The escape of about 40 tonnes of methyl isocyanate (MIC) – a highly toxic chemical – from a storage tank in a pesticide plant of Union Carbide India Limited (UCIL) in Bhopal on the night of 02/03 December 1984 resulted in a terrible disaster. Due to criminal negligence and utter callousness on the part of the plant management in taking adequate safety precautions, water and other impurities – that cause MIC to react violently – entered one of the MIC storage tanks resulting in exothermic reactions and forcing MIC and its reaction products to escape in the form of froth and lethal gases. The escaping poisonous gases, which were heavier than air, spread across 40 sq. kms of area of Bhopal, covering about 36 of the 56 municipal wards, leaving in its wake more than 20,000 dead (over several years) and inflicting injuries in varying degree on about 550,000 other human inhabitants. The pernicious impact on flora and fauna in the affected area was equally grave. UCIL was then under the control of Union Carbide Corporation (UCC) – a U.S. multi-national company, which is currently wholly owned by the Dow Chemical Company (DOW), USA.
As noted on previous occasions, even nearly three decades after the disaster, neither the State nor the Central Government has made any attempt to either undertake a comprehensive assessment of the ramifications of the Bhopal disaster or to take necessary remedial measures. As a result, the gas-victims have had to wage concerted struggles in their quest for medical relief, compensation and justice. During 2013, while achieving partial success on the litigation front, lack of progress on most other pressing issues concerning the Bhopal gas-victims continue to remain a source of major concern. The current status of issues such as health care, enhancement of compensation, prosecution of the accused, remediation of the environment, etc., may be briefly recounted as follows:
1. HEALTH: The gross indifference on the part of the State and Central Governments to the health needs of the gas-victims continues to be as grim as ever. Apart from the fact that a fairly large infrastructure has been built in terms of buildings and number of hospital beds because of pressure exerted over the years by organizations supporting the cause of the Bhopal gas victims, the quality of health care in terms of investigation, diagnosis and treatment continue to be abysmal. The persistent apathy on the part of the Indian Council of Medical Research (ICMR) and the State of Madhya Pradesh in monitoring the health status of the Bhopal gas victims – through computerization and networking of hospital medical records and by ensuring the supply of health-booklet to each gas-victim with his/her complete medical record – is shocking to say the least. That a proper protocol for treatment of each gas-related ailment has not been evolved even 29 years after the disaster speaks volumes about the apathetic attitude of the concerned authorities in this regard.
It was because of this utter insensitivity on the part of the ICMR and the State Government that BGPMUS, the Bhopal Group for Information & Action (BGIA) and BGPSSS – as Petitioners Nos.1, 2 and 3 – filed a Writ Petition (No.50 of 1998) before the Supreme Court on 14.01.1998. The Petitioners pleaded for restarting of disaster-related medical research, monitoring and recording the health status of each gas-victim, improvement in health care facilities, appropriate protocol for treatment of each disaster-related ailment, etc. After 14 years of litigation, the Supreme Court acceded to the above prayers of the Petitioners and vide Order dated 09.08.2012 had issued necessary directions to the ICMR and the State Government in this regard. The Petitioners were further directed to pursue the matter before the High Court of Madhya Pradesh, a task that the Petitioners are actively engaged in at present. However, the fact remains that even 15 months after the Supreme Court passed the said Order dated 09.08.2012, neither the ICMR nor the State Government have taken the necessary steps to comply fully with all the directions of the Court.
At the behest of BGPMUS and BGPSSS, the Supreme Court vide Order dated 27.09.2013 has also directed the National Informatics Centre (NIC), which is under the Union Ministry of Communications and Information Technology and which has been entrusted with the task of computerization of the medical records of the gas-victims, to be impleaded as a Respondent in the case. Moreover, vide Order dated 19.11.2013, the MP High Court has directed the NIC to interact with the Monitoring Committee to evolve a proper format for computerization of medical records and issuance of health booklet to each gas-victim with his/her complete medical record. (The Monitoring Committee, which includes representatives of the Petitioners as well as of the State Government, was set up by the Supreme Court vide order dated 17.08.2004 to monitor the health status of the gas-victims.) The High Court will issue further directions in this matter on 11.12.2013.
The urgency of restarting medical research arising from and related to the Bhopal disaster, which the ICMR had abandoned in 1994, can in no way be underplayed especially in the light of numerous reports about the high morbidity rate in the gas-exposed areas of Bhopal. The four consolidated medical reports on the Bhopal disaster that the ICMR has published so far provide ample proof in this regard. Reports about genetic defects among the progenies of some of the gas-victims are also a major cause for concern.
2. COMPENSATION: Twenty-one years after the unjust Bhopal Settlement of 14/15 February 1989, the Union of India had decided to file a curative petition [Curative Petition (Civil) Nos.345-347 of 2010] before the Supreme Court on 03.12.2010 against the terms of the Settlement on the plea that the Settlement was based on underestimated figures of the dead and injured. The petition has been admitted but has not yet been taken up for hearing. BGPMUS and BGPSSS do support the UOI’s Curative Petition in principle regarding the total casualty figure (i.e., 5,73,000, including dead and injured) and regarding the modalities for enhancing compensation (i.e., that it should be based on the Dollar-Rupee exchange rate that prevailed at the time of the Settlement). However, BGPMUS and BGPSSS have serious differences with the UOI’s stand regarding the number of dead (just 5295) and the seriously injured (just 4944) and regarding the paltry claims for relief & rehabilitation and for environmental damage. The stand of BGPMUS & BGPSSS regarding the number of dead (20,000+) and seriously injured (150,000+) has already been explained in the Special Leave Petition (SLP) that is currently pending before the Supreme Court as SLP (C) No.12893 of 2010, which will be heard only after the disposal of UOI’s Curative Petition. On 24.10.2013, BGPMUS & BGPSSS have filed an Interlocutory Application in UOI’s Curative Petition (C) Nos.345-347 of 2010 to point out the inadequacies in the same and praying for granting appropriate relief. It is astonishing that the Union of India had made no attempt to place the relevant ICMR reports before the Claim Courts to enable the Claim Courts to assess fairly the types and gravity of injuries suffered by the Bhopal gas victims. In the absence of proper health booklets, which the ICMR and the State Government had failed to provide to each gas-victim, circumstantial evidence would have been very valuable in determining the likely degree of injury suffered by a gas-victim. BGPMUS & BGPSSS hope that the said Curative Petition, which has been pending before the Supreme Court for the last three years, would be disposed of without further delay.
3. CRIMINAL CASE: The criminal cases against the accused are supposedly proceeding at two levels: one against the three absconding accused and the other against the eight accused who appeared before the Chief Judicial Magistrate (CJM), Bhopal, to face trial. Through Judgment and Order dated 07.06.2010, the CJM has prosecuted the said eight accused persons under Section 304-A, 336, 337 and 338 of IPC. The CBI, the State of MP and BGPMUS & BGPSSS had filed Criminal Revision Petitions against the said Judgment before the Sessions Court, Bhopal. By completely overlooking the plea of the Prosecution and by upholding the contentions of the accused in toto, the Sessions Court, Bhopal, on 28.08.2012 dismissed the CBI’s Criminal Revision Petition No.632 of 2010 against the said Judgment because of it “being not maintainable and barred by limitation”. The CBI had sought enhancement of charges against Keshub Mahindra and 7 other accused from Section 304-A to Section 304 Part-II of IPC on the basis of evidence already before the Court of the CJM. Thus, the ray of hope that was visible in the Supreme Court’s Order dated 11.05.2011 in Curative Petition (Cr.) Nos.39-42 of 2010, which was that the misreading of its Order dated 13.09.1996 in Criminal Appeals Nos.1672-1675 of 1996 by the CJM “can certainly be corrected by the appellate/ revisional court”, has suffered a serious setback. Moreover, the fervent hope that similar Criminal Revision Petitions that the State of MP as well as BGPMUS & BGPSSS had filed, which were certainly not barred by limitation, would receive favourable consideration were also thwarted when the Sessions Court summarily dismissed the said Revision Petitions after keeping the same pending unduly for over three years. BGPMUS & BGPSSS have already expressed their utmost displeasure at the extremely slow pace at which the criminal case has been proceeding and their demand for setting up a special court to speed up the proceedings has not yet been acceded to by the State Government.
As of now, BGPMUS and BGPSSS, which were instrumental in reviving the criminal cases against the accused in 1991 by filing an appeal and a writ petition against the unjust settlement of 14/15.02.1989, have currently no locus in proceeding with the criminal cases against the Indian accused before the Sessions Court. Under the circumstances, accused Nos.2 to 9 can rest content that the likelihood of having to undergo punishment in their lifetime for the heinous crime they had committed is most improbable. Ten to fourteen days imprisonment at the time of arrest is the only privation that seven of the accused have suffered so far; accused No.4 has not faced even that inconvenience to date! Needless to say, the possibility of the survivors being rendered justice in their lifetime for the loss & suffering they have had to endure during the last 29 years remains as remote as ever.
The criminal case against the three absconding accused, namely accused Nos.1, 10 and 11, which has been pending before the Court of the CJM as Miscellaneous Judicial Case (MJC) No.91 of 1992 has also been proceeding at an equally tardy pace. After acceding to the plea of BGPSSS, BGIA and BGPMUS dated 07.09.2001, the CJM had issued notice to the Dow Chemical Company (DOW), USA, on 06.01.2005 to appear in the criminal case on behalf of the absconding accused No.10, Union Carbide Corporation (UCC), USA, which had become a wholly owned subsidiary of DOW in 2001. However, on 17.03.2005, the MP High Court at Jabalpur had stayed the said order of the CJM at the urging of a purportedly non-party in the matter. The stay was vacated only seven years later on 19.10.2012, when the High Court finally upheld the validity of the CJM’s Order dated 06.01.2005. After BGPSSS & BGPMUS brought the ruling of the High Court to the attention of the CJM, Bhopal, through an Application dated 30.11.2012, the case – MJC No.91/1992 – was posted for hearing on 07.01.2013. However, it is highly regretful that for no rhyme or reason the CJM has not re-issued the notice to DOW even nearly a year later. BGPSSS & BGPMUS had also brought to the attention of the CJM that proceeding against the absconding accused No.1, Warren Anderson, had not progressed even after the Chief Metropolitan Magistrate, Delhi, had issued a Letter Rogatory on 23.03.2011 at the urging of the CBI for the purpose. The fact is, the Union of India has made no attempt to expedite the proceedings although the matter is reportedly pending before the U.S. Administration since April 2011. The lackadaisical manner in which the trial against the accused in the Bhopal disaster criminal case has proceeded for the last twenty-nine years makes a mockery of the criminal justice system in the country. BGPMUS & BGPSSS are in the process of placing these facts before the higher courts for appropriate relief.
4. ENVIRONMENTAL REMEDIATION: Toxic waste that was generated during UCIL’s operation from 1969 to 1984 was dumped in and around the plant leading to severe soil and water contamination. A comprehensive study to estimate the extent and gravity of the damage has not been carried out by the Centre or the State Government to date. Instead, the magnitude of the problem has been grossly underestimated by making it appear that the total toxic waste that needs to be safely disposed of is only about 345 tonnes that is stored at the plant site. The matter is before the Supreme Court as SLP (C) No.9874 of 2012. However, the current proposal to incinerate/bury the toxic waste near Indore is wholly misconceived and it would only result in shifting the problem from Bhopal to Indore. On the contrary, in a preliminary study that was jointly carried out by the National Environmental Engineering Research Institute (NEERI), Nagpur, and the National Geophysical Research Institute (NGRI), Hyderabad, during 2009-2010, it was estimated that “the total quantum of contaminated soil requiring remediation amounts to 1,100,000 MT [metric tonnes]”(p.68) or 650,000 cubic metres. Based on the “Polluter Pays Principle”, it is the duty and responsibility of the Dow Chemical Company, USA, which currently owns UCC, to meet the cost of remediating comprehensively the affected environment in and around the UCIL plant with the latest available remediation technology. Similarly, the cost of providing safe-drinking water to the affected population residing in and around the former UCIL plant too has to be borne by DOW. However, the responsibility for providing safe drinking water to the affected population is entirely that of the State Government.
At the initiative of the Centre for Science and Environment (CSE), Delhi, a preliminary attempt was made in April 2013 to bring together on a common platform the various stakeholders and experts to prepare an Action Plan to remediate the degraded environment. While a draft Action Plan has been worked out, it requires further refinement as well as inputs from other experts and stakeholders, including the Government of Madhya Pradesh.
5. RELIEF & REHABILITATION: The State Government has failed to address adequately and with sensitivity a whole host of socio-economic problems that confronts the chronically sick, the elderly, the differently abled, the widowed, and other vulnerable sections among the gas-victims. The pittance, which was disbursed as compensation in most instances to these sections was never enough to take care of their daily needs. Finding gainful employment in accordance with the reduced capacity to work and to lead a dignified life has been a serious challenge. The State Government has to provide far more attention and support to this issue than in the past.
On the 29th anniversary of this man-made-disaster, the Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS) and the Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS) pay their homage to the deceased victims and reiterate their determination to continue to uphold the cause of the survivors and to seek justice for the hapless victims.
(Abdul Jabbar Khan) (N.D. Jayaprakash)
Convener, BGPMUS, Co-Convener, BGPSSS
Tel: 0755-2748688 Tel: 011-27666980
Mobile: +91-9406511720 Mobile: +91-9968014630
I was reminded, in a treatment a couple of days ago, about the importance of stillness and silence and also of coming home to the spine.
A new client arrived with several current problems and after discussing her case I commenced work on her spine. After working slowly down I naturally came to that all important vertebral joint L5/S1. For those readers not familiar with your spine and/or the non-therapists among you, that is the gap between the last lumber vertebra and the sacrum.
One reason I consider it so important is that the sacrum is held fairly firmly in between the two bones of the pelvis, the iliea, so L5 is the first of the ‘true’ spine that moves freely. It may not move much, but it does move and it is important that it moves. If L5 does not move then L4 has more work to do and can get over loaded and so the result is that the restriction can travel up the spine.
I rested there, with my thumbs gently pressing into the space either side. It was tight.
Then I waited.
I don’t play music in my sessions so there was silence. And stillness. As I held it I did not move beyond my soft breathing.
After a few minutes she gave a gentle ‘lurch’ with her pelvis and low back – it is hard to describe it any other way. Then, as the minutes passed in stillness and silence she moved into more, gentle lurches, and some soft tears. After about 10 minutes more, it all subsided.
So, why am I telling you this? Because the space of silence and stillness is what gives permission for a release like this. Had I been playing music that would have stamped its need for hearing on us and set a mood for the session. She was free to choose whatever mood she desired, or that just came and visited her.
Music can also be a distinct distraction, taking both client and therapist away from the task in hand; not allowing the free flow of – well of whatever it is that needs to flow for that session.
Much later in the session I was working on her neck and about four vertebrae were in a small curve. I had eased the tension between each one and then simply held the lower one, not moving for several minutes and, again, still in silence. After those several minutes I checked the vertebrae and they were straight.
The second lesson for me was the importance of coming home to the spine. I could have worked many areas on this client and, I am sure, they would all have brought benefit. But the central core of the being, the spine, brought about what I consider to be the biggest release for her in that moment.
The final lesson is the importance of giving the body the time just to do its own healing. A simple stimulus, such as the primeval touch in the right place, and allowing time for the subconscious – maybe I should say the Unconscious, to recognise a need, a long forgotten healing perhaps, and gently do its work.
The Orphans of Bhopal by N. D. JAYAPRAKASH
Crime and No Punishment
(Published previously on www.bhopal.net and www.counterpunch.com)
The survivors of the world’s worst chemical disaster – the Bhopal disaster of 03 December 1984 – continue to remain victims of apathy and neglect because of utter indifference on the part of the Government of Madhya Pradesh and the Government of India towards their wellbeing. The man-made disaster resulted from the escape of toxic gases from one of the three partially underground storage tanks containing about 42 metric-tones of methyl-isocyanate (MIC), a highly toxic and reactive chemical, from the premises of Union Carbide India Limited (UCIL), a subsidiary of Union Carbide Corporation (UCC), USA. [For details regarding the circumstances and causes of the disaster, please see article titled “The Crime of Union Carbide”.(Also on the blog page of this site)
Institutions under the Council of Scientific and Industrial Research (CSIR) and the Indian Council of Medical Research (ICMR), which initially took active interest in unraveling all the ramifications of the disaster, have failed to live up to their potential in this regard by succumbing to pressure from the powers that be. The brazen manner in which the ICMR had discontinued all medical research related to the Bhopal Disaster as early as 1994 speaks volumes about the indifference of this premier health-research institution in the India towards the health-needs of the gas-victims. [In 2010, after a gap of 16 years, organizations fighting for the cause of the gas-victims have succeeded in forcing the ICMR to reopen its Bhopal centre now named as the National Institute for Research in Environmental Health (NIREH). However, the ICMR is frantically trying to limit the commitment of NIREH to health issues arising from environmental contamination caused by UCC/UCIL before the 1984 disaster and is, therefore, making every attempt to ensure that NIREH refrains from tackling health issues related to the 1984 disaster. While efforts at proposing ways and means to remediate the contaminated environment are most welcome, to use the issue of environmental damage as a cover for glossing over the impact of the 1984 MIC-disaster is wholly unwarranted.]
What is equally worse was that a time-period of nearly three decades has apparently not been enough for India’s judicial system – both at the lower as well as higher levels – to dispense justice to the hapless gas-victims. As far as India’s national media was concerned, they highlighted the plight of the gas-victims for the first time ever in 2010. But since then the fate of the gas-victims has practically remained a non-issue, unworthy of media attention. In short, for all practical purposes, the more than 500,000 surviving gas-victims continue to remain orphans within the Indian polity with practically no one in the establishment being responsible or concerned about their dreary existence.
Despite causing the death of over 20,000 innocent people, the perpetrators of the crime seem to have hardly lost any sleep over it. Accused No.1, Warren Anderson (then Chairman, UCC), was arrested and detained on 07 December 1984 for barely about six hours in UCIL’s Bhopal guesthouse before being allowed to fly back to the U.S. Accused No.2, Keshub Mahindra (then Chairman, UCIL) and accused No.3. V.P.Gokhale (then General-Manager, UCIL) remained under house-arrest there from 07 to 13 December 1984. Accused Nos.5 to 9 including J.Mukund (Works Manager, UCIL), and S.P.Choudhury (Production Manager, UCIL) were arrested on 03 December 1984 and were bailed out on 15 December 1984. Accused No.4, Kishore Kamdar (Vice-President, UCIL) and other liable officials of UCC and Union Carbide Eastern (UCE), Hong Kong, were never arrested or ever detained. Therefore, the maximum discomfort the accused have had to suffer in the last 28 years was detention for a period ranging from barely 6 hours to 12 days – way back in December 1984. It has been business as usual for the accused ever since; leading a life of comfort and unperturbed by the havoc they had let loose in Bhopal.
The Whitewash Job
Immediately after the disaster, UCC and UCIL did everything in their power to underplay the gravity and implications of the disaster. Not only did their officials fail to forewarn the local population of the precautionary measures to be taken in case of an accidental release of MIC, but also even after the disaster they tried to mislead the local doctors about the grievous impact of exposure to MIC. According to a report published in 1985:
As victims crowded into the Hamidia Hospital, L D Loya, the company’s medical officer, told the frantic doctors: “The gas is nonpoisonous. There is nothing to do except to ask the patients to put a wet towel over their eyes.” [See: http://cseindia.org/userfiles/THE%20BHOPAL%20DISASTER.pdf, p.206]
In fact, “…local Carbide officials… kept on insisting that MIC is only an irritant and not lethal.” [Ibid, p.219] Apparently, a section of the local medical fraternity and the local administration too actively colluded with Carbide officials in misleading the public. Later when postmortem reports started revealing that many of the deaths may have occurred due to “cyanide” poisoning, the insidious propaganda to conceal the truth further intensified. The underlying reason was that since “cyanide” was well-known as a highly poisonous chemical, Carbide officials did not want people to associate “cyanide” with MIC. The concerted attempts at spreading such misinformation had serious repercussions. For example, it resulted in non-administration of sodium-thiosulphate – the only known antidote to cyanide poisoning – to the vast majority of the exposed victims when timely administration of the same may have saved many lives or prevented aggravation of injuries. This was despite the fact that an ICMR study that was initiated in January 1985 in this regard had clearly pointed out that:
“the rationale for the use of sodium thiosulphate as an antidote has been established to ameliorate the lingering sickness of gas affected victims of Bhopal”. [See: “Health Effects of Exposure to Toxic Gas at Bhopal – An Update on ICMR-sponsored Researches”, 10 March 1985, ICMR, New Delhi, p.18]
Despite such findings, the all powerful pro-Carbide lobby in Bhopal and elsewhere easily managed to sideline ICMR’s considered opinion about sodium-thiosulphate therapy, which effectively resulted in the denial of the much needed timely medical relief to the bulk of the gas-victims. The maneuverings did not stop at that; unwarranted pressure was exerted from various quarters on the ICMR, which impelled it to ban any further publication of its Bhopal-disaster related research findings for several years.
The pro-Carbide lobby also managed to scuttle the attempt at assessing the overall impact of the disaster and properly identifying all the gas-affected victims. It so happened that in collaboration with the State Government, a voluntary initiative was made by the Tata Institute of Social Sciences (TISS), Mumbai, in this direction through a house-to-house survey in the gas-affected areas of Bhopal with the help of over 500 student and teacher volunteers from several schools of social work across the country. However, after considerable data was collected during January-February 1985 from about 25,000 households or about one-fourth of the total affected population (as per ICMR estimates), the State Government arbitrarily decided to disband the TISS survey. What was worse was that even the limited data that had been collected until then was confiscated by the State Government and was never shared with TISS or any other known agency, which could have properly analyzed that vital data. As a result, the opportunity to make a comprehensive assessment of the actual impact of the disaster immediately after it had occurred was lost. It was left to individuals to prove that he or she (or their kin) was a victim by filing individual claims for compensation – a tedious process that began only after September 1985 with the promulgation of the Bhopal Gas Leak Disaster (Registration and Processing of Claims) Scheme.
Earlier following public pressure, the State Government was forced to institute a public enquiry three days after the disaster. It set up the ‘Bhopal Poisonous Gas Leakage (1984) Inquiry Commission’ under the chairmanship of Justice N.K.Singh, who was then a sitting judge of the Madhya Pradesh High Court. However, the N.K.Singh Commission could not carry on with its task in the absence of necessary submissions and documents, which the State Government and the accused company, UCC, through its subsidiary UCIL, were to render before the Commission. The State Government and UCIL prevaricated in every possible manner from making the necessary submissions. It was only nearly a year later, that the State Government, followed by UCIL, made pretence of making such submissions. On 28 November 1985, the State Government came forward to file its statement before the Commission without the list of witnesses and the list of documents, which were filed only subsequently. To the utter dismay of the gas-victims and all concerned people, the Government of Madhya Pradesh, which had dithered in its submissions until 12 December 1985, terminated the Commission on 17 December 1985, thereby, pre-empting the enquiry and practically letting the accused companies and their officials off the hook. The valuable submissions made by several voluntary organizations and concerned individuals before the Commission were of no avail. In short, while every attempt was made to underplay the magnitude and the grievousness of the disaster, very little efforts were made to adequately compensate the victims, on the one hand, and, on the other, to ensure that the guilty officials of UCC, UCE and UCIL were brought to justice and punished for their horrendous crime.
The Unjust Settlement
Initially, it did appear that the Indian Government was totally committed to the cause of the Bhopal gas victims when at its initiative the Indian Parliament adopted a law titled “The Bhopal Gas Leak Disaster (Processing of Claims) Act 1985” on 29.03.1985. The Bhopal Act was enacted purportedly: “for the purpose of insuring that claims…arising out of and caused by the BHOPAL GAS LEAK DISASTER…are dealt with speedily, effectively and equitably.”
This observation was made in para 5 of Union of India’s Complaint against UCC, which was filed before the New York Southern District Court on 08.04.1985. The said Complaint further went on to state as follows:
“Because of the massive unprecedented magnitude of the BHOPAL DISASTER…, the Union of India brings this action as parens patriae by virtue of its interest and duty to secure the health and well-being, both physical and economic, of all victims of the disaster (including future generations of victims), almost all of whom are physically and/or financially or otherwise incapable of individually litigating their claims against the Defendant, a monolithic, multinational corporation.” [Para 6]
On 12 May 1986, Judge Keenan of the New York Court dismissed Government of India’s plea on the grounds of forum non conveniens, i.e., that the courts in USA were not the appropriate forum for seeking justice for the Bhopal gas victims. At the same time, Judge Keenan also directed UCC to submit to the jurisdiction of the Indian courts. Consequently, on 05 September 1986, the Indian Government filed a suit for damages in the Bhopal District Court, which replicated, almost wholly, the suit it had filed before the New York Court. However, UCC had little intention of facing trial in India and, therefore, it attempted to sell off its global assets as a way of evading liability. After the GOI brought this reported move on the part of UCC to the attention of the Court, the Bhopal Court issued a temporary injunction on 17 November 1986 barring UCC from selling assets, paying dividends, or buying back debts. After the Indian Government indicated that the amount it would claim as damages from UCC would exceed $3000 million, the Bhopal Court passed an order on 30 November 1986 lifting the injunction on the condition that UCC would maintain “… unencumbered assets of a fair market value of 3 billion dollars to meet the decree if any that may be passed by this Court.”
Later, as a consequence of the proposal mooted by victims-organizations and its own initiative, the Bhopal District Court on 17 December 1987 ordered UCC to pay an interim compensation of Rs.350 crores (then about $270 million) to the gas-victims. However, on 04 April 1988, in response to UCC’s appeal, the Madhya Pradesh High Court modified the order of the Bhopal District Court and ordered UCC to pay an interim compensation of Rs.250 crores (then about $192 million) only. After both UCC and the Government of India opposed the decision, the Supreme Court of India on 08 September 1988 admitted both UCC’s and UOI’s Special Leave Petitions (SLPs) against the High Court’s order as civil appeals (C.A. Nos.3187-3188 of 1988).
What is most intriguing is that, during the hearing in the Supreme Court on the said Civil Appeals, on 14/15 February 1989, the Court ordered settlement of the main suit itself, which was then pending before the Bhopal Court. As is evident from the article titled “The Crime of Union Carbide” (referred to above), the Settlement took place on the very day the U.S. Government had granted permission to India’s Central Bureau of Investigation (CBI) to inspect UCC’s similar pesticide plant at Institute in West Virginia, USA. The purpose of the inspection was for carrying out a comparative study of the safety-systems installed at the MIC units at UCC’s Bhopal and Institute plants in order to verify allegations about adoption of double-standards. But the abrupt Settlement effectively prevented the CBI from inspecting the safety-systems installed at the Institute plant, which would have proved beyond doubt that UCC had installed sub-standard safety-systems at its Bhopal plant.
Till date the GOI has not provided any other rational explanation as to why the Settlement took place suddenly on 14/15 February 1989, when the Settlement did not and could not have provided any immediate relief to the gas-victims. In fact, the Supreme Court of India in the Order dated 04 May 1989 did try to advance an explanation by stating that the settlement was then necessary because the Court “considered it a compelling duty, both judicial and humane, to secure immediate relief to the victims.” [Para 10, (1989) 3 SCC 43] However, the truth was that, far from securing immediate relief to the gas-victims, it took 3 to 15 years more before the Settlement Fund was disbursed among the gas-victims. Whereas, immediate relief was first provided to the mass of gas-victims (@ Rs.200/- per person per month to all residents in the 36 gas-affected wards of Bhopal) vide Supreme Court order dated 13 March 1990 after the Indian Government headed by Prime Minister V.P.Singh took a decision on 12 March 1990, at the urging of organizations fighting for the cause of gas-victims, to release Rs.360 crores ($240 million) for the purpose. [See: Upendra Baxi & Amita Danda, “Valiant Victims and Lethal Litigation: The Bhopal Case”, The Indian Law Institute, Delhi, 1990, pp.675-679] Thus, it was the Order dated 13 March 1990, and not the Settlement Order of 14/15 February 1989, which ensured that over 500,000 gas-victims were provided immediate interim relief, which was granted for the next three years because the adjudication process for disbursing the Settlement Fund did not begin until the middle of 1992. (Due to the extremely slow process of adjudication of claims, interim relief payment was extended in many cases for another three years – until 1996.) Therefore, the assertion that the Settlement was intended to “secure immediate relief to the victims” was at best an afterthought conjured up to justify the timing of the Settlement, which was otherwise highly questionable.
The wholly unjust terms of the Settlement were quite appalling too. The Settlement discharged the undertaking given by UCC in the Bhopal District Court to maintain unencumbered assets of a fair market value of $3 billion pursuant to the Court’s order dated 30 November 1986, which was a great relief to UCC. Moreover, the Settlement, on the one hand, resulted in the withdrawal of all pending criminal cases against UCC and its accused officials. On the other, the quantum of the settlement amount was limited to $470 million (about Rs.705 crore), which was less than one-sixth of the Government of India’s original claim of $3000 million on the baseless assumption that the total number of human casualties were only around 105,000 (including 3000 dead). The basis of the assumptions regarding casualty figures in the Settlement were totally untenable is evident from the fact that only about ten per cent of the total number of the nearly 600,000 claims that had been filed till then had been processed at the time of the Settlement. The decision to effectively reject nearly 500,000 claims without even processing the same was completely arbitrary and unjust. Moreover, the victims were not consulted or informed in advance about the terms of the proposed settlement although as per the provisions of the Bhopal Act of 1985, the Indian Government was required to do so. Thus, in actual practice, the GOI conveniently hid behind the Bhopal Act to compromise the interests of the gas-victims through the unjust Settlement. While the Settlement did provide instant and substantial relief to UCC, justice continues to elude the gas-victims.
Challenges to the Settlement
As a result of the review and writ petitions filed in March 1989 by the Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS*), the Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS**) and others, the Supreme Court of India did revive all the criminal cases against the accused vide order dated on 03 October 1991. However, the Court continued to justify the quantum of the paltry Settlement amount by advancing the argument that victim-groups had failed to place before the Court higher casualty figures contrary to those on which the Settlement was based. That the Supreme Court was wholly wrong on this count has been proven by subsequent developments. The fact was that the process of adjudication of claims began only in the middle of 1992 (several months after the Court had issued the said review order dated 03.10.1991) – a process that went on for the next 12 years until 2004 (and effectively completed only by 2006 when all the appeals were disposed of as well). So, prior to completion of the adjudication process, there was no question of victim-groups being in a position – especially during 1989-1991 – to place before the Court casualty figures that were contrary to those on which the Settlement was based.
Through interlocutory applications dated 13 September 2004 (I.A. Nos.48-49 of 2004 in the said Civil Appeals), BGPMUS and BGPSSS informed the Supreme Court that adjudication of all claims had established that the total casualty figure was well over 560,000 (excluding claims then pending in Appeal), which was five-times more than the casualty figure that had formed the basis of the Settlement. The said I.A.s were, however, dismissed by the Court on 04 May 2007 without going into the merits of the case. As events have unfolded, it has been proved beyond doubt that there was ample merit in the said I.A.s filed by BGPMUS and BGPSSS since the Government of India itself has now come forward to challenge the Settlement Order of 14/15 February 1989. By filing a curative petition (Nos.345-347 of 2010) before the Supreme Court of India on 03 December 2010, the Indian Government has sought from UCC/Dow Chemical Company substantial enhancement of the compensation amount (an additional Rs.7728 crores or $1658 million) due to higher casualty figures and for environmental damage.
While the Government of India has explicitly admitted in the said Curative Petition that the total number of dead and injured is actually 573,588 (instead of the purported figure of 105,000, which was the basis of the Settlement), it continues to insist that the bulk of the gas-victims (527,894) have suffered only temporary/minor injuries. The Indian Government is basing its argument solely on the outcome of the adjudication process carried out by the Claim-Courts, which had placed the onus of producing medical documents in support of each claim on the concerned victim. On the contrary, it was actually the duty and responsibility of the ICMR and the Bhopal Gas Tragedy Relief and Rehabilitation Department (BGTRRD) under the State Government to ensure that each gas-victim was provided a health booklet with his/her complete medical record, a vital task that the two official bodies have failed to fulfil. It is totally unjust on the part of the Indian Government to equate absence of health-booklet with absence of serious injury especially when the onus of supplying such health-booklets to each gas-victim was on the ICMR and the BGTRRD, both of which are government establishments.
The failure to create a central registry for gas-victims, disinclination to monitor and record the health status of each gas-victim and aversion to providing a copy of his/her complete medical record to each gas-victim, etc., constitute nothing but complete dereliction of duty on the part of the ICMR and the BGTRRD. What is equally shocking is that a proper protocol for treating gas-victims has not been evolved till date and all kinds of drugs continue to be administered to them on a symptomatic basis. The gas-victims have also been subjects of secret and ill-legal drug trials for which no one has been held accountable until now. Thus, while the Claim-Courts have declared that the bulk of the gas-victims suffered only from temporary/minor injuries, the fact is that a sizable section of them are still undergoing medical-treatment for injuries they suffered during the gas leak disaster.
The Government of India has a lot of explaining to do as to why it had refrained from making available all the necessary ICMR reports to the Claim-Courts, which would have been of great assistance to the Courts in adjudicating the claims. In fact, the Welfare Commissioner, Bhopal, in para 28 of his Order dated 31 January 2009 (in response to the petition filed by nine members of BGPMUS and BGPSSS on 28 August 2008) has confirmed that: “…the ICMR Report has not been placed before the Tribunal…” The Welfare Commissioner went on to add: “In future any such report, if it is published or made public, it will be for the Union of India, as a Welfare State, to consider the same and take action accordingly…” Therefore, the news-report that there was “scientific blackout in India” on Bhopal studies and that “…the data that matters most – MIC’s effects on humans – have been kept under wraps by the Indian Government” (W.Lepkowski, “Methyl Isocyanate. Debate Persists Over Mechanism of Toxicity”, Chemical & Engineering News, 22.12.1986, at: http://pubs.acs.org/doi/abs/10.1021/cen-v064n051.p017) was absolutely correct. The subsequent revelation in an internal report of the ICMR (“Report of the Task Force” dated 15 March 2012) that the ICMR had actually imposed a “ban on publication” of the results of its Bhopal-disaster-related research studies on the specious plea that the matter was “subjudice” is, indeed, a bizarre explanation for concealing ICMR’s findings to say the least.
Underestimation of Serious Injuries
The failure to make available the necessary ICMR reports to the Claim-Courts (and absence of the requisite individual medical records in the form of health-booklets in vast majority of cases), has resulted in the Claim-Courts grossly underestimating the seriousness of the injuries suffered by the gas-victims. Earlier, the ICMR had estimated that: “Out of the total population, nearly 1.6 lac people present within a radius of 3 km from the factory were exposed presumably to a higher concentration of Gas and also perhaps for a longer period of time.” The ICMR had also noted that: “It is also a safe assumption that higher the concentration of the Toxic Gases inhaled, the more severe would be the mortality and greater the morbidity.” [See: http://www.icmr.nic.in/final/BGDRC-TEchnical%20Report.pdf p.46 & p.40] In short, according to ICMR’s findings in 1984, no less than 168,686 gas-victims would have suffered serious injuries [Ibid, p.17]. Whereas, after completing the adjudication process without the requisite documents in 2006, the Claim-Courts could identify only 4944 seriously injured gas-victims. [The increasing number of cancer-related deaths among the gas-exposed is also causing grave concern.]
Indeed, it is now apparent that the Claim-Courts without access to the relevant ICMR reports could not have know about the toxic nature of MIC and its derivatives, about the way in which the toxic cloud had spread across Bhopal or about the manner in which death and injuries had occurred. If the Claim-Courts were ignorant of these factors, how could they have judiciously assessed the degree of injuries sustained by the gas-victims? Therefore, there could be little doubt that the Claim-Courts, for pronouncing their verdicts, were mostly dependent on the reports from BGTRRD’s shoddy medical documentation & categorization exercise that was conducted between 1987 and 1991(mostly four to six years after the disaster) and on the medical and other related documents, which some individual gas-victims had produced before the courts. That the medical documentation exercise was shoddily carried out was demonstrated by a group of activists who had analyzed the method and the lackadaisical manner in which the documentation was being conducted and had brought out a critical report titled “Against All Odds” in December 1989. The said report was submitted to the Supreme Court of India in 1990 through BGPMUS and BGPSSS during the hearing in the review and writ petitions against the Bhopal Settlement. The conclusion of the report was as follows:
“By inadequately examining the claimants (clinically and through investigations) and by evaluating the injuries and categorizing them with the use of faulty tools biased against the gas victims, the Directorate of Claims, Bhopal [BGTRRD] has “defined” away the injuries of more than 90% of the victims as ‘no injury’ or ‘temporary injury’.”
Approximately 362,000 personal injury claimants were subjected to medical evaluation [see: (1991) 4 SCC 653] and the bulk of them went through that exercise four to six years after the disaster. After evaluation, while about 40% of the claimants were placed under the “no injury” category, nearly 50% of the claimants were placed under the “temporary injury” category. To place an injury that continues to persist even four to six years after the disaster under the “temporary injury” category was utterly preposterous. Such inept and insensitive method of evaluation and categorization clearly exposes the sheer mindlessness of that exercise. Indeed, if this exercise had been carried out even with a semblance of honesty of purpose, the ICMR and the BGTRRD would have made every effort to continue to monitor the health status of these gas-victims on a periodic basis at least from 1991 onwards. However, that has not been the case despite a specific direction from the Supreme Court in this regard, which was as follows:
“We are of the view that for at least a period of eight years from now the population of Bhopal exposed to the hazards of MIC toxicity should have provision for medical surveillance by periodic medical check-up for gas related afflictions.” [See: Para 203, Order dated 03.10.1991, (1991) 4 SCC 683]
Denial of Health Booklets
Even earlier, in response to Writ Petition No.11708 of 1985, which was filed on behalf of victim-groups, the Supreme Court, in an Order dated 04 November 1985, had observed as follows:
“It is desirable that some independent machinery must be set up which would … carry out a proper epidemiological survey and also a house-to-house survey of the gas affected victims both of which will also be necessary for the purpose of determining the compensation payable to the gas affected victims and their families. It would be necessary for the purpose of ensuring proper medical facilities to the gas affected victims.”
Yet, over the years, there was little attempt at systematically identifying all the gas-victims, providing them proper medical-care, and monitoring their health-status. Utterly frustrated with the ICMR’s indifference towards the gas-victims, BGPMUS, the Bhopal Group for Information and Action (BGIA) and BGPSSS had filed a writ petition (No.50 of 1998) on 14.01.1998 before the Supreme Court of India urging the Court to direct the ICMR to restart Bhopal-disaster related medical research. The petitioners had also prayed that the ICMR and the BGTRRD be directed to expand medical infrastructure for gas-victims, provide proper medical care to all of them, and to issue health-booklet to each gas-victim with his/her complete medical record, etc. As a result, the Supreme Court on 25 July 2001 issued the following directions:
“With regard to those gas victims who are entitled to receive free medical aid throughout the life, permanent cards will be issued, while in other cases where claims are under process, provisional cards will be issued pending final outcome of their eligibility.”
Despite two further orders in this regard dated 17 July 2007 and 15 November 2007, ICMR and BGTRRD are continuing to flout the Court’s orders with impunity. While hearing in Writ Petition No.50 of 1998 was complete on 27 April 2012, the Supreme Court has reserved its order since then. Victim-groups are deeply aggrieved that even 14 years after filing the said writ petition, they have been unable to secure justice for the gas-victims regarding such relatively simple issues like ensuring a “health-booklet” to each gas-victim with his/her complete medical-record and restarting of disaster-related medical-research, which ICMR had abandoned in 1994. Even so, the 23-year-old legal-battle against the unjust Settlement is still being waged intensely before the Supreme Court despite the fact that the Court had rejected pleas for augmenting the Settlement sum on two occasions – in 1991 and 2007. Since then prima facie evidence has mounted and the Court has admitted the SLP (No.12893 of 2010), which members of BGPMUS and BGPSSS had filed on 17 March 2010 for enhancing the compensation amount. In addition, the decision of the Indian Government to file a Curative Petition on 03 December 2010 against the meagre Settlement amount has fully validated the contention of BGPMUS and BGPSSS in this regard. Under the circumstance, the undue delay in disposing of these matters relating to the Settlement of 1989 and denying them timely justice is needlessly prolonging the agony of the gas-victims.
Crime and No Punishment
Since CBI seems to be in no hurry to expedite proceedings in the Bhopal-disaster criminal case, it is highly unlikely that the accused will ever be prosecuted in their life-time. The fact that the criminal cases against UCIL and its seven accused officials are still pending before the Bhopal Sessions Court nearly 28 years after the disaster is a testimony of the State’s extremely callous attitude towards the concerns of the gas-victims and the soft corner it has for the accused. Similarly, no serious attempt has ever been made either to bring the absconding accused, Warren Anderson, and other officials of UCC/UCE to justice or, after the revival of the criminal cases, to inspect UCC’s plant at Institute [presently owned by Bayer Corporation] for purposes of comparing safety-standards with those at its Bhopal plant, after the first such attempt was thwarted through the Settlement.
UCC, which is accused No.10 in the Bhopal-disaster criminal case, has again tried to evade its liability by becoming a wholly-owned subsidiary of The Dow Chemical Company (TDCC), USA, on 06 February 2001. In order to foil UCC’s game-plan, BGPSSS, BGIA and BGPMUS filed an application on 07 September 2001 before the Chief Judicial Magistrate (CJM), Bhopal, urging the Court to serve notice on TDCC to appear on behalf of UCC in the pending criminal case. UCC had already been proclaimed an absconder by the CJM vide order dated 01 February 1992 for repeatedly failing to respond to summons. After several hiccups, the CJM on 06 January 2005 issued an order directing TDCC to appear before the Court on 15 February 2005. However, on 17 March 2005, the Madhya Pradesh High Court at Jabalpur stayed the said order of the CJM in response to an appeal filed by Dow Chemical International Private Limited (DCIPL), Mumbai, despite DCIPL claiming that it “has no direct nexus either in terms of holdings or in terms otherwise with TDCC USA and/or UCC.” [DCIPL’s affidavit before CJM, Bhopal, dated 03 September 2004]
If, indeed, DCIPL did not have any nexus with TDCC, under which section of the Criminal Procedure Code (CrPC) could the High Court have granted stay to TDCC on an appeal filed by DCIPL? Although BGPSSS and BGPMUS did file a preliminary objection on 21 April 2005 questioning the locus of DCIPL and seeking immediate vacation of the stay, no orders have been passed for vacating the stay for last seven years despite the matter (MCRC No.1377 of 2005) being listed before the High Court on more than 38 occasions (including 25 times for “Final Hearing”). [See: http://ldemo.mp.nic.in/causelist/ciskiosk/] It is a classic example of how judicial proceedings are being manipulated to serve the interests of the accused. As a result, the gas-victims are nowhere near attaining justice with criminal proceedings in the Bhopal disaster criminal case having become almost farcical. The repeated pleas of BGPMUS and BGPSSS to the State Government to set up a Special Court for speedily disposing of the criminal cases have also fallen on deaf ears. With no one in the establishment apparently willing to speak-up for the gas-victims, their tenuous existence as orphans is becoming more and more pronounced with each passing day.
N. D. Jayaprakash is Joint-Secretary, Delhi Science Forum and Co-Convener, BGPSSS, Delhi.
[*BGPMUS – an organization of gas-victims, which was founded in 1986
**BGPSSS – a coalition of over 30 all-India and Delhi-based organizations of workers, scientists, teachers, lawyers, artists, women, youth, students, etc., and concerned individuals, which was founded in 1989 to support the cause of the gas-victims.]