The chemistry of living death
Saturday 31 December 1994
An indifferent legislature and an impotent administration has forced the onus of defining the cost of lives and damages to the environment caused by industrial "development" onto the courts.
THE justice meted out by the Indian courts to the victims of the Bhopal disaster is a tale of an opportunity squandered to legally establish liabilities for damages and define a just compensation for the virtual genocide of human life and environment.
Since Bhopal, 22 industrial disaster that cost between 25 to 200 lives have been listed by the Crisis Management Group of the Union ministry of environment and forests. But not a single verdict on how to evaluate damages to people and environment has been forthcoming from the hallowed halls.
The Bhopal experience has radically altered the notion of occupational hazards confined to a work place and has spilled over to include the communities living around an industrial unit.
While there are industrial and insurance laws to compensate damages caused to an individual worker, there are no laws to evaluate damages caused to the community and environment and to establish clear liability for those damages.
"The failure on the part of the government to respond to the emerging trend by enacting appropriate laws has made judicial interventions to lay down basic principles in these matters so crucial," says Justice P N Bhagwati, former Supreme Court judge. Popular expectations from courts acting on Bhopal soared high only to fall flat due the regressive attitude of the courts.
"Not many suits have been filed in mass disaster cases. There are even fewer petitions for compensation as these are mostly settled out of the court. The cases are mostly filed to make industry responsible for implementing pollution control measures," says environment lawyer M C Mehta. The urgency for relief and the maneuvering of the managements to lower compensation costs have resulted in an increasing incidence of out-of-court settlements The differing judicial attitudes on the 2 major cases, the Bhopal gas leak and the Shriram oleum gas leak in Delhi-based Shriram Food and fertiliser Ltd, has only harmed the cause. "The judgement on Bhopal was regressive as it had not only failed to establish principles on these crucial issues but also undermined the finest decisions of the Supreme Court laying down the principle of strict liability in environmental cases in the Shriram case to hold an enterprise wholly liable for the damages even without the need to prove it guilty," maintains labour lawyer Colin Gonsalves of Bombay.
Significantly, in the oleum gas leak which occurred in 1987, the Supreme Court had stated the principle of strict liability. But in the third and final Bhopal judgement of 1990, Justice Ranganath Mishra interpreted this only as an observation and not legally binding. This allowed the Union Carbide to get away with a measly compensation of US $470 million out-of-court settlement.
Large-scale industrial disasters have underscored the need to broaden the objective of compensation. Expounding on the emergent scenario, Bhagwati says, "The magnitude of the compensation should deter the polluter from ignoring risks and seek commensurable insurance." Bhagwati's own ruling in the Shriram case had stated that the measure of compensation must be related to the magnitude and capacity of the enterprise as the compensation must have deterrent effect.
Lost in these warring legal perceptions is the need to develop more rational legal parameters to evaluate damages. Laments Bhagwati, "Compensation continues to be an instrument to enable recovery of the victim, but not to deter the polluter from ignoring risks and seek commensurable insurance."
Instead, industrial accidents and occupational diseases continue to be tried within the conventional framework of industrial laws in which criteria for settling compensation are very narrow and limited to income foregone, age, degree of injury of an individual and event of death. It is paid only to those who have suffered readily proven damages and not to those who are unable to prove long-term disabilities or damages evident only after some years. Nor is any compensation paid to cover the damages caused to the environment.
Ad hoc calculations are done based on relief available under different government funds and insurance schemes for accidents, to arrive at an arbitrary figure to fix the value of compensation. Comments Rajiv Dhawan, a Supreme Court lawyer, "The technique belongs to the my baap (father mother) culture which is based on the principle of doling out state welfare instead of entitlements."
Yet the conservative, insensitive to some, judgement did not deter the progressive black robes taking an increasingly vocal role to enforce environmental laws. "Without the courts the cause of environment would have been lost. The judiciary has been very responsive to the demand from the environment groups seeking legal remedies for environmental problems," says Bhagwati.
Significantly, almost all environmental cases are filed in the Supreme Court or various High Courts across the country. "Litigants prefer to file cases in the higher courts as the authority of the lower courts have eroded," laments R Venkataramani, Supreme Court lawyer. According to A J Rego of the National Safety Council in Bombay, "Courts have interpreted the Constitutional mandate to provide wide ranging relief, many of them not even contemplated under the laws."
The right to wholesome environment has been incorporated into a fundamental right to life under Article 21 of the Constitution. Court verdicts have repeatedly evoked Article 48A on the state's responsibility to protect and improve the environment and the Article 51 under which the citizen has a duty to protect the environment. The Bhopal disaster did spawn a spate of legal reforms in India: the Environment Protection Act was passed in 1986, the Water pollution Act of 1972 and the Air pollution control Act of 1981 were amended to protect environment and the Factories Act of 1948 was amended to hold the industry responsible for the safety of workers and the people around the industrial areas.
The judiciary has been scathing in its criticism for the ineffectual administration. Justice E S Venkataramaiah lashed out in his ruling on the Ganga pollution case of 1988, "It is unfortunate that although Parliament and the state legislatures have enacted the laws imposing duties on Central and state boards and municipalities for prevention and control of pollution of water, many of these powers have remained on paper."
There has been a spate of litigation on environmental pollution and ecological destruction over the past few years. More than 4,000 cases of prosecution are pending in different courts of India related to air and water pollution, rights over natural resources, the environmental impact of development and right to information on the state of the environment (See box: Pollution's hidden agenda). Suits are being filed under broader Constitutional provisions in the absence of adequate laws. The courts are entertaining writ petitions claiming a fundamental right to clean air and water.
The judiciary has even struck down restrictive laws to gain legitimate entry into matters environment. For instance, under section 58 of the Water Act, civil courts were barred from entertaining any suit related to water pollution because only pollution control boards were empowered by the law to issue injunctions on these matters. This was struck down very innovatively in the Sreenivas distilleries vs S R Thyagrajan case in 1986, which upheld, "Since the law enforcing authority had failed to take action against the distillery for polluting water, the Water Act could not bar an individual from moving the court for relief."
The most significant judicial contribution has been to allow environment take precedence over legalities and economic considerations. Unperturbed by the difficult trade off between industrial development and environment, Justice Bhagwati had ruled in the Dehradun mining case in 1986, "Closure of mines may cause hardship to the owners, but it is a price that has to be paid for protecting the right of people to live in a healthy environment."
The courts have been very clear about their concern for environment by stating broad principles. In the Ganga pollution case of September 1987 in which the tanneries in Kanpur were sued for not treating their effluents, Justice E S Venkataramaiah had ruled, "As industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to exist."
The light of day
The reluctance of the judiciary to interfere into policy issues has been so great that the courts are usually in hurry to pass the buck to the executive. Most cases are dismissed at the admission stage itself on a plea that these concern "policy" in which the court cannot interfere. For instance, a large number of cases filed in various courts on behalf of the people affected by the Sardar Sarovar project are yet to see the light of the day.
Defending the court's attitude, justice Ranganath Mishra says, "This is a field of approximation, conjecture and possibilities. The technical assessment of environmental impact of development projects is not always exhaustive enough to aid in definite judgement." The environmental cases have to draw heavily upon the technical and scientific investigation. "If a rigorous technical back up is not available, the offenders will try to confuse the issues by questioning the parameters of defining safe environment," says Mehta. Therefore, Bhopals may happen and by the time the courts receive the necessary technical information and takes action on them, it might be too late for too many people.
Bhopal remembered, Bhopal forgotten
DECEMBER 3, 1994. The stage was set in Bhopal, again, for an army of people. Mediapeople. Activists. As for those who had rushed out of their homes 10 years ago to the day straight into the most poisonous mist the world had seen since mustard gas had ravaged the fields of France in the First World War were either numbers in the Indian government's list of dead, or were living a slow death.
The rest was duty: those affected and mobile attended the right rallies and raised the right slogans; activists almost inactivated during a decade of strife with government and the law renewed their pledges to continue to fight for the victimised. The day vanished with demonstrators erecting 50 symbolic tombstones in front of the silent and rusting Union Carbide plant.
The annual Bhopal juggernaut had rolled on as usual.
Behind it all is the fact that those who have survived are worse off than those who didn't: with about 500,000 compensation claims lying in the in-tray, the process of identifying and compensating the victims is tied up in knots; the restorative administration measures like state- and activist-supported cottage industries employing the victims have all closed down; the hospitals are comatose.
On its part, the government is insisting on balancing the issue on the scales of cash compensation when the victims are thinking of jobs. Even here, the process of doling out the cash has been jerky at best, with only 100,000 of the 600,000 victims having received some compensation out of the US$ 470 million paid by Union Carbide in as long ago as 1989.
With about 50,000 victims in desperate need of employment, the Bhopal Gas Peedit Mahila Udhyog Sangathan (BGPMUS), the largest survivors' organisation, is also stressing more on jobs than on dole. That mere compensation is pathetically insufficient is evident from the deep meas Mohammed Ali is in: he was given Rs 25,000 as compensation after he has already spent double the amount on medical treatment. "I am heavily in debt and feel that government-aided employment would have served me much better than the short-term cash award," he says. He is also vehement about the "beggarly habits" that dole encourages.
The victims have had no alternative but to endure the state-imposed, highly centralised medico-legal structure as compensation is determined by the courts on basis of medical reports. Fumes Abdul Jabbar Khan, convenor of the BGPMUS, "The victims are treated like criminals and all cases are considered fraudulent unless proven otherwise. Compensation depends on how much bribe the victims are capable of shelling out."
Government high-handedness started with the registration of gas victims by the state's Directorate of Claims, which issued a series of notifications instead of carrying out door-to-door surveys, maintains Satinath Sarangi of the Bhopal Group for Information and Action. Those who did not possess a medical report or who were too ill to report for registration were not registered.
Newly acquired computers added to the confusion as faulty programmes and names incorrectly spelled in English resulted in many of those registered not receiving any notification for medical examination. Take Razia Sultana. Busy tending to an ailing husband, she neglected taking a medical examination, little knowing that it would determine her compensation. Also, her children were not registered on the official assumption that compensation to minors would be linked to their parents.
In the 38 claims courts set up by the Welfare Commissioner in 1992, victims are often coerced into signing a document in which they promise not to appeal against the assigned medical categories. "This is trickery," cries Saju Bai, who did not know what she was signing and has lost the right to appeal against the "no injury" category despite clearly exhibiting signs of mental disorder.
To escape the legal tangle, Jabbar suggests a flat compensation of Rs 50,000 to all residents of the 36 city wards directly affected by the leak. He would also like the courts to handle only appeal cases and consider cases where victims are excluded from the redressal process.
The centralised public health system has also fallen flat on its face. As a result, the number of private practitioners has burgeoned to 5,000 form a mere 800 in 1984 and private clinics from 18 to a mindboggling 200. On top of it, the government has reduced health expenditure to Rs 5.5 crore, a crore less than last year, despite more than 1,000 people flocking daily to each of the 4 hospitals set up specially for the purpose, and doctors still recording rampant cancer, tuberculosis and eye ailments.
Rehabilitation was politisied to an extent that the erstwhile Bharatiya Janata Party (BJP) government in Madhya Pradesh closed down 6 sewing centres employing 2,300 gas-affected women and neglected to open the special industrial area, which could have provided jobs for more than 20,000 victims. The issue was given a communal colour when the party relocated the predominantly Muslim victims from the Upper Lake area of the city to Badwai and New Gandhi Nagar, about 12 km away from the city. "By replacing us so far away from the city, the government has deprived us of the means to earn a living," says Yunus Khan.
Poor redressal has resulted in survivors' groups entering the political arena in a big way. The BGPMUS, for instance, fielded 6 candidates under the Janata Dal banner in the November 26 municipal elections. Warns Sarangi, "Victims must guard against exploitation of their needs by vested interests", and survivors hope for better days "when our people become politicians".
That will be some compensation.
The poison piles up
In 1961, this promise came with the Union Carbide Corp (UCC) visiting card. The small print added -- A hand in things to come. On December 3, 1984, UCC showed its hand. Thousands died and continue to die in well-documented agony and tens of thousands were maimed and traumatised for life when methyl isocyanate leaked in the dead of the night from Carbide's Bhopal plant. It took only a few horror-filled hours to translate hypothesis to the reality of chemical disasters. No one had thought that things could get so bad.
Since then, the world of non-military chemicals has existed in the grey area between "necessity" and toxicity. The plethora of dos and don'ts, the rising graph of contraindications, and the disconcerting appetite for more chemicals, is both a cause and reflection of increasingly difficult solutions to increasingly difficult problems. In India, the race to introduce millions to a chemical age has left the sober counsels of safety in a crumpled wad on the wayside. It's as if Bhopal never happened.
Chemicals are making increasing inroads into people's lives -- from things as ostensibly benign as lipsticks and fluorescent lamps to danger signals like fertilisers and preservatives. Only a minuscule proportion of the chemicals the world manufactures is sold directly in the market, the main chunk, of which we remain blissfully ignorant, going into the making of consumer products.
The Indian chemical industry is the 2nd largest in the world, brewing more than 102 million tonnes of chemicals every year. Unofficial estimates say that there are over 110,000 chemicals being marketed by companies making similar idyllic promises like UCC did 33 years ago.
The industry here is also rather ignorant of the properties and noxious potential of the chemicals it produces in increasing quantities. For one, the national consumption of fertilisers went up to 12 million tonnes in 1992 from 223,000 tonnes in 1959; the average production capacity of ammonia went up to 1,500 tonnes from 200 tonnes a day over the same period; the production target for phosphorous pentoxide has been set up at 5 million tonnes, thrice up from the current 1.5 million tonnes. The catch: the toxicity of over 60 per cent of the chemicals that go into the making of fertilisers is unknown.
The rocketing production graphs have created a huge toxic cache in the country, dwarfing the pileup of 1984. Bhopal multiplies as regions like the Ahmedabad-Vapi belt in Gujarat (textiles and basic chemicals), Kota in Rajasthan (dyeing), and Thane-Kalyan in Maharashtra (mostly chemicals for drugs and pigments) turn into the toxic loci of the country. The much-applauded commercial successes of these regions has a dark underside that has swollen over the years, smothering contrary information and a lot of commonsense.
In terms of more information and action on the safe handling and storage of hazardous chemicals, not much seem to have changed since life went toxic in Bhopal. According to officials at the Union ministry of environment and forests (MEF), over 300 new chemical compounds join the Indian factory inventories every year. Contrast this with the global testing facilities capable of scanning a mere 500 chemicals a year. Add to it the diversion of hazardous substances to the Third World as laws become more stringent in the West and the Third World looks for easy money. You have a lethal concoction. Behind it all, what is at stake is the US$ 200 billion chemical industry in the US and Europe, a giant jacked on his own petard and in need of succour from the rest of the world.
Ram S Hamsagar, a chemical expert with the Delhi-based Hazard Management Group, says, "Ignorance about the exact characteristics of a chemical and its behaviour in varying climactic and production conditions is one of the reasons why fears of disasters cannot be dismissed. Modernisation continues to be perceived merely in the limited context of the increasing availability of modern chemicals."
Ann Leonard of the Greenpeace Toxic Waste Project says, "All over the world, largescale production of chemicals has been achieved. But the effort to determine the toxicity of the chemicals has been lacklustre. This is the prime reason why the production centres of these chemicals and the ones using them are ticking disasters." The global chemical industry is hardly expected to spend billions on developing new chemicals and then get the product banned after testing, she adds.
Thus far and no further
Following the Bhopal disaster, efforts to develop testing methods and generate more data on chemicals have become virtually mandatory all over the world. Says S P Chandak, director (pollution control) of the National Productivity Council (NPC), "The concept of Threshold Limit Value (TLV) lies at the heart of the term 'toxicity'. TLV is the permissible level of a particular chemical beyond which it can be lethal or harmful to human health and environment."
But the TLVs of more than 80 per cent of the chemicals being marketed is not known to the developing world. Countries like India have failed to create even the semblance of a database to fight rising toxicity levels: of the 3,350 chemical compounds, for instance, used in the pesticide sector alone, the toxicity of only 5 per cent is known. In cosmetics, toxicity levels are known for a mere 12 per cent of the 3,410 chemicals that are in use. Overall, toxicity levels of 32,400 chemicals out of 36,000 is still unknown!
Realising the importance of chemical risks, the MEF came up with 2 vital documents after 1984 -- Manufacture, Storage and Import of Hazardous Chemicals (1989) and Manual on Emergency Preparedness for Chemical Hazards (1992). But for people like Harsh Jetliey of the Society for Participatory Research in Asia (PRIA), most resolutions after Bhopal evaporated in the ensuing lull. Jetliey maintains, "The kind of mobilisation -- in terms of experts, machinery, time, and most important, money -- required to identify toxicity were never received."
Chandak adds, "Although some data is available on chemicals themselves, nothing exists as far as the toxicity of a particular chemical at the time of production is concerned. This is what happened during the recent leak in Kardampuri in Delhi, where the gas emitted due to burning could not be identified even though the elements involved were detected" (see Down To Earth, November 30, 1994).
Agencies like the Industrial Toxicity Research Centre (ITRC), Lucknow, which were created in Bhopal's aftermath, along with the then existing National Chemical Laboratory (NCL) at Pune, the National Institute for Occupational Hazards and the Central Pollution Control Board (CPCB) at Delhi, and the state pollution control boards (SPCBs), remained mired in controversy in the post-Bhopal phase.
||Toxic by ingection,
inhalation and skin absorption by 1-3 gms. Carcinogenic by nature
||Shallow respiration and
insecticide, Can be absorbed through inhalation, skin
insecticides, fingicides, causes acute vomiting and hypernoea
||Stomach and contact
poison, readily absorbed by the skin causing neurological disorders in both humans and
||Highly toxic for all
animals. Even 2-3 ppm level exposure can cause mottling of teeth
||Cause death through
tissue oxidation and asphyxia
||Highly offensive ordour
causing acute nausea and headches
insecticide and rodenticide. In low doses, causes acute skin irritation
||Absorption of more than
12 mg has proved fatal
According the Chandak, "The fault lies not with the institutions per se, but their dependence on state funds, which has been dwindling fast in the past few years." S Mashelkar, director, NCL, concurs: "Funds are hard to get. Although regulations were formulated on the testing and analysis of the chemicals, the financial mechanism was never worked out." A senior chemical engineer with the ITRC adds, "The amount of chemicals coming into the market is mindboggling. Institutes like the ITRC do not have that kind of infrastructure to handle the quantum."
The problem also lies with the categorisation of what is toxic. While the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989) lists 45 categories of non-radioactive substances as hazardous, the MEF has listed only 23. Says Hamsagar, "The Indian manufacturers are making the most of the exemptions they enjoy in the country. It is also alarming that the industrialised countries are providing technologies and assistance to develop chemicals of unknown toxicity."
Then there is the deadly disparity between the 2 legal tools -- the Factories Act of 1987 and the Environment Protection Act (EPA) of 1986. The toxicity inside an industrial unit is the business of the Factories Act and is monitored by factory inspectors. The toxicity outside the premises, on the other hand, is monitored by the SPCBs by powers conferred by the EPA. "The factory inspectors in most industrial areas are over-burdened, lacking both the motivation and knowledge on toxicity," Jetliey points out.
In the absence of legal teeth and scarcity of research funds, toxic chemicals continue to cause minor tragedies all over the country. The proposed Poison Control Centre, supposed to take care of these problems, remains on paper. Predictably, there have been no inventories taken of the chemicals being used by the industries. Delhi, for instance, has over 93,000 industrial units, out of which less than 500 have environmental clearance from the government. The same holds true for most of the other industrial areas in the country. This fact alone has reduced the logic of not allowing an industry to operate without an environmental clearance to a farce.
Subir Gupta, a chemical engineer with the Delhi branch of the Tata Risk Management (TRM), says, "The inaccessibility of information on the toxic character of the chemicals is true to an large extent in the small and medium sectors. With the large industrial houses, particularly the multinationals, the problem is different. They have access to the best data and can afford the best of the studies. But the catch is that the toxicity reports are never released." Harsh Jetliey agrees: "The environment impact assessment reports are never made public. For instance, following the Bhopal tragedy, the MEF identified several high risk regions in the country, but nobody has any inkling what these regions are."
The manual of the International Labour Organization (ILO) makes it mandatory to have chemical safety datasheets for hazardous chemicals, giving identity, name of supplier, classification, hazards, safety precautions and emergency procedures. But this is observed more in the breach by both Indian and foreign suppliers. Big business has a vested interest in keeping damaging information under wraps. Says Sathyamala, a medical practitioner actively involved with the Bhopal agitation, "The companies fear to release the reports as the will be an uproar among the workers and those living around the factory site."
A senior CPCB scientist, however, contends that the problem lies not with the availability of data but in the manner in which it is used. "The big industrial houses have information about the chemicals and the TLVs, which does not mean that they see to it that exposure is limited according to specifications." Subir Gupta confirms, "We studied the Thane-Belapur industrial estates in Bombay. The results clearly depicted that information availability is not totally linked to or responsible for the high toxicity levels inside factories."
Closely linked to the knowledge of the chemical character is the risk involved in any operation using them. Says Chandak, "During planning stages, the entrepreneur or the company have very little knowledge of the chemicals they are going to produce and use. When they come to know it, their commitment to the project precludes any revealing of toxicity levels."
B K Shukla, former member of the Rajasthan Pollution Control Board, says, "Corporations generally tend to deliberately underestimate the inherent hazardous nature of their operations and the chemicals as workers might demand hazard allowance. This downplaying also translates into lower premiums on life insurance for the workers." Subir Gupta says, "During our survey of the concentration of chemical units around Bombay, it was found that not only the small scale operators failed on risk management criteria, but even multinational giants like Bayer, BASF, Colorchem and NOCIL, which form the backbone of the core chemicals production, had little to show."
M S Gupta, former member of the National Safety Council, explains, "If there has been no accident in any area in the last 40 years, people tend to dismiss the chances of one occurring. Thus, despite the introduction of ever new chemicals, no safety measures are taken. This is exactly what happened at the Sriram factory in Delhi in 1985." The management of the Sriram unit was more bothered about the chlorine stored in tanks, never giving a thought to oleum stores. Thus, it was caught napping when the oleum leaked.
MEF has set limits to which chemicals can be stored inside factory premises under the Manufacture, Import and Handling of Hazardous Substances Act of 1989. But Subir Gupta maintains that nobody follows these guidelines. An unit in the Nagloi area of Delhi, for instance, was recently found to be storing 3 times the amount of cadmium it was entitled to store.
Also inherent in risk management techniques is the level of redundancy (a multiple tier of safety systems to cover operational failures) of safety systems. While the developed countries are going in for 4 to 5 levels of redundancy, in India, the redundancy never exceeds the 2nd level even in the big units. The recently conducted TRM survey in Thane revealed the redundancy level in 2 plants run by multinational corporations was below 2 and was zero in many medium and small scale units.
Right to information
Incomplete risk analyses are compounded by inappropriate installation of safety devices. The senior CPCB scientist says, "Most of the plants are working in absolute flaunting of the laws laid down by MEF, the Factories Act and the clauses laid down by the ILO." Experts feel that with risk management remaining primitive, the chances of disasters of higher magnitudes have increased manifold. According to Pramathesh Kaistha of the ILO, "There are certain responsibilities of the authorities, business houses and the workers. The most important of these is the right to information. The US introduced such a measure after the Bhopal disaster, but India is nowhere close to it."
Untrained workers, blissfully ignorant of what they are handling in their factories, face personal risks, on the one hand, and are more likely to cause accidents, on the other, says Arun Kumar Daur of the Hind Mazdoor Sabha: not only are there more first generation users of modern chemicals; those who work in those units are new to them. Jetliey says, "Occupational hazards have increased because the number of toxic chemicals being used has increased, whereas the awareness level remains abysmally low."
Recently, workers at the Bombay plant of Hindustan Lever developed rashes on their feet after they started using working shoes made of particular kind of rubber. Pathological reports revealed that carcinogenic chemical were used to manufacture the shoes. Similarly, in an unit in Thane, workers who were washing their hands with a particular kind of detergent were diagnosed with lesser sperm counts.
Jetliey and Sathyamala contend that the investment in generation of chemicals is not matched by a similar investment in the research of toxicity and occupational hazards. But then, in the Third World, lives come cheaper than the chemicals that kill them.