India has stopped counting the dead. The tragedy continues tomaim thousands. Even the a by smally low compensation has not reached all the victims due to faulty procedures

In the narrow lanes of Old Bhopal, if a person has a piece of paper stuck in heror his pocket, you know it is a doctor’s prescription. This city is a living memorial to the world’s largest industrial accident. The people here clutch atthe prescriptions like they hold on to the memories of that night when they became “gas victims”. With the impacts of the gas leak manifesting across generations, the need for medical care has increased. Even though the cityhas better healthcare facilities than most parts of Madhya Pradesh, it still falls short of providing the kind of care victims need.

This is because while on court’s prompting, the Madhya Pradesh government setup hospitals with modern equipments in the city, it has not arranged for specialist doctors. Research projects that were promptly initiated to underst and the health impacts of the gas leak were abandoned within 10 years without a plausible explanation. For long after that, independent studies and doctors continued to highlight high incidence of lung cancer, adverse outcomes of pregnancy and respiratory, neurological, psychiatric and ophthalmic problems among those exposedto the gas. No consolidated record exists to show how many people are still suffering. As a result, even after the government paid compensation, however little, to morethan half a million victims, fresh claims are still pouring in.  
Treatment for unknown

Something as basic as the understanding of the chemicals people were exposed to onthat fateful night on December 2, 1984, and their impacts on human body is missing—even 30 years after hundreds of thousands of people inhaled a cocktail of unknown and deadly gases. That night water had entered the methyl isocyanate (MIC) plant at the Union Carbide factory. The reaction between MIC and water wasunknown.A committee set up soon after the accident to study its scientific and technical aspects conducted a series of studies to understand the chemical behavior of MIC. The team led by the committee head, S Varadarajan,identified 12 break down products of MIC but the exact composition of the gas, which brought about the diseases is not known. Another study puts down this number at around 21.

Research initiated, abandoned

In 1985, ICMR began studying the health impact of the gas exposure. It initiated 24 long-term projects. The results of ICMR studies could have strengthened the case against Union Carbide for compensation but the data was never used in court, norwere the findings made public. Chromosomal abnormalities were noted in the early acute phase. Abortions were more frequent and intrauterine growth was retarded in babies born to exposed mothers. It is clear that the monitoring of ill-effects and care of the afflicted have tobe carried out for years, the report said.

But ICMR had already terminated nearly all the projects by then. Cancer cases have increased in Bhopal. The authorities attribute it to tobacco consumption but a section of activists and doctors who have been working in the cityfor long suspect it is the result of gas exposure.

The latest data from the Bhopal cancerregistry, set up after the disaster, shows that cancer cases have increased 3.4 timesamong men and 2.5 times in women between 1988 and 2007. The study comparedcancer incidence in the MIC-affected and unaffected areas. It found that in affectedareas, 89.56 women per 100,000 women were suffering from cancer in 1988 which increased to 192.39 in 2007. In unaffected areas, 95.95 women per 100,000 weresuffering from cancer in 1988 compared to 174.97 in 2007.
Hospitals without doctors

Poor quality of medical care is an old complaint. In the name of medical rehabilitation, the emphasis has been on creating infrastructure. By 1996, the number of beds inBhopalwas nearly twice the number of beds recommended by the World Health Organization but the government insisted on increasing the infrastructure. In 1998, the Supreme Court directed setting up of BMHRC for providing healthcare to the gas-affected population and the Bhopal Memorial Hospital Trust to run the hospital. Thehospital was built from the sale of UCILshares. A corpus was created,which in 2012 stood at Rs 436.47 crore. This has not helped much.

The absence of specialists in the hospital also finds a mention in a report submittedin 2014 by the monitoring committee constituted by the Supreme Court in 2004. Themonitoring committee reviews healthcare facilities for gas victims in the city and is supposed to prepare a report every three months.

Records in disarray

The authorities use all sorts of tactics to avoid accountability. Something as basic ascomputerisation of patients’ health records has failed. In 2004, the Supreme Courtdirected Madhya Pradesh to computerise the records of the hospital to facilitate the treatment of gas victims. Computerisation was required for coordination within the hospitals and between different hospitals of the Gas Relief Department.

The Supreme Court, in September 2013, directed the National Informatics Centre—which is under the Union Ministry of Communications and InformationTechnology—to computerise the medical records of gas victims.

Missing evidence

Questions are being raised about the authenticity of forensic samples of Bhopal gas victims To make matters worse, the authorities have no forensic evidence of the disaster. Itwould have proved to be the most crucial evidence in theongoing trials and would have also helped understand the ill-effects of methyl isocyanate (MIC)—the poisonous gas that leaked from the Union Carbide pesticide plant in Bhopal and killed thousands on the intervening night ofDecember 2-3,1984. Shockingly, most “samples” that are available, such aspreserved foetuses that became the cover photographs of magazines, might not be those of the tragedy victims. “There is not a single sample in our institute which wecan say for sure belongs to the gas victims,”says D S Badkur, director of Medico-Legal Institute (MLI) in Bhopal.

Ever diminishing compensation

In September 2014, survivors of the Bhopal gas disaster and residents of colonies located near the closed Union Carbide plant chained them selves to the gate of thestate chief minister’s residence. Several protesters lay on the road, covering their bodywith white sheets. “We are dying every day. The burden of diseases is too heavy to bearand our government has sold us," said Shakuntala Mangilal Khatik. For the three decades that followed, the issue of compensation has remained asore point. Initially, the Indian government had demanded US $3.5 billion as compensation. With the passage of time it seemed eager to climb down from its stand.As more time passed and the case got bogged down in litigation, the government looked ready to collect whatever loose change was thrown its way.

In 1989, UCC parted happily with $470—about one-seventh of the amount originally asked for—as the final settlement. The Supreme Court, guardian of the money now stashed away in a Reserve Bank of India account, issued guidelines for the money to be handed over to people. Next of kin of the dead were to be given Rs 1-3 lakh (this was later increased to a maximum of Rs 5 lakh); fully or partially disabled were toreceive Rs 50,000-2 lakh. For temporary injury, the apex court earmarkedRs 25,000-1 lakh each. The state government then conveniently picked thelower limit and froze compensation at that level: Rs 25,000 for injury and Rs 1 lakh for death. It ignored that the court had mentioned a range, no doubt to be decided on acase-to-case basis.

In 1989, the money UCC gave was worth Rs 750 crore in Indian currency. Then,the rupee devalued and the value of the amount swelled to about Rs 3,000 crore. So, how has the government spent the money? This is where the scam deepens. In 1989, when thecase was decided, the government had said that there were some 3,000 cases of death and 30,000 cases of permanent injury. But it doled out compensation to virtually the entire city—573,588 people got money as “affected” by the gas leakage. Of these, 5,295 were death cases, whose families got a paltry Rs 2-3 lakh as compensation. The rest,568,293, were classified as injury cases. The government deducted from the settlement amount what it had paid over six years as interim relief, so the final compensation was grossly negligible—less than Rs 15,000 per person on average.

Game of relief

Relief became a game between the Centre and the state. In 1985 the Centre, responsible for finances, provided the state Rs 102 crore for rehabilitation work. It provided another Rs 163.10 crore in 1992 for medical rehabilitation over the next five years. But nothing moved on the ground. In July 1999, the Centre decided it would no longer fund the state government efforts to help the victims. Madhya Pradesh had to find money for itself and was put in sole charge of the rehabilitation initiative.

A further sum of Rs 1,509 crore has been paid as pro-rata compensation to people who had been compensated in the first round. Now there is no money left to distribute. In December, 2010, the Union of India filed a curative petition in the Supreme Court for additional compensation from Union Carbide and Dow Chemical Company, which has acquired UCC. The petition asks for Rs 315.7 crore on account of remedial measures to be undertaken for environmental degradation, Rs 1,743.15 crore on account of actual expenditure incurred/ committed by the Central/state governments towards relief and rehabilitation measures, and a sum between $629 million and $1.2 billion as additional compensation for people who had not been included in the settlement of 1989. Legal experts say this might be to pacify the victimswho are demanding higher compensation and if UCC refuses to pay up, the Indian government is likely to use this as an excuse for not paying higher compensation. In December 2011, the company filed an affidavit in the court and rejected the Indian government’s claims. The company said it had given the money for compensation more than four years after the accident, and that this period provided the government sufficient time to assess the damage.

In the affidavit, UCC also pointed out that the issue of compensation had beenraised twice earlier and the court had ruled in favour of the company. “Nothing has changed since the last time the court rejected the allegations in 2007.

The case continues but the victims feel short-changed even in this curative petition. The death figure given in the curative petition is at odds with that in the Madhya Pradesh government’s Action Plan of 2008. The state figure is 16,000 while the curative petition puts it at 5,295. However,the state’s minister for Bhopal gas tragedy relief and rehabilitation, a permanent invitee to the Group of Ministers on Bhopal, chose to go with the decision of the Groupof Ministers. The official figures of the extent of injuries caused by the disaster are also different from those presented in the curative petition. Records from the hospitals run by the Department of Bhopal Gas Tragedy Relief and Rehabilitation show that there were 502,686 persons with chronic illnesses 18 years after the disaster. According to the survivors’ petition, the Indian government should claim at least $8.1 billion, which isabout seven times the amount it is claiming.

Disturbing rehabilitation

The relief provided to the people affected by the chemicals could not take care of the needs of their life time. 50,000 people who needed occupational rehab, only about 100 got any help. According to the website of the Bhopal Gas Tragedy Relief and Rehabilitation Department, till March 2009, the department had spent Rs 27.06 crore. The promise of housing was equally deluding. A total of 2,486 houses have been constructed and distributed to the widows of those whodied in the gas disaster. The houses in this widow colony,named Jivan Jyoti Colony, donot have adequate water or electricity supply. The colony is not connected by public transport, does not have health centres, banks and even schools.

The government’s reputation in relocation is poor. In 2007, the government relocated more than 150 families from New Arif Nagar, a colony close to the factory, to Parwakheda, 15-20 km from the city. The people were moved without any arrangements being made at the new location. They were given Rs 1,900 and two bamboo sticks to set up a tent. There is no facility in the area. The “rehabilitated” people say they approached several government officials and agencies but received nohelp. Says 35-year-old Ramcharan Ahirwar: “Our lives are miserable due to diseases. Earlier, we were at least near hospitals but now getting treatment is a challenge.”

Lost in legal wrangle
A mix of government in sincerity, procedural delays and legal loop holes has ensured that those responsible for India’s firstmajor industrial disaster have got off the hook. This also means that victims have not been compensated fairly

In the past 10 years, toxic waste in and around the factory has come under public scrutiny. But decontamination is not high on official agenda

In November 12, 2014, the Dow Chemical Company failed to comply with summons issued by the Chief Judicial Magistrate (CJM) of Bhopal on a criminal complaint filed in connection with the 1984 tragedy. The court directed the company to appear before it to explain why it has not produced its wholly-owned subsidiary, Union Carbide Corporation (UCC), before the court. The summons issued on August 4, 2014, madeit clear that, as UCC’s sole owner, Dow has a responsibility to ensure UCC faces these charges. It directed Dow to appear before the court on November 12.

The non-profit Bhopal Group for Information and Action (BGIA), had filed an application in the court on February 26, 2004, seeking explanation from Dow Chemical on why it could not compel its 100 per cent subsidiary to appear before court.

The summons issued in August were the second to be issued to Dow this year. Another summon issued to the company in February 2014 was ignored by Dow on thepretext that the Indian government had not followed proper procedure.

Dilution of charges

Some definitive moments in the long and complex court cases related to the disaster came in 2010. On June 7 that year the chief judicial magistrate (CJM) of Bhopal sentenced Keshub Mahindra, who headed Union Carbide India Limited (UCIL)— the Indian subsidiary of UCC—at the time of the tragedy and six other employees of the company. The first verdict handing out convictions, it ordered two years in jail and a fine of Rs 1 lakh each. It took 14 years for the court to give this verdict. But the seven were out on a personal bond of Rs 25,000 within hours of the verdict. Another accused, R B Roy Choudhary, the assistant works manager of UCIL, Mumbai at the time of the tragedy, had died during the course of the trial.

A petition for review of charges filed in April 2010 by organisations interveningin the case—Bhopal Gas Peedit Sangharsh Sahayog Samiti (BGPSSS) and Bhopal Gas Peedit Mahila Udyog Sangathan (BGPMUS)—could have opened possibilities for severesentences. The petition filed under Section 216 of the Criminal Procedure Code(CrPC) sought enhancement of charges based on the submission made by 178prosecution witnesses. Article 216 of the CrPC empowers any court to alter or add toany charge at any time before judgement is pronounced. “The latest submissions weresufficient to enhance the charges. But the CJM Mohan Tiwari dismissed the petition,”said N D Jayprakash, convenor of BGPSSS.Supreme Court advocate Rajeev Dhavan believes that the CJM could have told theprosecution to approach the apex court. “It would be a big call for a CJMto go againstthe apex court and alter the 1996 charges,” he said.

What was ignored in 1996

The plant in Bhopal was the only one in the world which had MIC storage as part ofits design. To cut costs the staff was reduced sometime before the accident, the nitrogen pressure in the MIC tanks was reduced (the pressure kept the gas under control), andthe alarm system was shut down. There were enough warnings of theimpending disaster—newspaper articles, a legal notice to UCIL, a UCCaudit report that talked of 30 major hazards, of which 11 were in the MIC and phosgene units of the Bhopal plant.

Most of these facts were placed before the Supreme Court in 1996, when chief justice A M Ahmadi and S B Majumdar diluted the charges, citing lack of prima facie evidence that the accused operated the Bhopal plant on the night of the accident “with the knowledge that such runningof the plant was likely to cause death”. “There was enough evidence in documents seized from the company. Even now Ahmadi has not been able to give a good reason for diluting the charges,” said K Madhavan,former joint director of CBI who was a DIG in charge of the Bhopal case till 1988. The Bhopal case received the biggest blow in 1989 when the apex court agreed to a one-time settlement of US $470 million and quashed criminal charges.

Leading up to 1996

The criminal case was originally filed in 1987 in the CJM’S court. The 12 accused included UCC, UCE Hong Kong, UCIL and top officials of the three companies. They faced the charge of culpable homicide not amounting to murder that was punishable with up to 10 years’ imprisonment.

On July 6, 1988, the CJM sent a Letter Rogatory to the US government to permit CBI to carry out a comparative study of the safety systems of the MIC units of UCC’s Bhopal and West Virginia plants to verify whether UCC had installed inferior safety systems atits Bhopal plant. On February 9, 1989, the CJMalso issued a non-bailable warrant ofarrest against Anderson, accused No 1 in the criminal case. Five days later on February 14, 1989, the US Justice Department informed the Indian Embassy in Washington that the permission had been granted to the CBI to inspect UCC’s West Virginia plant for comparing safety standards.

BGPMUS and the Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS) intervenedand the termination of criminal cases against all the accused was revoked, with theSupreme Court reinstating the case on October 3, 1991. In April 1993, the Sessions Court, Bhopal, framed charges of culpable homicide and other offences against all the Indian accused who were appearing before the court. But an appeal by the accused the Supreme Court in 1996 led to the dilution of charges against them from culpable homicide not amounting to murder (Section 304 Part IIof the Indian Penal code, or IPC) to causing death due to negligence (Section 304 A).

Death and peanuts

Union Carbide has used the same evasive tactics in the civil cases against it. In March 1985, through the Bhopal Gas Leak Disaster (Processing of Claims) Act, the Indian government arrogated to itself the sole power to represent the victims in the civillitigation against Union Carbide. It then filed a $3 billion compensation suit on behalf of the victims in New York district court but the case was sent to Indian courts in May 1986, with the condition that Union Carbide would submit to the jurisdiction of Indian courts.

Union Carbide’s lawyers devised a plan to delay all legal proceedings in order to squeeze the Indian government into accepting a low settlement. It contested the jurisdiction of courts it sought to be tried before. It pleaded to have “illiterate” victims’claims denied. It threatened to summon every individual survivor and appeal allIndian decisions in US courts. It denied it was a multinational. It claimed the gas wasnot ultra-hazardous. It blamed an unnamed saboteur. It appealed court orders for humanitarian relief, while professing its concern for the victims. Their first settlement offer was a paltry $100 million dollars, less than half the company’s liability insurance cover that time. By 1989, UCC had spent at least $50 million on legal fees alone.

Supreme Court

i. Writ Petition (Civil) No.50 of 1998 (was filed by BGPMUS,BGIA and BGPSSS on 14.01.1998 for providing proper medical relief to gas-victims & maintaining their complete health records). The matter has been transferred to the MP High Court at Jabalpur for monitoring the execution of the directions of the Supreme Court’s Order dated 09.08.2012.

ii. Special Leave Petition (Civil) No.12893 of 2010 (filed by members of BGPMUS & BGPSSS on 17.03.2010 for enhancement of compensation to gas-victims in terms of the actual magnitude/ grievous effects of the disaster);

iii. Curative Petition (Civil) Nos.345-347 of 2010 (was filed bythe Union of India [UOI] on 03.12.2010 for enhancement of compensation to gas-victims by partially challenging the basis of the Bhopal Settlement of 1989.) BGPMUS & BGPSSS have filed an inter locutory application on24.10.2013, challenging UoI’s low estimation of thenumber of dead & seriously injured gas-victims.

iv. Transfer Petition (Civil) No.170 of 2011 (filed by UoI in January 2011 for transferring W.P.[C] No.2802 of 2004 from the MP High Court to the Supreme Court); v. SLP (C) No. 9874 of 2012 (filed by the UoI in March 2012 to seek permission to dispose of 345 tonnes of toxic waste currently stored on the site of the former UCIL plant at an incineration facility near Indore). BGPMUS & BGPSSS have filed an interlocutory application in the same on 24.01.2013 to point out that not only are the incinerators in the country of poor quality but also that the magnitude & complexities of the problem of UCIL’s toxic waste have neither been properly assessed norcorrect methods for their safe disposal been formulated.

vi. W.P. (C) No.657/1995 (filed by Research Foundation for Science, Technology and Natural Resource Policy, Dehradun, against import of hazardous waste–and related issues–in which provision of safe drinking water to residents in and around the Bhopal plant, where ground water is contaminated, has fallen within its ambit)

vii. W.P. (C) No.33 of 2012 (filed by Swasthya Adhikar Manch,Indore, in January 2012 to expose malpracticesof pharmaceutical companies as well as independent investigators in conducting clinical trials across the country). BGPMUS & BGPSSS filed an interlocutory applicationin the same on 14.12.2012 for unraveling the truth behind the secret drug trials conducted at the Bhopal Memorial Hospital &Research Centre(BMHRC) during2004-2008, inwhich gas-victims were used as guinea pigs, and urging prosecution of the guilty.

Madhya Pradesh High Court (Jabalpur)

i. W.P.(C) No.2802 of 2004 (a public interest litigation–for remediation of the contaminated soil and ground water in and around the Union Carbide plant in Bhopal–in which BGPMUS & BGPSSS are interveners). The matter isin the process of being transferred to the Supreme Court.

ii. W.P. (C) No.15658 of 2012 (re-numbered version of W.P.[C] No. 50 of 1998 after the Supreme Court transferred it to the M P High Court for monitoring the execution of the Supreme Court’s directions dated 09.08.2012).

iii. BGPMUS & BGPSSS are in the process of filing a WritPetition seeking speedy disposal of the criminal casesagainst the accused in the Bhopal Gas Leak Disaster case.The said Writ Petition would also seek appropriate remedy against the dismissal by the Sessions Court,Bhopal, of the Criminal Revision Applications filed by BGPSSS & BGPMUS, by the CBI, and by the State of Madhya Pradesh, which opposed reduction of charges against accused Nos.2 to 9 & 12 by the CJM, Bhopal,vide Judgment dated 07.06.2010.

District Sessions Court, Bhopal

i. Criminal Appeals filed by accused Nos. 2 to 9 & 12 for dismissing the Judgement & Order of the CJM,Bhopal, dated 07.06.2010

ii. Criminal Case No.8460 of 1996 is currently pending before the Sessions Court. The Sessions Court has rejected the Criminal Revision

iii. Applications filed by the Madhya Pradesh Government, by BGPSSS & BGPMUS, and by the CBI seeking enhancement of charges against the said accused.

Court of the chief Judicial Magistrate, Bhopal

i. Miscellaneous Judicial Case (MJC) No.91 of 1992 (criminal case against absconding accused Nos.1, 10 and 11, i.e., Warren Anderson; UCC and its successor, Dow Chemical Company, USA; and Union Carbide Eastern, Hong Kong,is pending before the Court. The Union of India has not yet executed the non-bailable warrant of arrest issued by the CJM, Bhopal, on 27.03.1992 against Anderson.

ii. Based on the application filed by BGPSSS, BGIA and BGPMUS on 07.09.2001, CJM on 06.01.2005 issued notice to Dow Chemical, USA, to appear in the criminal case on behalf of accused No.10 (UCC, USA). The same was stayedby the MP High Court at Jabalpur vide order dated 17.03.2005, on the basis of an application filed by Dow Chemical International Private Ltd (DCIPL), Mumbai, which purportedly had no direct nexus with Dow Chemical, USA. After the MP High Court vacated the said stay-order after a 7-year delay vide Order dated 19.10.2012, the said notice was re-issued by the CJM on24.07.2013. Dow is yet to respond to the notice.

Million mini Bhopals
Thirty one years of official in sincerity means other industrial disasters loom

Sunita Narain & Chandra Bhushan

The Bhopal gas leak was India's first major industrial disaster. Till then, governments in the country had handled floods, cyclones and earthquakes. They had no clue how to respond to this catastrophe. Multinational company Union Carbide Corporation (UCC), which owned the Bhopal plant through its subsidiary UCIL, did little to help deal with the human tragedy. Thirty one years later, there is no closure. Not because of what happened that fateful night, but because our response has been in competent and callous. Bhopal was struck by two tragedies: one that happened immediately, and the other that unfolded in the years to come.The problem was nobody knew much about the toxin or itsantidote.

News: German company penalised for ‘Bhopal sister’ plant accident in US

With in weeks of the accident many claimed that the worstwas over—that the people were suffering from common ailments of the poor, such as tuberculosis and anaemia. But till date no body knows the health impacts of methyl isocyanate (MIC)and ways to treat patients exposed to the gas. The health burdenis compounded by two more variables—one, children born after the disaster are also its victims because of exposure to the deadly gas while they were in their mothers’ wombs; two, chemical wastes remain dumped in and around the UCIL factory, contaminating the water that people drink.

The diseases could also have been managed had the government conducted medical research to understand the long-term impacts of the gas. The responsibility was given to ICMR. Some of its studies found high incidence of lung and eye diseases in the victims. But the studies by ICMR were summarily discontinued in 1994. Some independent studies also pointed to serious health crisis, from cancer and mental problems to birth defects. But since there is no epidemiological study, it is easy to dismiss the crisis as ailments caused by poverty and lack of hygiene. This is when the Supreme Court has repeatedly asked for such studies. An even larger number of people are threatened by the waste still lying in and around the factory, polluting the soil and groundwater. Many of the chemicals dumped there degrade slowly and are likely to remain in the environment for hundreds of years. Dow Chemical, which has acquired UCC, denies the liability to clean it up. The worst part is that cleaning and decontamination of the site have got embroiled in legal wrangle over how to clean the site, what should be done withthe waste and who should pay for it?

Why no Closure

Everything that could have gone wrong in the initial years after the tragedy went wrong. After this, all that the people and activists have doneis try and reverse those fatally damaging actions with little success. The Indian judiciary blundered, many would say, by agreeing to a paltry compensation and settling all civil and criminal liability of the company. Then, the company did everything to ensure that its complicity and responsibility was diluted. ICMR failed the victims by not completing the studies that would have established the cause of their ailments and suggesting treatment protocols. So, there is a name for the disease—Bhopal gas disease—but no identification of who the affected are or whatt heir treatment status is. The Union government, as a result, continues to argue that only 5,295 people died—in the first instance and never later—and 6,199 have been permanently disabled. It refuses to accept, without medical history, that the tragedyhas been much more enormous. The state government dashed remaining hopes by distributing the compensation amount so widely that it does not matter who is the actual victim and who is not.

But there are more reasons for the failure. First, there are too many institutions involved, and they have little interest in fixing the problem. In the case of medical relief, on paper, every step has been taken to ensure that people get timely and best treatment. A super-speciality hospital has been set up. Treatment has been assured without payment. The Supreme Court even set up two committees—one to monitor the functioning of the medical system and the other to advise on what needs to bed one for the best care of the victims. There is a task force for removal of toxic waste from the plant, headed by the secretary ofthe department of chemicals and petrochemicals at the Centre. An Oversight Committee is coordinating and monitoring activities relating to waste disposal, decontamination and remediation. The minister of state for environment chairs this committee. At the bottom of the rung are pollution control boards that are supposed to monitor the site and provide technical support for the decontamination work.

The institutional logjam is such that there isno one institution that can be held responsible and accountable for decontaminating the site.

Secondly, over time, most residents of the city havemoved away and beyond the disaster. Civil society groups that remain are intensely committed and driven by the sense of injustice. But there is suchdeep distrust between the government and the activists working in Bhopal that every action proposed is obstructed, mainly by taking the matter to court. As the interest of the national and international media remains high in the case, each incident is played up and charges and counter-charges are made on television and in newspapers. The result is everything has been left to the courts to decide; the state and the Central agencies have taken the back seat.

After the historical 1989 decision absolving UCC of corporate criminal liability, the courts have given directions on relief and rehabilitation. But in the polarised environment, even their directions have come tonaught. This is partly because there is no clarity on what needs to be done and what can be done. It is a stark fact that Indian institutions are incapable of resolving conflicts. But there is learning for activists and non-profits. The fight should not become anend in itself, keeping issues unresolved.

Impact on legislation

The first major piece of legislation inIndia that came post-Bhopal was the Environment (Protection) Act (EPA) of1986. “EPA bears the stamp of the legislature’s immediate concern after Bhopal to strengthen the regulatory framework for hazardous industry and pollution control. EPA is India’s first piece of legislation that gave authority to the Centre to issue direct orders to close, prohibit or regulate any industry. It is also an enabling law, which delegates wide powers to the executive, allowing it to make rules to manage different issues.

By 1989, the country got the Hazardous Waste (Management and Handling) Rules for management, storage and import of hazardous chemicals. Even the coastal areas are protected under EPA through its subordinate rules. In 1987, amendments were made in the Factories Act, which empowers states to appoint site appraisal committees to advise on the location of factories using hazardous processes. It also sets up systems for the safety of workers and residents nearby and specifies emergency disaster control plans. In 1991, the Public Liability Insurance Act was enacted to provide immediate relief to persons affected by accidents while handling hazardous substances.

Despite these pieces of legislation in place, India is fast losing the battle of environmental protection and management of hazardous waste. The total dead and injured in 2011 were 10,441. That year, over 1,000 people lost their lives in factory accidents. It is not surprising that the states with the worst worker safety records were the industrialised Andhra Pradesh, Maharashtra and Gujarat. Gujarat was the worst, with closeto 250 dead and 3,000 injured. A review of newspaper reports shows that in just 10 months of 2014 eight industrial incidents took place, where workers died or were hospitalised. Many more cases would havegone unreported.

In 2010, the Union Ministry of Environment and Forests (MoEF) launched a project for remediation of sites contaminated by hazardous waste with much fanfare. A total of 10 toxic sites were identified.

Agenda after 30 years

Analysis shows that on an average a state pollution board collects about one water sample per factory and surveys less than 25 per cent of the units for air quality. In fact, the entire environmental monitoring depends on self-reporting by industries, which are required to get samples of effluents tested in private laboratories and submit the data to the pollution board. It is another matter that the laboratories are, in manycases, extremely inadequate and unskilled. It is yet another matter that the pollution board officials do not even have the time to look at the reports. It is about paperwork, not about controlling pollution. It is not about enforcement.

Sunita Narain, Director General Centre For Science and Environment, New Delhi talks about the lessons learnt from the Bhopal Gas disaster

The system provides no deterrence. The maximum penalty imposed by courts under the Water (Prevention and Control of Pollution) Act is Rs 10,000 and under EPA is Rs 1 lakh. But only courts can impose this penalty. So all that the boards can do isto either deny the consent to operate or issue closure notice for 30 days. Both options are not feasible. So, very little action is taken against the polluter.

Forest clearance is an even bigger paper tiger. Ninety-four per cent of the projects are cleared with an assessment of their impact on forest, biodiversity and livelihoods of those who live in these habitats. Then, it is stipulated that compensatory afforestation will be done for each hectare of forest diverted. But nobody really knows if the trees are even planted, let alone if they survive. The system continues with this farce of taking action as if laws and processes are enough to make a difference. This can be fixed. Changing this requires strengthening institutions. This is the agenda for environmental governance 30 years after Bhopal.

The last, but most critical, agenda after 31 years of Bhopal is to do everything that increases the participation of local people, worst impacted by environmental degradation and pollution, in governance. This can be done through more transparent public hearings, more public data dissemination and more avenues for hearing people out. The bottom line is that India’s environmental management system is a job half done. It should be finished so that we can meet the challenges of sustainable and inclusive growth. Only then will we really learn the lessons of the world’s most horrific industrial disaster.

Liablity cannot be forgotten

After 31 years the government of India is still struggling to establish the liability of UCIL, its parent company UCC and its buyer, Dow Chemical. It is a shame. Consider the difference. In 2009, when petroleum giant BP’s oil drilling led to a devastating spill in the Gulf of Mexico, the US President Barack Obama did not need to ask whose “ass he should kick". His government held those responsible to pay for the damage and reversed the earlier decision to cap liability in such cases. It established criminal liability to people and the environment. In 1989, when Exxon Valdex spilled gallons of oil off the coast of Alaska in the US, the compensation for economic loss and punitive damages was fixed at some US $1 billion, as against the Bhopal “relief” of US $470 million. The dead seals of the Atlantic were valued higher than the thousands of humans who lost their lives in Bhopal and continue to suffer even today.

In 2009, when petroleum giant BP’s oil drilling led to a devastating spill in the Gulf of Mexico, the US President Barack Obama did not need to ask whose “ass he should kick”. His government held those responsible to pay for the damage and reversed the earlier decision to cap liability in such cases. It established criminal liability to people and the environment. In 1989, when Exxon Valdex spilled gallons of oil off the coast of Alaska in the US, the compensation for economic loss and punitive damages was fixed at some US $1 billion, as against the Bhopal “relief” of US $470 million.

In Bhopal, the US multinational company UCC argued sabotage. The Indian government could not (or would not) prove negligence or regulatory failure or even lack of responsible adherence to internal safety standards. The liability was never established, partly because of ignorance, combined with power lessness. Today, when the government is faced with the cost of remediation of toxic waste—left behind by the company—it is still not able to establish the liability of the company.

The courts have also been vacillating on this issue. As legal scholars Divan and Rosencranz explain, the Supreme Court replaced the traditional doctrine of liability with the rule of “absolute” liability. In the Shriram gas leak case, decided by theSupreme Court in 1986, the then chief justice P N Bhagwati observed that the principles and norms for determining the liability of large enterprises engaged in the manufacture and sale of hazardous products were questions of greatest importance.

So, in its judgment the Supreme Court Bench established that the “enterprise owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken”. The justices go on to say, “We would hold that enterprise strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortuous principle of strict liability under the rule in Rylands v Fletcher.”

Under this rule, strict liability is subject to a number of exceptions, like sabotage or the plaintiff’s own fault, which reduce its scope. This principle was applied by the Madhya Pradesh High Court to support its award of interim compensation to Bhopal gas leak victims. The court ruled that the liability of the enterprise is “unquestionable”.

Blog: The Bhopal in us

More importantly, the issue of corporate liability is crucial, foronly then will powerful companies worry about the implications of their actions on tomorrow’s generations. Today, they think of short-term and run away profits—in chemicals, GM foods, nuclear energy or mining and drilling. We need tough corporate liability so that companies think twice before they expose us to dangers. Let them fret; we want to sleep in peace.This is why Bhopal must never befor gotten, indeed it must be fixed. Dow Chemical must be held liable for the toxic waste still present in the abandonedfactory. It must pay for the plant site’s remediation. It must do this quickly, before toxins spread more poison, travelling through groundwater, into people’s bodies. This is alsowhy Bhopal is not just about Bhopal, but about our collective action to bring justice to the people and do right to the environment across the world.

Data Courtesy: Centre for Science and Environment

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Bhopal gas tragedy: After 30 years

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