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Today, 31 years after Bhopal gas tragedy, these 8 cases that show justice is still a mirage for the victims

Bhopal: A 31-year anniversary of horror
Bhopal: A 31-year anniversary of horror

The escape of about 40 tonnes of methyl isocyanate (MIC) – a highly toxic chemical – from a storage tank on the premises of the pesticide plant of Union Carbide India Limited (UCIL) in Bhopal – the capital of the State of Madhya Pradesh – on the night of 02/03 December 1984, 31 one years ago today, resulted in a horrendous 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 others. 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.

The Settlement of 14/15.02.1989 has been described as a complete sham by activists and victims alike with each gas-victim being finally awarded admittedly less than one-fifth of the sum allotted even as per the settlement. As a result, the gas-victims have had to wage concerted struggles in their quest for medical relief & rehabilitation, compensation, environmental remediation and justice.

1. Writ Petition [civil] No.50 of 1998 in Supreme Court

It was filed on 14 January 1998 by three petitioners - organisations representing victims. They were Bhopal Group for Information and Action, Bhopal Gas peedith Sangharsh Sahayog Samiti (BGPSSS), and Bhopal Gas Peedith Mahila Udyog Sangathan (BGPMUS). They pleaded for restarting of disaster-related medical research, monitoring & 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, and after several interim directions, the Supreme Court finally issued a comprehensive order on 9 August 2012 acceding to these prayers and issued necessary directions to the Union of India, the State of MP and to concerned institutions in this regard. The petitioners were further directed to pursue the matter before the High Court of Madhya Pradesh (as Writ Petition No.15658 of 2012).

2. Contempt Petition [Civil] [No.832 of 2015], Madhya Pradesh High Court

Because of the failure of the Respondents to comply with the Order of the Supreme Court dated 9 August 2012, BGPMUS & BGPSSS filed this Contempt Petition on 15 May 2015 against the officials of UOI, State of MP and allied institutions like the Indian Council of Medical Research. After admitting the Contempt Petition on 27 October 2015, the MP High Court issued notice to the Respondents. Meanwhile, the Chief Secretary, Government of MP, and the Secretary, Bhopal Gas Tragedy Relief & Rehabilitation Department (BGTRRD), who are Respondent Nos.3 & 4, had filed their reply to the Contempt Petition. Then, the Court also directed BGPMUS & BGPSSS to file a Rejoinder to the same.

The petitioner organisations have described the replies as false and misleading, and urged the the High Court to take suo motu action against Respondent Nos.3 & 4 under Sections 191 and 193 of the Indian Penal Code for committing perjury. After admitting the application on 30 November 2015, the High Court has directed Respondent Nos.3 & 4 to file their replies to the same by 12 January 2016, the next date for hearing the matter.

3.Writ Petition [civil] 33 of 2012 in Supreme Court

A shocking and disgraceful act that came to light in 2008 was the illegal manner in which secret drug trials were conducted on gas-victims at BMHRC during 2004-2008. BGPMUS & BGPSSS have sought detailed inquiry into this unsavoury incident of using gas-victims as guinea pigs and have demanded stringent action against the guilty. For pursuing the matter, BGPMUS & BGPSSS have become interveners in this writ, which was filed to oppose unregulated drug trials in the country, especially by multinational drug companies, and it is currently pending before the Supreme Court.

4.Curative Petition (Civil) Nos.345-347 of 2010

This has been filed in the Supreme Court on 3 December 2010 by the UOI against the terms of the Settlement on the plea that the Settlement was based on underestimated figures of the dead and injured. The UOI has sought enhancement of compensation by an additional Rs.7728 crores while the 1989 Settlement amount was merely about Rs.705 crores. 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 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 according to the Curative Petition) and the seriously injured (just 4944 according to the Curative Petition) and regarding the UOI’s paltry claims for relief & rehabilitation and for environmental remediation.

5. SLP [civil] 12893 of 2010 in Supreme Court

The stand of BGPMUS & BGPSSS regarding the number of dead (20,000+) and seriously injured (150,000+) has 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.

6. Criminal case against eight accused

Eight persons accused of causing the disaster appeared before the Chief Judicial Magistrate (CJM), Bhopal, to face trial. Through Judgment and Order dated 7 June 2010, the CJM had prosecuted the 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 Judgment before the Sessions Court, Bhopal. However, by completely overlooking the plea of the prosecution and by upholding the contentions of the accused in toto, the Sessions Court, on 28 August 2012 had 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 the accused industrialist Keshub Mahindra and 7 other accused from Section 304-A to Section 304 Part-II of IPC based on evidence already before the CJM.  Thus, the ray of hope that was visible in the Supreme Court’s Order dated 11 May 2011 in Curative Petition (Cr.) Nos 39-42 of 2010, which was that the misreading of its Order dated 13 September 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.

Similarly, 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. 

Ten to fourteen days imprisonment at the time of arrest in 1984 is the only privation that seven of the accused (Nos.2 to 9) have suffered so far (accused No.4 has not faced even that inconvenience to date)! Under the circumstances, the culprits are least perturbed about the likelihood of being imprisoned any further in their lifetime and the next of kin of the dead and the surviving victims are left with not even the faintest hope that justice would be rendered to them in their lifetime for the loss & suffering they have had to endure during the last 31 years.

7. Criminal case against 3 absconding accused

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, Bhopal, 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 7 September 2001, the CJM had issued notice to the Dow Chemical Company (DOW), USA, on 6 January 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 March 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 October 2012, when the High Court finally upheld the validity of the CJM’s Order dated 6 January 2005. After BGPSSS & BGPMUS brought the ruling of the High Court to the attention of the CJM, Bhopal, through an Application dated 30 November 2012 in MJC No.91/1992, the CJM re-issued notice to Dow on 24 July 2013 and on 12 November 2014. However, Dow has repeatedly failed to respond to the notice. Meanwhile, the proceedings against accused no.1, Warren Anderson, became infructuous after his demise on 29 September 2014. The next date of hearing before the CJM is 19 December 2015.

8. SLP[civil] No.9874 of 2012 in Supreme Court

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. This matter is pending before the Supreme Court as a part of the Curative Petition (Civil) No.345-347 of 2010.

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 11,00,000 MT [metric tonnes](p.68).

Since the Government of India has submitted that the private incinerator at Pitampur (Indore) has been suitably upgraded to prevent any toxic emission, the Supreme Court has permitted test-incineration of toxic waste currently stored at the Bhopal plant. The results of the tests are awaited. 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. However, the State Government is yet to fulfill that responsibility since supply of safe-drinking water to the affected areas is still very erratic. Moreover, the victims of contaminated water have still not been made eligible for free medical treatment.

Remediation of the estimated 11,00,000 MT of contaminated soil is a far more difficult task. 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 (including BGPMUS & BGPSSS) 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. The stoic indifference of the State Government to this daunting task is alarming. In situ decontamination of the toxic waste (including the contaminated soil & groundwater) using closed-loop remediation technologies is a possibility. With inputs and technical help from UN Environment Programme, cleaning up of the contaminated site in Bhopal is quite feasible. However, the entire costs for the cleanup should be ultimately borne by Dow Chemicals.

SCOI Report thanks N.D.Jayaprakash, Co-Convener, BGPSSS, for the background material for this story

Photo by Simone.lippi

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