Bhopal Gas Tragedy Victims Still Fighting For Justice By BGPMUS & BGPSSS 04 December, 2013

Countercurrents.org 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 29 TH 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 11,00,000 MT [metric tonnes]  (p.68). 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 29 th 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)

Convener, BGPMUS,

Tel: 0755-2748688

Mobile: +91-9406511720

(N.D. Jayaprakash)

Co-Convener, BGPSSS

Tel: 011-27666980

Mobile: +91-9968014630



