INDIA
Why Are Bhopal Gas Tragedy's Lessons Not Part of Constitutional Ethos?
This Constitution Day, how do we reflect on the world’s worst industrial disaster in Union Carbide, Bhopal as we approach the 40th anniversary of this carnage? It is a tragedy every Indian is familiar with, but over the years it has been reduced to a footnote in public memory, ruefully remembered by most people just once a year when the anniversary approaches.
In the meantime, untold suffering, trauma and harm people were subjected to continue to haunt them and future generations bear the harsh impact in the form of disabilities, mutagenic disorders, reproductive wrongs, cancer and mental health issues even four decades after the tragedy.
Successive governments have not created any substantial policy changes to address, prevent or prepare for such disasters in the future, and there is still no law on corporate accountability in case of such accidents. With the new buzz around ‘ease of doing business’, accountability has been eroded further.
The same industries continue to be encouraged and there is no promise of non-repetition. In these four decades, we have witnessed malicious attempts by Union Carbide and the State to deny culpability by deliberately misconstruing the harm, passing the buck and squabbling over the number of dead and the affected.
With the new buzz around ‘ease of doing business’, accountability has been eroded further.
The tragedy and its lessons
What are the lessons for the movements for justice that the 1984 disaster offers and how do we read Bhopal 40 years later?
U.S. multinational Union Carbide and its Indian subsidiary, Union Carbide India Limited (UCIL) started setting up the Bhopal factory in the late sixties and by the 1970s, began dealing in a chemical pesticide, Sevin.
The 1960s was a time when India’s so-called Green Revolution was ushered in Punjab, Haryana and Western Uttar Pradesh. Pesticides were the key ingredients, along with chemical fertilisers, for the new high-yielding variety seeds that were pushed through institutional support in these states.
Green Revolution, the package of high-yielding seeds of rice and wheat, networks of irrigation and heavy groundwater usage, dependence on chemical pesticides and fertilisers, and broad institutional support had raised new hopes for food self-sufficiency, and hunger and malnutrition mitigation in India.
Today, there are a million reasons to question the so-called Green Revolution’s promise (which it failed to deliver). It was environmentally unsustainable, the indiscriminate use of groundwater it encouraged took a toll on human health through heavy metal poisoning and the monocropping accelerated a heavy onslaught of pests causing major crop loss, bankruptcies and suicides.
But back in the 1960s, the hegemony of science and the technology package offered under the Green Revolution was unquestioned. Even the sceptics maintained that ecologically destructive methods may be detestable but are necessary to increase farm production.
Ignoring the evidence that indigenous methods are capable of similar or higher yields, agriculture under the Green Revolution technology package was made heavily dependent on chemical fertilisers and pesticides.
What are the lessons for the movements for justice that the 1984 disaster offers and how do we read Bhopal 40 years later?
When it entered the fray, Union Carbide was voraciously targeting precisely the market that the dependence on that technology package had opened. The Indian pesticide market was estimated to be one of the largest in the world— nearly 40 percent of the area under cultivation had already been brought under high-yielding varieties. The demand for pesticides was only going to grow.
The manufacturing process of Sevin required some lethal chemicals such as methyl isocyanate (MIC), a volatile chemical that the carbide factory initially imported. To enhance profits by eliminating international shipping costs and taking advantage of lower labour costs in India, the company proposed to manufacture and store MIC at the plant.
The government also pushed local manufacturing to reduce imports and protect foreign exchange. So even when the climatic conditions for its storage were not favorable, the production process was initiated.
It is well documented that from the beginning there were shortcuts in safety procedures. Union Carbide built the factory in a densely populated urban area and the storage of large quantities of methyl isocyanate overlooked the risk factors.
The maintenance costs were routinely cut, some systems did not work and other systems were often turned off to make small savings in electricity costs. The workers’ union— Union Carbide Karamchari Sangh— formed in the early 1980s, consistently warned the local population and the workers of the occupational hazards.
But all forewarnings were ignored and the State demonstrated complete indifference. The inspection of the factory was consistently inadequate; just a few weeks before the gas leak, the Union Carbide factory was granted an environmental clearance certificate by the state pollution control board.
On the night of December 2–3, 1984, a large amount of MIC escaped from a storage tank and the poisonous gases quickly spread, affecting around 36 of the 56 Bhopal municipal wards. It is estimated that the disaster claimed the lives of over 2,000 the same night and 20,000 died over the following years. Severe injuries were caused to approximately 550,000 others— this was over 60 per cent of the city’s population.
Four days after the disaster, Warren Anderson, the then chairman and chief executive officer (CEO) of Union Carbide Corporation, appeared in Bhopal and was arrested immediately. But he was let off within hours of his arrest, allegedly on the orders of some senior political leader in Delhi.
He managed to escape, allegedly under the safe passage of a few officials and politicians. As the criminal cases proceeded against Union Carbide, Anderson’s extradition was sought but it was rejected by Washington in 1992. Another 2011 Indian government request for extradition remained pending. Anderson died in September 2014, a few months before the 30th anniversary of the disaster, without facing a trial.
Ignoring the evidence that indigenous methods are capable of similar or higher yields, agriculture under the Green Revolution technology package was made heavily dependent on chemical fertilisers and pesticides.
In March 1985, the government of India passed the Bhopal Gas Leak Disaster (Processing of Claims) Act, which granted it the exclusive authority to represent the victims of the disaster in civil litigation against Union Carbide.
In 1989, the government of India reached a settlement with Union Carbide— one made without the consultation or consent of the survivors themselves— whereby the US multinational agreed to pay US $470 million to the government of India.
Holding no accountability to the victims, the compensation was paid to the government but not to the victims directly. In exchange for the payment, Union Carbide was absolved of all civil liabilities, including all claims by Indian citizens, corporations, partnerships or other entities arising connected with the Bhopal gas leak disaster against the multinational and its subsidiaries and affiliates. All criminal proceedings were also extinguished.
The families of the victims of the carnage received compensation of ₹1 lakh for every death and ₹25,000 for lifelong injuries. The Indian government shamefully signed on to this settlement and also agreed to defend the corporation in the event of any future lawsuits. The Bhopal victims’ compensation case was sealed with this settlement.
Over the years, several individual survivors tried to file lawsuits against Union Carbide (which became part of Dow Chemical in 2001) in the United States. However, these lawsuits were dismissed, with the recommendation to pursue claims through the Indian legal system instead. In most cases, they were dismissed because the court found that these claims were barred by the 1989 Union Carbide settlement in India.
Forty years later, the victims and survivors of Bhopal remain without justice and continue to wage a struggle without much support. The victims endured the harmful impact of the poisonous gas, and the impacts are being passed down genetically.
To date, the State and the corporation have not been held to account. Union Carbide, Warren Anderson and Dow Chemical never stood trial. The state government created a Department of Bhopal Gas Tragedy Relief and Rehabilitation in 1985. It outlined a medical rehabilitation programme spanning several years, widows were given a pension of ₹200 per month, and in 1992 a housing colony called the Gas Vidhwa (Gas widows) Colony with 2,486 units was built to provide housing for the widows of 1984. This is as far as the compensation goes.
Union Carbide built the factory in a densely populated urban area and the storage of large quantities of methyl isocyanate overlooked the risk factors.
The vast area around the Union Carbide factory lay ravaged by the remnants of the killer factory. Union Carbide shut down the site and left it to rust. It has never been cleaned up. But the people have not given up their fight, they are archiving cruelties, they are keeping records and moving to local courts to fight for their rights, and fix liabilities against grave criminal negligence heaped on them.
They built local and national support groups and found international allies in their fight. Bhopal Gas Peedith Mahila Udyog Sangathan (BGPMUS), the Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS) and several others remain steadfast in their resolve and continue to voice protest at various forums to not let the pain be suppressed.
Their undying campaigns remain a thorn in the side of the Indian State and the responsible corporations, Union Carbide and Dow Chemicals. It remains an inspiration for people all over the world.
Never again?
Fast forwarding to the summer of 2022 to Mansurwal in Punjab, the land of Green Revolution— poisoned and contaminated by pesticides like Sevin. On the body politic of rural Punjab, the seeds of the Green Revolution are now festering wounds breaking out in the form of landlessness, escalating costs of farming, mounting farm debts, suicides, ecological crisis manifesting in the degradation of the environment, contaminated water, illnesses, lack of employment and the increasing hold of corporate giants on the lives of farmers.
The burden of disease and death has been mounting but no government is ready to commission even a white paper to look at its links with environmental degradation caused by pesticides, fertilizers and groundwater pollution.
In the early summer of 2022, the farmers had barely returned from the Delhi borders after a 13-month protest on the borders of Delhi when they had to return to occupy the road to the Malbros factory in Mansurwal village in Zira tehsil, Ferozepur, in Punjab.
Just a few weeks before the gas leak, the Union Carbide factory was granted an environmental clearance certificate by the state pollution control board.
Malbros is an alcohol manufacturing plant established in 2006 as a distillery but it was redeveloped as an ethanol unit in 2014. In what has come to be known as Zira Morcha, hundreds of villagers sat on dharna in front of the Malbros factory demanding the plant be shut down permanently as it was polluting groundwater in several villages besides causing air pollution and affecting the soil.
They claimed that to cut costs for proper disposal of the waste, the factory was indulging in reverse boring, discharging toxic effluent back into the soil turning the soil infertile and polluting the groundwater with the result that people in scores of adjoining villages could not drink the water drawn from their borewells.
The people and the cattle in the area have been dying or severely affected by diseases such as cancer, endocrine gland genetic disorders, deformity in newborns, infertility and diabetes, which were unknown in the area a decade ago, the villagers alleged.
Once these pollutants enter the groundwater, they come out through hand pumps and tubewells. Local villagers had been approaching the concerned authorities to alert them of their cattle dying in droves but to no effect. Many concerned scientists also suggested that specific tests be done to rule out the presence of harmful chemicals. All requests fell on deaf ears.
Protests began on 24 July, 2022 when an alcohol-like stench emanated from a 650 feet borewell, dug in the Gurudwara compound of a neighbouring village. Angry farmers protested and sat on a dharna occupying the road and not allowing the factory owners or the employees to enter the premises.
The factory’s owner— an influential liquor manufacturer and former member of legislative assembly (MLA) from the area— approached the Punjab and Haryana High Court to make his establishment functional.
He argued that the water, soil and air were contaminated not because of the factory waste, but of the chemical fertilisers and pesticides that the farmers used with impunity.
Without going into the complaints of the farmers about the debilitating effects on the groundwater, soil and quality of life as one of the main reasons for the spread of the lethal disease, and the factory’s responsibility for the environmental degradation and its consequences in the area, in a series of Orders, the high court asked the Punjab government to ensure the protest was shifted at least 300 meters away from the factory’s gate so that it could start work.
Forty years later, the victims and survivors of Bhopal remain without justice and continue to wage a struggle without much support.
The state government deployed police to forcibly eject the protesters. However, no amount of police violence and repression could break the will of the protesters. The deadline given to the state came and went but the farmers refused to vacate the dharna.
Malbros knocked on the doors of the high court again. In its Order, the judge asked the state government to deposit ₹20 crore with the high court registry as possible compensation to the factory owner, who claimed losses of crores due to farmers.
The state government promptly followed the Order and deposited the money under pressure from industry. The court also asked the government to list the details of the protesters and their properties so that their assets could be attached to compensate the factory owner. Once again, the State machinery was in action going into the villages intimidating the protesters and families and gathering their property details. But they failed to browbeat the farmers.
As they sat there, in what was deeply moving, the women and men in the area articulated their problems with clarity. Their narratives were filled with a sincere desire to negotiate a better future for themselves and their children. Their conversations were filled with stories about daily challenges of quality of life lowered by the factory, poor health, death, disease and unemployment.
They recognised that their health and the environmental risks they faced were not isolated issues; instead, they were interconnected with the political economy and the policy choices.
Their accounts of pollution encompassed both the tangible experience of environmental degradation and the complex social and political dynamics between the industry and the community— how their lands were acquired by selling the dreams of greater opportunities for the next generation.
They spoke of the deeply rooted imbalances in the relationship between rural residents and the alcohol factory hindering efforts to reverse the damage inflicted upon the environment and the social fabric of the community.
Farmers were not unclear; they sought a different type of industry; a more just and inclusive development and they demanded accountability for the harm they have been enduring.
Drawing on their experiences, the farmers put forward proposals that aimed to open up ongoing avenues for negotiation and reimagine the role of the industry in their lives. Farmers were not unclear; they sought a different type of industry; a more just and inclusive development and they demanded accountability for the harm they have been enduring.
The powerful struggle created pressure on the institutions responsible for undertaking environmental audits to conduct soil, water and pollution tests.
Under force, samples of water and soil were drawn from the factory and nearby areas. The sampling was done by the Central Pollution Control Board (CPCB), the National Green Tribunal, and a high court-constituted committee monitored the results.
The results confirmed the worst fears of the local people. The CPCB report mentioned that it suspected that the liquor factory was involved in injecting contaminated water into the ground through reverse boring.
It found the water samples drawn from 29 borewells near the liquor factory unit to be unfit for drinking. In one borewell, they found cyanide four times the permissible limit. The findings formed part of a report that CPCB submitted before the National Green Tribunal.
Under pressure from protesting farmers who were monitoring the test reports, the integrity of the evidence was upheld. On January 18, 2023, the Punjab chief minister announced the closure of the Zira liquor factory. By then the protest had completed 177 days at the site.
The protesters have not stopped their fight, they are now seeking compensation for deaths, diseases and permanent disabilities linked to the devastation caused by the factory; there is also a proposal to turn the sealed factory into a memorial as an acknowledgment of the harm it has done. It is a long-drawn battle but the farmers and villagers are putting up a spirited fight.
It is our good fortune that nothing on the scale of Bhopal has happened again but Malbros and many other similar plants show a continuity, and the spectre of 1984 Bhopal continues to loom large.
It is our good fortune that nothing on the scale of Bhopal has happened again but Malbros and many other similar plants show a continuity, and the spectre of 1984 Bhopal continues to loom large.
History tells us that nations rethink and course correct after disasters but there has not been any such conversation in India. As ‘production over safety and profit over everything’ continues to be the bedrock of corporate decision-making and the State continues to sit in defence of capital, offering Indian soil for exploitation by corporations using global labour arbitrage, the spectre of death and disease is always looming overhead.
The more we lower our labour standards, the more vulnerable we make our people, and the higher the attraction for global capital to come to India.
Union Carbide is an untold tragedy, but many more are waiting in this race to the bottom if they are not resisted. The 40th anniversary is perhaps already too late to start a conversation about a different future that ensures justice for the people harmed by the development process. But start we must because the collective struggles show governments and corporations are invincible until they are not!
Bhopal Gas Tragedy: 40 Years of Struggle for Justice
The escape of noxious fumes from the premises of the pesticide factory operated by Union Carbide India Limited (UCIL) and controlled by Union Carbide Corporation (UCC, a US-based multinational company, presently wholly owned by the Dow Chemical Company) on the night of December 2–3, 1984 exposed the people of the city of Bhopal to highly poisonous gases.
Bhopal, the capital of Madhya Pradesh in central India, was then inhabited by nearly 900,000 people. The leakage occurred due to exothermic reactions that set off within a partially buried stainless steel tank containing about 42 tonnes of an extremely volatile and highly toxic chemical called methyl isocyanate (MIC), which was stored in liquid form.
The equivalent of nearly 30 tonnes of MIC and its pyrolysis products reportedly escaped from the storage tank of the pesticide factory, which was located on the northwestern edge of Bhopal. Aided by a gentle breeze in the southeasterly direction, the burgeoning cloud of heavy lethal gases soon enveloped nearly 40 sq. km of the city, causing havoc in its wake before slowly dissipating in about two hours.
The equivalent of nearly 30 tonnes of MIC and its pyrolysis products reportedly escaped from the storage tank of the pesticide factory.
Impact on life systems
As exposure to MIC is extremely dangerous, the impact of the disaster was staggering on all life systems, including flora and fauna. Official sources estimated the immediate human death toll to be about 2,500, while according to other sources (Delhi Science Forum’s Report) the figure may have been at least twice as much.
A report of the Indian Council of Medical Research (ICMR), India’s premier institution for medical research, titled Technical Report on Population-Based Long Term Epidemiological Studies (1985–94) (2004) had further noted as follows:
“Based on the mortality figures of the first four days, i.e., during December 3–6, 1984, the 36 wards [of Bhopal] were subdivided into severely, moderately and mildly affected areas.” (Para 5, p. 44)
In other words, 36 of the 56 municipal wards of Bhopal were officially declared as gas-affected— implying that nearly 600,000 of the then approximately 900,000 residents of the city were exposed to the toxic gases to some degree or the other.
As a result, the morbidity rate was also found to be very high. In December 1984, the morbidity rate in the severely affected wards of Bhopal was 98.99 percent; in the moderately affected wards it was 99.5 percent; and in the mildly affected wards, it was 99.54 percent. At the same time, in the control area (non-exposed area), the morbidity rate was merely 0.17 percent. (Table no. 31, p.76)
Mystery over antidote
Top managers of the UCC and the UCIL were very well aware that MIC is a highly poisonous chemical and that on thermal decomposition it could release equally deadly compounds such as carbon monoxide and hydrogen cyanide.
Therefore, Union Carbide officials and their agents systematically conducted a campaign of misinformation and disinformation regarding the probable chemical composition of the toxic emission from its Bhopal plant and the toxic effects of MIC and its poisonous derivatives on life systems and the environment.
As exposure to MIC is extremely dangerous, the impact of the disaster was staggering on all life systems, including flora and fauna.
By misleading Indian authorities on the question of the persistence of toxins and the role of antidotal therapy in the treatment of the gas victims, Union Carbide became liable for the increased mortality and chronic suffering of hundreds of thousands of gas victims.
Thus, as several activists on the ground have repeatedly pointed out, the trauma and travails faced by the gas victims were compounded by the chaos, indifference and directionlessness prevailing in matters relating to medical relief, rehabilitation, documentation and research. Since the UCC/UCIL had remained totally silent regarding the best possible antidote to MIC-related poisoning and had staunchly opposed the administration of sodium thiosulphate as an antidote, Dr Sriramachari, a leading ICMR scientist had later succinctly observed as follows:
“The moment the Bhopal gas disaster took place, the Union Carbide Company adopted a policy of suppressio vari and suggestio falsi [suppression of truth and suggesting falsehood]. Concerted efforts were made to spread the message of disinformation.” (p. 916)
Treatment subverted
Since the very first day of the disaster, autopsies performed by Dr Heersh Chandra and his team from the Medico-Legal Institute attached to the Mahatma Gandhi Medical College at Bhopal revealed characteristic ‘cherry red’ colour of the blood and internal viscera such as the lung and the brain, so there was a strong suspicion about the possibilities of death being caused by hydrogen cyanide (HCN) poisoning. [Figure 3.9, p.15 (2010)]
These observations were confirmed by the tests conducted Dr Max Daunderer, a German clinical toxicologist, who had arrived in Bhopal on December 4, 1984, to assist with the relief work.
Dr Daunderer was an expert in handling cyanide poisoning and he had suspected that many of the Bhopal victims may have been victims of acute cyanide poisoning and, therefore, had brought along with him to Bhopal several thousands of vials of sodium thiosulphate as an antidote to treat gas victims.
Dr Daunderer and Dr Chandra soon confirmed that intravenous injection of sodium thiosulphate solution to seriously injured gas victims led to the excretion in urine of high levels of thiocyanate resulting in detoxification of the body.
ICMR’s own observations in this regard are pertinent: “Soon the use of sodium thiosulphate (NaTS) injections as an antidote was not only postulated by the visiting German toxicologist, Dr Max Daunderer, but strongly advocated by Prof Heeresh Chandra.
Top managers of the UCC and the UCIL were very well aware that MIC is a highly poisonous chemical and that on thermal decomposition it could release equally deadly compounds such as carbon monoxide and hydrogen cyanide.
“In fact, even the Union Carbide in its earlier message suggested that in case cyanide poisoning was suspected, NaTS injections could be given in the standard manner, i.e., along with sodium nitrite.
“However, for unknown reasons, very soon this message was withdrawn through the official channels (Mr Dasgupta and Dr Nagu), even though NaTS was not a harmful treatment… Dr Ishwar Das, then health secretary, government of Madhya Pradesh, was a witness to this miraculous therapy. Even then, at the government level, he did not support the treatment.” (Para 3, p. 69)
Vile ploy
There were definite motives behind raising objections to the use of sodium thiosulphate as an antidote for treating gas victims. Union Carbide was intent on denying the presence of hydrogen cyanide as one of the pyrolysis products of MIC because the calamitous impact of cyanide poisoning was well known to the public at large since World War II.
The UCC succeeded in its vile ploy with the aid of the pro-UCC lobby in the government (among whom reportedly were the then director of health services, Dr M.N. Nagu, and the then health secretary Dr Iswar Das, some senior doctors and, of course, their political bosses).
According to Dr N.R. Bandari (the then medical superintendent of the state-run Hamidia Hospital attached to Gandhi Medical College, Bhopal): “UCC’s medical director initially supported mass administration of thiosulphate but, in another telex message three days later, forbade it.
“Soon, Union Carbide’s ally in the state bureaucracy and health services director Dr M.N. Nagu sent a circular to all doctors warning them that they would be held responsible for any untoward consequence. This effectively stopped any further administration of thiosulphate.”
The literal ban on the use of sodium thiosulphate was imposed despite “a highly level meeting convened by the director of health services in New Delhi on December 11, 1984, and attended by many experts from abroad and home recommending that blood of severely affected cases should be examined for the presence of cyanide and those found positive should be given injection of sodium thiosulphate.”
Even before the issuance of the said controversial circular by Dr M.N. Nagu on December 13, 1984 (which was in gross violation of the recommendations of the said high-level meeting convened by the directorate of health services on December 11, 1984), Dr Max Daunderer had been hastily deported from India at the behest of the UCC.
As a result, the gas victims were deprived of a timely and critical treatment that was readily available, which would have not only saved thousands of lives but also arrested aggravation of injuries. Such was the influence of the UCC and the pro-multinational corporation lobby over those at the helm of affairs in India from that time till now!
Union Carbide officials and their agents systematically conducted a campaign of misinformation and disinformation regarding the probable chemical composition of the toxic emission from its Bhopal plant.
Nevertheless, Dr Sriramachai and a dedicated team of doctors from the ICMR did undertake a study to understand the efficacy of sodium thiosulphate therapy. In this regard, in his letter to the Supreme Court of India dated October 5, 1988 in his capacity as chairperson of the Supreme Court Committee that was appointed to look into medical relief and other matters relating to gas victims, Dr Sriramachari has disclosed as follows: “The ICMR undertook the first double blind study towards the end of January 1985.
“There was clear-cut statistically significant evidence that concomitant with clinical improvement there was marked elevation of urinary thiocyanate following the administration of sodium thiosulphate injections. These findings were statistically significant. This evidence constitutes the bedrock for the use of sodium thiosulphate and also a guideline for its subsequent use later as per the press release dated February 12, 1985.”
Despite irrefutable evidence that sodium thiosulphate therapy could provide substantial relief to gas victims, and despite the ICMR issuing specific guidelines through its notification dated February 12, 1985, the ICMR found itself helpless in countering the influence of the powerful pro-UCC and anti-sodium thiosulphate therapy lobby within the government.
Therefore, Dr Sriramachari could only meekly submit as follows: “There were persisting controversies in the medical circles to give or not to give the drug. Certainly, the ICMR can only lay down the guidelines but not impose itself to give or take injections.”
Dr Sriramachari may have later regretted taking such a ridiculous stand! If the ICMR found the therapy to be effective, why did it not take a firm stand regarding its use?
Not only did the government of Madhya Pradesh fiercely desist from following the guidelines issued by the ICMR regarding sodium thiosulphate therapy but also the state government took punitive action against voluntary organisations (such as forcibly closing down the Jana Swasthya Kendra in Bhopal and arresting its volunteers including doctors on June 24, 1985) for daring to render sodium thiosulphate treatment and other medical aid to gas victims.
The extent to which the Union and state governments willingly succumbed to UCC’s pressure is just unbelievable!
There were definite motives behind raising objections to the use of sodium thiosulphate as an antidote for treating gas victims.
Callous attitude
Production of MIC commenced at Bhopal in February 1980. On December 25, 1981, plant operator Mohammed Ashraf Khan died after being exposed four days earlier to a leak of phosgene gas (a highly toxic chemical used for producing MIC). On February 7, 1982, another phosgene gas leak caused 16 workers to struggle between life and death for several days.
Due to rising incidents of accidents, a ‘safety week’ was organised from April 14 to April 21, 1982 at the Bhopal plant during which at least 10 accidents were reported. Following the spate of accidents that had taken place previously, the UCC (US) was forced to send a team of safety experts to India to carry out an operational safety survey.
In their confidential report, the UCC team, which carried out the survey in May 1982, had warned that a leak could occur due to “equipment failure, operation problems or maintenance problems.
But UCC’s ‘safety survey’ team did not comment on the basic design defects of the safety systems that the UCC had installed at the Bhopal plant or question operational irregularities such as keeping the refrigeration unit shut off most of the time and operating it only intermittently during production of MIC and transfer of the same from the storage tank into the Sevin pot.
In fact, irrefutable evidence was provided by defence witness no. 8, T.R. Raghuraman, who deposed before the court of the chief judicial magistrate, Bhopal, on February 22, 2010 that it was on January 07, 1982 that Warren Woomer (from UCC, US), the then works manager at the UCIL, Bhopal, took the decision to shut off the refrigeration system and to operate it only intermittently.
According to the said witness, this was evident from the technical instruction note (document no. 37 dated January 12, 1982, exhibit no. 46), which the prosecution has submitted as evidence before the court of the chief judicial magistrate.
The said witness has also revealed that the UCC’s inspection team that prepared the operational safety survey report in May 1982 had not opposed this decision. Neither accused no. 5, J. Mukund, who succeeded Warren Woomer as works manager at the UCIL, Bhopal, nor any of the other accused officials of the UCIL did anything to reverse the shocking decision, which left huge quantities of MIC (85 tonne) in the storage tanks not at 0o Celsius, as stipulated by UCC’s brochure, titled, Mythyl Isocyanate Manual (F-41443A) (July 1976), and UCIL’s operation safety manuals, but at ambient temperature, which always ranged between 15o Celsius and 40o Celsius.
The extent to which the Union and state governments willingly succumbed to UCC’s pressure is just unbelievable!
Early warnings ignored
The manner in which UCC officials as well as governmental authorities had totally ignored prior warnings about a potential disaster in Bhopal due to mass storage of ultra-hazardous toxic chemicals at the UCIL is shocking, to say the least.
Two years before the disaster, Rajkumar Keswani, a Bhopal-based editor and publisher of a Hindi weekly titled Rapat, had sounded the earliest clear warning of an impending catastrophe in Bhopal.
In the lead article titled “Please Save This City”, which was published on September 17, 1982, Keswani tried to warn the residents of Bhopal of the imminent danger from the UCIL plant and about the possibility of a genocide being unleashed at Bhopal.
Two weeks later, on October 01, 1982, Keswani published yet another warning in the same weekly with the headline: “Bhopal You Are Sitting on the Mouth of a Volcano!”
But, because the UCIL had such pervasive influence in Bhopal at that time, very few people were willing to heed Keswani’s unequivocal warnings. Yet the alarm that Keswani had raised was timely.
On October 05, 1982, MIC did escape from a broken valve and seriously injured four workers. People living in nearby colonies also experienced a burning sensation in the eyes and had breathing trouble, because for the first time toxic gases had leaked into their homes. The residents ran away to save their lives and returned only after several hours, as reported in Nav Bharat, Bhopal, on October 7, 1982. Luckily, the leak was controlled in time before it caused further damage.
Soon after this incident, UCIL’s workers’ union printed hundreds of posters with the following warning: “Beware of fatal accidents. The lives of thousands of workers and citizens are in danger because of poisonous gas. A spurt of accidents in the factory; safety measures deficient.”
The residents ran away to save their lives and returned only after several hours. Luckily, the leak was controlled in time before it caused further damage.
The posters were pasted in the residential areas near the UCIL plant. Keshwani too, in his weekly on October 08, 1982, again sounded an alert: “If you don’t understand, you all shall be wiped out.” These warnings were callously ignored by the authorities.
The rising sense of insecurity forced Shahnawaz Khan, a Bhopal-based lawyer, to serve a notice to the UCIL management on March 4, 1983, complaining about the danger that the UCIL plant posed to the lives of the workers at the plant, to the population living in the nearby areas and to the environment.
In his written reply dated March 29, 1983 to the notice sent by Shahnawaz Khan, UCIL’s works manager, J. Mukund, had made tall claims:
That “all precautions are taken for the safety of persons working in the factory as also those living in the vicinity”; and
That “your allegation that the persons living in the various colonies near to the industrial area remain under constant threat and danger, is absolutely baseless”.
Despite making such self-righteous assertions, Mukund, who is accused no. 5, along with production manager, S.P. Chaudhary, accused no. 7, had the temerity to keep shut all three critical safety systems of the MIC unit at Bhopal.
They not only kept the refrigeration system shut at the peak of summer, but they also shut off the vent gas scrubber in October 1984 soon after the MIC unit had stopped production after 85 tonnes of highly toxic MIC were stored in the MIC storage tanks. Mukund and Chaudhary then ordered the dismantling of the flare tower for repairs.
These highly callous and criminally irresponsible steps were taken in deliberate violation of all prescribed safety norms for handling MIC. Although the under-designed safety systems— even if they were in working order— could not have prevented a disaster if the stored MIC had got highly contaminated, the refrigeration system— if it was in operation— would have considerably slowed down the reaction process, thereby providing ample time to the residents near the plant to escape to safety.
According to a report in the New York Times, January 28, 1985: "If the refrigeration unit had been operating, a senior official of the Indian company said, it would have taken as long as two days, rather than two hours, for the methyl isocyanate reaction to produce the conditions that caused the leak. This would have given plant personnel sufficient time to deal with the mishap and prevent most, if not all, loss of life, he said."
Shutting off the refrigeration system was an unpardonable criminal act.
Bhopal Gas Tragedy: 40 Years of Struggle for Justice—Part 2
HURDLES were created not only for proper medical treatment of the gas victims but also to prevent an estimate of the actual magnitude and gravity of the impact of the disaster on living beings and the environment.
For purposes of short- and long-term rehabilitation, a house-to-house survey was undertaken to build up the family profiles of those affected by the disaster. The Tata Institute of Social Work (TISS), Mumbai, assisted the government of Madhya Pradesh in carrying out this task. TISS also coordinated the work of nine other schools of social work, which were engaged in the same task.
Besides TISS, the other institutions that took part in the survey are the Indore Schools of Social Work (Devi Ahilya Vishwa Vidyalaya); the Karve Institute of Social Service (Pune University); Faculty of Social Work (Baroda University); College of Social Work (Bombay University); Tirpude College of Social Work (Nagpur University); Institute of Social Work (Nagpur University); Department of Social Work, Centre for Studies in Rural Development, Ahmednagar College, (Pune University); the Department of Social Work (Kashi Vidyapith); and College of Social Work (Osmania University, Hyderabad).
The volunteer teams consisting of 474 students and 65 faculty members conducted a detailed survey from January 1, 1985 to February 12, 1985, covering all the localities of 10 wards of Bhopal and a few localities in six other wards and completed 25,294 family interviews.
The state government abruptly wound up a vital household survey without completing the task in the six partially surveyed wards or undertaking the task in the other 20 wards of Bhopal that had been declared gas-affected.
For some inexplicable reason, the state government abruptly wound up this vital household survey and no attempt was made to complete the task in the six partially surveyed wards or to undertake the task in the other 20 wards of Bhopal that had been declared as gas-affected.
Later, however, the government of India, in an affidavit in writ petition (civil) nos. 843 of 1988 and 11708 of 1985, admitted before the Supreme Court of India on March 12, 1990, “Based on estimated population figures, it would appear that there were about 5 lakh [500,000] people in the area on the night of the disaster and all these people need to be assisted through the scheme of interim relief.”
In other words, the TISS-led survey had at best covered less than one-fourth of all the gas-affected families. Since the pro forma sheets of the survey were confiscated by the state government, a proper analysis of even the truncated survey has never been published to date. It is just unbelievable that the government was so desperate to conceal the actual magnitude and gravity of the impact of the disaster!
Disappointed by the delay on the part of the government of Madhya Pradesh in analysing the data of the survey, in a letter dated July 22, 1985 and addressed to Mr Ishwar Das, the then relief commissioner, the then director of TISS, Dr A.S. Desai, wrote:
“I shall be grateful if you could let us know at the earliest how far the data were analysed and the relief programmes which have commenced for the specific families, women and children identified by the survey. We had offered to assist in the setting up of the implementation machinery also. Nothing has been heard in that respect either.”
However, the letter did not evoke any response. Dejected by the totally indifferent attitude of the state government, TISS later prepared a Brief Report on Gas Relief Work. The report, dated May 31, 1989, concluded as follows: “To this day, we do not know whether the data were analysed and utilised. Ten institutions gave their time at considerable cost to their academic work…
The TISS-led survey had at best covered less than one-fourth of all the gas-affected families.
“Students and faculty willingly gave up this time from their vacation because they felt they were working for a cause…. They [the students] as well as faculty are very disappointed and have lost faith in the [Madhya Pradesh] government for the lack of response to the hard work put in for two months to cover 25,295 families at the minimal cost of second-class concession railway fare, simple food and absolutely inadequate living arrangements.
“No one expected anything more except that the people will be benefited by this stupendous volunteer census work. The disenchantment with the way in which the matter has been handled is difficult to describe.”
Public enquiry scuttled
Immediately after the disaster, the government of India, on December 5, 1984, set up a scientific committee headed by Dr S.Varadarajan, the then director general of the Council for Scientific and Industrial Research (CSIR— the premier national institution for industrial research in India), to study the scientific and technical aspects of the disaster and prepare a report.
A day later, the government of Madhya Pradesh, on December 6, 1984, instituted a judicial probe into the disaster and appointed Justice N.K. Singh, a sitting judge of the Madhya Pradesh High Court, as the single member of the Bhopal Poisonous Gas Leakage (1984) Inquiry Commission.
On that same day, a team of experts from the UCC, US also arrived in Bhopal to investigate the cause of the gas leak. Several teams of Indian scientists and technologists with expertise in environmental protection and toxicology as well as social workers, who came forward to assist in the relief work, too trickled into Bhopal.
A team from the Delhi Science Forum (DSF) was among them. Subsequently, on December 18, 1985, Shri P.N. Haksar (former principal secretary to Prime Minister Indira Gandhi and the then president of DSF, released the DSF report on the disaster at a press conference held in Delhi.
The Justice N.K. Singh Commission, which began its sittings, directed the state government on March 26, 1985, to file the statement of the case. Among those who took part in the proceedings were the government of Madhya Pradesh; UCIL; Union Carbide Workmen’s Union; Union Carbide Karmachari Sangh; Zahreli Gas Khand Sangharsh Morcha (ZGKSM); Lawyers Collective; DSF; Bharatiya Mazdoor Sangh (BMS); Bharatiya Janata Party (BJP); Communist Party of India (CPI); Communist Party of India (Marxist); and several individuals, including journalists such as Rafat Ali Khan and Anees Chisti.
It is just unbelievable that the government was so desperate to conceal the actual magnitude and gravity of the impact of the disaster!
In the Order issued after the ninth sitting of the Justice N.K.Singh Commission on July 23, 1985, the commission ruled: “The UCIL … is the prima facie guilty party, responsible for the accident, resulting in the deaths and disablement of a vast number of the Indian people...” However, due to the lackadaisical attitude of the state government, the enquiry did not make much headway.
Finally, after much prevarication, on November 28, 1985, the government of Madhya Pradesh filed the statement of the case before the Justice N.K.Singh Commission without the list of witnesses and the list of documents.
While the list of witnesses proposed to be examined by the state government was filed on November 29, 1985, the government counsel requested some more time to file the list of documents.
The UCIL also requested more time to file the UCIL list of witnesses and list of documents. Justice Singh granted time to the parties till December 11, 1985 to file all the necessary documents. Before adjourning the next lap of sitting to December 12, 1985, Justice Singh made the following observation:
“However, before parting, I would like to stress that the commission proceedings have been delayed up to now mainly due to delay in filing the statement of case by the state government and the delaying tactics adopted by certain parties, taking advantage of the situation.
“It is insisted that the pleading stage must be completed by December 13, 1985, so that proceedings can be fixed for evidence in the month of January next year. No delay in this regard will be tolerated any further.”
On December 12, 1985, the state government filed the list of documents relied on. That same day, the UCIL also filed the list of witnesses and the list of documents relied on. But to the utter dismay of the gas victims and all concerned people, the government of Madhya Pradesh, which had prevaricated in its submissions till December 12, 1985 (i.e., for more than a year after the commission was set up), terminated the commission fraudulently on December 17, 1985, thereby, pre-empting the inquiry.
To this day, the magnitude, gravity and ramifications of the Bhopal gas leak disaster on living beings and the environment have not been thoroughly investigated.
A team of experts from the UCC, US also arrived in Bhopal to investigate the cause of the gas leak.
Varadarajan Committee report
Meanwhile, the Varadarajan Committee had been entrusted with the additional task of supervising the neutralisation of the remaining amount of MIC (about 23 tonnes) that had been stored in two other adjacent storage tanks to the one from which MIC had escaped.
The neutralisation process was successfully carried out from December 16–22, 1984 with the assistance of the arrested officials of the UCIL, who had been granted bail for the purpose.
Thereafter, following extensive investigations, the Varadarajan Committee, which had inquired into the scientific and technical aspects of the Bhopal disaster, submitted its Report on Scientific Studies on the Factors Related to Bhopal Toxic Gas Leakage to the Union government on December 20, 1985.
The report pointed out the following design, maintenance and operational defects:
“MIC is a highly reactive, toxic volatile and inflammable chemical… Since the reaction is exothermic, contamination of MIC with traces of the catalysts can cause violent reactions… MIC with the above-mentioned characteristics should be considered as an explosive in addition to it being a highly toxic chemical.” (Para 4.1, p.75).
“As per the UCC brochure, the storage temperature should be maintained below 15oC and preferably at about 0oC.” (Para 4.1, p.75)
“The contents of the tank were being stored at ambient temperatures, which varies approximately from +15oC to +40oC at Bhopal. (Para 4.4, p. 77)
“In retrospect, it appears the factors that led to the toxic gas leakage and its heavy toll existed in the properties of the very high reactivity, volatility and inhalation toxicity of MIC. The needless storage of large quantities of the material in very large size containers for inordinately long periods as well as insufficient caution in design, choice of materials of construction and in provision of measuring and alarm instruments, together with inadequate controls on systems of storage and on quality of stored materials as well as lack of necessary facilities for quick effective disposal of material exhibiting instability, led to the accident.” (Para 4, p.82)
Assessing the magnitude of the disaster and the gravity of its impact on life systems and the environment, or identifying the guilty were not within the terms of reference of the Varadarajan Committee. On the other hand, the purported objectives of constituting the Justice N.K.Singh Commission were for addressing those very issues.
However, the commission was prematurely disbanded by the state government precisely to prevent it from making a fair assessment of the extent and severity of the impact of the disaster and from establishing the onus of responsibility. Apparently, the Union and state governments were only interested in burying the matter somehow and had little interest in ensuring justice for the gas victims.
While the list of witnesses proposed to be examined by the state government was filed on November 29, 1985, the government counsel requested some more time to file the list of documents.
Krishna Murti Commission
On August 1, 1985, Indira Jaising of the Lawyers Collective filed writ petition no. 11708 of 1985 in the Supreme Court of India on behalf of Dr Nishit Vohra and others pleading for better medical care for gas victims and a proper epidemiological survey to determine the magnitude and gravity of the impact of the injuries sustained due to the disaster.
It was only thereafter that the government of India, through a gazette notification dated August 8, 1885, decided to set up a high-level commission under Dr C.R. Krishna Murthi (then director, Indian Institute of Toxicology Research, Lucknow) to study the long-term effects of MIC (and other toxic gases that escaped from the UCIL plant) on human, animal and plant life systems in and around Bhopal.
Established by the cabinet secretariat, it was called the Scientific Commission for Continuing Studies on Effects of Bhopal Gas Leakage on Life Systems.
Some of the most significant observations, findings and recommendations from the report of the Krishna Murti Commission, which was submitted in July 1987, are as follows:
“The Indian scientific community has the moral responsibility to document all information of scientific interest on the Bhopal disaster and share the same with their compeers all over the world.” (p.1)
[Contrary to this recommendation, reports of the medical research undertaken by the ICMR were made public only as late as 1994.]
“Data on the pregnancy outcome of 2,566 pregnant women (out of 2,894) reported to be pregnant on December 2–3, 1984) showed a spontaneous abortion rate of 24.2 percent (national average is reported to be 6-7 percent)… The stillbirth rate after the disaster was 33.7 per thousand, whereas the national figure for this index is 11.3 per thousand deliveries.” (p.7)
“It was realised right from the beginning that the health surveillance programme had to cover the entire population of the areas which bore the direct impact of the toxic cloud.” (p.8)
“Surveillance of the immunological status of the exposees, both adults and children, is, therefore, essential for evaluating the prognosis of those who continue to suffer and also for monitoring increased susceptibility to environmental infections and hazards.” (p.11)
“Exploratory studies sponsored by ICMR revealed that 22 percent of the patients attending various clinics in Bhopal suffered from mental disorders. A subsequent survey of 6,000 people by two sets of tests showed a prevalence rate of 66–133 per thousand as compared to 25 per thousand in a population not exposed to the gas. The majority of patients were females and more than 80 percent of cases were seen in the age group below 45 years. More than 90 percent of the cases could be categorised as neurotics.” (p.11)
“The progress of the epidemiological programme mounted in Bhopal has been tardy and suffers from many inadequacies in the design and the infrastructure for implementation. The operation of a peer review system to evaluate the work and apply mid-term corrections seems to be conspicuous by its absence.” (p.11)
“It is recommended, therefore, that the ministry of health with the assistance of ICMR and other agencies creates the requisite mechanism for high-level coordination and monitoring of long-term health studies of the Bhopal Gas Victims.” (p.26)
Contrary to these observations and recommendations of the Krishna Murti Commission, neither the Union health ministry, nor the ICMR or the state government has to date created any mechanism for proper medical surveillance of the entire gas-exposed population or to maintain their complete computerised medical records.
In the absence of proper and complete medical records for all these years, gas victims have not only been denied proper and adequate medical care but also have been denied adequate compensation in accordance with the degree of injury and the trials and tribulations each of them has had to suffer.
Bhopal Gas Tragedy: Forty Years of Struggle for Justice—Part 3
Soon after the disaster, several concerned lawyers arrived in Bhopal to provide legal assistance to the gas victims. Many ‘ambulance chasers’ also swooped down on the city in that guise, motivated by greed rather than compassion.
Following the filing of many lawsuits against the Union Carbide Corporation (UCC) by victims of the disaster through private US attorneys in different districts/states of the US, the US judicial panel on multi-district litigation passed an order on February 6, 1985 transferring all US federal district court cases relating to the Bhopal disaster to the southern district court of New York.
Soon afterwards, on the plea that the ambulance chasers would misrepresent the interest of the victims, at the instance of the government of India, the President of India on February 20, 1985 promulgated the Bhopal Gas Leak Disaster (Processing of Claims) Ordinance.
The Ordinance empowered the Union of India to represent the victims in all cases relating to claims for compensation. The Bhopal Ordinance was adopted as an Act of Parliament on March 29, 1985.
Of course, there were apprehensions that the government of India may misuse the provisions of the Act and may not represent the interests of all gas victims in the best possible way. Therefore, a number of writ petitions were subsequently filed before the Supreme Court questioning the constitutional validity of the Bhopal Act.
Many ‘ambulance chasers’ also swooped down on Bhopal, motivated by greed rather than compassion.
Litigation in the US
By virtue of the Bhopal Act, the Union of India, on April 8, 1985, filed a complaint against the UCC before the southern district court of New York, US. The complaint, inter alia, stated that:
“5. ….The [Bhopal] Act has been promulgated for the purpose of insuring that claims (as defined by the Act) arising out of and caused by the BHOPAL GAS LEAK DISASTER (hereinafter referred to as the BHOPAL DISASTER) are dealt with speedily, effectively, and equitably, and confers upon the government of the Union of India certain powers and duties, including the exclusive right to represent and act in place of (whether within or outside India) every person (as defined in the Act) who has made, or is entitled to make, such a claim…
“The Act further provides that the government shall have due regard to any matters which such persons may urge with respect to his claim and shall, if such person so desires, permit at the expense of such person, a legal practitioner of his choice to be associated in the conduct of any suit or other proceedings relating to his claim.
“6. Because of the massive unprecedented magnitude of the BHOPAL DISASTER (as hereinafter detailed), the Union of India brings this action as parens patriae by virtue of its interest and duty to secure the health and well being, both physical and economic, of all victims of the disaster (including future generations of victims), almost all of whom are physically and/or financially or otherwise incapable of individually litigating their claims against the defendant, a monolithic, multinational corporation. The Union of India further acts as parens patriae by virtue of its interests and duty to protect, preserve and restore the earth, air, waters and economy of the Republic…
“7. The Union of India brings this action as parens patriae for all persons to recover for them damages for any and all claims, present and future, arising from the BHOPAL DISASTER”. [Upendra Baxi & Thomas Paul (ed.), “Mass Disasters & Multinational Liability: The Bhopal Case”, p.2]
The Bhopal Gas Leak Disaster (Processing of Claims) Ordinance (later Act) empowered the Union of India to represent the victims in all cases relating to claims for compensation.
The basic grounds on which the complaint was filed were as follows:
“10. At all times material, defendant Union Carbide designed, constructed, owned, operated, managed and controlled a chemical plant in the city of Bhopal, in the State of Madhya Pradesh, one of the states constituting the Union of India, through its subsidiary Union Carbide India Limited.
“11. At all times material, defendant Union Carbide manufactured, processed, handled and stored at its Bhopal plant methyl isocyanate (hereinafter MIC), a chemical used in the manufacture of agricultural pesticides produced and marketed by Union Carbide.”
“12. At all times material, defendant Union Carbide knew that MIC is an extraordinarily reactive, toxic, volatile, flammable and ultrahazardous chemical; that MIC is one of the most dangerous substances known to man.”
“18. On December 2–3, 1984, there was a massive escape of lethal MIC gas from the Bhopal plant into the atmosphere, raining death and destruction upon the innocent and helpless persons in the city of Bhopal and the adjacent countryside, and causing widespread pollution to its environs in the worst industrial disaster [hu]mankind has ever known.” [Baxi & Paul (ed.), pp. 3-4]
Based on the above grounds, the Union of India levelled charges against the UCC on seven counts, which are summarised below:
a) Multinational enterprise liability: “A multinational corporation has a primary, absolute and non-delegable duty to the persons and country in which it has in any manner caused to be undertaken any ultrahazardous or inherently dangerous activity.
“This includes a duty to provide that all ultrahazardous or inherently dangerous activities be conducted with the highest standards of safety and to provide all necessary information and warnings regarding the activity involved.
“Defendant multinational Union Carbide breached this primary, absolute and non-delegable duty through its undertaking of an ultrahazardous and inherently dangerous activity causing unacceptable risks at its plant in Bhopal, and the resultant escape of lethal MIC from that plant.
“Defendant Union Carbide further failed to provide that its Bhopal plant met the highest standards of safety and failed to inform the Union of India and its people of the dangers therein.”
A number of writ petitions were subsequently filed before the Supreme Court questioning the constitutional validity of the Bhopal Act.
b) Absolute liability: “Defendant Union Carbide allowed the lethal MIC to escape from its Bhopal plant on December 2–3, 1984, exposing innocent and helpless people in the city of Bhopal, the adjacent countryside and its environs to the deadly effects of MIC, thereby contaminating and polluting an extensive area. Defendant Union Carbide is absolutely liable for any and all damages caused or contributed to by the escape of the lethal MIC from its Bhopal plant…”
c) Strict liability: “Defendant Union Carbide was under a duty to design, construct, maintain and operate its Bhopal plant in such a manner as to prevent the escape of lethal MIC from the plant and to protect persons from unreasonably dangerous and defective conditions and to warn persons of the dangers and risks associated with the plant and its manufacturing processes.
“Defendant Union Carbide breached this duty and the massive escape of lethal MIC occurred as the result of unreasonably dangerous and defective plant conditions which involved MIC production and storage procedures and facilities, instrumentation, safety systems, warning systems, operation and maintenance procedures...
“In creating and maintaining unreasonably dangerous and defective conditions, defendant Union Carbide is strictly liable for any and all damages caused or contributed to by the escape of MIC from its Bhopal plant…”
d) Negligence: “The Bhopal plant was in the defendant's exclusive control and the massive escape of lethal MIC could not have occurred but for the negligence of defendant Union Carbide. Defendant Union Carbide is liable for any and all damages caused or contributed by the escape of MIC from its Bhopal plant due to its negligence…”
e) Breach of warranty: “Defendant Union Carbide expressly and impliedly warranted that the design, construction, operation and maintenance of its Bhopal plant were undertaken with the best available information and skill in order to insure safety.
“These warranties were untrue in that the Bhopal plant was, in fact, defective and unsafe and the technical services and information provided by defendant Union Carbide and the resulting plant operating practices were defective in numerous respects… Defendant Union Carbide is liable for any and all damages caused or contributed to by the escape of MIC from its Bhopal plant due to its breach of warranties…”
f) Misrepresentation: “Defendant Union Carbide falsely represented to the plaintiff that its Bhopal plant was designed with the best available information and skill and that the operation of its Bhopal plant would be maintained with current and up-to-date knowledge. Defendant Union Carbide knew that these representations were false, or asserted these representations without knowledge of their truth or falsity, and intended that the plaintiff act thereon.
At all times material, defendant Union Carbide knew that MIC is an extraordinarily reactive, toxic, volatile, flammable and ultrahazardous chemical; that MIC is one of the most dangerous substances known to man.
“The plaintiff reasonably and justifiably relied upon these representations to its detriment. Defendant Union Carbide is liable for any and all damages caused or contributed to by the escape of MIC from its Bhopal plant due to its misrepresentation…”
g) Punitive Damages: “Defendant Union Carbide’s conduct in failing to design, construct, maintain and operate a safe plant exposed the people and property in Bhopal, the adjacent countryside and its environs to a massive disaster which the defendant knew could occur.
“Such conduct on the part of defendant Union Carbide, in light of its knowledge of the lethal properties of MIC was unlawful, wilful, malicious and reprehensible and was in deliberate, conscious and wanton disregard of the rights and safety of the citizens of the Union of India.
“Defendant Union Carbide’s conduct as described herein clearly establishes the plaintiff’s right to an award of punitive damages to deter this wrongful conduct from ever again recurring.” [Baxi & Paul (ed.), pp.4-8]
The Union of India further pleaded that:
“As a direct and proximate result of the conduct of defendant Union Carbide, numerous thousands of persons in Bhopal, the adjacent countryside and its environs suffered agonising, lingering and excruciating deaths, serious and permanent injuries … pain, suffering and emotional distress of immense proportion.
“The survivors, who experienced an unimaginable and unforgettable catastrophe…have suffered and will continue to suffer severe emotional distress. Further injuries to such persons, and to generations yet unborn, are reasonably certain to occur…
“As a further direct and proximate result of the conduct of defendant Union Carbide, there was extensive damage to personal and business properties resulting in disruption of industrial, commercial and governmental activities throughout the City of Bhopal, the adjacent countryside and its environs, with consequential losses of personal and business income and governmental revenue throughout the Union of India, as well as the impairment of future earning capacity of numerous thousands of persons.” [Baxi & Paul (ed.), pp.8-9]
On the basis of the above pleadings, plaintiff Union of India sought compensatory and punitive damages from defendant Union Carbide and the awarding of such other relief as the court may have deemed just and equitable.
The purpose of quoting extensively from the text of the Union of India’s complaint before the US district court was also to enable the reader to take note of its emphatic and forthright language.
(It would be interesting to compare the same with the meek and submissive language of the terms of settlement that the Union of India signed with the UCC on February 15, 1989, consequential to the directions and Orders passed by the Supreme Court of India.)
Inconvenient forum
It may be recalled that 145 cases (from more than 13 US jurisdictions) involving approximately 200,000 individual plaintiffs had been consolidated before the southern district court of New York.
On April 16, 1985, at the first pre-trial conference before the New York southern district court, Judge Keenan directed that a three-member plaintiffs’ executive committee be formed to frame and develop issues on the cases and prepare expeditiously for trial or settlement negotiations.
On July 30, 1985, the said committee submitted a format for the resolution of these cases in a discovery plan. The plan envisioned an expedited schedule of discovery leading to a September 1, 1986 trial of liability, including punitive damages, and ten representative damages cases. [Baxi & Paul (ed.), p.97]
Defendant Union Carbide further failed to provide that its Bhopal plant met the highest standards of safety and failed to inform the Union of India and its people of the dangers therein.
The UCC, however, found an ingenious way to oppose the move. In its reply, which was filed before the district court on July 31, 1985, the UCC pleaded for dismissing the cases filed against it on the grounds of forum non conveniens, essentially meaning that the complaints should not be heard in the US since it was not the appropriate or convenient forum.
On the one hand, the UCC tried to argue that: “Indeed, the practical impossibility for American courts and juries, imbued with US cultural values, living standards and expectations, to determine damages for people living in the slums or ‘hutments’ surrounding the UCIL plant in Bhopal, India, by itself confirms that the Indian forum is overwhelmingly the most appropriate.” [Baxi & Paul (ed.), para, 4, pp.30]
On the other hand, it argued that: “It would surely be unfair to apply ingrained American approaches to liability or damages to US corporations owning stock in foreign companies which are not applicable to all companies operating in that foreign jurisdiction.” [Baxi & Paul (ed.), para, 2, p.31]
In other words, as far as the determination of damages for victims was concerned, the UCC wanted an inferior set of standards to be applied to victims in Third World countries unlike those applicable to victims in the US!
As far as the determination of liability was concerned, the UCC wanted the same set of standards to be applied to multinational companies as was applicable to local companies in the Third World, where safety standards were ill-defined or non-existent!
No wonder, the UCC found the courts in India a very convenient forum!
On December 6, 1985, the plaintiffs’ executive committee filed a memorandum in opposition to UCC’s motion of forum non conveniens, to dismiss the consolidated complaints. Their argument was that forum non conveniens was actually a doctrine intended to serve the ends of justice.
Therefore, according to them, “Justice also mandates the resolution of this litigation in the United States because the material qualitative evidentiary facts at the heart of the liability issues can be discovered only in this country, where the seeds of the Bhopal tragedy lie.”
They further added that: “Although the ultimate horrors of the Bhopal gas leak unfolded in India, the disaster is an American tragedy.” [Baxi & Paul (ed.), paras 2-3, p.61]
In other words, as far as the determination of damages for victims was concerned, the UCC wanted an inferior set of standards to be applied to victims in Third World countries unlike those applicable to victims in the US!
Subsequently, some legal experts too filed affidavits both for and against UCC’s memorandum on the issue of forum non conveniens. On one hand, Prof. Marc Galanter, professor of law and South Asian studies at the University of Wisconsin (US), filed an affidavit on December 5, 1985 to oppose UCC’s motion. On the other hand, J.B. Dadachanji and Nani Palkhivala, leading corporate lawyers from India, filed affidavits, dated December 14 and 18, 1985 respectively, in support of UCC’s motion.
In the process, Palkhivala, in particular, demeaned himself with his slanderous insinuation that the decision of the Union of India and others to file complaints in the US amounted to “forum shopping” as a means “of virtually getting American aid thinly disguised as ‘damages’.” [Baxi & Paul (May 1986), para 2, p.229]
In fact, quite contrary to Palkhivala’s contention, it would be evident from his own words that it was the UCC that was “forum shopping”! According to Palkhivala: “[I]f the Bhopal cases are tried in India, the quantum of damages to be awarded to claimants would be under the same law which is applicable to all other cases of similar tort, irrespective of the nationality or residence of the corporation sued.” [Baxi & Paul (May 1986), para 1, p.229]
Therefore, it is amply clear that Palkhivala had waxed eloquent about India being the most appropriate forum to try the Bhopal cases precisely because he was confident that under the existing circumstance, it was ideally suited to serve the best interests of the UCC!
Meanwhile, the decision of the Union of India to file the complaint in the US generated a lot of controversy in India. Within the Indian legal community itself, opposition to the move arose from two completely divergent sources.
Leading public interest lawyers such as Indira Jaising of the Lawyers Collective (who were then ardently supporting the cause of the victims before the Justice N.K. Singh Commission of Inquiry that was inquiring into the causes of the Bhopal disaster) were of the opinion that the proceedings should have been filed in Indian courts and that it was unbecoming of a sovereign State to seek damages against a multinational company in the US.
From a completely different perspective, leading corporate lawyers such as Nani Palkhivala (who concealed the fact that he had filed an affidavit in support of UCC’s motion to dismiss the proceedings before the US court) also tried to argue that the Indian courts were best suited to handle the Bhopal litigation.
Other legal experts such as Professor Upendra Baxi [then director (Research), Indian Law Institute, New Delhi], who too actively supported the cause of the Bhopal victims, were of the opinion that Indian law had not so far been able to develop the tort doctrine, which would be adequate to do justice to the Bhopal gas victims.
The decision of the Union of India to file the complaint in the US generated a lot of controversy in India.
In his view, the US forum was the only one adequately equipped to handle mass torts. While Prof. Baxi forcefully argued against the disingenuous arguments put forward by Palkhivala, it is possible that he may have overlooked the fact that the Bhopal case also gave the Indian judiciary an opportunity to develop the tort doctrine.
The concept of absolute multinational enterprise liability could have been developed in such a way that it would not only have benefited the Bhopal victims but would have in the long run protected the interests of all Third World countries and peoples as well.
In hindsight, it may appear that perhaps Jaising had reposed excessive faith in the Indian judicial system and that probably Prof. Baxi was right in his assessment of the inadequacy of the system to render justice to the Bhopal victims.
Nevertheless, it cannot be denied that if in India there is political will on the part of the executive, strength of character on the part of the legislature, professional commitment on the part of the judiciary, and expression of solidarity by concerned people, it is still possible to ensure that justice is not denied to the Bhopal victims.
