EPW Commentary December 4, 2004
Bhopal: Continuing Institutional Crisis
Twenty years on, the verdict on how the Indian state has responded to Bhopal should be unequivocal: not only did it neglect its responsibilities, it actively suppressed the rights of the victims. The state of public knowledge about the disaster and the best recourse available to the victims was summed up recently by a doctor who was on duty at a Bhopal hospital on the fateful night: "We still do not know what we could have done that day to save lives; we still are not aware of what we could have done in the months and years since".
The air in Bhopal was laced with death one chill winter night two decades ago. Roused from their sleep, blind and breathless, thousands suffered a painful death as a lethal cloud spewed out of a pesticides plant owned and operated by the US multinational, Union Carbide. With colleagues who had been alerted to the unprecedented medical emergency, Dr Heeresh Chandra, head of forensic medicine and toxicology at the city’s Gandhi Medical College, rushed to his station in the early hours of December 3, 1984. He and his colleagues were “aghast at the sight of the massive human carnage”, but knew nothing of what had caused it. The symptoms did not correspond to those associated with exposure to phosgene, known to be an intermediate material in the Union Carbide plant. And another intermediate used, methyl isocyanate (MIC), was to the best of the doctors’ knowledge, not a serious toxin. None other than the Union Carbide plant doctor had told them so.The plant doctor L S Loya, meanwhile, had reached the vicinity of the pesticides unit. He was by now positively reassured that the gas that had leaked was MIC. He was, as one of the first comprehensive accounts of that traumatic night put it, considerably “relieved”, and went back home to the comfort of his bed. “If it was only MIC, there wasn’t much danger”, he felt: “No one in Bhopal knew more about the effects of the gas than he did… And the parent firm had told him that no one had ever died from inhaling it”. To anxious inquiries from doctors trying to cope with the swelling stream of the dying, he had a few anodyne words of advice: “Give them atropine eye drops to dilate their pupils and prevent blindness, and tell them to wash their eyes and faces with water and gargle…. Victims might get irritated eyes and skin, but they would not die”.1
That macabre moment, when Bhopal’s best-informed citizen parted with his wisdom, deserves to be etched in time for every future generation to learn from. And it was an early pointer that Bhopal would not unfold as any ordinary industrial disaster. The disastrous state of preparedness, in both the city and the company running the lethal factory, was one hint of the many dimensions that the tragedy would acquire over the years. And to this day, there has been no enforcement of accountability on either the corporation for its crimes of culpability, nor on the regulatory authorities for their gross neglect of the potential hazards involved in the pesticides factory.
Twenty years on, the calculus of the dead remains incomplete. India’s Supreme Court, in a tragically misconceived ruling, ordered a full and final settlement of the litigation arising from the tragedy in 1989. Later that year, in seeking to beat back the tide of public outrage over what plainly seemed a collusive settlement, the court laid out the rationale of its order. The total number of fatal cases, it estimated, “was about 3,000” and of “grievous and serious personal injuries… in the neighbourhood of 30,000”.2 Later, in dealing with a review petition seeking the annulment of the settlement, the Supreme Court held that the “toll of life (had) since gone up to around 4,000” and injuries of various degrees of seriousness had been suffered by an unspecified “tens of thousands”.3
In August this year, when it ordered a further payment out of the funds held by the Reserve Bank of India as compensation for the victims of Bhopal, the Supreme Court was dealing with over 15,000 death claims. A callous and insensitive bureaucratic process had downgraded several of these to injury and illness. But over 6,000 death claims had been settled at specified rates, while the number of personal injury claims settled exceeded 550,000.4 Plainly, the government has been in default in recognising the magnitude of the fatalities from the gas disaster. The most recent annual report of the Madhya Pradesh Gas Relief and Rehabilitation Department states that a total of 15,248 people have died as a result of the gas leak. As Amnesty International has pointed out, fatalities from the first few days of the disaster had been grossly underestimated and it would not be unrealistic, in this context, to put the number of the dead at 20,000.5
It is impossible to sustain the pretence that the settlement decreed by the Supreme Court in 1989 was adequate to handle human suffering that was at least five times the initial estimate. It was purely fortuitous, that the Indian rupee depreciated to about a third of its value in relation to the US dollar over the 15 years since the settlement. Coupled with the tardy pace of disbursement, this enabled a substantial accrual with the RBI out of the compensation paid by Union Carbide.
Amnesty International, in fact, recently confirmed what has been evident since the day of the disaster: “that there has been no systematic attempt by the Indian government to keep a record of gas-related deaths in the 20 years since 1984”.6 This at once raises questions about how the Indian government could have imagined that it would be a credible litigant on behalf of the victims. The Bhopal Gas Leak Disaster (Processing of Claims) Act of 1985 reserved for the union government the exclusive power of litigation on behalf of the victims. Armed with this power, India in May 1985 filed suit in the US Federal District Court in New York, demanding compensation to the tune of $ 3 billion from Union Carbide. At pre-trial hearings, Judge John Keenan proposed an initial commitment of a certain amount by the corporation as “emergency systematic relief”. Union Carbide had a simple riposte: it was willing to consider the proposal, but needed information on the number of deaths, illnesses, and their relative degrees of seriousness. In a court-room bluff that caught the Indian government flat-footed, counsel for Union Carbide asserted: “the government of India has this information and we need it”.7
The government had assumed the exclusive power of litigation in its capacity as parens patriae. Literally translated as “parent of the country”, this is a doctrine which empowers the state to take on the responsibility for representing those under a legal disability on account of indigent economic circumstances. It seemed appropriate then that the state should assume this power since the litigation was expected to be complex, involving multiple jurisdictions and conflicting judicial procedures and principles.
Judicial Common Sense
There is a proposition that could be derived from here, which in fact has become part of the judicial commonsense since the disastrous settlement of 1989: that in taking on the exclusive right to litigate for the Bhopal victims, the state also took upon itself the responsibility of sustaining them through a protracted and potentially taxing judicial process. Over the first four years of the litigation though, the arguments over Bhopal revolved around the issue of most appropriate forum, and the contingent, interim damages that Union Carbide was liable to bear. On the parallel track, the task of identifying the sufferers and delivering an efficacious line of treatment to them was continually being bungled by administrative inefficiencies and corruption. There was little effort to tie together these tracks. Nobody made the logical inference, that as parens patriae, the state was in flagrant default on its moral obligation for the material sustenance of the people it was representing in litigation.8
The verdict of the last two decades on this question should be unequivocal: not only did the state neglect its responsibilities, it actively suppressed the rights of the victims. The state of public knowledge about the disaster and the best recourse available to the victims was summed up recently by a doctor who was on duty at Bhopal’s Hameedia Hospital on the fateful night. Dr H H Trivedy, now a key member of the Sambhavana Trust, which seeks to administer reliable and affordable health care to the victims, puts the case with chastening bluntness: “We still do not know what we could have done that day to save lives; we still are not aware of what we could have done in the months and years since”.9
As far back as 1990, the Supreme Court had acknowledged that “the processes in the Bhopal plant were so much shrouded in secrecy that neither the composition of the deadly gas that escaped nor the proper antidote therefor were known to anyone in this country, with the result that the steps to combat its effects were not only delayed, but also totally inadequate and ineffective”.10 But in dealing with a succession of petitions demanding effective medical care and rehabilitation for the victims, the Supreme Court did little of decisive benefit.
The government meanwhile, had brought down a thick shroud of secrecy over its medical findings. Within months of the accident, media reports had begun suggesting that Union Carbide was simply refusing to part with information on the proper clinical management of gas exposure symptoms. If any case studies and a manual of treatment existed, these were not available to Indian medical authorities. It was also reported that a blanket ban had been placed on doctors giving any information about autopsy findings and lines of treatment.
By March 1985, there were clear suggestions that sections of the Indian bureaucracy were colluding in Union Carbide’s plans of concealing the true magnitude of the damage. Medical treatment of the affected remained haphazard and disorganised. Though sodium thiosulphate was known to be an effective antidote for the worst cases of exposure to MIC, and had been certified for administration by the Indian Council of Medical Research (ICMR), the corporation had effectively pressured the Bhopal authorities to severely restrict its use. Its motivation was clear. Thiosulphate is an antidote for cyanide poisoning and consenting to its administration would have meant tacitly admitting that MIC in its process of decomposition, generates lethal cyanide compounds. This would have in the popular mind – which associates cyanide with the deadliest of poisons – buttressed impressions of Union Carbide’s criminal culpability.
No Treatment Protocols
As late as 1990, a study of the drugs prescribed for the sufferers revealed that at least 40 per cent of these were either inappropriate or downright hazardous. In 1994, the International Medical Commission on Bhopal was recording that medical care for the affected population was “largely symptomatic, suggesting that treatment protocols for chronic patients had yet to be developed and implemented”.11
At around this time, the epidemiological studies being conducted by the ICMR were abruptly discontinued. Till 2004, the medical findings of the ICMR remained classified information. There was little response to the demand that the information should be made available to the sufferers, to enable them to make informed decisions on the best course of treatment available. As Amnesty International recently put it, with appropriate delicacy: “Few results from these studies were published by the ICMR until 2004, when a technical report based on the long-term epidemiological studies was released. In the absence of any other long-term studies on the effects of gas exposure in Bhopal, the release of the remaining ICMR information is crucial”.
S Sriramachari of the Institute of Pathology at the ICMR, recently published the most accessible account of the clinical findings on Bhopal’s victims. Though couched in a highly technical idiom, his essential conclusions are clear enough to the layman. “With adequate precautions and statistical appraisal”, he points out, “it was established that (sodium thiosulphate) was beneficial in relieving the symptomatology of the victims...”. “Serial observations on a large cohort of 300 patients”, he records, “clearly established the beneficial role of thiosulphate in the earlier period, in different categories of patients”. And the possibility could not be excluded that “acute cyanide toxicity” could have resulted from the chemical breakdown of MIC in the reaction tank, leading in turn to “irreversible damage to cardio-respiratory and medullary centres of the victims”.12
For the group of activists who in June 1985, set up a “peoples’ clinic” in Bhopal and with the services of a handful of volunteer doctors began administering thiosulphate injections to the sufferers, this is long overdue vindication. For the government, which arrested all the volunteers in this remarkable initiative and shut down the clinic shortly afterwards, this perhaps is a damning indictment. The story of Bhopal, two decades on, is not merely one of a seriously botched litigation and a sequence of bureaucratic missteps. It is also one of the denial of information by a state to its citizens, when information could clearly have saved lives. Bhopal was no mere industrial disaster. It is a deepening institutional crisis for Indian democracy.
1 Dan Kurzman, A Killing Wind, Inside Union Carbide and the Bhopal Catastrophe, McGraw-Hill, New York, 1987, page 70-1. The account of Dr Heeresh Chandra and his colleagues’ initial reaction is also drawn from the same source, at page 99.
2 Union Carbide Corporation versus Union of India, 1989 3 SCC p 46.
3 Union Carbide versus Union of India, 1991 4 SCC page 612.
4 The figures are taken, with permission, from S Muralidhar, ‘Unsettling Truths, Untold Tales: The Bhopal Gas Disaster Victims’ Twenty Years of Courtroom Struggles for Justice’, Fact Finding Mission on Bhopal, 2004. This paper, along with several others, was presented at a national convention in Bhopal between November 26 and 28, which was the culmination of a ‘Fact Finding Mission’ that began in 1999. This article draws much from the reports that came out of this exercise, which are currently available at the website: www.bhopalffm.org. Notable contributions to the FFM include P K Sharma and Ashok Raj on the medical and health consequences; Amit Basu and R Srinivasa Murthy on the mental health impact; Preeti Oza on the role of non-governmental organisations; Amit Nair on environmental contamination; Mohan Mani on the response of the state and central governments; and Rakesh Kapoor and Ashok Raj on the impact on employment and the process of social and economic rehabilitation. Other contributions include a brief profile of Union Carbide by Thomas MacSheoin and an analysis of the role of the media by the present author. The convention was also addressed by T R Chouhan, a former plant operator with Union Carbide, whose book Bhopal, The Inside Story, The Other India Press, Goa, 1994, remains an invaluable source.
5 Amnesty International, Clouds of Injustice, Bhopal Disaster 20 Years On, Delhi, London, and New York, November 2004.
6 Ibid, page 10.
7 Kurzman, op cit, page 201
8 As Chief Justice S Mukharji held in deciding the case of Charan Lal Sahu versus Union of India: The Bhopal Gas Leak (Processing of Claims) Act is “constitutionally valid in the manner we read it. It proceeds on the hypothesis that until the claims of the victims are realised or obtained from the delinquents (Union Carbide and its Indian subsidiary)…the central government must pay interim compensation or maintenance for the victims” (1990 1 SCC, page 706).
9 This came at the three-day national convention at Bhopal between November 26 and 28 (referred to in footnote 4), at which Dr Trivedy chaired a session on the medical and health consequences of the gas disaster.10 Justice Ranganath Mishra in Charan Lal Sahu versus Union of India, (1990) 1 SCC, page 730.11 Amnesty International, op cit, page 46.12 S Sriramachari, ‘The Bhopal Gas Tragedy: An Environmental Disaster’, Current Science, Vol 86, No 7, 10 April 2004. The specific quotes are from pages 914 and 919.