From November 2004, paper published as part of a commemorative conference in Bhopal on the two-decade anniversary of the tragedy.
BHOPAL, TWENTY YEARS ON
Did the media get it right?
1 Introduction: media fundamentals
Looking back two decades from the vantage point afforded by the state of the Indian media today, is partly about recognising a scenario of momentous changes. At the time of the Bhopal tragedy in December 1984, satellite television was not even a glimmer on the horizon and the 24-hour news channel was beyond the realm of conception. News and information was served up in discrete, rather than continuous doses – either through daily newspapers or through television and radio broadcasts at fixed and unvarying times of the day. The breaking news story or the special broadcast was a rare resort. Even the assassination of the Prime Minister of India just five weeks before Bhopal had nudged the official broadcasters towards this device only with extreme reluctance and tentativeness.
Official media in 1984 still operated under the rigid rule that private corporations would not be mentioned – for good or for bad – in broadcast or printed output. Union Carbide for those who recall, was for several hours after the Bhopal disaster, identified only as a “multinational company” by State broadcaster Doordarshan.
Broadcast agencies also worked under the implicit belief that they should serve as instruments of the State. Where a perceived conflict arose between putting out authentic information and helping the State to assuage public anxieties, it was the latter function that was to prevail. Broadcasts through the official media channels on December 4 and 5, the days immediately following the Bhopal disaster, spoke of the danger having passed, when clearly, the dimensions of the tragedy were only beginning to unfold.
Significant cultural differences would readily be spotted with the media scenario today. Today’s corporate-driven, globalized broadcast media, would not hesitate to name corporate names in a positive context, though its ardour in enforcing accountability for corporate crimes and misdemeanours is less evident. Further, the broadcast media today has little compunction about challenging the State on its worst acts of omission. However, its enthusiasm to follow this challenge to its farthest reaches, where issues of culpability and legal liability are addressed, is again, unproven.
Significant changes have taken place in the print media too in the two decades since Bhopal. Around the time of the Bhopal tragedy, the Hindi language press was perhaps just about running abreast of its more privileged counterparts in English, in terms of gross circulation. But as an entity on the national political stage, the Hindi press was still a lesser being. The big newspaper groups, invariably sailing under the flag of an established English daily, commanded a dominant share of the advertisement revenue, which in turn, holds the key to profitability and growth. Despite the Hindi newspapers’ heroic efforts at building circulation, the English press continued to command all the influence. Voices that were articulated in the regional languages went unheard in the corridors where policy was determined.
The English language media in the two decades since Bhopal has reinvented itself as the voice of the global Indian. Beginning from the late-1980s, older criteria of authenticity in news coverage began eroding. The aim rather, became the expansion of the comfort zone for the corporate advertiser. With the economy increasingly driven by private consumption and the doors opening up for major consumer goods multinationals, the world of corporate advertising -- once rather patronisingly tolerated or looked down upon -- became a domain of bitter contestation between media organisations. Securing the best share in corporate advertising budgets, rather than audience or readership, became the touchstone of authenticity for media organisations.
A different theme was being played out by the regional press. In a few years from Bhopal, segments of the regional elite and the media that they spoke through, were firmly on the national political scene. In 1993, the editor of Punjab Kesari was celebrating his arrival on the national stage, when even the Prime Minister would seek an audience with him. In his own estimation, he had won this status by fluke. Indira Gandhi had during her “emergency” regime between 1975 and 1977, imposed severe constraints on his paper’s usual style of news coverage. As a special favour from the overseers of the media during that phase of suspended democracy, the Punjab Kesari owners asked for the freedom to publish fluff – or the “magazine” variety in the proprietor’s words – on the front and back pages, which were natural focuses of reader interest. The formula was miraculously successful, bringing Punjab Kesari, a paper that had been scoffed at and disparaged, to the front ranks of the Hindi press. Post-emergency, when the paper sought to go back to its older style, it was assailed by resistance from the readership, who had got used to the “magazine” style and would not brook any reversion.
The Punjab Kesari experience encapsulates much of the dilemma of the print media today. Success lies in trivialisation. Purveying authentic information and analysis is commercially hazardous. It may win a readership, but this audience cannot be sustained without the advertisers’ support. And with the media competing frenetically in the two decades since Bhopal for a share in the rather moderate expansion of corporate advertising expenditure, authenticity in information dissemination may well be the first casualty.
The media scene over the last two decades also reflects the rise of new classes to positions of influence. Often engaged in intense political contention at the local level, these classes speak for and of themselves through the regional media. Hindi dailies like Dainik Bhaskar – based incidentally in Bhopal -- and Dainik Jagaran, confined to narrow pockets of influence two decades back, have now become multi-edition newspapers. With growing reach has paradoxically, also come a higher degree of localisation. Always under the shadow of the metropolitan press, the new Hindi newspaper chains have sought to work their way out of the low-level trap of scanty advertising support, by tailoring their content to local needs and aspirations. A newspaper with a strong local focus becomes a natural forum for advertisements of a particular kind: birth-and-death announcements, and matrimony, being typical examples.
With all these transformations in the profile of the Indian media, the key questions that need to be posed in the context of the Bhopal tragedy and its aftermath are various. Among these would be:
Ø How well did the media in the days of December 1984, convey authentic information about the tragedy and ways to mitigate its worst effects?
Ø How did the media represent the tragedy?
Ø Did it succeed in reflecting the perceptions of the sufferers in a manner that would attract the solidarity of the widest possible cross-section of the Indian people?
These questions connect to the role of the media in the portrayal of reality. There is another category of questions that arises from the role of the media as an active agent of advocacy, among them:
Ø Did the media, in the dark days of December 1984, awaken sufficient concern and exert the kind of pressure on the authorities that would have impelled them to launch relief efforts on the scale necessary?
Ø In a longer-term sense, did the media adequately represent the case of the sufferers for compensation and retain its focus on the fundamentals of the case when the judicial system was manifesting unmistakable signs of fatigue and literally wilting under the burden?
These questions are complex and require diligent and detailed consideration, especially since they relate to a milieu that has undergone dramatic changes in the two decades since Bhopal. But it is surely a rather useful starting point, that the Hindi press had carried the only explicit warning recorded – prior to the fact -- of the hazards embodied by the Union Carbide plant in Bhopal. Rajkumar Keswani, correspondent for a Hindi newspaper in Bhopal, had spoken of the “time-bomb” ticking beneath the city and pleaded that it be defused before it claimed a heavy toll in human life. The toxic gas leak of December 3 and its horrendous toll of human life, invested him with the aura of a prophet, though he could not have derived much joy from this rather macabre vindication.
Certain interesting counter-factual questions can be posed in the light of this experience. If the Hindi language press then had the influence it wields today, would the advance warnings about Union Carbide’s Bhopal plant have had any more significant effect? Would matters have been any different if the English language press had taken note of the hazards and chosen to campaign for sufficient safeguards?
Piquant as they are, these questions must remain unanswered. But in the wake of the tragedy, what was evident was a gross lack of public awareness, which in a crucial way reflected on the media’s failure to foreground and adequately address a number of issues. These included the issue of environmental safety in the light of industrial location decisions, public awareness of industrial processes and the hazardous materials involved, and of the precautions customarily taken when regulating human settlements in the vicinity of chemical facilities.
The identity of the lethal gas was the first of the many mysteries that the media confronted. And the chastening fact that appeared before the public was simply that few knew very much about the nature of the hazardous substances that the Bhopal factory handled. Nor was anything known about the various contingencies that communities living in the neighbourhood of the plant needed to be prepared for. The lethal gas phosgene, ill-remembered for its use as a chemical warfare agent in the early years of the 20th century, was known to be involved in the production process. Methyl isocyanate (MIC) was the crucial intermediary stage in the manufacture of pesticides in the Bhopal factory. And in its decomposition, MIC was known to engender a complex mix of gases, including hydrocyanic acid, carbon monoxide and certain oxides of nitrogen.
Which of these was the agent causing the chemical carnage in Bhopal? What possible antidotes were available for the toxic gas? The plain fact was that nothing was known about these in those first fatal hours. The retrospective assignment of duties that were not performed, is clearly, an unfair procedure when assessing the performance of an institution in a crisis situation. The media could not have performed the function of monitoring industrial safety when government-mandated factory inspectors were so conspicuously proving incapable of the task. But obtaining information that is of vital public interest and pressuring authorities to make full disclosures in matters involving the safety of literally thousands of lives, are functions of the media that are not really new in conception.
The function of retrospective assessments is always to prepare for the worst possible future outcomes. And in this regard, it is necessary to ask if a vigilant media could have ensured that the safety systems at the Bhopal plant were not as woefully inadequate as they were, and that even the bare facilities available were not dysfunctional at the critical time. Again, whether the media could have ensured that institutional and public responses would be better programmed for worst-case scenarios, is a question that needs to be addressed. An estimated 85 per cent of those who fell immediate victim to the gas leak, died even before they could reach a medical care facility. This speaks rather poorly of a city’s state of preparedness for a man-made disaster.
It may of course be unfair to blame every gap in public knowledge on the media. But the media undoubtedly is a part of the problem. Brief attention spans have been considerably aggravated in the age of the globalized media and the 24-hour news network. Mass accidents involving huge loss of life attract media attention, often of a lurid and excessive kind, for a few days. A recent example is the school-fire in Kumbakonam district of Tamilnadu, which claimed the lives of over 90 children. The event itself brought back disquieting memories of the 1995 fire in Dabwali in Haryana, when 400 schoolchildren attending a public function were killed as the venue was engulfed in flames. Despite the din of the Kumbakonam disaster in the media, there was little effort to connect the dots and to draw the necessary inferences about the manner in which public authorities have managed to foster an environment and a culture of impunity that encourages crimes of negligence and omission.
An exception perhaps was the 1997 Uphaar cinema fire in Delhi, when the media for once, engaged in sustained coverage to ensure that matters of criminal liability and compensation were not evaded. But this case, involving sufferers from a relatively affluent borough of Delhi city, has not been typical of other crimes of negligence, in which the sufferers are typically the poor and the indigent.
2 The immediate response to tragedy
The media on December 3, 1984, bore little news of the horror that had descended on Bhopal. Occurring during the early hours of the day, the magnitude of the tragedy was conveyed in faint glimmers by the government owned broadcast media through the day. Newspapers only caught up with the disaster with their editions of December 4. The print media had lost valuable time because of their schedules, and the broadcast media was hobbled by their rather constricted rules of engagement with crises situations. Any opportunity that may have existed for the media to play the disaster mitigation function, was effectively lost by this conjunction of factors.
Once the horror dawned, the media proved unable to appreciate its sheer immensity. The reports of December 4 spoke of between 400 and 600 dead. Few indicated that the figure was mounting virtually by the minute. The first images to emerge were of a city and a people forced into mass flight. "It was a pathetic sight to see", observed the December 4 edition of the most prominent local Hindi daily then, Hitavada. "Thousands of men, women and children (were) trekking more than 20 kilometres to find refuge from the poisonous gas". Children were often being left behind in the headlong flight to elusive safety. The prevalent spirit of the devil take the hindmost was not mitigated by constructive public intervention whether from the government or the media. About 200,000 of Bhopal's residents were thought to have fled the city on that first day of the horror.
In a vacuum of public information and with few reliable fallback measures available for an emergency, rumour and word-of-mouth became decisive. The Times of India (Delhi and Mumbai) of December 4 reported that the residents of Professors' Colony, about 8 kilometres from the factory, deserted their homes at around 3 a.m. on the morning of the 3rd. Small groups had reportedly fanned out across the colony, asking residents to clear out without delay. As they joined the fleeing multitudes, few had any idea of which way to head or how far to go for safety. As the gas hung heavy in the air, people fled with their lungs choking for breath and their eyes smarting. Many who were fleeing in search of safe havens, fell by the wayside, either overwhelmed by dizziness or exhaustion, or exposure to the cold.
A further wave of panic spread through the city on December 4, around noon, with suspicions of another serious gas leak going around. The massive exodus, as the Hitavada reported the following day, was like a battle scene. People in their thousands were moving with no clear idea of their destination. An estimated 100,000 people were soon encamped in the villages of Misrod and Mandideep, which in normal circumstances, were homes to no more than a few thousand. There were stories of great fortitude under adversity, of mutual support and sustenance, that were conceivably among the only upbeat notes in those dark times. But these tended to get lost in the overwhelming picture of death and devastation, of suffering and the long-drawn, agonising death throes of the affected people.
The Hamidia hospital in Bhopal, towards which most of the victims had gravitated immediately after the gas leak, presented a picture of gloom amid chaos. The hospital mortuary was littered with bodies. So chaotic was the situation that at one stage, it was difficult to distinguish the dead from those lying outside the hospital in semi-consciousness. N.P. Mishra, dean of a medical college in Bhopal, was quoted giving figures of available medical personnel: 150 medical students and 350 junior doctors were administering the prescribed lines of treatment. About 50,000 people were given first aid (Hitavada, December 5). Later estimates put the number of those who required treatment immediately after the leak, at 200,000, a number that available medical personnel were hopelessly inadequate to handle.
Compounding the severe duress suffered by the medical infrastructure of Bhopal was a virtual breakdown of civic administration. As the local papers reported, trains and buses coming into Bhopal were stopped outside the city on December 3. The media were excoriating in their comments on the civic administration, which at the decisive moment, knew nothing about the chemical emergency it had invited upon itself. Nor it transpired, was it up to the required logistics of transporting communities under threat to safe havens, and moving affected people to medical facilities. Sanitary services were suspended almost overnight, because many of the workers engaged by the municipal administration were afflicted by symptoms of exposure. Bhopal was truly a city besieged from within.
The only system that managed to gear up to meet the extraordinary demands of an extraordinary time, was news dissemination. Absenteeism among the staff manning the telecommunications services increased to about 75 per cent after the tragedy. Operational and maintenance staff had to be called in from outside to keep services ticking. And the demands were enormous. Priority trunk telephone traffic and lightning calls increased in number from 90 to 280 per day. Telegrams booked from Bhopal went up to 9,000 per day. Outgoing trunk traffic increased to 3,500 calls and a large number of international calls were handled. Over a fortnight, according to estimates published in the Hitavada of December 23, nearly 90,755 words for the foreign press and 144,130 words for the Indian press were transmitted.
A reasonable degree of assurance that the chemical threat had been subdued came with "Operation Faith", undertaken by authorised scientific personnel from the Union Government, to neutralise the volumes of lethal agent left in the Union Carbide factory. But the task of extending relief to the sufferers and mitigating the worst effects of exposure remained largely unattended.
Within days, the media were documenting the crass political cronyism and selectivity that had arisen in the distribution of relief. Resentment had begun simmering among the residents of Jayaprakash Nagar, the worst affected locality of Bhopal, right opposite the Union Carbide factory. There was only one fair price shop to handle all supplies in the locality. And queues of up to two kilometres were seen, as anxious residents went about collecting their requirements of food, milk and other essentials. Children too were often pressed into service to claim the entitlements of the gas-affected population, often standing in queues for hours together.
Sources were opaque and the little bits of information that were being put out in the days after Bhopal were murky. Quoting experts in chemical engineering and environmental toxicology, the Indian Express reported on December 6, that the chemical which gassed thousands to death was not methyl isocyanate (MIC) but phosgene. These experts were convinced that damage of the magnitude and type witnessed, could not have been inflicted by MIC. The ambient temperature in Bhopal when the leak occurred was around 14 degrees Celsius. It was extremely unlikely that MIC, which has a vaporizing point of 38 degrees Celsius, could have billowed out of its storage tanks in the pesticides factory under these conditions. Phosgene on the other hand, exists in gaseous state above 9 degrees Celsius, and could have credibly been the agent that caused all the damage. The extensive damage to plants and vegetation in Bhopal was again a characteristic of phosgene exposure, rather than MIC. Phosgene had a recorded history of causing such damage, whereas MIC did not.
The theme was taken up by the Free Press Journal (December 21) which seemed effectively to suggest that the effort to pin the entire damage on MIC was calculated to minimise Union Carbide's criminal liability. Researchers at the Indian Institute of Science, Bangalore, had evidently backed up this claim. The report that MIC tended to decompose into phosgene on atmospheric contact was disingenuous, said the MP Chronicle, and a transparent attempt to minimise culpability on the part of the corporation.
What seemed evident in these reports was an effort by the press to pin the blame on a known substance, rather than explore the mysteries of a new and relatively obscure agent. Phosgene was quickly identified as a chemical warfare agent of many decades vintage. The Times of India, relatively immune to this temptation, reported on the lethal biophysical processes that could be unleashed in individuals exposed to MIC (December 11). But the confusion over the nature of the agent cast its shadow over the medical treatment that was being mustered for the sufferers. It also influenced the media reading of what could have been the cause of the accident. And while the latter aspect may have had value only from the viewpoint of adding to one's retrospective knowledge, the former clearly, had a cost in human lives.
3 Constructing the picture of gross corporate negligence
The media soon enough found sources within the Union Carbide work-force who were willing to yield information on the causes of the accident. Though sporadic and piecemeal, the available data soon enabled a picture of gross corporate neglect to be drawn. One of the gas storage tanks, it began to be learnt, witnessed an uncontrolled build up of pressure. In the normal course, an uncontrolled escape of gas would be channelled through a vent gas scrubber which would neutralise much of its toxicity, following which residual emissions would be burnt in a flare tower. On the fatal day, all these safety features were switched off. By December 8, the Indian Express was reporting that the Bhopal plant lacked many of the early warning systems and safety features that were regarded as mandatory for operations in the U.S. And the Times of India was highlighting the failure of even the rudimentary kinds of safety features that did exist.
The rather dubious safety history of the Bhopal plant was also part of the public record by now. And the Indian Express on December 5 was editorially giving vent to a powerful sense of indignation: "It is outrageous that the earlier mishaps did not alert the company and the state government to ensure that such leakages did not recur. Apprehensions had been expressed, but the government apparently brushed these aside. If so, political culpability must be probed as well".
On December 10, the Indian Express published an analysis by an industrial safety expert, which pointed out that the Bhopal disaster was not an accident. Rather, it arose from deliberate and criminal neglect. Referring to the Union Carbide manager's statement that the mishap was caused by a rapid and unforeseen build up of gas pressure, the expert, Dinesh Mohan commented: "anyone who does any work in the area of safety knows that safety procedures have always to be designed with Murphy's law in mind. If something can go wrong, it will".
Dereliction of duty on a significant scale was revealed by the Indian Express of December 5. The Bhopal plant, it pointed out, was set up in gross contravention of all rules and guidelines governing the sitting of industries that involved hazardous substances. Under guidelines in force, if there is a major settlement within 50 km of the proposed industrial location, the spatial direction of the settlement for at least a decade must be assessed and the industry sited at least 25 km from the projected growth boundary.
These early intimations of liability jointly shared between the corporation and the regulatory authorities was considerably reinforced by a diligent piece of journalistic excavation by the Indian Express. When the matter of chemical hazards was raised in the Madhya Pradesh state assembly in December 1982, it found, the Labour Minister had firmly ruled out any possibility of relocating the Union Carbide plant. The factory was not a "small stone" that could be moved around. Rather, it embodied an investment of no less than Rs 25 crore. There was no danger to the city from the Union Carbide factory, said the minister. Neither would there be one.
The occasion seemed appropriate to recall the many reports that had been filed by Rajkumar Keswani, documenting the major accidents recorded at the Union Carbide factory, which had involved hazardous substances. Preemptively, and rather opportunistically, the state government represented by no less a figure than chief minister Arjun Singh, itself brought out the documentary record as if to make the point that the U.S. corporation had a history of negligence. It did not care to account for its own record of dereliction.
The media did not prove quite so forgetful. The Hindi language press in particular, spoke about how every inquiry into toxic gas incidents at the Bhopal plant had run into a dead-end or been quickly hushed up. The close nexus that had developed between the company management and local political networks also came in for examination. The plush Union Carbide guest-house in the Shamla Hills locality, it was observed, had been put at the disposal of the state's chief minister. Several top leaders of the ruling Congress(I) had in fact, availed of the company's hospitality during their major party conclave in Bhopal in 1983. And the person performing the main liaison function for the company, it was reported, was a near relative of a Congress(I) functionary and former state minister.
Part of the problem, reading between the lines of the media coverage, was perhaps that the regulatory authorities were tempted into complicity by the power of the corporation. The factory union, long neglected by the authorities, gained some voice in the aftermath of the tragedy. The Union Carbide Karmachari Sangh (or, workers’ union) alleged that it had issued several warnings about the lax safety standards within the Bhopal plant on various occasions in the past. But the government and the management, it charged, had been guilty of "total apathy and negligence". Madan Lal Ganji and R.K. Yadav, leaders of the union, charged the regulatory authorities with failing to compel the corporation to implement basic safety precautions.
These developments, reported by the media with fair accuracy and diligence, pointed to a situation of shared culpability. The corporation had set up a factory with few of the required safety features. And the regulatory authorities, despite the backing of the law, had neglected the hard work of ensuring conformity between legal requirements and actual industrial practice. Culpability clearly had to be shared between the two participants in the process. But could a culpable party be representative for the victims?
4 Did the media appreciate the situation of shared culpability?
In the weeks that followed, the Union Government took upon itself the responsibility of representing the victims of the gas disaster. This was a decision that the media did not challenge, since the example set by ambulance-chasing lawyers in the chaotic aftermath of the disaster, held little promise for a fair settlement of the issues of liability and compensation. But the legislation that transferred to the Union Government the entire onus of representation also brought, as an unstated corollary, the responsibility to account for its tacit connivance in unsafe industrial practices, and its acts of negligence in the face of unambiguous warnings of impending danger.
If the media had been true to its function as the "fourth estate", it would have endeavoured to check any backsliding on this score. The pursuit of civil and criminal liability claims against Union Carbide, should have been accompanied by an exercise in accountability by the government on its own regulatory failures. Accountability is rarely engaged in by any institution in the absence of compelling reasons. Where the executive, legislature and judiciary prove unequal to the task, the "fourth estate" has a function to fulfil. How well this role was performed in the context of the subsequent course of litigation and settlement, is an issue that needs to be examined at a later stage in the chronological evolution of the tragedy of Bhopal, which continues to live with us two decades after its opening act.
The challenge before the media was to knit together the sporadic pieces of information that were available, into a coherent and reasonably complete picture, placing the blame where it belonged and demanding accountability from those quarters. It was a task that the media perhaps proved unequal to.
5 The medical and social rehabilitation effort
Early medical efforts remained hobbled by a lack of awareness and a failure to compel full disclosure from the delinquent company. Early on, the MP Chronicle was reporting -- on the strength of expert inputs from ophthalmology experts -- that the risks of permanent vision impairment were negligible. Overall eye problems reported by a number of victims had been examined for the involvement of different parts and the severity of lesions. Effective control, it reported, had been achieved over ocular problems. Moderate to severely affected patients had registered significant improvement within 48 hours.
These improvements though, seemed spontaneous, rather than treatment-induced. Ophthalmology experts quoted by the MP Chronicle were of the opinion that treatment through local application of cortico-steroids needed to be administered only in exceptional cases.
The main syndromes that were in evidence, still defied an appropriate line of treatment. The media highlighted and recorded for posterity the severe debilities suffered by 16-year old Radha, who suffered from such acute breathing problems that she could not walk more than a few steps. Her sister, nine-year old Mangala, was also afflicted by similar symptoms. Both sisters were put on oxygen at one of the city's hospitals while their mother, and another sister, were administered similar treatment elsewhere.
Kusum Bi, 50, a bidi worker by profession, complained of severe paroxysms of coughing that made her stiff with agony. She had not obtained relief of any type from any quarter -- whether medical or financial. Munnalal Srivastava ran an auto-rickshaw and earned a comfortable livelihood until he was exposed to the killer gas. After a week's hospitalisation, he returned to ply his trade, but found that he was no longer able to function at anything like his former efficiency. His breathing and eyesight were severely impaired. For 40-year old Ghasiram, a mason, severe asthmatic attacks made anything like a reasonable livelihood a virtual impossibility after the incident.
Symptomatic treatment was the best that could be administered in the days immediately following the incident. Signs of mitigation were evident in certain cases. But many of these individuals would return to the hospitals with a recurrence of the same symptoms within days. By January 9, 1985, Hitavada was reporting that all the treatment given till then had failed to make a significant difference. Apart from the recurrence of older symptoms like chest and abdominal pain, nausea and severe respiratory impairment, two new symptoms had been reported in the preceding two weeks. Both old and new patients were reporting increased salivation and sternal burning.
Around the end of December, local newspapers had begun speaking of the corrosive health impact of MIC exposure across a wide range of human faculties. Apart from eyesight and breathing, damage to the central nervous system too was suspected in some cases. According to the Hitavada of January 16, 1985, the urine examination of those suffering from MIC exposure revealed certain "frightening results". Detoxified chemicals were coming out of the human body in the form of bidurate crystals. The frequency of these observations had increased since January 1985, according to the newspaper. Of every ten patients, seven to eight were displaying these symptoms.
A pattern of deadly chemical pneumonitis was also in evidence. These patches that had been formed in the lungs, were potentially a source of permanent handicap and early mortality. X-rays also were showing up evidence of severe bronchitis and pulmonary oedema. By mid-January 1985, the local press was reporting that those who suffered the worst of the gas exposure were mainly the poor and indigent, dependent for their livelihood on manual labour. With symptoms of pneumonitis and pulmonary oedema, their capacity to work and earn a living had been severely compromised.
Yet another health problem reported among the affected population was of neuroses and mental disorders, especially among those who suffered through the loss of near relatives. According to the Indian Express (June 3, 1985), investigations by psychiatrists of the King George Medical College in Lucknow, had revealed mental disorders on a fairly wide scale among the affected communities. Out of a total of 855 patients examined at random, 23 per cent were found to be suffering from mental disorders of various kinds. The manifestations were diverse: from a lack of hope in life, to an extreme fear of death, depression and nervousness.
In the midst of this enveloping gloom, an ophthalmology expert was quoted by the Free Press Journal of January 9, essentially confirming that vision impairment from MIC exposure would be a short-run problem with few long-term consequences. In a rare glimmer of clinical transparency for those days, it was explained that MIC being acidic in nature, induced the formation of a natural protective film over the cornea. Had the gas been alkaline, the damage to vision would have been really severe.
The good news though was severely at a premium. The media was soon reporting that symptoms of cancer were suspected in some cases. The Indian Express of June 3, 1985 reported that the British colonial army in its operations against communist guerillas in Malaysia in the 1950s, had used chemical weapons derived from MIC. Certain communities in Malaysia were still suffering the after-effects in terms of cancer, skin disease and congenital deformities.
With these multifarious symptoms being observed, the medical benchmarks for treatment remained indeterminate. Doctors were dealing with mass exposure to a lethal agent for the first time, with little knowledge of what to look for, and no clue about feasible lines of treatment. Treatment of the symptoms afforded temporary recourse, but was soon shown up to be of limited utility, as patients kept returning with more severe recurrence of identical symptoms. The media was aware of the dilemma. The Free Press Journal (February 17, 1985), placed the blame squarely on the offending corporation. Union Carbide, it alleged, 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 simply not available to Indian medical authorities.
Dr V. Ramalingaswami, Director-General of the Indian Council of Medical Research, was quoted by the same paper (January 13, 1985), saying that very little was known of the hazards of exposure to MIC. The main challenge, he said, was to improve the oxygenation of the blood so that the various affected tissues in the human body received adequate amounts of oxygen.
Certain unconscionable restraints on the right to know of the affected public were imposed around this time, which the media vigorously protested. The Hitavada (December 25) reported that a blanket ban had been placed on doctors giving any information about autopsy findings and the lines of treatment being given to victims. It was also reported by the same newspaper (January 25, 1985) that examinations of blood, urine and stool were being conducted in secrecy. The attitude, the paper commented, was mystifying, and it only heightened public concern about the failure to restore a measure of environmental safety in the affected areas. Hitavada also deplored the failure to make post-mortem findings public. The Central Bureau of Investigation (CBI) -- a police agency that had been entrusted with the task of uncovering the sordid story of Bhopal -- had been reserved exclusive access to these reports. It was as if the criminal prosecution of the case was the sole priority and the well-being of the sufferers merited no attention.
6 Stories of collusion
The Indian Express of March 27, 1985, ran a story accusing sections of the bureaucracy of collusion in Union Carbide's plans of concealing the true magnitude of the damage. Medical treatment of the affected remained haphazard and disorganised, it charged. 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 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.
These fragments of information being put out through the media may have been of practical benefit if they had percolated through to the affected population, and built in them an awareness of what lines of treatment they could with justice, demand from the medical authorities. The Times of India reported (May 6, 1985) that ICMR studies indicated a marked alteration in the haemoglobin molecules of those exposed to MIC. The oxygen-carrying capacity of haemoglobin had been reduced and the capacity to clear carbon dioxide wastes from tissues impaired. These were significant findings as the information available till then on the delayed and long-term effects of MIC on blood toxicity, was virtually negligible.
At roughly the same time, on ICMR's recommendations, the Union Government advised the authorities in Bhopal to administer thiosulphate to the MIC affected population. This long overdue recognition of the character of the poison that had seeped through Bhopal's air, was reported in all sections of the media. The Hitavada later pointed out that the Madhya Pradesh government had as early as December 1984, actively suppressed the findings of the Central Pollution Control Board, which had reported significant concentrations of cyanide in the air around the Union Carbide plant in the immediate wake of the accident. Public knowledge of these facts would have generated pressure for following the thiosulphate line of treatment, which conceivably could have saved many lives, the paper reported (June 7, 1985).
The media in this period followed a course of reporting as accurately as possible, the fragmentary information that was being made available. There was as yet no effort at advocacy. Awareness within the community of sufferers was by now beginning to build, and they were sporadically beginning to organise to demand better consideration. If the media had managed to take up their cause not in a passive reportorial sense but in an active advocacy mode, the case for transparency and heightened expenditure in medical rehabilitation may well have been advanced. Such a role on the part of the media, though sporadically in evidence, may not have had a significant impact.
The sleazy side of the relief effort was by now coming in for attention. The local media was by January 1985, reporting that senior doctors had begun to avoid treating the MIC-afflicted who tended in the main, to be poor and needy. It did not escape comment, that these rather successful medical practitioners were averse to sacrificing time that could otherwise have been devoted to their lucrative private practice. The junior doctors, who found themselves bearing the entire burden after a while, were even more clueless in an environment that was not notable for its transparency.
A patronising, almost insulting attitude, by certain doctors towards the gas exposed was also recorded by the media. Abdul Latif, a fruit vendor who had suffered MIC exposure was one among many individuals to suffer harsh treatment. Doctors at Bhopal's Hamidia hospital refused to believe his story or to take his description of symptoms seriously. At a certain point, he was told that it did not matter whether he suffered or whether he even lived. An Editorial in the Hitavada (May 10, 1985) rebuked the medical community for its attitude. Senior doctors, it commented, seemed more interested in downplaying the long-term health effects of MIC exposure. No list of the gas afflicted had been drawn up and no register maintained of sufferers who had undergone treatment. The controversy over the appropriate line of treatment had gone on long enough, it commented. It was about time that the directive of the ICMR -- which was not loosely arrived at, but based rather, on rigorous survey findings -- was scrupulously followed.
7 Media advocacy and activism
In circumstances that cried out for it, could the media have moved from this form of editorial advocacy towards a more activist role? With government run hospitals, dispensaries and polyclinics proving unequal to the task, an activist group in May forced itself into a patch of land in the Union Carbide premises. Voluntary participation came forth, from six doctors from Bombay and Calcutta, and a "peoples' clinic" was soon functioning on the premises. In the ten days following June 3, 1985, the new initiative in medical care administered 600 thiosulphate injections to the gas exposed. Of the 100 patients to be first given the course of six injections, at least half reported remarkable symptomatic relief from their most common afflictions. The Times of India of June 15, 1985, reported this remarkable citizens' initiative, indicating effectively that innovative thinking and techniques were necessary in a milieu of official apathy and serious public concern.
Obviously though, the frontal challenge to the authority of the State could not be tolerated for long. The doctors of the peoples' clinic were all arrested on the night of June 25, 1985, and the land handed back to Union Carbide. The Peoples' Health Committee which had set up the clinic, condemned the crackdown on a citizens' initiative and alleged that the doctors had been manhandled by the police (The Indian Express, Delhi, June 27, 1985).
8 Falling in line behind the government
It is possible to place in context the rather divided attitude of the media towards the government authorities in the aftermath of Bhopal. It was recognised that litigation in the case, just beginning, would pose some of the most difficult questions -- of corporate liability and inter-jurisdictional transfer of judicial principles and procedures -- ever confronted. Several American attorneys had descended on Bhopal in the immediate aftermath of the accident, each making extravagant promises of obtaining for the victims, unheard of damages. The figures that were being put out were astronomical. The American lawyer Melvin Belli was among the first off the mark, filing suit in the U.S. district court in Charleston, on behalf of two Bhopal residents who had lost near kin in the disaster.
Belli's suit sought the inclusion of all Bhopal victims as plaintiffs and claimed $5 billion in compensatory and $10 billion in punitive damages. It also sought a preliminary injunction prohibiting Union Carbide from offering any compensation to the victims "without making a full disclosure of (their) rights". As the Times of India commented then (December 9, 1984), the suit was the biggest liability claim on any manufacturer, about 1% of India's estimated gross domestic product, and about 5% of the estimated $300 billion paid as non-life premia by all the insured all over the world. The ambulance-chasing lawyers argued that Charleston was the appropriate forum to decide the case, since Union Carbide's technical centre in the city was the source for the basic design and maintenance and construction know-how of the Bhopal plant.
Within days of this first suit, two others were filed in other courts in the U.S., for damages of equally gargantuan proportions. Meanwhile, from another direction and representing a rather different set of interests, a Union Carbide shareholder filed suit demanding compensation for the loss of share values. Union Carbide, he charged, had failed to alert stockholders about the hazards of its operations in Bhopal. Their share portfolios had depreciated considerably after the accident and compensation claims could drive the company to bankruptcy and completely erode the value of the stock they held.
The Madhya Pradesh state government was by this time, initiating its own inquiries about filing for damages. An American attorney who had distinguished himself in the "Agent Orange" class action suit on behalf of Vietnam war veterans, was reportedly travelling to Bhopal for consultations on this issue. An Indian lawyer who was asked for his opinion on the matter, identified the crux of the matter as the doctrine of strict liability, which had been accepted as part of U.S. jurisprudence. The fact that damage had been done and injury caused, was under this principle, proof of negligence. This doctrine had not been established in Indian law, he said, and the onus of proving negligence still would lie upon the plaintiffs. This would in all likelihood, produce seriously diluted standards of corporate accountability.
Meanwhile, a legal expert writing in the Indian Express of December 24, 1984, argued that the Bhopal tragedy would not have occurred if the law had been enforced. There were sufficient legal provisions in the Air Pollution (Prevention and Control) Act of 1981 and the Insecticides Act of 1968 to compel Union Carbide to adopt adequate safety standards. If the company proved reluctant to do what was required of it, the government could initiate its own measures and recover costs from the company. The government could also prosecute the company and its directors under various provisions of the said acts.
Further, the legal expert commented, government officials who were responsible for ensuring compliance with these provisions, and allowed flagrant breaches due to inertia, inefficiency or worse, needed to be punished. With all this, it would not be appropriate for the Madhya Pradesh state government to take up litigation. Rather, the victims and their relatives should do so. Though the commentator was inclined to accord primacy to the Indian judiciary as forum, he was willing to concede that if the case lent itself to "class action" in the U.S. courts, that would perhaps be the best option.
The Indian media meanwhile, watched the mad scramble of American lawyers and the utter confusion prevailing on the most suitable legal avenues open to the victims, with growing concern. In its editorial of December 26, the Indian Express called on the government of India to end its deafening silence and do what it needed to. The confusion and uncertainty created by the silence of the Union Government was rather crudely highlighted in the Bhopal Municipal Corporation's decision to sign on an American lawyer. The state and municipal authorities, in the vacuum caused by central inaction, were becoming accomplices in the commercialisation of the tragedy.
India was then in general election mode. When the new government, soon after assuming office, enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act in March 1985, there was little dissent in the media. After the unedifying procession of ambulance-chasing lawyers through Bhopal, it seemed that only the Union Government could promise salvation. The firm hand of the Union Government, it seemed was indispensable in the task of rendering some order to the chaos that followed the accident. Article 3 of the Bhopal Gas Leak Disaster act reserved for the Indian government, the sole right to petition for compensation for the victims and for punitive damages against the company. The government had assumed this power 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 that the State should assume this power since the litigation was expected to be complex, involving multiple jurisdictions and conflicting judicial procedures and principles. For those with few assured sources of livelihood and sustenance, following up a case to a resolution on merits is never a feasible strategy. Fatigue would set in, compelling a settlement on less than equitable terms. An individual litigant suffers all these disabilities, but the State as litigant is immune to fatigue, and can pursue any case to its logical and juridically equitable ends, provided it has the incentive to do so.
10 Missing the imperative of Government accountability
The media accepted this logic as far as it went. But it did not quite focus on a derived proposition: 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 next four years though, the legal arguments over Bhopal, which the media tracked diligently, revolved around the issue of most appropriate forum, and the contingent, interim damages that Union Carbide was liable to bear. On a parallel track, the media focused on the situation in Bhopal, of how 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. No media organisations made the logical inference that as parens patriae, the State also bore the moral obligation for the material sustenance of the people it was representing in litigation.
Anybody who had suffered from the gas leak could have argued that his rights as a sovereign individual had been abridged by the State, when it took on itself the exclusive right to petition for compensation and damages. This sufferer, he or she, could have insisted that he or she was at liberty to determine the terms on which he or she should settle with Union Carbide. And in any judicial system that revolves around the central fulcrum of individual liberties, this plea would have been successful.
An interesting counter-factual could be posed now: would the adoption of an adversarial posture by the media and a demand for the strict observance of the doctrine of parens patriae, have altered the course that the Central government took, of equivocation, collusion and final capitulation? Or were the constraints so enormous that no material difference would have been made to the final outcome of the case? At a distance of two decades, these questions can only be posed rhetorically. There is no way to answer them. But perhaps there is something to be learnt from them for future eventualities of disasters involving thousands.
In the days after the enactment of the Bhopal Gas Leak Disaster act, the focus of litigation was on the issue of forum. The Indian government filed a suit in the U.S. against Union Carbide. The company in turn moved to have the suit dismissed since the appropriate forum to hear the case was India. The Government argued that the judicial system in India was not equipped -- by accepted principles and practices -- to handle a case of the magnitude of Bhopal. Armed with affidavits from a number of eminent Indian jurists, Union Carbide argued the opposite. Thus, as legal scholar Upendra Baxi observed, India – “a sovereign state proud of its juristic and political traditions” -- critiqued its own legal system in a “misguided exuberance of litigative strategy”. And an American multinational corporation, accused of negligence and worse in the worst industrial disaster in human history, was "accorded the historic privilege to celebrate the Indian legal system".
11 The debate on strategies of litigation
The media in approaching the issue of forum, showed an uneasy awareness of the delicacies involved. The Times of India carried out an extended debate on this issue, reflecting every shade of opinion. Nani Palkhivala, the prominent lawyer, kicked off matters with an article (January 15, 1986) deprecating the "self-condemnation" inherent in the Indian Government's stand on the forum issue. It was an unacceptable price that the government had to pay for its plea to have the cases tried in the U.S. Law in the U.S. was well established, as a result of numerous decisions by the higher judiciary. And the legal fraternity in that country had a vested interest in having the case heard there, because they stood to gain a share in the damages. While their motives in running down the capabilities of the Indian judicial system were perfectly transparent, it was regrettable that the Indian government had joined them in this endeavour.
Apprehensions of inordinate delay in settling the case were in Palkhivala's estimation, perfectly well founded. But in the specific case of Bhopal, there was evidence that the Government intended to proceed with some sense of urgency. The quick enactment of the Bhopal Gas Leak Disaster Act in 1985 was one measure of this intent. And the judiciary's preparedness for the case was best highlighted by its enunciation -- within two days of a toxic leak from a fertiliser plant in the environs of Delhi -- of the doctrine of "strict liability".
Journalist Praful Bidwai wrote a series of articles questioning Palkhivala's reasoning (The Times of India, January 20 to 24, 1986). He was himself unconvinced about the merits of the Indian government's legal reasoning. This rather "impolitic" stand though, needed to be balanced against some of the large issues of "national and international import" raised in the Indian government's plaint. First, Palkhivala's excessive emphasis on compensation led him to evade the more important issue of Union Carbide's culpability. The jurisdictional authority that the Indian judicial system had over Union Carbide -- as against its Indian subsidiary -- was not clear. The parent multinational corporation was responsible for the conception, design and installation of the Bhopal plant. It retained a close supervisory interest over operational and maintenance matters too. The statement by the corporation, that it would obey the verdict of the Indian judiciary -- if it was in accordance with "due process of law" -- proved that it had little faith in the system. Indeed, it proved that the company's purported belief in the Indian judicial system, was only an effort to evade accountability.
The foundations of legal doctrine too were much better developed in the U.S., argued Bidwai. The doctrine of corporate criminal responsibility was accepted in the U.S., but non-existent in India. It would be considerably easier in the U.S. to pierce the corporate veil in respect of torts. As for proof of negligence, the doctrine of res ipsa loquitur (the thing or transaction speaks for itself) was well established in the U.S., though in India, the position remained ambiguous. Besides, the U.S. law courts had created new procedural devices designed to cut delays, avoid duplication and repetition of litigation and to facilitate the classification of legal principles. Class action suits, for example, brought a large number of potential litigants under one legal head. Indian civil law, on the other hand, provided no guarantee that fresh lawsuits would not be initiated on the same cause of action in some other courts.
Several legal luminaries joined in the debate in the media. Some like Atul Setalvad, Ashok Desai and S.B. Jaisinghani, argued the case for the U.S. courts as the appropriate forum. A notable exception was Indira Jaising who insisted that the Indian judiciary should be afforded the opportunity to develop the law of corporate criminal liability, both national and multinational.
The forum issue was decided against India in May 1986. The media in its response showed much of its ambivalence about the merits of the Indian argument. There was sufficient force in the argument that Indian jurisprudence needed to be geared up to handle extraordinary cases like Bhopal. And the media for this reason were relatively restrained in their reaction.
The first intimations of an alternate strategy of dispute settlement meanwhile had emerged in March 1986, when an attorney claiming to represent a group of Bhopal victims proposed a final settlement of $ 350 million before the U.S. District Court of Judge John Keenan. The sum was paltry both in comparison to the Indian government's demand of $ 1 billion, and in relation to the damages that had been awarded by U.S. courts in similar class action suits in the past. With obvious intent to test public sentiment, details of the settlement were leaked to the media, despite a strong injunction by Judge Keenan.
12 Media urges the Government to stand firm
The initial ambiguity of the Indian government drew much strong comment by the media. The Times of India ran an analytical piece deploring the weak-kneed approach that the government had adopted towards the litigation (March 25, 1986). The media leak, it commented, was apparently calculated to serve several purposes: to suggest that Union Carbide was serious about an out-of-court settlement while the Indian government was not; to create an effective rift between lawyers representing private individuals and those representing the government; and to trap the Indian side into a negotiating framework that would let Union Carbide off the hook and lower the compensation amount.
The Indian Express (March 25, 1986) ran an editorial comparing the proposed settlement unfavourably with other class action suits decided by U.S. courts. The proposed settlement, if accepted, would set a precedent in international law, it commented, and would determine the responsibility of multinationals towards citizens everywhere, most so in the Third World, where they were keen to invest, and regulatory and supervisory structures were ill developed.
The business papers tended to take equally strong positions. Business Standard commented editorially, that the rumoured settlement was an obvious effort by the U.S. company to force the issue and get away with a derisory amount. The purpose of leaking the news was to cause some embarrassment to the Indian Government, which was already attracting much criticism for having delayed its petition for compensation. Union Carbide's strategy though, had proved counter-productive. Its calculated news-leak had engendered a strong reaction in the Indian parliament and seemingly firmed up the government's resolve not to accept any settlement that was less than adequate to redress the enormous human suffering in Bhopal.
Similarly, the Economic Times commented editorially, that the offer was "misleading". Union Carbide, it commented, was indulging in self-deception, if it believed that the Indian Government would accept the offer after making a demand of $1 billion. This particular editorialist would have been shocked no end by the subsequent course of the litigation and in particular by the February 14, 1989 settlement, which was pronounced "full and final" by the Indian Supreme Court.
The fatal flaws in the Indian litigative posture were foreseen by an activist group that emerged in Bhopal shortly after the disaster. Bhopal's Hindi newspaper, Dainik Bhaskar, reported on March 28, 1986, that the Zehreeli Gas Kand Sangharsh Morcha had condemned the proposals arrived at under the gaze of Judge Keenan. The judge, said a spokesman for the group, was failing singularly to fulfil his assigned role, and seemingly opting to play the part of the broker. At the same time, the Indian side had been curiously unable to present the full dimensions of its case. Reminding his audience that the official response to the disaster -- in terms of transparency, sincerity and public accountability -- had been woefully inadequate, the spokesman for the activist group identified what he considered the essence of the problem: with all the statistics of suffering and the medical records they had, the governments at the state and central levels were yet to prepare an authoritative statement that would represent the suffering of the people of Bhopal and put forward a credible case for compensation.
13 But fails to challenge the cult of secrecy
Implicated in this was the cult of secrecy that had been imposed on Bhopal in the days following the tragedy, with the identity of the lethal agent causing the damage, the number of casualties, the symptoms they had suffered, the appropriate antidotes, all being veiled from rigorous public scrutiny. It was a veil that the media strove to penetrate, though its efforts were perhaps compromised by the greater and more pervasive cult of obedience to the State. In its assumed role as parens patriae, the State was almost self-evidently, entitled to absolute loyalty. Anything less would diminish its credibility in international judicial forums and impair its ability to obtain adequate recompense for the sufferers of Bhopal. The model of parenthood chosen was clearly the autocratic one, rather than one more attuned to a democratic ethos. A parent comfortable in a democratic ambience would have encouraged diverse voices, been tolerant of criticism, and sought to achieve the levels of care and attention expected of it. It would have woken up sooner rather than later, to its responsibility as parent to support and sustain the affected population through the lengthy litigation against an American multinational corporation.
In the months following the infamous settlement between Union Carbide and the Indian Government of February 14, 1989, which came under the stamp of the Supreme Court's approval, these responsibilities of the State became part of the public common-sense. In December 1989, the Supreme Court delivered its judgment on a petition demanding that the Bhopal Gas Leak Disaster Act be struck down as unconstitutional. The Supreme Court heard a wide range of arguments in favour of the petition, but it was not inclined to go quite as far as acceding to it. The argument that the Government was not a credible representative of the victims, since as the industrial regulatory authority it had to accept partial responsibility for the accident was, as Chief Justice Savyasachi Mukharji put it -- on behalf of himself and two other judges -- a "difficult and different question". He then gave the formulation that the "doctrine of necessity would override the possible violation of the principle of natural justice that no man should be judge in his own case". The Government may be liable to disqualification as a representative of the victims "on grounds of bias or interest in the matter". But it should still be accorded the status of parens patriae on the grounds of necessity, that is, on the grounds that "there is no other person who is competent or authorised" to represent the victims of Bhopal in a complex and long-drawn litigation.
Upholding the validity of the Act, the Court ruled by a majority, that the "act should be construed as creating an obligation on the Central Government to pay interim relief as the Act deprives the victims of normal and immediate right of obtaining compensation from the (sic) Union Carbide". This, ruled Chief Justice Mukharji, was a "major inarticulate premise" of the Act. In a part dissent, a minority of two judges on the bench ruled that interim relief would be an obligation that the State would have to bear as part of its character as a welfare State. It was not necessary to read it as a responsibility flowing from its assumed role as parens patriae in the Bhopal disaster.
If these seemingly axiomatic points of law and public morality had been discussed and debated in the media prior to the catastrophic settlement of February 14, 1989, it is tempting to believe, the course of the litigation may have been somewhat different. It is appropriate to recall in this connection, that the arguments that led to the infamous settlement pertained to interim relief and the obligations placed on the defendant to meet the attendant costs. It was a course of events that the media reported with great accuracy, though again, without connecting all the dots. In an ambience of loyalty to the State, few chose to tell the Indian government that there would be little amiss in Carbide arguing endlessly about its liability to bear the financial burden of interim relief. That was in the nature of things. But there was little extenuation for the Government failing to meet its obligations on this score.
The course of the litigation as reported on the media told a disturbing story of abdication of responsibility. Once the issue of forum was settled, the prosecution began in the Bhopal District and Sessions Court with Judge M.W. Deo presiding. Among the judge's earliest proposals was that in the larger interests of the victims, the plaintiff and the defendant agree between themselves on a mechanism for paying out interim relief. The end of the case was not in sight, he said, and the cause of the victims should not be lost sight of. Union Carbide put forward a demand that the government should submit all details of the claims put forward by the victims. The government informed the court that the information would be furnished within six months (The Times of India, July 22, 1987).
14 And fails to sound the alarm at the first signs of parental abandonment
This was clearly a first sign of parental abandonment of the cause of the gas victims. With well over two years having lapsed since the disaster, there were few reasonable grounds on which the government could ask for another six months to submit the basis on which it had arrived at its aggregate claim for compensation and damages. This failure was to cast a long shadow over the litigation as it proceeded.
During hearings in Bhopal, Union Carbide offered to deposit Rs 6 crore (60 million) with the district court for immediate rehabilitation of the gas victims on humanitarian grounds. This sum included about Rs 4 crore given by the company to the Red Cross in the U.S., which had been lying unspent. The attorney general of India described the amount as utterly inadequate (The Times of India, August 17, 1987). In a later hearing, the government counsel described it as a mockery of aid, and condemned the offer as a "mere pretence" devoid of any meaningful intent (Dainik Bhaskar, August 28, 1987).
The Indian government meanwhile, conceded in the Bhopal court that it was negotiating a possible settlement with Union Carbide, and that October 30 could be a decisive date. Media reports indicated that the government was demanding $ 615 million, while Carbide had raised its offer to $ 300 million. If achieved, the settlement would be at some intermediate figure, and would represent a triumph of the "realists", commented sections of the media. These supposed pragmatists included the Union Carbide corporate management and a number of Indian lawyers and industrialists (The Times of India, September 19, 1987).
Clearly, the media by now had begun to lose its focus on the gas victims. Their number, their suffering, the loss of their prospects for a normal life, the possible damage to future generations -- all these had become subordinate to the grand bargaining process which was now moving through a process of manoeuvre, towards the golden mean between two wildly divergent estimates of damage.
Voices of dissent were heard then and widely articulated through the media. The Bhopal Group for Information and Action strongly condemned the reported move for an out-of-court settlement at an outrageously low amount. They suspected that the amount would be in the vicinity of Rs 550 crore and also feared that criminal charges against the corporation might be dropped in the event of a settlement out of court (Free Press Journal, October 11, 1987). The International Coalition for Justice in Bhopal (ICJB), a collective formed by many organisations supporting the gas victims, also warned against any quick and easy settlement out of court. Responding to media reports, the ICJB described the proposed settlement which would be within the $ 300 million to $ 615 million range, as a travesty of justice (The Times of India, October 24, 1987).
A survey by Dainik Bhaskar published on October 30, showed that a majority of the gas victims were opposed to the settlement whose broad contours had been hinted at in media reports. The issues related as much to the adequacy of the amount, as to broader issues. Respondents among the gas victims were particularly concerned that Union Carbide should not be allowed to evade criminal liability. In such an eventuality, multinational corporations operating elsewhere in the Third World would be emboldened to persist with similar, sloppy safety standards.
When the October 30 deadline passed, Judge Deo granted the two parties another 18 days to arrive at a settlement. Earlier, the attorney general of India and the senior counsel representing Union Carbide, had indicated that despite having missed one deadline, they were not entirely without hope that a mutually acceptable deal could be arrived at. However, it was soon evident that a stalemate had been reached, with the corporation bearing the larger part of the blame (Dainik Bhaskar, October 31 and November 2, 1987).
15 Resignation and belligerence among victim groups
The mood in the shantytowns of Bhopal, as recorded by the media, was a mixture of resignation and belligerence (The Times of India, November 6, 1987). Those who retained the strength and the focus to articulate their anger took the belligerent note. Sunil Kumar, a 14-year old boy was quoted saying: "Money will come and go, but this is our opportunity to hang Union Carbide". Mohammad Ismail, 50, said similarly, that the government should not be pressured into taking the path of compromise. For those debilitated by gas exposure and by subsequent neglect, resignation was the dominant mood. Hasina and Vijay for example, saw little to choose between a settlement and a long-drawn case. A majority of the gas victims though, was convinced that priority needed to be given to fixing criminal liability, before compensation was discussed.
Political parties were by now giving vent to their reservations over the prospect of a settlement out of court. The Lok Sabha debated the matter and most participants were convinced that such an outcome would weaken India's case in establishing multinational corporations' legal liability on safety issues (Dainik Bhaskar, November 18, 1987).
The Times of India ran two sharp commentaries deprecating the move for a settlement. It was inexplicable why the Indian government chose this moment to negotiate, wrote Smita Gupta (November 13, 1987). With all preliminaries and procedural issues dealt with, the case in Bhopal was ready for trial, she said. A special judge had been nominated to preside over the trial and the Central Bureau of Investigation -- the Indian government's special police arm -- had completed its inquiries and was ready to file a charge-sheet fixing criminal liability. The case against Union Carbide had major political implications for the development of safety regulations and compensation norms in India and elsewhere. It would have a bearing on the conduct of multinational corporations in other parts of the Third World. If Union Carbide was allowed to get away with a quick and easy settlement, wrote Gupta, it would indirectly be legitimising wanton destruction of human life and health by multinational corporations.
Praful Bidwai meanwhile commented (The Times of India, November 11, 1987) that the Indian government's pursuit of a settlement in the region of $500 million represented a political retreat from an earlier commitment to take on the corporation. It was bound to undermine the victims' interests. And even from a pragmatist point of view, the proposed settlement failed to make the grade.
With the expiry of the 18-day period, both parties reported to Judge Deo that they had failed to reach agreement. The Judge then announced that he would go ahead with proceedings in the case, beginning with a determination of interim relief. Fali Nariman, senior counsel for Union Carbide challenged this presumed power of the Bhopal special judge. The Bhopal Act passed by Parliament, he said, made no provision for interim relief (The Times of India, December 8, 1987).
On December 17, 1987, the Judge Deo directed Union Carbide to pay Rs 350 crore as substantial interim compensation and welfare measures for the gas victims. He ordered that the amount should be deposited within two months in his court. It would be placed at the disposal of the commissioner for disbursal among the gas victims under the provisions of the Bhopal Act.
Union Carbide insisted that the order amounted to the award of damages without trial. The evidence of liability was in dispute and the accident was the result of sabotage by a disgruntled employee. On December 21 though, Judge Deo rejected Union Carbide's request for six weeks to study the judgment. Time could not be granted, he said, in view of the continuing difficulties that the victims faced.
Commenting on Judge Deo's order, The Times of India observed (December 31, 1987) that its greatest merit was that it redressed a basic inequality between the claimants -- most of them poor and powerless and incapable of sustaining themselves through the litigation -- and the company, a big multinational with enormous resources at its command.
The Madhya Pradesh High Court gave its ruling on Union Carbide's appeal on April 4, 1988. Justice S.K. Seth upheld the interim relief order of the Bhopal court, but reclassified it as "interim damages" and reduced the quantum to Rs 250 crore. The ruling, commented the M.P. Chronicle, was a landmark because of the clarity with which it cut a path through the maze into which the case had entered. Writing in The Times of India (April 7, 1988), the legal scholar Upendra Baxi urged Union Carbide to honour the court's ruling, which he described as a model of conscientious craftsmanship. Justice Seth had provided adequate time and full opportunity to the parties to address the court at length on all issues, including maintainability of the suit, the principles governing tort liability and the provision of interim relief for compensation.
The corporation however, went in appeal to the Supreme Court, which began hearing the case in November 1988.
Arguments over the sustainability of interim relief and the liability that Union Carbide bore in the absence of a full consideration of the evidence, rapidly gave way to another effort at a negotiated settlement. This time though, the two parties were absolved from responsibility by the Supreme Court, which put the proposed settlement to them as its own, enjoying its full imprimatur of approval. Both sides accepted with alacrity. Thus was the February 14, 1989 judgment widely characterised by the media as inadequate, unfair and collusive.
16 A chorus of criticism in the media
In the days that followed, there were few media outlets that had anything positive to say about the settlement. The Hindu commented editorially, that the government would be less vulnerable to criticism since the Supreme Court had suggested the terms of the settlement, and both parties had merely given their consent. Other newspapers thought that this was precisely the most damning feature of the deal. If the Indian government and Union Carbide needed to work out their mutual terms, they could have done so without also implicating the highest court in the land in a shameful and unprincipled compromise. About the only newspaper that had a word in extenuation for the government was the Hindustan Times, which wrote (February 16, 1989) that the settlement reflected a tacit admission on the part of the Indian government that it was futile to take on multinationals even on home turf. The corporation had played its legal cards so well that the Indian lawyers were no match.
Above all else, the Bhopal settlement of February 1989 was an acute institutional crisis for Indian democracy, with the traditional separation of judiciary and executive being breached quite conspicuously, and one of the pillars of the constitutional order putting its credibility on the line to retrieve what seemed a rather hopeless situation for the other. The pivotal question for the media in this context is whether it was an observer of the crisis, standing outside and recording its course? Or was it also implicated in it as an unwitting participant? Would a more active orientation towards representing the Bhopal victims in the court of public opinion, have altered the course of event? Did the media do its bit in giving a voice to the voiceless, in documenting the manifest ineptitude of the first official responses to the tragedy and the equivocation that was always inherent in the pursuit of the legal case? These are questions that cannot be answered counter-factually. They can only be tested in future contingencies, which will hopefully never again confront it with a tragedy of such magnitude. But certainly, the media's role in lesser disasters since Bhopal has not been particularly distinguished, nor has it shown the retrospective wisdom that should have dawned with that industrial catastrophe.
17 The winding down of interest and attention
The Supreme Court began to actively consider a review petition on the final settlement only after a change of regime in New Delhi. The Congress(I) government which had been in power when the deal was worked out, was ousted in the November 1989 General Elections and replaced by a coalition of parties collectively called the National Front. Chief Justice Savyasachi Mukharji died shortly after hearings commenced and a new bench under his successor, Ranganath Mishra, began hearing the petition all over again. In October 1991, the court made one more effort at making the best of the bad situation it had created. It upheld the $470 million compensation package arrived at in February 1989, and revived criminal cases against Union Carbide, its subsidiaries and personnel. And then, in an order that was likely to create enormous conflict of interest possibilities, it made the Indian government -- sole representative in litigation of the gas victims -- liable for meeting any inadequacies in the compensation award. Union Carbide was also asked to construct a hospital for the long-term treatment of the victims.
In a dissenting minority opinion, Justice A.M. Ahmadi pointed out that this essentially was a compromise solution that had little basis in morality or law: unless the Government itself was held liable, there was no reason why it should be directed to meet any inadequacies in the compensation package.
The media received the verdict with mixed sentiments. But the legal process was beginning all over again, with criminal prosecutions to be launched by the chief judicial magistrate in Bhopal. Expectedly, Union Carbide, its subsidiary for the Asian region and its chairman at the time of the Bhopal accident, failed to respond to the November 1991 summons issued by the Bhopal magistrate. Following another such default, all three were declared absconders whose property was liable to be attached. Clearly by this time, fatigue was beginning to catch up with the Indian media. Seven years since the accident, the case was just beginning and already running into a thicket of legal complications with national and international ramifications.
It was a curiosity of the proceedings then beginning that the Supreme Court was following its own logic and legal course, proving much as it had in 1989, completely oblivious to what had been determined to be right and wrong by the subordinate judiciary. Records show that despite being declared an absconder, Union Carbide was represented in Supreme Court hearings in December 1993, at which it brought on record a proposal to finance the construction of a hospital through the sale of the corporation's assets in India. Though these assets had been ordered attached by the Bhopal magistrate, the Supreme Court decreed a series of dilutions, finally allowing a trust floated by the principal accused to take virtually complete control over the attached assets. The date of that fateful order: February 14, 1997.
This was accompanied by the mitigation of the criminal charges against nine of the twelve accused who had responded to judicial summons from the Bhopal magistrate. Effectively, the criminal prosecution was dead. But the media was by now in a state of distraction, unable or disinclined to take the broader picture into view. The government and the judiciary had been keen to achieve closure on the Bhopal tragedy, even at the cost of betraying the needs of justice. Their stratagem certainly would not have succeeded without the tacit connivance of the media.
18 By way of conclusion
We began with posing certain key questions in the context of the Bhopal tragedy. These related to the authenticity of the information conveyed by the media in the days of December 1984, when lives were clearly at stake; the representation of the tragedy by the media so that the country was aware of its enormity and felt impelled to join in the cause of seeking restitution for the victims; and to the active role of advocacy, if any, played by the media for a victim population that was essentially disenfranchised in the social and economic sense. In a longer-term sense, we asked, did the media adequately represent the case of the sufferers for compensation and retain its focus on the fundamentals of the case when the judicial system was manifesting unmistakable signs of fatigue and literally wilting under the burden?
Not every gap in public knowledge can be blamed on the media. But the media undoubtedly is a part of the problem. Brief attention spans have been considerably aggravated in the age of the globalised media and the 24-hour news network. Mass accidents involving huge loss of life attract media attention, often of a lurid and excessive kind, for a few days. Despite the media din though, these often enough slip out of public focus. Issues of liability and compensation then get enmeshed in the coils of the judicial process, with the media often disinclined to follow its complexities. The consequence is a culture of public impunity, of safety regulations being honoured in the breach, and flagrant violations getting away unpunished.
In the context of Bhopal, all initial readings pointed to a situation of shared culpability. The corporation at the centre of the catastrophe had been criminally remiss and the regulatory authorities had failed spectacularly in exercising oversight. But then the Government, which needed to account for its own omissions, took up the onus of representing the victims, in effect absolving itself of all blame. This created an incentive for settling cheap. Only the media in the circumstances, with diligent portrayal and energetic advocacy could have served as an institution enforcing accountability.
Centrally then, the question is whether the media in the context of Bhopal, was true to its function as the "fourth estate". The pursuit of civil and criminal liability claims against Union Carbide, should have been accompanied by an exercise in accountability by the government on its own regulatory failures. Accountability is rarely engaged in by any institution in the absence of compelling reasons. Where the executive, legislature and judiciary prove unequal to the task, the "fourth estate" has a function to fulfil. And it is a part of the tragedy of Bhopal that the media failed to get it right in this respect. The settlement on the cheap, the sacrifice of principle, the pitiful collapse of institutional autonomy may perhaps have been prevented by a vigilant media. But then this perhaps puts too heavy an onus on the media to be stronger than the circumstances it finds itself in. Perhaps the inescapable lesson of Bhopal is that the media is only as free and democratic as the milieu it inhabits. It can exercise its freedom and autonomy only within the limits prescribed by its circumstances. There can be no transcendence of these limitations.