Still living the death
Yes, 30 years on, that’s what the world’s worst industrial disaster has become for its tragic victims. does the new government have the stomach to carry on this fight?
By Shashikumar Velath and Nikhil Eapen
For 30 years, a US corporation has been dodging its responsibility and accoun-tability to the people of India. Dow Chemicals, one of the biggest chemical corporations in the world, is liable for one of the most devastating industrial disasters in history.
This year will mark the 30th anniversary of this chilling incident—when methyl isocynate (MIC) fumes from the Union Carbide India Limited (UCIL) swept through densely populated slums in Bhopal, killing close to 10,000 people in the first three days. Over the next 25 years, the accident was responsible for the deaths of close to 15,000 people.
The Bhopal gas disaster and the experiences of survivors have raised fundamental questions about corporate and government responsibility for industrial accidents that devastate the lives of people and the environments they inhabit.
On August 4, 2014, the chief judicial magistrate (CJM) of Bhopal issued the third criminal summons to the US-based Dow, which took over Union Carbide Corporation (UCC) in 2001, to explain the failure of its wholly-owned subsidiary Union Carbide Company (UCC) before the court and account for the criminal charges against it. The company has been called to appear on November 12, 2014. The summons claim that as a 100 percent owner, Dow has a responsibility to ensure that UCC faces these charges.
Despite its dominant position over UCC, Dow failed to ensure that it appears before the criminal court to face charges or to address pending liabilities connected to Bhopal. No state officials have been held accountable for their own failures related to the gas leak or site contamination. But ever since Dow Chemicals bought UCC, its stand has remained firm—I did not own UCC at the time, and therefore, I will not bear any responsibility for those affected by it. However, Dow’s claim that it did not own UCC in 1984 is not relevant because when it bought UCC, it integrated and consolidated its corporate identity, assets and liabilities.
Meanwhile, UCC is, and was in 2001 (when the merger took place), a proclaimed absconder, ie, a company that did not pay damages proportionate to the harm caused by the gas leak, and a company that divested its interests in India without fulfilling its responsibility to make the Bhopal plant safe.
In 2008, the Ministry of Law of India clarified that “if there was any liability for Bhopal, it would have to be borne by Dow”, and this was “irrespective of the manner in which UCC has merged or had been acquired by Dow Chemicals.”
But Dow has been able to effectively sidestep its responsibilities.
When the CJM of Bhopal issued the first summons in 2005, the legal counsel for Dow’s subsidiary in India was able to sway the court to grant a stay order that lasted close to eight years before it was removed on the grounds that Dow and UCC were separate legal entities. Ironically, while Dow was able to sway the court on the one hand, on the other, it directed court action against numerous survivors and activists.
Dow Chemicals International Private Limited (DCIPL)—Dow’s India office—has recently applied for leave to sue numerous Bhopal survivors and activists for Rs. 25 million with respect to an April 2013 protest. Since 2001, it has brought four legal actions against them, seeking restraining orders that prohibit them from protesting within 100-200 meters of the company premises.
Dow has also tried to interfere with the judicial process to avoid being involved in court proceedings. In a 2005 communication, revealed an RTI request, Dow lobbied the Indian government to “implement a consistent, government-wide position that does not promote continued government of India litigation efforts against non-Indian companies over the Bhopal tragedy”. Consequently, the haunting legacy of Bhopal has been the failure of a company, as also the failures of the Indian government and the judicial machinery, to grant justice.
Standards for remedy
Principally, a victim’s access to remedy and justice are firmly founded in the Indian constitution and in international human rights law (see box International provisions).
While UN rules are more formally established for countries, there is significant international consensus that companies must also respect all human rights. The UN special representative of the secretary-general on business and human rights further emphasized the importance of both states and companies acting in a manner that is supportive of judicial integrity and independence, and of courts being able to act independently of any political or economic pressures.
Indian courts have, on occasion, held companies to account for harm to health and environment. Courts have ordered polluting businesses to pay exemplary fines to serve as a deterrent to other enterprises. In 1987, in the MC Mehta v Union of India case involving the leak of oleum gas from a chemical plant, the Supreme Court held: “…[any] enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of persons working in the factory and residing in the surrounding areas, owes an absolute and non-derogable duty to the community to ensure that no harm results to anyone on account of [its activities].”
The UN International Covenant on Civil and Political Rights (ICCPR) provides for general rights of individuals for an effective remedy. Article 2(3) states that each state party to the present covenant has to:
Ensure that any person whose rights or freedoms are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity
Ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the state, and to develop the possibilities of judicial remedy
Ensure that the competent authorities shall enforce such remedies when granted
In 1968, UCIL, a company majority-owned by the US-based UCC, built a plant in Bhopal, Madhya Pradesh (MP), to manufacture pesticides such as Sevin, using poisonous MIC and other chemicals. UCC had 50.9 percent stake and the Indian government controlled 22 percent. The rest was owned by thousands of Indian investors.
The central and state government were aware that the Bhopal plant involved hazardous substances and processes. There is also undeniable evidence that UCC was able to influence administrators to violate industrial and environmental laws and standards during its operations in India. Under India’s Industrial Development and Regulation Act, 1951, the production of pesticides was reser-ved for small Indian companies, a provision that UCC was able to get a waiver for. In 1975, when MP ordered the relocation of the UCIL plant, the order was reportedly opposed by Union Carbide and a section of the state administration. Later that year, UCIL obtained permission from India’s central government to produce and store MIC in the area.
The flouting of laws is evident from this 1985 excerpt from a report of the Council for Scientific and Industrial Research. It said: “The Sevin unit could process MIC to the order of three to four tonnes per day. The inventory of MIC in the storage tank was of the order of 90 tonnes, equivalent to nearly 30 days production… It was entirely unnece-ssary to provide facilities for storage of such large amounts of MIC in tanks. The quantities stored were quite disproportionate to the capacity of further conversion of MIC downstream unit. This permitted the MIC to be stored for months together without appreciation of potential hazards.”
Ironically, UCIL did not meet internal company standards that it had set up for itself in countries such as the US. In May 1982, when an operational safety survey of the Bhopal plant was carried out by a team of UCC technicians from the US, numerous lapses in safety regulations were found. Others too raised concerns about the safety of the plant. Despite these warnings, a series of cost-cutting measures was implemented at the plant from the beginning of 1983 and in the months leading to the disaster.
During the factory design stage, UCIL had preferred to store MIC in small individual containers for reasons of both economy and safety. However, UCC disagreed, and bulk storage tanks for MIC were installed at the Bhopal plant, similar to those at the UCC plant in West Virginia, US. The crucial difference was that the West Virginia plant worked round the clock, processing large quantities of MIC for production of pesticides or for sale as a chemical. In Bhopal, the processing capacity was so low that it resulted in large quantities of MIC being stored for weeks. UCC also failed to set up any comprehensive emergency plan or system in Bhopal to warn local communities about leaks, even though it had such a plan in place in the US.
On the night of December 2, 1984, silently and insidiously, MIC fumes from a leaking tank at UCIL swept through the densely populated slums that surrounded the plant. Hundreds died in their sleep, and many more as they ran choking from their meager homes. Survivors said it felt like breathing fumes when chilies are burnt. People began coughing violently, and some vomited. The next morning, bodies were littered on the streets of Bhopal. By the time the sun set there on December 3, graves were fast filling and funeral pyres were burning bright.
The Illustrated Weekly of India said: “Each symptom was dealt with separately, eye-drops for the eyes, antibiotics to prevent infections, antacids for the stomach. There was no attempt to purge the blood of the toxin, which continued to ravage the organism from within.” Till date, more than a lakh people continue to suffer from health problems. Efforts to provide rehabilitation have fallen far short of what is needed.
In the immediate aftermath of the incident, company officials from UCC and UCIL downplayed the toxic nature of MIC, assuring reporters that the gas leak was only an irritant and not fatal. Yet, UCC’s internal company documents mention the extremely toxic, volatile and reactive nature of MIC.
Less than 24 hours after the gas leak, state authorities launched criminal proceedings. Nine individuals and three corporations were accused of several criminal offences under the IPC, including “culpable homicide not amounting to murder”. The individuals accused included: Warren Anderson, a US national and chairman of UCC since 1982; Keshub Mahindra, an Indian national and chairman of UCIL; and VP Gokhale, an Ind-ian national and managing director of UCIL. The corporations accused were UCC, UCIL and UCE.
Anderson, Mahindra and Gokhale were arrested four days after the gas leak on December 7, 1984, but Anderson was released on bail the same day, following intervention by the US embassy in India, and left the country two days later.
In November 1988, the CJM issued a warrant for the arrest of Anderson. However, negotiations between the government of India and the companies resulted in an out-of-court settlement. In February 1989, the Supreme Court (SC) ratified it. Even the extradition of Anderson was delayed and it was not until 2003 that India formally asked the US to extradite him. The US rejected this request in June 2004. According to news reports, on July 31, 2009, the CJM reissued an arrest warrant for Anderson and ordered India to press on with extradition. In August 2009, the CBI said that the matter was with the Ministry of External Affairs.
Transfer of shares
In February 1994, the SC allowed the sale of shares held by UCC in UCIL. Advocates working on behalf of survivors filed applications to halt the transfer, but these were adjourned on five occasions. By the time the applications were heard, on October 20, 1994, the shares had already been sold. This transfer would later give grounds for UCC’s legal counsel to argue that Indian courts had no jurisdiction over UCC because the company had disposed off all its interests in India. On September 13, 1996, the SC downgraded the charges from “culpable homicide (not amounting to murder)” to “causing death by negligence” (the charges on the foreign accused remained un-changed).
Twenty-six years after the Bhopal disaster, the CJM finally convicted UCIL and seven accused individuals for causing death by negligence under Section 304A of the IPC. UCIL was ordered to pay a fine of a Rs. 5,00,000, while all the individuals were sentenced to a maximum prison sentence of two years and a fine of around Rs. 1,00,000. This light punishment sparked outrage in India and elsewhere.
“… All of a sudden my husband started coughing and in the meantime, he heard screams coming from outside. As soon as he opened the door, all we could see was smoke entering our house. Then, everyone in my family started coughing and my kids
started complaining of their eyes burning. Then we heard someone saying that we should all run because some gas pipe has exploded in the Union Carbide factory. We all started running and eventually, I got separated from my family. I just
remember not being able to locate my family and after that, I lost consciousness.”
—Puna Bhai, a survivor who lived across the Bhopal factory when the accident happened
“The gas ruined our lives so badly that neither my husband or I could do any work….My first son developed TB at the age
of 8 or 10, and the first daughter he had was born with a disability….The people who struggle are mainly the poor and women.”
—Hazra Bee, a survivor
“In the court, we were treated with no respect. Judges, officers and others treated us badly, even dacoits are
treated with more respect in courts than us gas victims.”
— Hameeda Bi, a survivor
In August 2010, the CBI filed a curative petition (criminal) seeking to recall the SC’s 1996 order downgrading the charges. On May 11, 2011, the SC dismissed the petition, saying the CBI approached the court after a long period of 14 years and that there were not sufficient grounds to recall their 1996 order.
Bhopal is a human rights’ travesty today. The tragedy led to some positive legal reforms, though the Bhopal victims have been unable to benefit from them, as many are still waiting for adequate compensation. Efforts by survivors’ organizations to see justice done and gain adequate redress have so far been unsuccessful.
For the new Indian government, taking effective steps to hold Dow accountable is a momentous opportunity to restore faith among the people of India. Tending to the wounds of Bhopal would mean sending a clear message to the world that in India, industry and business are stable because they respect international standards and guidelines for environment, transparency and human rights.
Shashikumar Velath is deputy CEO, Amnesty International India, while Nikhil Eapen is a researcher there