To rebuild lives,

08 July 2010

The Bhopal GoM’s proposals fall short of recommending the minimum the victims deserve in reparation. They also fail to hold Carbide’s and its successor Dow’s feet to the fire.

We have seen it before. Every single Prime Minister since the late 1980s has announced "packages" of economic measures and special assistance for Jammu and Kashmir running into millions of dollars — only to find they impress nobody and make a diminishing difference in popular perceptions. We have seen the same thing in the Northeast too, where special "packages" became an annual ritual even as insurgencies thrived and ethnic discontent increased. The "packages" fail because they do not target the root-causes of the real problem — and often not even the symptoms.

Petty compensation

Now, we seem to have a repetition of the "package" approach in Bhopal. The Group of Ministers (GoM) headed by Home Minister P. Chidambaram has proposed a $300 million (Rs 1,500-crore) package for the victims of the gas disaster at Union Carbide's plant, including enhanced compensation for death and injury, more medical relief, cleansing of the contaminated plant site, and filing of curative petitions on the compensation award based on the $470 million settlement with Carbide reached in 1989 and on the dilution of criminal charges against Carbide, its subsidiaries, and their directors and key staff.

The increase in compensation for death from $2-6,000 to $21,000, and for non-fatal injuries from $1-2,000 to $10,000 may seem impressive. But its real worth is likely to be meagre. According to the Madhya Pradesh government, it leaves out two-thirds of the recorded cases of death, and 91 percent of those injured.

Of the 5,72,241 recorded victims, only 42,208 would be eligible for compensation (only 7 percent). They include 5,295 cases for $21,300 (death), 3,199 cases for $10,600 (permanently disabled), 33,672 for $6,000 (temporarily disabled) and 42 for $2,000 (for those who have temporarily lost their capacity to work).

This is shockingly unfair. One reason for this terrible inadequacy is that the government will base itself on outdated estimates of the deaths and health damage from the disaster — instead of updating the numbers and including those affected in the post-1989 period. The GoM has not recommended a review of death claims or registration of exposure-related claims after 1996, when such registration was stopped.

False categorisation and bureacratic corruption

The old categorisation is utterly arbitrary and under-assesses the victims' injury and suffering. Thus, 92.5 percent of all established cases of exposure were categorised as suffering from "minor" injuries and another 38,478 cases (6.8 percent) were declared as suffering from "temporary partial disablement". Only a minuscule 3,241 cases (0.7 percent) suffered "total disablement" and injury of the "utmost severity", including "permanent partial disablement".

This sits ill with the findings of the Indian Council of Medical Research and numerous other studies. The number of seriously affected people in Bhopal with extensive damage to various organs and systems is many multiples of 3,200. The right thing to do would have been to re-analyse the medical data and establish at least half-a-dozen or more categories based on the severity of injury and give graded compensation to each category. The GoM has failed to do this.

It is one thing to announce compensation; it is another to see how it is delivered through the Madhya Pradesh bureaucracy. This has been a scandal of huge proportions, with every petty official extracting a bribe on pain of outright denial of the victim’s claim. The state government boasts it spent $74.6 million on relief and rehabilitation in Bhopal, but has little to show for it.

What should have happened

The right move would have been to establish, as the victims have long demanded, a high-level Empowered Commission on Bhopal, with judges, doctors, rehabilitation experts, eminent citizens and victims' representatives, which creates and supervises effective mechanisms for compensation distribution and for medical relief. The earlier GoM under Arjun Singh had agreed to this in 2008.

The new GoM does not even mention the Commission and leaves vital but woefully neglected issues of medical care largely unaddressed. Besides more money, it recommends a takeover of the Bhopal Memorial Hospital and Research Centre by the Department of Biotechnology and Mumbai's Tata Memorial Hospital. But the DBT is a research organisation with little competence in or experience of medical treatment. And Tata Memorial is a cancer speciality hospital run by a trust which the government does not control.

Throwing more money into Bhopal's healthcare institutions is not the solution. They are in dire need of reform and restructuring of their basic approach to the victims. A Supreme Court-empowered committee recently noted their abysmal state. What the victims most need is protocols for the systematic treatment of chronic lung damage — the most widespread disorder - and other health damage, including second-generation effects of the original injury, and physical and psychological rehabilitation, besides economic and social rehabilitation.

Bhopal also needs new facilities to ensure that the victims live with dignity and freedom from pain and humiliation. These must be staffed by competent, sensitive professionals, who aim to rebuild the lives of the victims in their entirety.

On the cleaning up of the Bhopal plant site, the GoM shows total confusion. Going by media briefings, global tenders are to be invited. At the same time, $64 million has been earmarked for National Environmental Engineering Research Institute and the Indian Institute of Chemical Technology to undertake the work.

Responsibility of US-parent company, Dow Chemical Co

An even more basic issue is involved here: the liability of Dow Chemical Co, which bought out Union Carbide Corporation (UCC) of the US. Dow denies liability to evade its obligation to clean up on the specious ground that it does not own the Bhopal plant. But ownership is irrelevant here. Natural justice demands that Dow, like any corporate successor, take over UCC’s assets and liabilities — including the newly created liability beyond the accident, in the form of contamination of the plant site, which was not settled in 1989. Carbide caused, and was aware of, the contamination and its likely effects because it conducted numerous surveys of the site, including one in 1989.

Two GoM members (Chidambaram and Kamal Nath) are known to back Dow. The GoM is silent on the liability issue but has pledged to pursue the litigation against Dow in the Madhya Pradesh High Court. But this is meaningless. Dow has refused to accept the jurisdiction of the Court for six years. It has prevented the execution of a 2005 summons on it by Bhopal’s Chief Judicial Magistrate.

There is simply no room for ambiguity on Dow’s liability or other legal issues. The GoM-proposed curative petition against downgrading criminal charges against UCC, Carbide’s fully owned Hong Kong-based subsidiary Union Carbide Eastern, and UCIL, and their directors, is welcome. But this should not stop at restoring the charge of culpable homicide.

There’s a clear four-part definition of murder in Section 300 of the Indian Penal Code. Its subsection 4 states: “If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury ...” Carbide undeniably committed such a dangerous act — operating an unsafe and poorly designed plant. It knew from previous accidents that this could lead to large-scale fatalities.

The proposal to expedite extradition proceedings against Warren Anderson is fine. But it is no substitute for putting Anderson, and more importantly, UCC and UCE, on trial. The Bhopal magistrate did not try them. Their refusal to appear before Indian courts violates a condition stipulated in Judge Keenan’s verdict which sent the Bhopal case back to India — namely, they would stand trial in India and abide by an Indian judgment.

Not only does this warrant Anderson’s extradition; it allows the Indian government to press fresh charges in the US, including contempt of court. The government should join the ongoing litigation in a US Federal Court against UCC and others for environmental clean-up, compensation for personal and property damage, and costs of health monitoring. Here the question of UCC’s legal successor becomes critical. Dow must not be let off the liability hook. New Delhi must firmly tell Dow to accept it responsibility and pay for the remediation of the Bhopal site—or face blacklisting. This would help the government redeem itself to some extent in the eyes of the public and create a healthy basis on which to begin the long-overdue agenda of regulating industry for safety.

We must not forget a pivotal imperative. Justice for Bhopal, even if belated, means reparation,. Reparation is not only compensation. It includes restitution (fully rebuilding people’s damaged lives), total rehabilitation, and a guarantee of non-repetition of the disaster. This cannot be accomplished without adequate punishment for the culprits, including UCC. The GoM will be a devious, deceptive damage-control exercise unless its report results in the energetic prosecution of the culprits on revised charges.