Bhopal must never be forgotten
Thirty-two years have passed since highly toxic methyl isocyanate gas leaked from the Union Carbide factory and sneaked into the surrounding slums. While thousands died immediately, the survivors were left to fight the aftermath of one of the world’s largest industrial disasters. The impact lingered on and maimed generations.
Even as we come to the end of 2016, about 340 tonnes of hazardous waste remains dumped on the premise of the Union Carbide factory and grievances pile up. In 2015, the United Nations Environment Programme (UNEP) had offered to investigate the nature, depth and spread of contamination in the aftermath of the Bhopal disaster. The Centre turned down the offer.
“We requested Javadekar (the then Environment Minister) to accept UNEP’s proposal and allow them to do an assessment. The Dow Chemical would have been compelled to accept the results of the third-party evaluation. The ministry refused to accept the offer stating that the National Environmental Engineering Research Institute (NEERI) had already made an assessment of the contaminated site. But that assessment was not comprehensive as it most of the areas were not covered during the assessment,” says Rachna Dhingra of International Campaign for Justice in Bhopal (ICJB) to Down To Earth.
A Beilstein Test conducted in 2015 found that the water from 240-ft-deep bore wells is contaminated. The Centre, however, refused to carry out a scientific assessment of the toxic contamination of soil and groundwater.
In 2000, the 350-bed Bhopal Medical Hospital and Research Centre (BMHRC) was set up under the Supreme Court’s directive. However, doctors and other staff are recruited on a temporary basis at the BMHRC and five other hospitals. Due to lack of service conditions and rules, they frequently quit their temporary jobs. Patients are deprived of quality medical care in the absence of shortage of doctors and proper facilities. “In the past 16 years, the BMHRC has even failed to computerise the medical records of each gas-affected person,” says Dhingra.
In October this year, the Madhya Pradesh government announced the construction of a Hiroshima-like memorial for the gas tragedy victims on the premises of the defunct factory. But before any memorial is constructed, the government has to ensure that the BMHRC has full facilities for treatment of all diseases associated with exposure to toxic waste from Union Carbide factory.
What stands out is that Indian institutions are incapable of resolving conflicts. But there is learning for activists and non-profits. In no way should the fight become an end in itself so that issues remain unresolved.
BHOPALS IN OUR LIFE
The disaster had impacts far beyond the boundary of the ill-fated city and its people. It made a difference worldwide to the way that chemical and hazardous waste management was reinforced; workers’ safety precautions mandated, and legislation for environmental management strengthened. Perhaps, this is why we have not seen another Bhopal-like disaster in the past 30 years.
But the work is not over yet. In India, we continue to see smaller industrial accidents—mini-Bhopals. Hazardous wastes are piling up in many parts, contaminating land and water and endangering lives. But we do not have the means or methods to remediate these toxic sites. How do we prevent not just another Bhopal but also the mini-Bhopals from happening?
Liability cannot be forgotten
After 30 years, the government of India is still struggling to establish the liability of UCIL, its parent company UCC and its buyer, Dow Chemical. What a shame!
Consider the difference. In 2009, when petroleum giant BP’s oil drilling led to a devastating spill in the Gulf of Mexico, US President Barack Obama did not need to ask, whose “ass he should kick”. His government held those responsible for paying for the damage and reversed the earlier decision to cap liability in such cases. In 1989, when Exxon spilt gallons of oil off the coast of Alaska, the compensation for economic loss and punitive damages was fixed at the US $1 billion, as against the Bhopal “relief” of US $470 million. The dead seals of the Atlantic were valued higher than the thousands of humans who lost lives in Bhopal and continue to suffer even today.
In Bhopal, the US multinational company UCC argued sabotage. The Indian government could not (or would not) prove negligence or regulatory failure or even lack of responsible adherence to internal safety standards. The liability was never established, partly because of ignorance, combined with powerlessness. Today, when the government is faced with the cost of remediation of toxic waste—left behind by the company—it is still not able to establish the liability of the company. The GoM, led by former home minister P Chidambaram, recommended: “that the government should request the courts to expeditiously decide the question of liability of Dow Chemical Company and/or any other successor to UCC/UCIL.” In other words, the government is not even prepared to look the facts in the face and decide that the company that polluted and left behind hazardous waste has to be held liable for cleaning it up.
The courts have also been vacillating on this issue. As lawyers Divan and Rosencranz explain, the Supreme Court replaced the traditional doctrine of liability with the rule of “absolute” liability. In the Shriram gas leak case, decided by the Supreme Court in 1986, the then Chief Justice P N Bhagwati observed that the principles and norms for determining the liability of large enterprises engaged in the manufacture and sale of hazardous products were questions of greatest importance. So, in its judgement the Supreme Court bench established that the “enterprise owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken”. The justices go on to say, “we would hold that enterprise strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortious principle of strict liability under the rule in Rylandsv Fletcher.” Under this rule, strict liability is subject to some exceptions like sabotage or the plaintiff’s fault, which reduce its scope. This principle was applied by the Madhya Pradesh high court to support its award of interim compensation to Bhopal gas leak victims. The court ruled that the liability of the enterprise is “unquestionable”.
But this principle of “absolute liability” was questioned and then subsequently whittled down by the Supreme Court, ironically when it was asked to review the Bhopal settlement. Justice Ranganath Misra and Justice M N Venkatachaliah rejected the “absolute” liability, saying UCC was entitled to its day in court when its defences, if factual, would be heard and tested. “Indeed”, said the justices, “we should not proceed on the premise that the liability of UCC has been firmly established. UCC has seriously contested the basis of its alleged liability.” By recognising UCC’s right to raise and urge defences, the court, say Divan and Rosencranz, stepped out from the “without exception” absolute liability principle, which it had earlier agreed to.
Corporate liability is a must
Bhopal is about our collective shame. It is also about how systems of corporate liability remain grossly inadequate in a world where technology is high-risk and unknown.
The Civil Liability for Nuclear Damages Act 2010 is about who will foot the bill for accidents from such hazardous technologies. Even today, this provision to hold the operator liable for nuclear damage is a bugbear in Indo-US talks. Why?
Why should we not demand that the operator must pay the cost of safety, even if it increases insurance premiums and so, raises the cost of energy that is supplied? If it makes nuclear energy unviable, then it only reflects the cost of generation—in real and safe terms. In other words, why should we not demand that if we must continue to use high-risk technologies, then we must take on expensive safeguards, even if it makes technology uncompetitive? In the post-Bhopal age, all technologies must pay the real cost of their present and future dangers. Only then will we, as a society, try and understand the risks better. Only then will we, as a society, make better technology choices.
Many countries have adopted the principle of absolute liability when it comes to the introduction of genetically modified organisms. The Cartagena Protocol on Biosafety (under the convention on biological diversity) is the world's first such attempt to hold operators responsible for damage—both from imminent and real threats—from the use of new technology.
More importantly, the issue of corporate liability is crucial, for only then will powerful companies worry about the implications of their actions on tomorrow’s generations. Today, they think of short-term and run-away profits—in chemicals, GM foods, nuclear energy or mining and drilling—in ways where no one (or science) has ever gone. We need tough corporate liability so that companies think twice before they expose us to dangers. Let them fret; we want to sleep in peace.
This is why Bhopal must never be forgotten, indeed must be fixed. Dow Chemical must be held liable for the toxic waste still present in the abandoned factory. It must pay for the plant site’s remediation. It must do this quickly, before toxins spread more poison, travelling through groundwater, into people’s bodies. This is also why Bhopal is not just about Bhopal, but about our collective action to bring justice to the people and do right to the environment across the world.
(Views expressed are strictly those of Down to Earth.)