Bhopal isn’t just about those who died in 1984, but the millions affected by contamination from the site before the disaster, and the continuing threat from 350 tonnes of chemical waste that has still not been removed
Much has been said and written about the Bhopal gas tragedy, and rightly so as it was the worst-ever industrial disaster that the world has witnessed so far. On 2-3 December 1984, methyl isocyanate escaped from the pesticide plant of the Union Carbide in Bhopal. Half a million people came in contact with the toxic gas and other chemicals, and thousands died within days. In the last three decades, estimates take the numbers much higher. Edward Broughton in his 2005 article, ‘The Bhopal disaster and its aftermath: a review’, cites a figure of three million people who are thought to have eventually suffered after exposure to the gas. A UNICEF report estimates two million people were affected.
On 29 March 1985, Parliament enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act and this act purportedly gave the Indian government the exclusive authority to represent victims of the Bhopal disaster in courts around the world. It was under this law that the government entered into the settlement with UCC in 1989 for US$ 470 million, although the victims had already challenged the constitutional validity of the Act. The court was to later uphold the Act, in 1990, having already allowed the government to act under it.
The Claims Act was confined to the disaster. It had nothing to say about the toxic wastes from the Union Carbide factory site. The contamination of the ground water had begun much before the disaster, and it was to manifest years after the disaster. It was in the late 1990s that Greenpeace, upon testing the site of the Union Carbide plant in Bhopal, found that toxicity had seeped into the soil and contaminated ground water over the years the plant had been in Bhopal, affecting the lives and health of the people in the vicinity of the plant. Regulators failed to make the company liable to restore the environment by applying the “polluter pays” principle. The Bhopal gas disaster further exacerbated the environmental problems, but this has remained unrecognised in law, and in decisions of the Supreme Court.
Mr Fali S. Nariman, representing Union Carbide in court in the case concerning the disaster, had fiercely opposed the idea of responsibility of the company to restore the environment, and argued vociferously that UCC could not be held liable on the polluter pays principle. Yet, years after the disaster and the settlement, he was to acknowledge the application of the polluter pays principle in relation to the Bhopal gas disaster when he wrote in February 2005 in Seminar, refuting the suggestion that his argument was that the polluter pays principle did not apply to the Bhopal settlement: “Far from it: it is on this very principle that the settlement of 470 million US dollars was fashioned, agreed to by the Union of India through its Attorney General, and accepted as reasonable, fair and valid by the Supreme Court: not once (in 1989), not twice (in 1990), but again a third time after contest (in 1991).” In 1987, the Supreme Court had enunciated the principle of absolute liability and of enterprise liability in the context of the 1985 oleum gas leak from the Shriram plant in Delhi; but, in deciding how to deal with the situation created by the Bhopal gas disaster, the court declined to apply these principles. Still, the principles evolved in the oleum gas leak case are a guide for imposing liability on the polluter so that the polluter restores the environment and pays for the damage done.
In 1992, the judgement that reviewed the settlement pointed towards the liability of a welfare state to make up for any deficiency in compensation, but no attempt was made to address the environmental burdens on local people due to the disaster; as for contamination of the ground water, it was not even in the reckoning.
After extensive protest and movement from the local to the global level, the plant was eventually closed, but the industrial site was never cleaned up. Around 350 tonnes of chemical wastes remain to be removed from the site of the Union Carbide plant. An efficient clean-up process is yet to be formulated. There can be little reason to doubt that Dow Chemicals, which acquired UCC subsequently, is ‘absolutely liable’ to carry out the clean-up operation, and restore the plant site to its original position. But, Dow Chemicals has avoided responsibility for its subsidiary’s troubled past, maintaining that the legal case was resolved with the 1989 settlement, and that they had only taken over the assets of UCC and not its liabilities, and that, anyway, cleanup now falls to the Indian government.
Fearing the displeasure of investors, the government seems to have decided not to insist on the application of the polluter pays principle, and has gone soft in the matter of clean-up of the contamination of ground water. In June 2012, following the Supreme Court’s intervention, a Group of Ministers of the government of India approved removal of the toxic waste, at the cost of Rs. 25 crore, by the German agency, GIZ.
However, after three months of contract negotiations between the government and GIZ, GIZ withdrew its waste disposal offer following uproar from civil society in Germany, and also due to a disagreement with the Madhya Pradesh government, mostly over the sharing of liability, arbitration and jurisdiction in case of dispute. GIZ’s refusal was a big blow to the possibility of cleaning the toxic waste.
Attempts to dispose of the 350 tonnes of waste in several Indian incinerators – with the last effort at Pithampur in Madhya Pradesh – were vociferously opposed by people living nearby.
The Bhopal disaster and its aftermath demonstrate the inability of both the executive and judicial
system to provide justice, and to act to deter in cases of industrial and environmental crimes.
The tragedy of Bhopal is a warning that industrialisation in India requires strict environmental guidelines and that companies must adhere to these regulations to ensure that their operations are safe for employees and local residents.
It is also a reminder that economic challenges cannot be an excuse for non-compliance with standards, especially when so many lives are at stake.
India’s economic growth has come at the cost of environmental health and public safety of its population, and both small and large companies continue to cause lasting damage throughout the country.
The environmental regulatory system has failed to implement safety regulations, in part because of the apprehension that industries may move out of India.
The increasing number of workers’ death in hazardous industries, and pollution of water bodies across the country due to the discharge of untreated effluents from chemical and hazardous industries, offers illustrations of the inept environmental regulatory mechanism in India.
The court cannot remain a silent spectator when thousands of people in Bhopal continue to bear the burden of human suffering as also of environmental pollution.
The principles of absolute liability, enterprise liability, polluter pays and the precautionary principle have to be invoked, and developed, to compensate the victims of disasters and of the pollution, and to pay remedial costs to restore the damaged ecology.
(The writer is Assistant Professor, Tata Institute of Social Sciences, Mumbai and can be reached at firstname.lastname@example.org)