Appeal for Contributions to the Bhopal Disaster Litigation Fund

12th May 2014

 


DELHI SCIENCE FORUM

158, Lower Ground Floor, Saket, New Delhi – 110017

 

APPEAL FOR CONTRIBUTIONS TO THEBHOPAL DISASTER LITIGATION FUND”

 

Dear friends,

 

For the last several years, the Delhi Science Forum (DSF) has been primarily responsible for carrying out the tasks of the Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS), which was founded in Delhi in February 1989 by over 30 organizations and several concerned individuals to oppose the unjust Bhopal Settlement of 14/15 February 1989. To seek justice for the Bhopal gas-victims, BGPSSS and the Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS), Bhopal, have been pursuing the legal case on behalf of gas-victims since March 1989. By filing a Review Petition (No.229 of 1989 in Civil Appeals Nos.3187-88 of 1988) and a Writ Petition (No.293 of 1989) respectively against the unjust Settlement, BGPMUS and BGPSSS did manage to successfully revive the criminal cases against all the accused, who were primarily responsible for causing the Bhopal gas leak disaster of 02/03 December 1984. The petitioners also managed to elicit an assurance from the Supreme Court vide order dated 04.05.1989 (in Civil Appeals Nos.3187-88 of 1988) that the basis on which the Settlement amount was quantified would be impaired if the number of dead and seriously injured were subsequently found to be greater than what was assumed at the time of the Settlement. It is with this window of opportunity and hope, which were reiterated in the Supreme Court Order dated 03.10.1991 (in C.A. Nos.3187-88/1991), that BGPMUS and BGPSSS have been jointly pursuing the civil and criminal cases against Union Carbide Corporation (and its present owner, the Dow Chemical Company, USA), its Indian subsidiary, and concerned officials of the companies since 1992.

 

As of now, the several cases that BGPMUS and BGPSSS have filed or in which they have intervened (or in the process of intervening) and which are currently pending before the various courts – Supreme Court, High Court, and District Court – are listed below. Pursuing cases simultaneously at three different locations, which are far apart, have been quite taxing. Jabalpur and Bhopal are about 900 kms and 700 kms away from Delhi respectively. Although advocates have been representing BGPMUS and BGPSSS in the various cases pro bono, BGPMUS and BGPSSS have been able to meet their travel expenses to Jabalpur and Bhopal only on a few occasions. Hence, most of the time, the Conveners of BGPMUS and BGPSSS have been forced to appear in person before the various courts other than the Supreme Court because of lack of requisite resources for meeting travel expenses of advocates. Moreover, for the last several years, all expenses of BGPSSS relating to drafting, photocopying and filing of petitions/applications/rejoinders, etc., before the various courts have been borne by a few individuals on behalf of DSF.

 

It has become extremely difficult to carry the litigation work forward with limited resources. Since senior advocates have a tight schedule, and with several of the Bhopal Disaster-related cases appearing in greater frequency before the various courts, they are finding it extremely difficult to devote free time to Bhopal Disaster-related cases, which more often than not now tend to clash with their other professional commitments. Moreover, senior advocates need a team of junior advocates to assist them in their work. Considering the voluminous and exhaustive nature of such work, it has become necessary to make at least a modest monetary contribution for such invaluable work. Now that the Bhopal Disaster-related cases are at a decisive stage, BGPMUS & BGPSSS are hopeful that if the litigation process is pursued diligently, there is every possibility that the gas-victims would be rendered justice even at this late stage.

 

Under the circumstances, DSF has no option but to appeal to the concerned public at large to contribute to the best of their ability to the “Bhopal Disaster Litigation Fund” to meet the requisite litigation-related expenses. Contributions may be sent to the Delhi Science Forum, which is a registered society under the Societies Registration Act, 1860 (Registration No.11795 of 1981) in the Union Territory of Delhi with PAN No.AAATS3741C.

 

Please ensure that the contribution you make to the “Bhopal Disaster Litigation Fund” is NOT from an account, which falls under the Foreign Contribution Regulation Act (FCRA). Delhi Science Forum does not have an account that is covered under FCRA and we do not wish to receive any contribution from such sources. All contributions have to be from an Indian Rupee account.

 

Kindly transfer your contribution electronically or by depositing a cheque in your bank favoring “Society for Delhi Science Forum, Account no. 10690100005080”, UCO Bank, J-Block Market, Saket, New Delhi – 110017, IFS Code: UCBA0001069. Please also send us an e-mail with details of your transfer to the following address: mail.dsf@gmail.com.

 

DSF undertakes not to use the said “Fund” for any purpose other than Bhopal disaster litigation-related work. DSF shall circulate the income-expenditure statement of the “Bhopal Disaster Litigation Fund” every three months and shall ensure that the same is duly audited periodically.

 

We do earnestly hope you would respond positively to this Appeal.

 

Thanking you,

Yours sincerely,

 

(Kamala Menon)

Secretary, DSF

Tel: +91-11-2652-4324

Mobile: +91-9810010751 12 May 2014

 

 

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SOME BASIC FACTS RELATING TO THE BHOPAL CASE

 

The Bhopal gas leak disaster, which took place on the night of 02/03 December 1984, was caused due to escape in gaseous form of about 40 tonnes of methyl-isocyanate (MIC), a highly toxic & reactive chemical that was stored in liquid form in a semi-underground tank on the premises of Union Carbide India Limited (UCIL), which manufactured pesticides. UCIL was then under the control of Union Carbide Corporation (UCC), USA, which is now wholly owned by the Dow Chemical Company, USA. Because of the failure on the part of the UCC/UCIL management to observe stringent safety precautions, one of the three MIC-storage tanks was contaminated with water and other impurities that set off exothermic reactions in the said tank. The resulting high temperature and extreme pressure forced open the safety valve of the tank spewing the vapourized toxic-mix into the air for over two hours until the safety valve closed with the fall in pressure in the tank. The human population of Bhopal was then around 900,000 and nearly two-thirds of them were exposed to the toxic gases. Representatives of DSF were among the first to reach Bhopal and within two weeks come out with the first report on the disaster, which was released in Delhi by Shri P.N.Haksar, the then President of DSF, on 16.12.1984. The DSF Report noted that the disaster was caused due to criminal negligence on the part of the concerned officials of UCC/UCIL, who operated the plant in complete violation of all the requisite safety-norms that UCC itself had prescribed but never complied with. That UCC had adopted double standards was also evident since the safety-systems installed at UCC’s parent plant in West Virginia, USA, were of the prescribed standards.

Compensation: While the basis of the Bhopal Settlement, which took place on 14/15 February 1989, was that the toll arising from the disaster was only around 105,000, including 3,000 dead, the Claim-Courts – after adjudicating all the 1,023,852 claims for death & injury – have determined that the toll was well over 573,000, including 5,295 dead. However, the Claim-Courts had grossly underestimated the gravity of the injuries suffered by gas-victims due to several factors. For example, failure to produce his/her medical record before a Claim-Court – including information regarding investigation, diagnosis and treatment, and in the absence of other circumstantial evidence to determine the health status of a victim such as research reports of ICMR, it was mostly subjective factors that had ultimately played the decisive role in determining the category of injury. As a result, the Claim-Courts have categorized most of the gas-victims as suffering from only simple/temporary injuries and have awarded paltry sums of compensation to them accordingly. The Claim-Courts had clearly overlooked the fact that the onus of producing the requisite medical records and research reports were that of the ICMR and the Government, who as Parens Patriae of the gas-victims as per the Bhopal Gas Leak Disaster (Processing of Claims) Act 1985, had reneged from their responsibility in this regard. (Moreover, while the real death-toll was well over 20,000, official death-toll appears low because registration of death-claim was not only stopped in 1997 but also in over 10,000 cases Claim-Courts have awarded compensation for simple injury – although the victims were dead – on the presumption that in such cases death was not related to the degree of injury they had suffered.) Effectively, the 470 million dollar Settlement amount (Rs.713 crore at the 1989 Dollar-Rupee exchange rate) that was to be awarded to 105,000 gas-victims (at an average of about Rs.67,900/- each) has actually been disbursed to five-times as many victims (at an average of only about Rs.12,400/- each). In other words, each victim was awarded compensation, which was less than one-fifth of the amount that each victim on an average was entitled to even as per the terms of the abysmally low-level Settlement package. Therefore, the plea of BGPMUS and BGPSSS is that each victim be awarded compensation in terms of the degree of injury that the victim has in fact suffered and at least as per the terms of the Settlement at the 1989 Dollar-Rupee exchange rate plus interest.

Health: Although a large health infrastructure in terms of buildings is in place in Bhopal, the quality of medical care is far from satisfactory since no standardized protocol for treatment has been evolved till date and mostly only symptomatic treatment is being provided to the victims. Moreover, neither the ICMR nor the State Government has made the requisite efforts to properly monitor or duly document the health status of the injured-victims despite specific directions of the Supreme Court in this regard and, thereby, have denied each victim a copy of his/her complete medical record. Therefore, the plea of BGPMUS and BGPSSS is that not only is there a need to evolve a proper protocol for treatment but also each gas-victim has to be provided a copy of his/her complete medical record – with necessary provision for periodically updating the same. That would be possible only if all the necessary means for carrying out investigation, diagnosis and treatment are in place and only if the medical records of all hospitals and clinics catering to the medical needs of gas-victims are computerized and networked. The failure of the ICMR and the State Government to fulfill this basic requirement of monitoring & maintaining complete medical records and in providing a copy of his/her medical record to each gas-victim, clearly exposes the height of injustice that has been meted out to them for the last 30 years. Hopefully, Justice V.K.Agarwal, former judge of the MP High Court, who was appointed as Chairperson of the Monitoring Committee by the MP High Court on 11.12.2013, would take necessary remedial action in this regard.

 

Remediation: Till date hardly any worthwhile steps have been initiated to remediate the contaminated soil and groundwater in & around the former UCIL Plant in Bhopal, which is a problem primarily created by dumping of toxic waste from the plant between 1969 and 1984, i.e., prior to the disaster. According to a report prepared by the National Environmental Engineering Research Institute (NEERI), Nagpur, and the National Geophysical Research Institute (NGRI), Hyderabad, the quantity of contaminated soil in & around the former Union Carbide plant is over, 11,00,000 metric tonnes. [See: Final Report, Assessment and Remediation of Hazardous Waste contaminated Areas in and around M/s Union Carbide India Ltd., Bhopal”, June 2010, p.68] The amount of contaminated groundwater in the area has not been quantified yet. Attempts at safe disposal of the toxic waste stored at the plant site as well as those lying within and outside the plant site through incineration are still at an experimental stage. [Although the Supreme Court had issued specific directions to the Government of India on 14.10.2003 in W.P. (C) No.657 of 1995 – reported in (2005) 10 SCC 510 – to replace existing inferior incinerators with high quality ones, almost no progress has been achieved in this direction. As a result, most of the existing incinerators continue to be operated not only far below the optimum temperature level but also are operated without the requisite air-pollution control devices.] Creation of so-called “secure” landfills (which merely seek to hide the problem) is the other preferred mode for disposing of the toxic waste. However, there is little or no effort at developing or importing the requisite onsite remediation technology for cleansing the said contaminated soil & groundwater by separating heavy metals and other toxic chemicals from the same. Therefore, the plea of BGPMUS & BGPSSS is that the best available remediation technology should be imported from abroad forthwith through technical collaboration or otherwise and that the entire cost of remediating the said area should be ultimately borne by UCC and its present owner, the Dow Chemical Company, USA.

 

Criminal Cases: From the extremely slow pace at which the criminal cases are proceeding against the 11 accused in the Bhopal disaster criminal case (one of the accused is now dead), it is evident that the Government of India has no will to prosecute the said accused. Although the CBI filed the charge sheet against the accused as late as 01.12.1987, it included a charge under Section 304 Part-II of IPC, i.e., culpable homicide not amounting to murder – a charge that was punishable with up to ten years imprisonment. On 06.07.1988, the Chief Judicial Magistrate (CJM), Bhopal, sent a Letter Rogatory to the U.S. Government to permit the CBI to carry out a comparative study of the safety systems of the MIC units of UCC’s Bhopal plant and UCC’s parent plant in West Virginia, USA, to verify if UCC had installed inferior safety systems at its Bhopal plant. On 09.02.1989, the CJM, Bhopal, also issued non-bailable warrant of arrest against Warren Anderson, former Chairperson of UCC and accused No.1 in the criminal case. On 14.02.1989, the U.S. Justice Department informed the Indian Embassy in Washington, DC, that permission had been granted to the CBI to inspect UCC’s West Virginia plant for purpose of comparing the safety standards with the Bhopal plant. All of a sudden, a settlement was arrived at before the Supreme Court of India with quashing of all pending and future criminal cases against all the accused as the main condition of the abrupt Settlement. Gas-victims and their supporters were then not privy to the U.S. Justice Department’s communication to the Indian Embassy in the U.S. However, it has subsequently became evident that the primary purpose of the Settlement was to scuttle the CBI’s attempt to inspect UCC’s West Virginia plant, which would have laid bare the fact that UCC had in fact adopted double standards by installing sub-standard and under-designed safety systems at its Bhopal plant. The Settlement also ensured that the non-bailable warrant against Warren Anderson that the CJM had issued on 09.02.1989 would not be executed.

 

While BGPMUS and BGPSSS through their intervention in 1989 had managed to revoke the termination of criminal cases against all the accused through the Supreme Court Order dated 03.10.1991, from the pace at which the case is proceeding it does not appear that the accused would ever be punished in their lifetime. Although, on 08.04.1993, the Sessions Court had framed charges under Sections 304 Part-II, 324, 326 and 429 of IPC against all the Indian accused (accused Nos.2 to 9 and 12), who were appearing before the Court, the accused filed appeals against the said Order before the MP High Court at Jabalpur. However, on 01.08.1995 the MP High Court dismissed the said appeals against which the accused again filed Special Leave Petitions (SLPs) before the Supreme Court, which admitted the same. On 13.09.1996, the Supreme Court passed an Order reducing the charges against the accused to Sections 304-A, 336, 337, and 338 of IPC. Subsequently, the CJM, Bhopal, after conducting a fourteen-year long trial, passed a Judgment on 07.06.2010 prosecuting the accused under Sections 304-A, 336, 337, & 338 of IPC but restricting maximum punishment to 2 years imprisonment and imposing a fine of Rs.1 lakh each. Prosecuting the accused under sections 336, 337 & 338 of IPC was a sham since the sentences were to run concurrently and not consecutively. The Sessions Court, Bhopal, has dismissed the Criminal Revision and Criminal Appeal filed by BGPSSS & BGPMUS against the CJM’s Order and for enhancement of charges against the accused based on available evidence. The Sessions Court has also dismissed similar Criminal Revision Applications filed by the MP Government and the CBI. Therefore, BGPSSS and BGPMUS are in the process of filing a Writ Petition before the MP High Court against the Sessions Court’s Orders and for speedy disposal of the criminal cases against the said accused. Until and unless all efforts are made to generate the requisite public pressure to set up a Special Court for speedy re-trial, not only would the accused go unpunished in their lifetime but also the possibility of justice being rendered to the gas-victims in their lifetime is wholly unlikely.

 

Court –wise List of Pending Bhopal Disaster related Cases:

 

  1. Supreme Court:

  1. Writ Petition (Civil) No.50 of 1998 (was filed by BGPMUS, BGIA and BGPSSS on 14.01.1998 for providing proper medical relief to gas-victims & maintaining their complete health records). The matter has been transferred to the MP High Court at Jabalpur for monitoring the execution of the directions of the Supreme Court’s Order dated 09.08.2012.

 

  1. Special Leave Petition (Civil) No.12893 of 2010 (filed by members of BGPMUS & BGPSSS on 17.03.2010 for enhancement of compensation to gas-victims in terms of the actual magnitude/ grievous effects of the disaster);

 

  1. Curative Petition (Civil) Nos.345-347 of 2010 (was filed by the Union of India [UOI] on 03.12.2010 for enhancement of compensation to gas-victims by partially challenging the basis of the Bhopal Settlement of 1989.) BGPMUS & BGPSSS have filed an interlocutory application on 24.10.2013 challenging the UOI’s low estimation of the number of dead & seriously injured gas-victims.

 

  1. Transfer Petition (Civil) No.170 of 2011 (filed by the UOI in January 2011 for transferring W.P.[C] No.2802 of 2004 from the M.P. High Court to the Supreme Court);

 

  1. SLP (C) No.9874 of 2012 (filed by the UOI in March 2012 to seek permission to dispose of 345 tonnes of toxic waste currently stored on the site of the former UCIL plant at an incineration facility near Indore). BGPMUS & BGPSSS have filed an interlocutory application in the same on 24.01.2013 to point out that not only are the incinerators in the country of poor quality but also that the magnitude & complexities of the problem of UCIL’s toxic waste have neither been properly assessed nor correct methods for their safe disposal been formulated.

 

  1. W.P. (C) No.657/1995 (filed by Research Foundation for Science, Technology and Natural Resource Policy, Dehradun, against import of hazardous waste – and related issues – in which provision of safe drinking water to residents in & around the Bhopal plant, where ground water is contaminated, has fallen within its ambit; and

 

  1. W.P. (C) No.33 of 2012 (filed by Swasthya Adhikar Manch, Indore, in January 2012 to expose malpractices of pharmaceutical companies as well as independent investigators in conducting clinical trials across the country). BGPMUS & BGPSSS filed an interlocutory application in the same on 14.12.2012 for unraveling the truth behind the secret drug trials conducted at the Bhopal Memorial Hospital & Research Centre (BMHRC) during 2004-2008, in which gas-victims were used as guinea pigs, and urging prosecution of the guilty.

 

  1. M.P. High Court (Jabalpur):

  1. W.P.(C) No.2802 of 2004 (a public interest litigation – for remediation of the contaminated soil and ground water in & around the Union Carbide plant in Bhopal – in which BGPMUS & BGPSSS are interveners). The matter is in the process of being transferred to the Supreme Court.

 

  1. W.P. (C) No.15658 of 2012 (re-numbered version of W.P. [C] No. 50 of 1998 after the Supreme Court transferred it to the MP High Court for monitoring the execution of the Supreme Court’s directions dated 09.08.2012).

 

  1. BGPMUS & BGPSSS are in the process of filing a Writ Petition seeking speedy disposal of the criminal cases against the accused in the Bhopal Gas Leak Disaster case. The said Writ Petition would also seek appropriate remedy against the dismissal by the Sessions Court, Bhopal, of the Criminal Revision Applications filed by BGPSSS & BGPMUS, by the CBI, and by the State of Madhya Pradesh, which opposed reduction of charges against accused Nos.2 to 9 & 12 by the CJM, Bhopal, vide Judgment dated 07.06.2010.

 

  1. Sessions Court, Bhopal:

(i) Criminal Appeals filed by accused Nos.2 to 9 & 12 for dismissing the Judgment & Order of the CJM, Bhopal, dated 07.06.2010 in

Criminal Case No.8460 of 1996 are currently pending before the Sessions Court. The Sessions Court has rejected the Criminal Revision

Applications filed by the Madhya Pradesh Government, by BGPSSS & BGPMUS, and by the CBI seeking enhancement of charges

against the said accused.

 

  1. Court of the Chief Judicial Magistrate, Bhopal:

  1. Miscellaneous Judicial Case (MJC) No.91 of 1992 (criminal case against absconding accused Nos.1, 10 and 11, i.e., Warren Anderson; UCC and its successor, the Dow Chemical Company, USA; and Union Carbide Eastern, Hong Kong) is pending before the Court. The Union of India has not yet executed the non-bailable warrant of arrest issued by the CJM, Bhopal, on 27.03.1992 against Warren Anderson.

 

  1. Based on the application filed by BGPSSS, BGIA and BGPMUS on 07.09.2001, the CJM on 06.01.2005 issued notice to the Dow Chemical Company, USA, to appear in the criminal case on behalf of accused No.10 (UCC, USA). The same was stayed by the MP High Court at Jabalpur vide Order dated 17.03.2005, on the basis of an application filed by Dow Chemical International Private Ltd (DCIPL), Mumbai, which purportedly had no direct nexus with the Dow Chemical Company, USA. After the MP High Court vacated the said stay-order after a 7-year delay vide Order dated 19.10.2012, the said notice was re-issued by the CJM on 24.07.2013. Dow is yet to respond to the notice.

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Last Updated on Monday, 12 May 2014 10:51