India: Judgement on Bhopal gas tragedy today

(June 07, New Delhi, Sri Lanka Guardian) After a trial lasting more than two decades, the judgement on Bhopal Gas tragedy, the world's worst industrial disaster which killed and maimed thousands of people, would be pronounced Today.

Chief Judicial Magistrate (CJM) Mohan P Tiwari would pronounce the judgement after a 23-year-long trial in the toxic leak case from the now defunct Union Carbide factory on the intervening night of December 2-3, 1984.

During the trial, a total of 178 prosecution witnesses were examined and 3008 documents were produced while eight defence witnesses deposed in the court.
Out of the nine accused tried for the offences, R B Roy Choudhary, the then former Assistant Works Manager Union Carbide India Ltd (UCIL), Mumbai, died during the trial.

The remaining eight accused in the case are Keshub Mahendra, the then UCIL chairman, Vijay Gokhle, the then managing director, Kishore Kamdar, the then vice president, J Mukund, the then works manager, S P Choudhary, the then Production Manager, K V Shetty, the then plant superintendent, S I Quershi, the then production assistant of UCIL and UCIL Calcutta.

The three accused -- the then chairman of Union Carbide Corporation of USA Warren Anderson, besides Union Carbide Corporation, USA and Union Carbide Eastern, Hong Kong -- escaped the trial.

FIR in the tragedy was filed on December 3, 1984 and the case was transferred to CBI on December 6, 1984. The CBI filed the charge sheet after investigation on December 1, 1987.

Subsequently, the CJM framed charges against the accused under section 304 Part (II) (culpable homicide not amounting to murder), section 326 (voluntarily causing grievous hurt by dangerous weapons or means) and other relevant sections of IPC.

After the accused moved the Apex Court, it amended the charges on September 13, 1996 to 304 (A) (causing death by negligence), 336 (acts endangering life or personal safety of others, 337 (causing hurt by endangering life or personal safety of others) and other sections of IPC.

The prosecution, CBI counsel C Sahay had argued that defective design of UCIL and its poor maintenance resulted into the tragedy.

Sahay contended that Union Carbide Corporation, USA, in its survey of the factory in 1982 found serious safety and maintenance lapses on nearly 10 counts.

The prosecution argued that even after UCC experts' team visit to the factory, adequate safety measures and maintenance work were not undertaken in UCIL.

A Central team, which visited the UCIL plant post-tragedy in 1984, also found lapses in safety norms and maintenance, the counsel had said.

Sahay has contended that the team had also found the design of the plant defective, which caused the gas leak. The defence counsels D Prasad and Amit Desai had argued that maintenance and safety norms were properly adhered to in the UCIL's Bhopal factory.

Refuting charge that lapse in maintenance and safety norms led to the Bhopal Gas Tragedy, the defence had stated that all steps were adhered to keep the factory in a proper shape.

The defence also refuted that a team of Union Carbide Corporation, USA, which visited the plant following the death of a worker here in 1982, found any fault in the unit.

The defence contended that the UCIL was so much concerned on the safety front that after the death of one Mohammed Ashraf Khan, it reported the matter to the UCC, USA which carried out a safety audit.

Meanwhile, the organisations working for the survivors of the tragedy said that the CBI has not put up a strong case against the accused.

"We wanted that accused be prosecuted under section 304 Part II and not 304 (A)," the Bhopal Gas Peedit Mahila Udhyog Sangathan convener, Abdul Jabbar, said.

The punishment under section 304 (A) is more than two year imprisonment, or a fine, or both, whereas, the punishment under section 304 Part II ranges up to 10 years, he said.

After the Apex Court amended the charge to section 304 (A) from 304 part II of the IPC in 1996, the CBI did not file a petition or challenge it, he said. "When we filed the review petition, the CBI didn't help us to get section 304 (II) reinstated against the accused," Jabbar said.

Other NGOs said it was sad that the CBI failed to bring Union Carbide, USA, its former Chairman and Warren Anderson and Union Carbide, Hong Kong, to the books. They demanded formation of a special prosecution cell to extradite the accused.

Background information:What happened in Bhopal?

Summary

On the night of Dec. 2nd and 3rd, 1984, a Union Carbide plant in Bhopal, India, began leaking 27 tons of the deadly gas methyl isocyanate. None of the six safety systems designed to contain such a leak were operational, allowing the gas to spread throughout the city of Bhopal.[1] Half a million people were exposed to the gas and 20,000 have died to date as a result of their exposure. More than 120,000 people still suffer from ailments caused by the accident and the subsequent pollution at the plant site.

These ailments include blindness, extreme difficulty in breathing, and gynecological disorders. The site has never been properly cleaned up and it continues to poison the residents of Bhopal. In 1999, local groundwater and wellwater testing near the site of the accident revealed mercury at levels between 20,000 and 6 million times those expected. Cancer and brain-damage- and birth-defect-causing chemicals were found in the water; trichloroethene, a chemical that has been shown to impair fetal development, was found at levels 50 times higher than EPA safety limits.[2]Testing published in a 2002 report revealed poisons such as 1,3,5 trichlorobenzene, dichloromethane, chloroform, lead and mercury in the breast milk of nursing women.[3] In 2001, Michigan-based chemical corporation Dow Chemical purchased Union Carbide, thereby acquiring its assets and liabilities. However Dow Chemical has steadfastly refused to clean up the site, provide safe drinking water, compensate the victims, or disclose the composition of the gas leak, information that doctors could use to properly treat the victims.

The agony of Bhopal

On 3rd December 1984, poison gas leaked from a Union Carbide factory, killing thousands. How many thousands, no one knows. Carbide says 3,800. Municipal workers who picked up bodies with their own hands, loading them onto trucks for burial in mass graves or to be burned on mass pyres, reckon they shifted at least 15,000 bodies. Survivors, basing their estimates on the number of shrouds sold in the city, conservatively claim about 8,000 died in the first week. Such body counts become meaningless when you know that the dying has never stopped.

The Union Carbide factory in Bhopal seemed doomed almost from the start. The company built the pesticide factory there in the 1970s, thinking that India represented a huge untapped market for its pest control products. However sales never met the company’s expectations; Indian farmers, struggling to cope with droughts and floods, didn’t have the money to buy Union Carbide’s pesticides. The plant, which never reached its full capacity, proved to be a losing venture and ceased active production in the early 1980s.

However vast quantities of dangerous chemicals remained; three tanks continued to hold over 60 tons of methyl isocyanate, or MIC for short. Although MIC is a particularly reactive and deadly gas, the Union Carbide plant’s elaborate safety system was allowed to fall into disrepair. The management’s reasoning seemed to be that since the plant had ceased all production, no threat remained. Every safety system that had been installed to prevent a leak of MIC—at least six in all—ultimately proved inoperative (see Figure 1).Regular maintenance had fallen into such disrepair that on the night of December 2nd, when an employee was flushing a corroded pipe, multiple stopcocks failed and allowed water to flow freely into the largest tank of MIC. Exposure to this water soon led to an uncontrolled reaction; the tank was blown out of its concrete sarcophagus and spewed a deadly cloud of MIC, hydrogen cyanide, mono methyl amine and other chemicals that hugged the ground. Blown by the prevailing winds, this cloud settled over much of Bhopal (see Figure 2). Soon thereafter, people began to die.
Remembers Aziza Sultan, a survivor: "At about 12.30 am I woke to the sound of my baby coughing badly. In the half light I saw that the room was filled with a white cloud. I heard a lot of people shouting. They were shouting 'run, run'. Then I started coughing with each breath seeming as if I was breathing in fire. My eyes were burning.

Another survivor, Champa Devi Shukla, remembers that "It felt like somebody had filled our bodies up with red chillies, our eyes tears coming out, noses were watering, we had froth in our mouths. The coughing was so bad that people were writhing in pain. Some people just got up and ran in whatever they were wearing or even if they were wearing nothing at all. Somebody was running this way and somebody was running that way, some people were just running in their underclothes. People were only concerned as to how they would save their lives so they just ran.
"Those who fell were not picked up by anybody, they just kept falling, and were trampled on by other people. People climbed and scrambled over each other to save their lives – even cows were running and trying to save their lives and crushing people as they ran." In those apocalyptic moments no one knew what was happening. People simply started dying in the most hideous ways. Some vomited uncontrollably, went into convulsions and fell dead. Others choked to death, drowning in their own body fluids. Many died in the stampedes through narrow gullies where street lamps burned a dim brown through clouds of gas. The force of the human torrent wrenched children's hands from their parents' grasp. Families were whirled apart," reported the Bhopal Medical Appeal in 1994.

"The poison cloud was so dense and searing that people were reduced to near blindness. As they gasped for breath its effects grew ever more suffocating. The gases burned the tissues of their eyes and lungs and attacked their nervous systems. People lost control of their bodies. Urine and feces ran down their legs. Women lost their unborn children as they ran, their wombs spontaneously opening in bloody abortion." According to Rashida Bi, a survivor who lost five gas-exposed family members to cancers, those who escaped with their lives “ are the unlucky ones; the lucky ones are those who died on that night.”

Since the disaster, survivors have been plagued with an epidemic of cancers, menstrual disorders and what one doctor described as "monstrous births.”
The gas-affected people of Bhopal continue to succumb to injuries sustained during the disaster, dying at the rate of one each day. Treatment protocols are hampered by the company's continuing refusal to share information it holds on the toxic effects of MIC. Both Union Carbide and its new owner Dow Chemical claim the data is a "trade secret," frustrating the efforts of doctors to treat gas-affected victims. The site itself has never been cleaned up, and a new generation is being poisoned by the chemicals that Union Carbide left behind.

In December 1999, Greenpeace reported that soil and water in and around the plant were contaminated by organochlorines and heavy metals. A February 2002 study found mercury, lead and organochlorines in the breast milk of women living near the plant. The children of gas-affected women are subject to a frightening array of debilitating illnesses, including retardation, gruesome birth defects, and reproductive disorders.

It wasn’t until 1989 that Union Carbide, in a partial settlement with the Indian government, agreed to pay out some $470 million in compensation. The victims weren’t consulted in the settlement discussions, and many felt cheated by their compensation -$300-$500 - or about five years’ worth of medical expenses. Today, those who were awarded compensation are hardly better off than those who weren’t.

Victims of the gas attack eke out a perilous existence; 50,000 Bhopalis can’t work due to their injuries and some can’t even muster the strength to move. The lucky survivors have relatives to look after them; many survivors have no family left. Everyone has perished.

In 1991, the local government in Bhopal charged Warren Anderson, Union Carbide’s CEO at the time of the disaster, with manslaughter. If tried in India and convicted, he faces a maximum of ten years in prison. However Mr. Anderson has never stood trial before an Indian court; he has, instead, evaded an international arrest warrant and a summons to appear before a US court. For years Mr. Anderson’s whereabouts were unknown, and it wasn’t until August of 2002 that Greenpeace found him, living a life of luxury in the Hamptons. Neither the American nor the Indian government seem interested in disturbing him with an extradition, despite the recent scandals over corporate crime. This is unfortunate: Mr. Anderson’s decisions didn’t just wipe out retirement plans, they killed people.

The Union Carbide Corporation itself was charged with culpable homicide, a criminal charge whose penalty has no upper limit. These charges have never been resolved, as Union Carbide, like its former CEO, has refused to appear before an Indian court.

Union Carbide also remains liable for the environmental devastation its operations have caused. Environmental damages were never addressed in the 1989 settlement, and the contamination that Union Carbide left behind continues to spread. These liabilities became the property of the Dow Corporation, following its 2001 purchase of Union Carbide. The deal was completed much to the chagrin of a number of Dow stockholders, who filed suit in a desperate attempt to stop it. These stockholders were surely aware that a corporation assumes both the assets and the liabilities of any company it purchases, according to established corporate law. Indeed, Dow was quick to pay off an outstanding claim against Union Carbide soon after it acquired the company, setting aside $2.2 billion to pay off former Union Carbide asbestos workers in Texas. However Dow has consistently and stringently maintained that it isn’t liable for the Bhopal accident.

Thus the victims in Bhopal have been left in the lurch, told to fend for themselves as corporate executives elude justice and big corporations elude the blame. Dow’s unwillingness to fulfill its legal and moral obligations in Bhopal represents only the latest chapter in this horrifying humanitarian disaster. For twenty years, the victims of Bhopal have continued to demand justice; the only question is: will we listen?

[1] Dominique Lapierre and Javier Moro. Five Past Midnight in Bhopal. (Warner Books, 2002)
[2] Factsheet: New generation of Monstrous birth
[3] Fresent Toxic Future, report published January 2002 by the Fact-Finding Mission on Bhopal (FFMB).

(Sources: Agencies and Sri Lanka Guardian Correspondents in New Delhi and Bangalore)