Bhopal disaster litigation: High court’s Order rekindles victims’ hopes— Part 1

While the pursuit of justice for the Bhopal Gas Tragedy victims has been a harrowing experience, the positive signs that emanate now and then restore hope that justice will be rendered at some point in time, writes N.D. Jayaprakash.

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Prologue

Through an unprecedented Order dated November 28, 2023, the High Court of Madhya Pradesh has initiated contempt proceedings against three officials of the state and Union governments. It has issued contempt notice to six other senior officials.

These officials have been held guilty and served notice for their failure to comply with the directions of the Supreme Court dated August 9, 2012 to maintain consolidated medical records through computerisation and networking of medical records of all hospitals and clinics where gas victims have been undergoing treatment and for the failure of these officials to provide quality medical care through specialists and with the best of facilities.

The said Order has revived the hope that justice would be rendered to the gas victims once the contemnors— under threat of punishment— would do what is required of them to ensure that each gas victim gets a copy of their complete medical records based on the actual degree of injury suffered by them.

Incidentally, one of the main grounds on which the Supreme Court had on March 14, 2023 dismissed the Union government's curative petition against the unjust settlement of February 1989 was that it was the government that had categorised the vast majority of gas victims as suffering from only "minor" injuries.

If and when health records are brought on record, in all likelihood gas victims would at last attain justice.

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HOPING against hope, the victims of the Bhopal gas leak disaster of December 2 and 3, 1984 have been waging a determined struggle for justice for 39 years.

While most of the time, the pursuit of justice has been an arduous task and a harrowing experience, the positive signs that emanate from time to time restore hope that justice would be rendered to the gas victims at some point in time.

The latest signpost of hope is the Order passed by the High Court of Madhya Pradesh at Jabalpur in a contempt petition that was filed by the Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS) and the Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS) on May 15, 2015.

Also read: Bhopal gas tragedy: Union government's curative petition dismissed

This petition was filed concerning an August 9, 2012 writ petition against non-compliance by concerned officials of the governments of India and Madhya Pradesh of the various directions passed by the Supreme Court of India.

The context

In 1998, a writ petition was filed under exceptional circumstances.

The failure to properly document the magnitude and gravity of the short-term and long-term impact of the disaster on living beings and the environment has been one of the biggest disservices rendered to the people of Bhopal.

The massive disaster was caused by the escape of highly toxic gases from a storage tank containing 40 tonnes of methyl-isocyanate (MIC— with a high toxicity level at concentrations of just 0.02 parts per million) from the pesticide plant of Union Carbide India Limited (UCIL), which was controlled by a US multinational company, Union Carbide Corporation (UCC).

The toxic cloud spread across 40 sq. km of area covering 36 of the 56 municipal wards of Bhopal, where approximately two-thirds of the city's population of about 900,000 resided.

It may be recalled that during January–February 1985, at the initiative of the Tata Institute of Social Sciences (TISS), Mumbai and with the help of over 500 student and teacher volunteers from nine schools of social work from across the country, attempts were made to carry out a house-to-house survey of the gas-affected areas of Bhopal.

However, after the survey team had collected details from around 25,000 households of the estimated 100,000 households in the gas-affected areas, the state government abruptly terminated the survey. It confiscated all the pro forma for no apparent reason. TISS never got an opportunity to analyze even that limited data.

Thereafter, the Supreme Court, in an Order dated November 11, 1985 in Dr Nishit Vohra and Ors versus State of MP and Ors, had directed as follows:

"It is desirable that some independent machinery must be set up … to carry out … a proper epidemiological survey and also a house-to-house survey of the gas-affected victims both of which surveys will also be necessary for the purpose of determining the compensation payable to the gas victims and their families.

"It would [also] be necessary for the purpose of ensuring proper medical facilities to the gas-affected victims."

Also read: Bhopal gas tragedy: Supreme Court reluctant to re-open settlement

The Supreme Court also constituted a seven-member committee of experts [two from the Indian Council of Medical Research (ICMR), two from the state government, Dr Heeresh Chandra (medico-legal consultant), and two representing gas victims] to prepare a report for implementing these directions.

Since no consensus was reached in the expert committee, Dr Anil Sadgopal and Dr Sujit Das, representing gas victims, submitted a detailed minority report to the Supreme Court on August 30, 1988 emphasising the need for carrying out a proper epidemiological survey in the gas-affected areas of Bhopal. However, the court did not take cognisance of that report.

The Supreme Court, again in a judgment dated October 3, 1991 in a review petition, had highlighted the need for medical surveillance of the entire gas-exposed population of Bhopal.

"We are of the view that for at least a period of eight years from now [vide Order dated May 2, 2006, the term was extended till completion of its object] the population of Bhopal exposed to the hazards of the MIC toxicity should have provision for medical surveillance by periodic medical check-up for gas-related afflictions.

"This shall have to be ensured by setting up long-term medical facilities in the form of a permanent specialised medical and research establishment with the best of expertise. An appropriate action plan should be drawn up. It will be proper that an expert medical facility in the form of the establishment of a full-fledged hospital of at least 500-bed strength with the best equipment for the treatment of MIC-related afflictions should be provided for medical surveillance and expert medical treatment.

"The state of Madhya Pradesh shall provide suitable land free of cost. The allocation of the land shall be made within two months and the hospital shall be constructed, equipped and made functional within 18 months."

Also read: Curative petition filed, but where is the cure to the Bhopal gas tragedy?

"We hold that the capital outlays on the hospital and its operation expenses for providing free treatment and services to the victims should, both on humanitarian considerations and in fulfillment of the offer made before the Bhopal court, be borne by the UCC and UCIL."

Tardy progress

Despite these significant directions, no action was initiated for setting up a specialised hospital for the gas victims since the UCC did not contribute a single penny for that purpose.

Ultimately, funds for the hospital were only realised in September 1994 from the sale of the attached properties of the UCC in India, which had been attached by the Bhopal District Court on April 30, 1992 at the intervention of the CBI as well as BGPMUS, BGPSSS, and the Bhopal Group for Information and Action (BGIA). Even then progress towards construction of the hospital proceeded at a tardy pace.

It was under these compelling circumstances that the writ petition of 1998 was jointly filed by BGPMUS, BGIA and BGPSSS on January 14, 1998 to:

(a) Ensure proper and adequate medical care to all the gas victims.

(b) Revive medical research on diseases [arising from and related to the Bhopal gas leak disaster, which the ICMR had abandoned in 1994.

(c) "Direct the state of Madhya Pradesh to issue a health card to each of the Bhopal Gas victims disclosing to each of the said victims the full information on his [/her] medical status, and to direct the government to provide free medical assistance to the said persons at all times."

In a supplementary affidavit that was filed on August 8, 2002, the petitioners pleaded that:

(a) "All gas-affected persons should be issued … identity cards."

(b) "There must be a uniform treatment protocol which has to be followed by all hospitals meant for gas victims."

(c) "All the hospitals and medicine centres should be computerised and linked to each other to facilitate efficient referrals and exchange of crucial information such as availability of medicines."

(d) "The government of Madhya Pradesh has been presenting an incorrect picture of the ground reality in Bhopal to the court." 

Also read: Figures on death and injuries not revised in the curative petition; Bhopal gas survivors start indefinite waterless fast

Vide an Order dated August 17, 2004, the Supreme Court constituted an "advisory committee" to monitor the status of Bhopal disaster-related medical research and a "monitoring committee" to monitor the status of medical rehabilitation of Bhopal gas victims. Both the committees had representatives of gas victims.

Pleas upheld

After prolonged litigation of no less than fourteen years, the Supreme Court upheld the pleas of the petitioner and was pleased to issue appropriate directions. The major directions passed by the Supreme Court on August 9, 2012 are as follows:

Para 35 (7): "We direct the ICMR as well as [National Institute for Research in Environmental Health-ICMR] NIREH to ensure that the research work is carried on with exactitude and expeditiousness and further to ensure disbursement of its complete benefit to the gas victims."

Para 35 (9): "The monitoring committee must operationalise medical surveillance, computerisation of medical information, publication of health booklets, etc. The monitoring committee shall also ensure that the 'health booklets' and 'smart cards' are provided to each gas victim irrespective of where such victim is being treated.

"This direction shall apply to all the hospitals run by the government or otherwise in Bhopal. We direct the state government to provide assistance in all respects to the Empowered Monitoring Committee and take appropriate action against the erring officer or officials in the event of default."

"We also direct complete computerisation of the medical information in the government as well as non-government hospital or clinics, which should be completed within a period of three months from today."

Para 35 (10): "We are informed that there is a large number of vacancies of doctors and supporting staff in the hospitals and allied departments. In the BGTRRD, 80 percent of posts of specialists and 30 percent of doctors are lying vacant.

"Some posts are also lying vacant in the fourth-grade staff. Thus, we direct the concerned authorities to take appropriate steps in all respects not only to fill up these vacancies but also to provide such infrastructure and facilities that the doctors are not compelled to or prefer to resign from the BMHRC employment and its various departments, due to inadequate facilities."

Also read: Organisations representing Bhopal gas tragedy victims to launch mass action if figures on death and injuries are not revised in the curative petition

Para 35 (11): "The Union of India, the state government and the ICMR should even consider the proposal for providing autonomy to the BMHRC and even make it a teaching institution so as to provide attractive terms, studies and job satisfaction therein.

"This will not only help in providing better opportunities of employment but would better serve the purpose of providing care and treatment of high quality to the gas victims."

Para 35 (17): "We also direct the state government and the monitoring committee to evolve a methodology of common referral system amongst the various medical units under the erstwhile BMHRC and the BGTRRD to ensure that the gas victims are referred to appropriate centres for proper diagnosis and treatment in terms of the nature and degree of injury suffered by each one of them."

Para 35(18): "We also direct that the monitoring committee, with the aid of the advisory committee, NIREH and the specialised doctors of the BMHRC issue a standardised protocol for treating each category of ailment that the gas victims may be suffering from. This shall be done expeditiously. It will be highly appreciated if the committee also prescribes scientific categorisation of patients and injuries."

The Supreme Court further directed the High Court of Madhya Pradesh to supervise the execution of the above directions. As a result, the matter was listed on September 12, 2012 before the high court.