Bhopal disaster litigation: High court’s Order rekindles victims’ hopes— Part 2

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.

—

IN Part 1, we established how, after prolonged litigation of no less than fourteen years to give justice to the victims of the Bhopal Gas Tragedy, the Supreme Court upheld the pleas of the petitioner and issued appropriate directions in 2012.

Contempt petition

When no positive steps were taken by the respondents in the 2012 writ petition to comply with the directions (quoted in Part 1) of the Supreme Court in the writ petition of 1998 for over two years, the Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS) and the Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS) were compelled to file a contempt petition on May, 15 2015 in which certain officials of the Union and state governments were listed as contemnors.

These officials included secretaries of the Union ministries of health and family welfare and ministry of chemicals and fertilisers; the chief secretary of government of Madhya Pradesh; secretary of the Bhopal Gas Tragedy Relief and Rehabilitation Department (BGTRRD); senior deputy director general of the Indian Council of Medical Research (ICMR); and directors of the Bhopal Memorial Hospital and Research Centre (BMHRC) and the National Institute for Research in Environmental Health (NIREH), Bhopal.

The state information officer (former and current) and the National Informatics Centre (NIC), Bhopal were subsequently added as contemnors.

The reasons for filing the said contempt petition were:

Firstly, non-compliance with Para 35(7) of the Supreme Court judgment of August 9, 2012. In this regard, the petitioners, the BGPMUS and the BGPSSS, had submitted that ICMR and the NIREH had not done enough either "to ensure that the research work is carried on with exactitude and expeditiousness" or "to ensure disbursement of its complete benefit to the gas victims".

Moreover, "even after repeated directions from the Supreme Court since 2001 and despite several recommendations from the advisory committee and the monitoring committee since 2005, nothing was done to establish a central registry at the Centre for Rehabilitation Studies (CRS— the predecessor of the NIREH) for computerisation and networking of health records of gas victims."

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

Despite being charged with contempt, the NIREH had done nothing to mend its ways.

As per updated information, the NIREH has reportedly conducted about 14 Bhopal disaster-related studies between 2010 and 2018, the results of which are not yet in the public domain.

However, it is now known that a study on congenital deformation has been suppressed. In other instances, several studies— such as the one on chronic kidney disorder (CKD)— have actually been terminated midway.

Since 2018, the only ongoing study related to the Bhopal disaster at the NIREH is the Long-Term Epidemiological Survey on Health Effects of Bhopal Toxic Gas Exposure. No other Bhopal disaster-related research has been undertaken for the last five years, which is wholly contrary to the purpose for which the NIREH was established.

It is particularly worrying that the size of the cohort for the ongoing Epidemiological Survey, which was 80,000 in the gas-exposed areas in 1985, has been drastically reduced to just 10,000 by 2023.

There is no information on the fate of the 70,000 individuals with whom the survey teams are unable to reestablish contact, which is a major lapse on the part of the NIREH.

Secondly, non-compliance with Para 35(9) of the August 2012 Supreme Court judgment. The petitioners contended that while the BMHRC has claimed that it was maintaining medical records of over 3.89 lakh gas victims, the progress in issuing "health booklets" was abysmal.

It was further pointed out that: "The monitoring committee in Paras 4(IX) and 6 of its Fourth Quarterly Report dated January 8, 2015 has been very critical of the lackadaisical approach of the state government and the BMHRC (ICMR), which has resulted in haphazard or improper computerisation of medical records and failure to issue a health booklet to each gas victim with his or her complete medical record. 

"Thus, even thirty years after the disaster, the Union of India, the state of MP and the ICMR not only remain unconcerned about the urgency of ensuring adequate medical care and documenting or monitoring the health status of gas victims but also have no compunctions in wantonly disrespecting numerous other directions of even the Supreme Court."

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

Thirdly, non-compliance with Para 35(10) of the aforementioned Supreme Court judgment. In this regard, the petitioners had submitted that the monitoring committee, in its November 24, 2011 report, had observed that: "The situation regarding the availability of specialists and professors etc., has not improved and it is clear that many of the said posts of professors and associate professors in the departments of cardiology, CTVS, gastro-medicine, gastro-surgery, nephrology, neurology, ophthalmology, pathology, pulmonary medicine, radiology, and urology are still lying vacant and have not been filled up so far.

"It cannot be overemphasised that, as senior positions of specialists in most of the important departments of the BMHRC have been lying vacant for long, the quality of medical services provided by the hospital cannot be said to be satisfactory."

The BGTRRD hospitals were in a far worse state.

Fourthly, non-compliance with Para 35(11) of the Supreme Court judgment. In this regard, the petitioners had submitted that since no steps had been initiated to upgrade the status of the BMHRC (to that of the All India Institute Of Medical Science or AIIMS or by merging BMHRC with the AIIMS, Bhopal), even the attempt to attract the requisite talented professionals to improve the quality of medical care and treatment to the gas-victims at the BMHRC has been rendered futile.

Thus, by failing to upgrade the status of the BMHRC, the Union of India and the ICMR are guilty of violating the said direction in Para 35(11) of the 2012 Order of the Supreme Court in the writ petition of 1998.

Fifthly, non-compliance with Para 35(17) of the 2012 Supreme Court judgment. In this regard, the petitioners had submitted that: "It is also inexplicable as to why the hospitals under the BGTRRD were allowed to develop a computer system that was incompatible with the system that was already in operation at the BMHRC.

"In this regard, the petitioners humbly submit that they had submitted a letter to the monitoring committee on December 12, 2013, emphasising the need for maintaining compatibility between the computer systems at the BMHRC and the proposed system at the BGTRRD hospitals."

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

The petitioners had further added that: "Due to non-compatibility of the computer systems installed at the BMHRC and at the BGTRRD hospitals, the direction of the Supreme Court in Para 35(17) of the Order dated August 9, 2012 in W.P.(C) no.50 of 1998 for evolving a methodology of common referral system amongst the various medical units under the BMHRC and the BGTRRD remains unexecuted.

"The state government is wholly at fault for causing this inbuilt incompatibility because it was well aware that a computerised health record-keeping system was already in operation at the BMHRC for the last one-and-half decades.

"Under the circumstances, by failing to evolve a methodology of common referral system amongst the various medical units under the BMHRC and the BGTRRD, the state of Madhya Pradesh is guilty of disregarding the direction in Para 35(17) of the Order of the Supreme Court."

Sixthly, non-compliance of Para 35(18) with the Supreme Court judgment. In this regard, the petitioners had submitted that the BMHRC: "Has also desisted from offering any explanation as to why it has failed to initiate necessary steps to analyse the substantial computerised medical data of over 3.89 lakh gas-victims that the BMHRC has reportedly been maintaining.

"Through such analyses, the BMHRC could have easily carried out scientific categorisation of gas victims according to the types and degree of injuries that they had suffered and could have developed standardised medical protocol for treating each category of ailment accordingly.

In the absence of such standardised medical protocol for treating each ailment, most gas victims are being provided only symptomatic treatment even thirty years after the disaster."

Prolonged litigation

During the last eleven years, the 2012 petition— along with the contempt petition of 2015— has been listed for hearing nearly a hundred times before a dozen or so different Benches of the High Court of Madhya Pradesh at Jabalpur, until the Bench which is currently seized of the matter decided to initiate punitive action.

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

Declaring the National Informatics Centre guilty of contempt against the Supreme Court Order on August 9, 2012, the high court observed, "Despite the elapse of more than ten-and-a-half years, the respondents have demonstrated no urgency or sincerity in complying with directions of the Supreme Court as well as of this court, thereby leaving the gas victims in the lurch.

"The respondents have tried their level best to render the concept of public interest litigation (PIL) nugatory by dragging their feet in the process of compliance. This court does not see any good reason behind the laxity on the part of respondents except respondents' insensitivity towards the gas victims."

The fact that the high court has decided to initiate punitive action for contempt of court provides ample proof that the Union government and the state government have willfully disobeyed the directions of the Supreme Court of India, which has resulted in immense harm to the cause of the gas victims.

The great irony

It is a great irony that while the Union of India set up a premier institution such as All India Institute of Medical Sciences (AIIMS) in Bhopal in 2012 with the best of expertise and the best of equipment and facilities, gas victims without means do not have access to the same.

While the Union government has ensured non-gas victims with means access to the best medical facilities in Bhopal, the very same Union government, which has taken on the responsibility of acting as the "parens patriae" (the legal guardian) of the gas victims through the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, has denied free access to the best medical facilities available in Bhopal to the gas victims with limited means, in blatant contravention of the Supreme Court directions!

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

It may also be noted that while there is resistance to upgrade the status of the BMHRC to that of an AIIMS (or for merging the BMHRC with the AIIMS, Bhopal), the BMHRC has a corpus fund of no less than ₹1,000 crore which is exclusively meant for the benefit of the gas victims but is lying unutilised.

It is high time that all concerned people (especially the medical fraternity) took note of this discrimination and raised their voices against such blatant injustice that is being meted out to the gas victims even 39 years after the Bhopal disaster.