This is the first in a two-part series on claims made in the hearings of the curative petition relating to compensation for the Bhopal gas disaster of 1984.
Hundreds of thousands of Bhopal gas tragedy victims are eagerly hoping against hope.
They hope that the verdict in the civil curative petition number 345-347 of 2010 turns out in their favour and that all of them are awarded an enhanced compensation from the additional funds that the Union government is seeking from the US-based Dow Chemical Company.
Dow is the present owner of the Union Carbide Corporation (UCC) that is accused of causing the disaster of December 2-3, 1984, in Bhopal. It killed several thousands of people and inflicted injuries in varying degrees on more than half the then population of the city.
The victims had been exposed to highly poisonous gases – methyl isocyanate (MIC) and its derivatives – that escaped from the UCC plant due to installation of inadequate and improper safety systems. The adverse impact on flora and fauna was also equally grave.
However, from the manner in which hearings in the matter went on for three days – from January 10-12, 2023, it does not appear that the five-member constitution bench headed by Justice Sanjay Kishan Kaul has really understood the gravity of the situation faced by the gas victims.
While the bench of Justices Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath and J.K. Maheshwari may have made a sincere attempt to understand the background of the case in some detail, it is almost unlikely that it would have had the opportunity to go through 25 volumes of documents apart from thousands of pages of written submissions made by the various parties before the hearings began.
Therefore, first impressions gathered from oral submissions appear to have had a major role in the manner in which the hearings proceeded.
It so happened that soon after the Attorney General for India, R. Venkataramani, began to make his submissions on behalf of the Union of India (UOI), Harish Salve, senior counsel representing Dow Chemical Company interrupted the AG and proclaimed, “My client is not willing to pay a farthing more.”
In an attempt to explain his stand, Salve also went on to misinform the apex court that not only were more than 573,000 gas victims paid compensation “twice over” but that an amount of Rs 50 crores was still lying unutilised in the settlement fund that UCC had paid in 1989.
Salve went on emphasising that out of the total number of victims who were awarded compensation, the UOI itself had admitted that over 500,000 of them had suffered only “minor injuries”. These assertions misled the court – at least initially.
The court was left with the impression that the Union of India was making unjustifiable additional claims.
The facts of the matter are quite different. Dow’s claim that the gas victims were paid compensation “twice over” is a cruel joke. The settlement amount of $ 470 million paid by UCC in February 1989 amounted to about Rs 710 crores considering the exchange rate then. This was nothing but a paltry sum considering the magnitude and gravity of the immediate impact of the disaster as well as its long term ramifications.
The unjust settlement was challenged by the Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS) on March 6, 1989, through a civil review petition filed through advocate Prashant Bhushan.
The BGPSSS filed a civil writ petition on March 9, 1989, against the settlement through advocate R.B.Mehrotra. A few other review and writ petitions were also filed subsequently. BGPMUS and Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS) specifically urged the court “to pass consequential orders to give effect to the right to know and information on the toxicological, epidemiological and other related public health issues including the actual extent of the victimage in Bhopal.”
These review and writ petitions also pointed out that the settlement amount was quantified without verifying claims and without determining the number of beneficiaries to whom compensation was to be dispersed. Moreover, the settlement amount of Rs 710 crores was just about one-fifth of the amount claimed by the Union government in the amended suit that it had filed before the district court of Bhopal on January 29, 1988, which had clearly stated as follows:
“…[T]otal number of claims filed so far with the state government is 5,31,770…. It is estimated that approximate value of the total claims (including deaths and personal injury cases) would exceed Rs.3,900 crores (U.S. 3 billion dollars)…”
Since numerous questions were raised about the timing and the basis of the settlement, the Supreme Court found it necessary to justify its decision to order a settlement through a suo motu order dated May 4, 1989, which tried to clarify that the “basic consideration motivating the conclusion of the settlement was the compelling need for urgent relief”.
Therefore, in order to provide “urgent relief” to the victims, the settlement amount was quantified on the hypothetical assumption that only around 3,000 deaths had taken place and that around 102,000 others had suffered injuries in varying degrees. However, compensation could not be paid immediately to the said 105,000 gas victims since only a fraction of the assumed number of victims had been identified at that time.
Contrary to the justification that the settlement was intended to grant “urgent relief”, interim relief to the victims was actually disbursed by the Union government from 1990 to 1993 from its own resources and not from the settlement fund. The government allocated Rs 360 crores for that purpose at Rs 200 per month per head to all the residents in the 36 gas-affected wards of Bhopal. This benefited around 500,000 gas victims. Interim relief was further extended until 1996 and beyond due to delay in the process of adjudication for award of compensation.
In other words, the abrupt and unjust settlement could not and did not provide any immediate relief to the gas victims. The process of adjudication of the rising number of 600,000 and more claims started only after the judgment in the review petitions was pronounced on October 3, 1991. The process of adjudication went on from 1992 to 2004, during which an additional 400,000 and more claims were filed. After adjudication of all claims, the claim courts had determined that a total of 573,000+ victims had suffered injuries in varying degrees and there were 5,295 deaths.
As a result, compensation that was received for 105,000 victims (which was the basis of the settlement) was disbursed among 573,000+ victims.
The office of the Welfare Commissioner, under which the claim courts functioned, managed to pay small amounts of compensation to all the identified victims because the bulk of the settlement amount of US $ 470 million was retained in a dollar account in the Reserve Bank of India and that amount in rupee terms rose to over Rs 3,000 crores by 2004 (from Rs 710 crores in 1989) due to differences in exchange rate as well as accrual of interest from 1989 to 2004 on the principal sum.
Thus, by awarding low amounts of compensation, initially all the 573,000+ awarded claims were disposed of with just a little more than Rs 1,500 crores. Thereafter, the remaining amount was dispersed on a pro rata basis to the same number of victims as per the Supreme Court order dated July 19, 2004.
Effectively, this meant that each gas victim received less than one-fifth of the compensation that he or she should have received as per the terms of the settlement. This is because the settlement fund, which was quantified on the assumption that there were only 105,000 gas victims, was actually disbursed among five times that many (573,000+) gas victims, i.e., to 468,000+ additional gas victims, who were not recognised as gas victims at the time of the settlement.
Therefore, while Dow’s claim that the gas victims were paid compensation “twice over” may appear true, but the truth is that each gas victim on an average – despite being paid “twice over” – actually received less than one-fifth of the compensation amount that each should have received as per the terms of the 1989 settlement.
In other words, if the total settlement fund that amounted to Rs 3000+ crores (in 2004) was disbursed among the 105,000 gas victims (for whom the amount was earmarked in 1989), each gas victim on an average would have received over Rs 285,000 as compensation – which too was not a princely sum.
However, since the said amount of over Rs 3,000 crores was disbursed among over 573,000 gas victims in the year 2004, each gas victim on an average received merely a little above Rs 52,000 as full and final compensation (including pro rata), which amounts to a measly compensation sum of less than Rs 4 per day per victim for the last 38 years.
Similarly, Dow’s claim that Rs.50 crores is lying unutilised in the settlement fund is also a completely bogus claim, since the said Rs 50 crores is nothing but the unclaimed pro rata amount awarded to 11,652 gas victims, whose whereabouts are now not known because they are no longer at their last known address.
Another matter told to the judges was the claim that over 500,000 gas victims, for whom additional compensation was being sought, had sustained merely “minor injuries”.
It is, indeed, true that in the Union government’s petition 5,27,894 victims are classified as having sustained only “minor injuries”. However, it is necessary to understand how the bulk of the gas victims came to be classified as such.
The process of so-called “medical categorisation exercise” began in January 1987, i.e., two years after the disaster. At that time, the vast majority of gas victims, who underwent treatment in hospitals and clinics immediately after the disaster, never possessed a copy of his or her medical records. Most of those who still undergo medical treatment, do not possess a copy of their medical records even 38 years after the disaster.
At the time of the settlement, less than 10% of the claimants had been medically evaluated for their personal injuries.
The so-called “medical categorisation exercise”, which was completed nearly two years after the settlement, i.e., about six years after the disaster, was more of a farce because all the necessary investigations were never carried out to determine the degree of injury sustained by the claimants almost six years earlier. Instead, excessive reliance was placed on post-disaster medical records, which most gas victims never possessed.
Ultimately, most victims were classed as having sustained “minor injuries” because they were able to prove that they resided in areas declared ‘gas-affected’. Indian Council of Medical Research survey reports, which were published subsequently, also prove that over 99% of those present in the 36-gas affected wards of Bhopal had, indeed, sustained injuries due to exposure to the toxic gases.
Most gas victims have been unable to get rid of the “minor injuries” tag because they met the same fate before the claims courts as well, which adjudicated claims without the courts having access either to research findings of the ICMR regarding the impact of the disaster on the health of the gas victims or to the medical records of most of the individual claimants. However, it is significant that the Supreme Court itself in paras 128 and 129 of its judgment dated October 3, 1991, had observed as follows:
“On the medical research literature placed before us it can reasonably be posited that the exposure to such concentrations of MIC might involve delayed manifestations of toxic morbidity. The exposed population may not have manifested any immediate symptomatic medical status. But the long latency-period of toxic injuries renders the medical surveillance costs a permissible claim even though ultimately the exposed persons may not actually develop the apprehended complications.” (Emphasis added)
Unfortunately, the court only imposed an additional cost of a mere Rs 50 crores on the UCC in this regard, which UCC has not paid till date.
Inadequate medical surveillance
The government of India has also been lax in carrying out medical surveillance of the gas exposed population of Bhopal since 1991.
However, it is an admitted fact that every day on an average about 4,000 gas victims visit six hospitals and 18 clinics run by the Bhopal Gas Tragedy Relief & Rehabilitation Department (BGTRRD) of the state government.
In addition, on an average, every day, over 2,000 gas victims visit Bhopal Memorial Hospital & Research Centre and its eight units. By what stretch of imagination can these gas victims, who continue to visit gas relief hospitals and clinics (on more than 2,000,000 occasions every year even during the last two decades) for treatment of gas-related ailments, be classified as suffering from just “minor injuries” and as remaining just “temporarily injured” even 38 years after the disaster?
It is so unfortunate that proper and complete medical records of all these visits are not being properly maintained despite specific directions from even the Supreme Court vide judgment and order dated August 9, 2012.
The high court of Madhya Pradesh at Jabalpur in its order dated January 3, 2023 in a civil contempt petition of 2015 has also expressed concern at the fact that “merely about seventy-six thousand health books/medical records have been digitalized as against more than four lakhs gas victims to whom smart cards have been prepared/issued.”
Thus, medical documentation is in a pathetic state and yet the mass of the gas victims are still labeled as suffering from only “minor injuries”.
Watch this space for the final and second part of this series.
N.D. Jayaprakash is Joint Secretary, Delhi Science Forum and Co-Convener, Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS).