40 years since the Bhopal gas disasters, which killed thousands and injured millions more, what have been the lessons for corporate accountability? IHRB’s Salil Tripathi speaks to survivor, Tahira Sultan, as well as Dr Usha Ramanathan, a human rights and legal scholar who has studied and worked on the Bhopal case extensively.
Tahira Sultan:
Whether justice will ultimately be achieved remains uncertain because now it's 40 years. True justice would require acknowledgement of the past, adequate compensation, systematic changes to prevent future disaster and robust health support for the affected communities, which is very important for me and for the future generation.
Deborah Sagoe:
Hi there, and welcome to Voices from the Institute for Human Rights and Business, also known as IHRB. I am Deborah Sagoe, and in this podcast you'll hear from people working to make respect for human rights part of everyday business. You've just heard from Tahira Sultan, a survivor of the Bhopal disaster, one of India's most tragic industrial accidents.
In 1984, a chemical accident occurred at the Union Carbide Pesticide Plant in Bhopal. 40 years later, many survivors are still waiting for adequate compensation. My colleague, Salil Tripathi, has been speaking to Tahira and Dr. Usha Ramanathan. Dr. Usha is a human rights scholar who was worked extensively on business of human rights, particularly in regard to Bhopal. Salil, can you give us some context on how significant this event was?
Salil Tripathi:
Here? I mean, it's been 40 years after what we all know to be the worst industrial disaster ever in terms of human fatalities. There have been other instances where people have died because of corporate presence over extended period of time. But when one incident occurs, which leads to so many deaths and then prolongs that agony over time because people remain sick for a long time, this is unprecedented.
There's another angle which is about power imbalance because you have a very rich country, the United States, investing in a very poor country at that time, which was India, essentially for a good cause to increase food production by making pesticides. But in the process, there is a power imbalance about the kind of technology being transferred, kind of controls being ceded to the Indian authorities, and kind of safeguards being provided, and the kind of inspections that was necessary.
So a series of errors led to a lot of incidents which were problematic, which should have sent warning signs and alarm bells that were ignored. And the consequence of that was what happened that night in December, 1984. And immediately about 2,000 to 3,000 people died, and over its lifetime, at least 20 to 25,000 people have had their lifetimes shortened.
Deborah Sagoe:
You've been working on an IHRB report about this. Tell me more about it.
Salil Tripathi:
Yeah, so I'm not saying that Bhopal created a template, but what happened subsequently was that Union Carbide, the US company, which owned the plant, sold its Indian operation to an Indian company. And when Dow Chemical, another large US company, bought over Union Carbide, it bought everything except not just India, but also its liabilities, the future liabilities.
So this creates a way of evading and escaping future responsibility. I'm not saying that it created a precedent, but we have seen a series of incidents where companies have tried to act in similar ways, that if there have a bad problem, it's left in that country and the good assets are taken away.
So what we are doing in the report are looking at this tendency on the part of the company, the fact that it's becoming a growing trend, and we are recommending that the international community, on one hand, take on the responsibility of having better rules. We want home governments and host governments to create better ways and easier ways to access justice, secure justice and make it easier to find evidence because evidence gathering is a very difficult problem and we want companies to at least ensure and promise that they will not put impediments in the past and be transparent about their conduct and the kind of technology that they introduce in regions where these are very new technologies and ensure that they are responsible for its use.
Deborah Sagoe:
We're going to hear Tahira's story and the memories of that night, but tell me about Usha and her role in the fight for justice for the survivors of Bhopal.
Salil Tripathi:
So Usha has been a lawyer and a legal scholar, and she has not litigated the case as she's not a litigating lawyer, but she's very good at organising communities and working with them and working with the legal community in creating a body of opinion and scholarship to strengthen the arguments that the victims need to ensure that the courts hear the cases properly. And she has been adamant about it. She has edited volumes, she has written articles about it. She has never ever wavered from the task. She works on many other human rights issues, but this has been one of her central concerns and she continues to speak out about it.
Deborah Sagoe:
Thanks, Salil. Let's hear from Tahira now who took us back to the events of December 3rd, 1984.
Tahira Sultan:
I was only three years old when that tragedy happened, and I still remember that night. It was a cold Sunday night, December 3rd, 2 or 3rd, and we all were sleeping and midnight I heard a weird sound and my mother woke up me and she said that we have to leave house now. And I asked her, "What was happening, and where we are going this time, what happened?" My grandmother, she was coughing and screaming and saying, "Takes me to the hospital," and it's two and a half kilometres from my house. And my dad said that she felt nervous. "She don't know what's going on with her situation."
So he said that, "There is a chaos outside and I am having trouble to breathing also, and I don't know what is happening. Let's go to the hospital and see maybe we can find something there." And when we step outside, there was something strange in the air. I felt thick and smoky clouds so that our eyes immediately hurt and every breathe felt like we were inhaling sharp, invisible needles. No one knows what's going on.
Then my mother woke up my brother and he was just four month old and she wrapped him in the blanket and she said to me, "Whatever happened, it's better don't let go off my kurta. Kurta, it's address of Indian women's usually wear. People on the street were stunned, falling, confused with no sense of direction. So my father, when I saw him, his eyes were red and teary and his voice had become hoarse. No one knew where to go, everybody was just running and Bhopal faced like a war situation.
Foam was coming out for my grandmother's mouth and she was fainting over and over. My mom was also getting worse and started vomiting. I could see the fear and panic on her face. And suddenly my uncle saw one big auto rickshaw, and he said, "Go inside." My father and my grandfather, they started to make us get in it, but due to the weight, the auto was not able to move far.
After going little distance, the auto stopped and there was a [inaudible 00:07:40] in which I got separated from my father. And that movement I understood that something really seriously happened because my mother, she's crying, "where is my father?" It's same confusion I had. So I hold my mother's kurta tightly. Her clothes were covered in the smell of vomit and blood.
When Amma became too tired, she said, "We should stop. I am exhausted now. I want to sit here." So we sit by the side of road. It was dark when we started running, now it's morning, and that time my eyes were swollen and I looked around Bhopal. I saw dead bodies on both animal or people lying on the street and there is no leaves on the trees and still the strange smell in the air still is there. And my mother held my brother, which he wasn't moved, so she thought that maybe he died, but she hold him tightly and she looked at me and her eyes barely open and told me to keep holding on her kurta. Don't go, sit with me.
Salil Tripathi:
Yeah. And it's very vivid, very powerful, very moving and very tragic at the same time. So thank you for sharing what must be a very painful memory and painting it so vividly for us. Usha, question for you, your memories, where you were that day and when did your engagement with Bhopal begin?
Usha Ramanathan:
The day after the disaster, the newspapers had a picture of the Union Carbide plant of devastation all around. We'd never experienced anything like this before. So when we saw that, we just saw it as an industrial disaster without understanding what the implications of a disaster of that kind were. But news reports, of course, were pretty clear about what had happened and how many people had died. Other than that, it was actually very difficult to know what it was that had happened.
The other thing is it happened in December, 2nd, 3rd of 1984. 1984 had already been a very traumatic year for India. We'd had the storming of the Golden Temple in Amritsar, the holiest shrine of the Sikhs. Then we'd had the assassination of Mrs. Gandhi. Following on the assassination of Mrs. Gandhi, we had the anti-Sikh riots, which was like a pogrom against many of the Sikhs. And in just the city of Delhi, over 3000 people had died.
So it's like one thing after another assaulting you after a while, you don't know how to react to it. So it was a very slow entry into understanding this. There were people who had gone already to Bhopal, some of them had settled down in Bhopal to help in the situation. So it was a peripheral understanding until about 1988, which is the first time I think I went there after the disaster.
I did not expect to see that there would be people living in the vicinity of that factory who'd still be experiencing in such a major way the effects of that disaster. And it was in 1989 that the Supreme Court did what we call a settlement order. The Union of India and the government and Union Carbide got into a settlement for a certain sum.
It's at that time that it wasn't just an emotional engagement that I had with it, but getting into it in its legality, and that I think for many years after it continues to absorb me from that perspective because you generally expect that there should be a link between law and justice. And when you find that justice continues to be elusive, then you have to ask questions about what law means.
Salil Tripathi:
Tahira, you mentioned the health impacts of course, but there must have been emotional and psychological impacts and economic impacts. Can you say a little bit about that?
Tahira Sultan:
Yes, there are many health impacts. My father died with cancer. My brother, he have a post-traumatic stress disorder. He have depression, anxiety, and these are the mental issue, what after the gas survivors have this kind of health issue. In my case, my father is, he have only job. My mother at that time, she don't have any job. We found that he is suffering from leukaemia cancer and he died 2010 February. Three to four months during his treatment, we spend more than 8 lakh rupees. And this money is from my father and mother, she saved from last 10 years and it goes in three months.
Salil Tripathi:
Yeah. And to put it in context, I remember that most of the people had been given compensation of about 25,000 rupees, and the amount you had spend was 32 times that much, 800,000 rupees. So I can feel how much of an economic stress you have.
Tahira Sultan:
We received as a compensation 200 Indian rupees after the disaster. It's like a $2.36 per month. In 1994, we got 25,000. It's like $255 or $264. And this is the category of lifelong injuries and that are classified as temporary after several appeals. And for death, they give $1,000. How they calculate, no one knows.
Salil Tripathi:
Right. Usha, I wanted to turn to the legal matters and the case itself. Can you walk us through that history about why it was not tried in the United States and why has there been such slow progress in the justice mechanism?
Usha Ramanathan:
Soon after the disaster, there was a lot of chaos. Legally too, there was a lot of chaos because the judicial system and the legal system had never encountered anything like this so far. There had been in the 1976 when they amended the Factories Act, they had made the amendment while recognising that toxic material, chemicals had entered the industrial process and therefore workers needed some protection from it. And you should acknowledge that there is such a thing as occupational disease. But it was confined to a specific category and it was treated like it was just a workplace injury.
So the first major thing that happened with Bhopal is that we recognised and was kind of pushed in our faces, you just couldn't not see it, that there is no such thing as a workplace injury when you have a disaster of this kind. And it is during that period that the idea of hazardous substances, hazardous processes, these are not things that were part of common parlance, that came in with the disaster. And soon after the disaster, therefore, there were American lawyers who came down to Bhopal because they have a lot of experience in negotiating, especially when compensation is almost certain.
So they came and took the permission from the people locally to take it back to the U.S. and to negotiate with the company. The Indian government of course couldn't possibly know that because it's a massive Indian disaster. So, in March of 1985, they passed a law which is broadly called the Bhopal Claims Act, under which apart from setting out what are the losses that they were able to recognise, the destruction and not being able to work and the environment getting affected and everybody's lives turning around only this disaster for a long period of time and a range of things like that, they also took over the litigation and made themselves the custodian of that litigation.
So they said in the context of Bhopal, it'll be the union government that is going to conduct that litigation and they might either go to a decision in the case or they might go to settlement. Adding to many of the tragedies that Tahira has been telling us about is a tragedy that the agency of the victim was completely taken away by this legislation and it was immediately challenged.
Salil Tripathi:
So Usha, were there any attempts made to take the cases to U.S. courts?
Usha Ramanathan:
The union government did make an effort. And in the U.S. courts, it's actually very instructive to read what Union Carbides said in the U.S. courts. So one of those things that they said was that it is impossible for the American courts to be making any decision on this because it's too far away. You'll have to bring all those witnesses across and you'll have to have translation of all of that. So the process they said would be much simpler if it were done in India.
They didn't talk about what would come at the end of that process. And when you see what actually happened in the Indian courts, the Indian courts and the Supreme Court particularly was very anxious that if they gave a decision which had to be enforced in America, then American courts would be sitting in judgement over whether Indian courts had followed due process.
Salil Tripathi:
So Usha, after the case was taken to the U.S. court and it failed, what happened next?
Usha Ramanathan:
When they came back to India, in the hierarchy of the courts, they had to go back to the district court. District court, the case was beginning, but in the meantime, victims counsel said, people are waiting. They can't keep waiting forever. So there must be some interim relief that is given to victims. It's in that context that the district court gave a decision saying that 350 crore, which is like 350, followed by seven zeros. So that's the sum that should be paid by Union Carbide.
While the case carries on, Union Carbide took this up in appeal to the high court. High Court reduced the amount to 250 crores, but they did not... they gave a different reasoning. Union Carbide then took this case to the Supreme Court, and actually, it is one of those things where it was not just us who were foxed by it, the Indian Supreme seems to have been overwhelmed by the magnitude of the disaster and the magnitude of the task that had been set out before it. And that's where the floundering happens.
So actually the original claim that was made was for $3.3 billion. It was finally settled for $470 million and it was done without consulting the victims. And not only were civil cases settled in that, the Supreme Court even said the criminal cases are also being withdrawn from wherever they are, brought to the Supreme Court, and they were all sealed. So there would be no criminal case either that would go forward.
Now the one thing to remember is that throughout this litigation, the one thing that kept getting missing was finding the evidence of what had actually happened. So in a court case, you would ask the company to produce that information. In a criminal case, the investigating agencies would actually go in and investigate, which would mean that in a disaster of this nature, it would be possible at least to get some evidence of what went wrong and not just be on statements that are made by different people.
For instance, Union Carbide put out on its website that it had happened because of an act of sabotage. They didn't pass you that at all. Why think did they put that out there? Because there is an 1860s judgement where the doctrine of strict liability had been propounded. The strict liability meant that if you put land to non-natural user, which means if you set up a plant, that's part of it. If it is for non-natural user and something escapes from it or something causes harm, then you are strictly liable for it. You can't go taking excuses saying, I didn't mean it. I could not have known, it was somebody else's fault.
So one of the exceptions to the strict liability principle was sabotage. So from the beginning, you see how when you talk about the Union Carbide disaster in Bhopal mitigation did not mean mitigating what had happened to the victims of the disaster, mitigation was about mitigating the damage that could happen to the reputation and to the resources of the company.
So there is a cynicism that you see through all of the legal proceedings, judicial proceedings. The case went on, the victims groups challenged it and said, you can't have a settlement without having heard us, and you can't have criminal cases settled like this. There's no pressure of settling something. The intensity and extent of the disaster, I don't know how the court felt that it's all right to just settle this.
Salil Tripathi:
But since then, Usha, this criminal case has been brought forward again, am I right?
Usha Ramanathan:
So the Supreme Court has a power under Article 142 of the Constitution of India where they can do whatever is required in the interest of complete justice. So it is in that they allowed the criminal cases to be revived. So then they went from court to court and finally reached Supreme Court to say we shouldn't have to stand trial because really we committed no crime. And the court heard it, and in a very strange judgement , they'd say in 1996 that they couldn't have had knowledge that it'll kill like this. They couldn't have intended to kill like this. They didn't have a mental frame, mental state, which is required for it to become a crime.
So basically then they've not committed a crime. But then they also realised that it would be too much to let it off given what had happened and given the extent of victim creation in this disaster and the kind of after the settlement, the kind of outcry that there was. Perhaps that's what prompted the court again to use its power under Article 142, which is to do complete justice and say, all right, you will face trial for negligence, which is punishable to a maximum of two years.
And that's what happened. And it was 2010 by the time the conviction came in that case and the maximum sentence of two years was given, the appeal is pending and everybody's out, know Keshub Mahindra, for instance, has died. So the efflux of time will take care of criminal cases of this kind.
Salil Tripathi:
And here's something everyone would want to know. Are there new cases being filed today?
Usha Ramanathan:
The last thing is that right now there is a case being filed in the Supreme Court because more and more people are manifesting signs of cancer and of kidney problems, severe kidney problems. So they're saying, listen, it lasts over such a period of time. So this is the latest that people are going to court with. We don't know what the court will do.
Salil Tripathi:
Right. Tahira, my final question to you, reflecting on what Usha has talked about, the quest for justice, what accounts for the tenacity, perseverance, and courage of the people in Bhopal and how do you see the scenario?
Tahira Sultan:
I don't know when we get justice, we don't know. But while the journey towards the justice for Bhopal survivors is fraught with challenges, their resilience, and advocacy keep the pursuit of justice alive. Whether the justice will ultimately be achieved remains uncertain. I mean, nobody knows because now it's 40 years. Usha did say that now the Supreme Court said that now, whatever, it's finished, it's finished. Now no need to discuss this matter further.
But the collective effort of survivor groups, how they struggle, how they fight for their own things, for their own right along with supportive network, continue to keep the issue at the forefront of public consciousness. Because still in New Bhopal or even in the Madhya Pradesh state, most the new generation, they don't know what happened on those dates. But I feel the public consciousness is very important and true justice would require acknowledgement of the past, adequate compensation, systematic changes to prevent future disaster, and robust health support for the affected communities, which is very important for me and for the future generation.
Salil Tripathi:
Thank you so much. And Usha, my final question to you is you did mention some of the specific changes that have been made in Indian laws since then. Do we need new laws to have a culture of accountability and prevention of impunity?
Usha Ramanathan:
It was a kind of opportunistic intervention that the Supreme Court was able to make because a year and the day after the Bhopal gas disaster, there was a gas leak in Delhi and the case was already pending because workers had asked the public interest petitioner to go to court and say that actually the tower in which their chemical was shaking so they said disaster could happen at any time.
So the case was already in court. The court picked it up. And Justice Bhagwati, who was quite known for creativity in law, he then looked at this in the context of Bhopal saying that this is how disasters happen, and if we have to deal with this, what do we need to do? He actually profounded a certain set of principles. One of the things that he attempted was to say that, well, if you want to run plants of this kind, the directors of the company must be willing to go deep pocket.
Don't make it into this public limited company where the public and investors are going to be paying. So you pay. And that was experimented. There are principles of absolute liabilities. So here he said, you can't pass the buck onto anything else, not even God. He brought in the concept of enterprise liability because what happens very often as we know, is that insurance has this way of just spreading the risk everywhere, and the company doesn't feel the pinch at all.
In fact, in the Union Carbide case, when the settlement was arrived at, they didn't even have to draw all that they could draw from their insurance. Forget about having to go deep pocket or go anywhere else. So his thing was that enterprise liability should be of such a nature that it'll have a deterrent effect.
Then about 12 years after the Bhopal gas disaster, in an unrelated case, they also brought in the idea of absolute offence. See, many of these companies hide behind confidentiality. They say, what is going on in our companies? It's a trade secret. We can't let just anyone into it. The inspectors can only do what is authorised under the law. Even they won't be entitled to know what the exact processes or what the chemicals are that are being used. They can only do a safety audit without knowing many of these things.
And they're not allowed in any case, even if they find some hazardous substance there, which should not be there, they're not allowed to communicate that to anybody. Not even to people in the vicinity except to the court. If they file a case in the court, then they can tell the court like it is evidence. That's it. So with all this protection that companies want, that industry wants, that corporations want, the court said that with all this, what happens within that plant and what happens within the premises of that industry, it's an absolute offence.
If safety is breached, if welfare is breached, if health is effective, then it is an absolute offence which is committed by the director, unlike before where it was taught that in a factory you'll only have things happening which are managed from day to day. By now, it was realised and the Union Carbide disaster helped understand this. They said, by now we know that it is policy that makes many of these things happen.
And in the Bhopal case itself, the plant was just under maintenance because they were trying to figure out whether they should take the plant entirely and ship it to Brazil or to Indonesia or wherever because it wasn't being profitable enough here. So these were not matters of something that just happened on that day because someone slipped up. These are matters of policy and directors have to take responsibility for it. So these are some of the things that have come in.
What has not developed at all with what happens when you have long-term impact on health. How do you treat long-term impacts on health? How do you treat PTSD, like you were saying, post-traumatic stress disorder, how are you going to treat that? And what happens when, for instance, in the Union Carbide case, till today, I don't think they've revealed anything about what they know about the chemical, about the gas, about an antidote for it.
So this is actually a prescription for impunity because if you can come and say that I know that this gas can produce a fertiliser or a pesticide, but I don't know, or I don't have to say what I know about what the antidote for that poison is, then that is really a prescription for impunity. And I don't think this case has dealt with it at all. There's a lot of work left to be done.
Salil Tripathi:
Thank you, Tahira for your perseverance and inspiring pursuit for justice. And thank you, Usha, for clarifying these concepts and continuing and persevering with the quest for greater clarity and accountability.
Tahira Sultan:
Thank you so much.
Deborah Sagoe:
Many thanks to my colleague, Salil Tripathi, for bringing us this important conversation. And thank you for listening to this episode of Voices, which is brought to you from the Institute for Human Rights and Business. Until next time, be sure to share and follow this podcast that way you'll never miss an episode. And if you'd like to find out more about the work that we do at IHRB, then head to IHRB.org.