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Notes from Petition to Parliament on Bhopal Disaster

Written By krishna on Friday, December 03, 2010 | 7:37 PM

Notes from petitions submitted to the Speaker, Lok Sabha and the Chairperson, Rajya Sabha

With regard to compensation, rehabilitation and environmental degradation, petitions were submitted in person to the Speaker, Lok Sabha and the Chairperson, Rajya Sabha on 3rd December, 2010 in the Parliament.

After failing to pursue the suit for damages in the U.S. against Union Carbide Corporation (UCC), the company that was primarily responsible for causing the disaster at Bhopal, the Union of India filed an identical suit before the District Court of Bhopal on 05.09.1986. In the Amended Plaint that was filed subsequently on 29.01.1988, the Union of India had stated that the approximate value of the total 531,770 claims for compensation filed until 1988 would exceed Rs.3,900 crores (U.S. 3 billion dollars). However, even without evaluating those claims, on 14/15.02.1989, the Union of India agreed to a Supreme Court assisted settlement with UCC for 470 million U.S. dollars (Rs.713 crores) on the assumption that only 3000 gas-victims had died and just another 102,000 had suffered injuries in varying degree.

It may be noted that of the total settlement amount, $420 million was maintained in a separate Dollar account in the Reserve Bank of India, Delhi, as per the order of the Supreme Court. Because of this direction, the settlement amount multiplied several times in terms of Rupees due to the drastic fall in the value of Rupee vis-à-vis the Dollar from approximately Rs.15 = $1 in 1989 to Rs.28 = $1 in 1992 and to Rs.48 = $1 in 2002 as well due to accruing of interest on the settlement amount from 1989 to 2004. In other words, the settlement amount of Rs.713 crores rose roughly to around Rs.3100 crores through the process of devaluation and accruing of interest. In all fairness, the entire sum of Rs.3100 crores (i.e., minus an appropriate sum for 788 claims arising from loss of property) should have been justly awarded to the 105,000 gas-victims, the assumed figure that formed the basis of the settlement.  However, that did not happen. Instead, the sum of Rs.2387 crores (i.e., Rs.3100 crores minus Rs.713 croes) that rightly belonged to the said 105,000 gas-victims, in terms of the settlement, was utilized to award compensation to another 468,598 gas-victims [i.e., 574,376 (the total number of awardees) minus the said 105,000 + 788 intended beneficiaries], who were kept out of the ambit of the settlement in 1989.

As per the terms of the settlement, each of the said 105,000 gas-victims should have been awarded on an average Rs.57,142/- as compensation at the 1989 value of the Rupee vis-à-vis the Dollar. However, after adjudicating all the 10,29,515 claims that were filed until 1997, the Claim Courts awarded compensation to 574,376 claimants, including 5295 claims on account of death and 788 claims on account of loss of property. In other words, the compensation amount of Rs.713 crores was spread thin among more than five times as many number of victims whereby each of the victim was effectively awarded compensation on an average of only Rs.12,404/- at the 1989 value of the Rupee vis-à-vis the Dollar instead of Rs.57,142/- as per the terms of the settlement. In other words, each gas-victim on an average has been awarded only about one-fifth of the compensation that he/she should have been awarded as per the terms of the settlement.

The gas-victims also have not been awarded interest for the long delay in the process of adjudication, which went on from 1992 to 2004 although such interest is due as per the Interest Act, 1978. (For example, the Delhi High Court in 2003 awarded 9 per cent interest to the victims of the Uphaar Cinema Gas Tragedy for the period of delay in the adjudication of claims.) The Claim Courts had awarded the minimum amount of Rs.25,000/- (at the 1992-2004 value of the Rupee vis-à-vis the Dollar) as compensation in 527,894 personal injury cases; only 45,694 claimants were awarded higher amounts, which included death cases. Subsequently, at the intervention of gas-victims, the Supreme Court vide order dated 19.07.2004 doubled the compensation amount on a 1:1 pro-rata basis at the 2004 value of the Rupee vis-à-vis the Dollar. Doubling the compensation amount at the 2004 value of the Rupee vis-à-vis the Dollar could not hide the fact that each gas-victim effectively was awarded only about one-fifth of the compensation that he/she was entitled to as per the terms of the 1989 settlement.

Since September 2004, BGPMUS and BGPSSS have been repeatedly trying to ensure that the gross injustice meted out to the gas-victims was undone by filing necessary petitions before the Supreme Court, before the Office of the Welfare Commissioner and before the High Court of Madhya Pradesh. After our plea was dismissed by the Supreme Court on 04.05.2007, by the Office of the Welfare Commissioner on 31.01.2009 and by the High Court on 30.11.2009, BGPMUS and BGPSSS have again filed a fresh appeal before the Supreme Court, which was admitted by the Court on 23.04.2010. A decision to list the matter for hearing the same is scheduled to be taken by the Registrar of the Supreme Court on 07.01.2011.

Meanwhile, the Union Cabinet on 24.06.2010 has approved the decision of the GoM on Bhopal to enhance compensation to a select category of gas-victims. A further recommendation in this regard was made by the GoM on 27.09.2010. About 48,694 gas-victims in the “higher injury” category, including 5295 death cases, will partially benefit from these decisions. However, the fact remains that the Central Government has been trying desperately to keep the death toll and the number of higher injury cases as low as possible.  Whether or not the actual magnitude of death and seriously injured cases has been properly assessed is the question that needs to be addressed. Such assessment can be carried out by an all party Parliamentary committee or any other appropriate body. BGPMUS and BGPSSS, hereby, urge you to take whatever initiative you can in constituting an apt mechanism for bringing out the truth.

Very few initiatives have been taken by the State Government for the economic rehabilitation of the surviving gas-victims by creating appropriate avenues for employment, which are suited to their weakened constitution. Social rehabilitation is another area that has been grossly neglected. Over 2400 widows of dead gas-victims are living in pitiable conditions in the widows’ colony, which is poorly maintained without proper drinking water facilities or sewerage system and with errant electricity connection. After paying paltry sums as compensation, the Central and State Governments have practically washed their hands of all social responsibility towards the hapless gas-victims, especially the traumatized children, women and the elderly. Also there is no mechanism in place to monitor whether even the meager funds allocated for economic and social rehabilitation is properly utilized. Since economic and social rehabilitation is the responsibility of the Central and State governments, we urge you use your influence in whatever way you can to ensure that they fulfill their responsibilities in this regard.

It is an undeniable fact that the environment in and around the former Union Carbide factory is badly polluted, primarily due to the reckless dumping of toxic waste within the factory premises as well in the so-called solar evaporation pond in the adjacent area from the start-up of the plant in 1969 until the disaster in 1984. The primary responsibility for such thoughtless dumping of toxic waste lies with the UCC and its local management. Leaching of the toxic waste into the soil and ground water had resulted in large scale contamination of the major source of drinking water for the residents living near the plant site, which has caused various toxin-related ailments among many of the residents. Despite the Supreme Court’s direction dated 07.05.2004 in WP(C) No.657/1995 to supply safe piped-drinking water through overhead tanks, the State Government has yet to fully comply with the directions.

It is the considered view of the organisations representing the gas-victims that the entire costs for remediation of the contaminated soil and ground water in and around the closed Union Carbide factory at Bhopal should be borne by the Dow Chemical Company, USA, which is the present owner of UCC.  As per the recommendation of the Technical Sub-Committee of the Task Force for Removal of toxic Waste lying in Union Carbide, Bhopal, dated 26.8.2006, the entire toxic waste lying in and around the Union Carbide factory site at Bhopal was to be transported to USA for appropriate remediation. (The said Task Force was set up on 30.03.2005 under the auspices of the MP High Court in Writ Petition No. 2802 of 2004. BGIA, BGPSSS & BGPMUS are interveners in the case.) This recommendation was in consonance with the earlier decision of the Tamil Nadu Pollution Control Board, which on 23.3.2003 had directed Hindustan Lever Limited (HLL) to transport 290 tons of contaminated mercury waste from HLL’s thermometer factory at Kodaikanal to USA for remediation based on the “polluter pays principle”. The State Government and the MP Pollution Control Board are trying their level best to sabotage the recommendations of the said Technical Sub-Committee.

The problem is that a detailed study of the nature, level, breadth and depth of contamination is yet to be undertaken by any agency although some valuable preliminary studies have been carried out by Greenpeace, Srishti, People’s Science Institute, Centre for Science and Environment and some other organizations. Unfortunately, the study sponsored by the Bhopal Gas Tragedy Relief and Rehabilitation Department (BGTRRD) in March 2009 and carried out by the National Environmental Engineering Institute (NEERI), Nagpur, and the National Geophysical Research Institute (NGRI) has been extremely disappointing. The NEERI-NGRI Report that was submitted in June 2010 recommended the incineration of the toxic waste at the Treatment, Storage and Disposal Facility (TDSF) at Pithampur and disposing off the non-incinerable toxic wastes at the Union Carbide plant site in Bhopal.

NEERI’s recommendations were considered by the Oversight Committee, which was constituted in the Ministry of Environment and Forest (MoEF) to coordinate and monitor all activities at the Bhopal Gas Tragedy site relating to waste disposal, decontamination and remediation. The Oversight Committee, which met in Delhi on 27.09.2010 and to which representatives of gas-victims were duly invited (represented by BGIA and BGPSSS) decided to reject the recommendations and to consider alternate remediation measures. The MoEF has already received several proposals in this regard and the general consensus was that a proper assessment of the magnitude and gravity of the problem through a detailed study was necessary before attempting the cleanup. Among the alternate proposals made was the suggestion to adopt closed loop non-incineration technologies for extraction of contaminants from the soil. For cleaning up the contaminated groundwater, the suggestion was to adopt pump-and-treat system as well as the process of reverse osmosis. Also, further proceedings in the ongoing Writ Petition (WP No.2802 of 2004) before the MP High Court in the matter, which was last heard on 26.10.2010, have been stalled until the Oversight Committee comes out with an alternate proposal.

P.S: The petitions are available in Hindi as well

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