ToxicsWatch, Journal of Earth, Science, Economy and Justice

Forty years after the Bhopal disaster of 1984, the victims and the adversely affected ecosystems await relief and remediation. Lessons from such industrial disasters create a compelling logic for an internationally binding treaty for transnational corporations (TNCs) and human rights.

Given the fact that corporations, banks and other business enterprises are admittedly not meant to be “democratic public interest institutions”, the decisive negotiations on an enforceable treaty on transnational corporations and human rights which are currently underway has great significance. A UN resolution of 2014 had created the UN Open-ended intergovernmental working group and tasked it to prepare the text of a binding treaty. States are due to meet in Geneva, for the 10th session of the UN's Open Ended Inter-Governmental Working Group (OEIGWG) to negotiate the updated draft of the future Binding Treaty during 16-20 December 2024. The first and second sessions of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights were dedicated to conducting constructive deliberations on the content, scope, nature and form of a future international instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.

During the third session, the Working Group discussed elements for a draft legally binding instrument prepared by the Chairperson-Rapporteur of the OEIGWG taking into consideration the discussions held during the first two sessions. At he fourth session, the Working Group's discussions focused on a zero draft legally binding instrument, as well as a zero draft optional protocol to be annexed to the zero draft legally binding instrument. During the fifth session, a revised draft of the legally binding instrument served as the basis for negotiations. At the sixth session, a second revised draft of the legally binding instrument served as the basis for negotiations. During the seventh session, a third revised draft of the legally binding instrument served as the basis for negotiations. At the eighth session, the third revised draft of the legally binding instrument with the textual proposals submitted by States during the seventh session served as the basis for negotiations. Additionally, to help advance discussions during the eighth session, States and non-State stakeholders could also comment on informal contributions presented by the Chair-Rapporteur on select articles of the instrument. During the ninth session, an updated draft legally binding instrument served as the basis for negotiations.

At its 56th session, on 11 July 2024, the Human Rights Council adopted decision 56/116 to enhance the support capabilities of the OEIGWG in line with the mandate established by the Council in its resolution 26/9, and to enhance the support capabilities in the area of business and human rights within the Office of the United Nations High Commissioner for Human Rights, for the work on the legally binding instrument.

In its essence, the proposed draft treaty is an outcome of over 50 years of effort, which underlines that self-regulation by corporations is not enough at all. As a consequence of such realization as early as July 1972, at the initiative of Government of Chile, United Nations Economic and Social Council (UNESC) had requested UN Secretary General to appoint a Group of Eminent Persons to study the role of transnational corporations in relation to developing countries and international relations. This UN Group was headed by L K Jha, former Governor, Reserve Bank of India. Developing countries Chile, India, Ecuador have been grappling with the ungovernable might of corporations like International Telephone and Telegraph Company, Union Carbide Corporation and Chevron.

The persistent efforts to enact a binding treaty for corporations expose the emptiness of voluntary UN Global Compact and UN Guiding Principles on Business and Human Rights.

Prior to the current efforts initiated by Ecuador and supported by India, China, South Africa, Russian Federation, Philippines, Viet Nam, Indonesia, Venezuela, Cuba, Algeria, Benin, Burkina Faso, Congo, Côte d’Ivoire, Ethiopia, Kazakhstan, Kenya, Morocco, Namibia and Pakistan to provide the legal remedy to wrongs committed by business enterprises, the UN Sub-Commission on the Promotion and Protection of Human Rights had approved the 'UN norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights'. These norms had emerged as a step towards ensuring corporate accountability in August 2003. 

But the report of the Prof. John Ruggie, a Special Representative of the UN Secretary-General on business and human rights undermined these proposed mandatory UN Norms under the influence of International Chamber of Commerce and the International Organization of Employers. It chose to promote Guiding Principles on Business and Human Rights in July 2011 as part of advocacy for the status quo of voluntary regulation by the companies while admitting that "While corporations may be considered organs of society, they are specialised economic organs, not democratic public interest institutions.”

The efforts of the UN working group vindicate the UN Norms which were drafted by Prof. David Weissbrodt and other co-authors for mandatory regulation of TNCs. Prof. Weissbrodt had underlined how only 1,000 of about 75, 000 TNCs had joined the voluntary UN Global Compact. Even the ones who joined are at a liberty to withdraw at their sweet will.

In order to inspire confidence the new efforts for the proposed legally enforceable mandatory treaty must ensure that business enterprises are subservient to both peoples’ will and legislative will. It should ensure that natural persons have the principle of primacy of their human rights and public interest over private economic interests. It should reaffirm the hierarchical superiority of human rights norms over trade and investment treaties and develop specific state obligations in this regard.

After the third session of the UN inter governmental working group concluded, on October 27, 2017 a representative for the USA asserted gleefully that this “binding treaty will not be binding for those who voted against it”. The US reaction to the efforts for binding treaty gives a sense of déjà vu. After the initial adoption of the mandatory UN norms, the corporations reacted sharply saying: these norms are “duplicate and unnecessary”. Prof. Weissbrodt had responded saying, the mandatory norms are indeed “duplicate” in the sense that they are based on existing laws and principles, therefore, they are necessary.     

Notably, USA did not participate in the three-year process after the adoption of the UN resolution on 26 June, 2014 at the 37th meeting of UN Human Rights Council (UNHRC). Instead, USA along with UK, France, Germany, Italy, Japan and Republic of Korea besides countries are like Austria, Czech Republic, Estonia, Ireland, Montenegro and Romania have voted against the resolution for a binding treaty. Under external influence countries like Saudi Arabia, Sierra Leone, United Arab Emirates, Gabon, Kuwait, Maldives, Mexico, Peru, Argentina, Brazil, Chile, Costa Rica and Botswana abstained.   

The Draft Report of Guillaume Long, the Chair-Rapporteur of the UN working group paving the way for the treaty was approved by consensus. It was submitted for final approval to the UNHRC in March 2018. The Elements paper towards a Treaty proposed by Ecuador remained open for comments until the end of February 2018. It formed the basis for developing the zero draft treaty for the fourth session of the UN working group in 2018.

The Report on the ninth session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, presented at the Fifty-fifth session of Human Rights Council during 26 February–5 April 2024 revealed that list of participants in the exercise included members of the UN like Albania, Algeria, Angola, Argentina, Australia, Austria, Azerbaijan, Belgium, Bolivia, Brazil, Cameroon, Chile, China, Colombia, Côte d’Ivoire, Cuba, Czechia, Democratic Republic of the Congo, Denmark, Djibouti, Dominican Republic, Ecuador, Egypt, Ethiopia, Finland, France, Gambia, Germany, Ghana, Honduras, India, Indonesia, Iran, Iraq, Ireland, Israel, Jamaica, Japan, Kenya, Luxembourg, Madagascar, Malawi, Malaysia, Mexico, Mongolia, Mozambique, Namibia, Nepal, Netherlands, Nigeria, Norway, Pakistan, Panama, Paraguay, Peru, Philippines, Portugal, Qatar, Republic of Korea, Romania, Russian Federation, Saudi Arabia, Senegal, Sierra Leone, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Tunisia, Türkiye, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay, Venezuela, Viet Nam. State of Palestine, a non-member was represented by an observer.

Instead of re-inventing the wheel, the UN working group ought to have adopted the proceedings of previous UN efforts and the Draft Code of Conduct on Transnational Corporations which emerged out of the report of the UN’s Eminent Persons besides the UN Norms. This Code was submitted at the special session of the UN Commission on Transnational Corporations to the UN Economic and Social Council on May 31, 1990. 

So far consistent with the legacy of Non Aligned Movement (NAM), India supported these UN efforts especially after May 26, 2014 when Sushma Swaraj took charge of foreign ministry from Salman Khurshid. Indian Government’s position on the binding treaty amid maneuvers from the European Union, USA and commercial czars merits attention.    

The tremendous influence of US-based Union Carbide Corporation (UCC) became visible when the author posed a question to the chief minister of Madhya Pradesh in October 2017 on a NDTV program co-hosted by Amitabh Bachchan, a former legislator and a veteran actor. When asked about the disposal of the 336 tonnes of hazardous waste lying in the UCC factory, its liability and the disclosure of the report of the judicial inquiry commission on the 1984 Bhopal disaster. The then Chief Minister and the current Union Agriculture Minister chose to maintain a studied silence about all these questions. Significantly, although the Justice S.L. Kochar led commission submitted its report to the state government in February 2015; it has not been made public as yet. In the name of trade secret, UCC has not disclosed the composition of the gas which was leaked on the night December 2, 1984. 

Meanwhile, in March 2024, the 22nd Law Commission of India published a report titled “Trade Secrets and Economic Espionage” along with a draft bill based on its consultation with likes of Associated Chambers of Commerce & Industry of India (ASSOCHAM), Federation of Indian Chambers of Commerce and Industry (FICCI), Confederation of Indian Industry (CII) and US Patent and Trademark Office.

In order to inspire confidence, the new efforts for enforceable UN treaty and Indian trade secrets and economic espionage legislation must ensure that business enterprises are subservient to both peoples’ will and legislative will. These laws should ensure the primacy of human rights and public interest over private economic interests. They should reaffirm the hierarchical superiority of human rights norms over trade and investment treaties and develop specific state obligations in this regard.

Dr. Gopal Krishna

The author’s doctoral thesis is on corporate crimes and the accountability of public institutions. He is a lawyer and a researcher of philosophy and law. His current work is focused on philosophy of digital totalitarianism and monetisation of nature. He has appeared before Supreme Court’s Committees, Parliamentary Committees of Europe, Germany and India and UN agencies on the subject of national and international legislation. He is an ex-Fellow, Berlin based International Research Group on Authoritarianism and Counter Strategies (IRGAC). He is also the editor of www.toxicswatch.org.

One is saddened by the departure of Fali S. Nariman, a noted nonagenarian jurist without donating to the Bhopal disaster victims the legal fees which Union Carbide Corporation/Dow Chemicals Company, a US multinational company paid him, to erase the taint of Bhopal disaster. Prof. Upendra Baxi's advice in this regard is recorded in Nariman’s autobiography-Before Memory Fades. Notably, Nariman also represented asbestos companies. Carcinogenic Asbestos is banned in 70 nations. Its safe and controlled use is impossible. Dow Chemicals Company set up $ 2.2 billion compensation fund to pay victims of asbestos diseases, a liability of Union Carbide in US but not in India. Nariman departed without repenting for having represented corporate criminals. Human life is not confined to one's professional compulsions. One's inner life is guieded by moral compulsions, not professional ones alone.   

Nariman served as Additional Solicitor General of India from 1972 to 1975 but stepped down to protest the Internal Emergency imposed by the then Indira Gandhi led government. Nariman was right to conclude that "One of the lessons of the Internal Emergency (of June 1975) was not to rely on constitutional functionaries. These functionaries failed us-ministers of government, members of Parliament, judges of the Supreme Court, even the president of India". It revealed that even the president of India who signed the Proclamation of Emergency in compliance with the oral instructions prior to its intimation to the council of ministers on the night of June 25, 1975, cannot be trusted. As a consequence Constitution (44th Amendment) Act, 1978 had to be enacted insert Article 352 (3) to ensure that in future president must sign Proclamation of Emergency only after the decision of council of ministers is communicated to him/her in writing. This provision became effective from June 20, 1979. But Nariman forgot to recollect that it was during the Emergency that Union Carbide Corporation (UCC) was granted industrial license to set up its hazardous insecticide factory and research and development centre which was reportedly testing and manufacturing war chemicals in Bhopal.           

In the aftermath of world's worst industrial disaster in the factory of UCC, Nariman appeared for UCC as the lead advocate with Bomi Zariwala, his junior to defend it against the victims of UCC's industrial disaster. UCC engaged him late 1985 in the civil litigation arising out of the disaster. Nariman will have us believe that it all started on September 5, 1986 when Union of India filed a suit on behalf the claimants, the disaster victims under the provisions of Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 in the District Court of Bhopal demanding $ 3.3 billion as compensation from the UCC. The 1985 law was enacted on March 29, 1985 to make Union of India the sole plaintiff in a suit against the UCC and other defendants for compensation arising out of the disaster.  

Nariman's memory seems to have faded in this regard because the fact is that it all started with the filing of suit of Union of India on behalf of all the victims in the Southern District Court, New York presided over by judge John Keenan on April 8, 1985 after some 145 cases which were filed on December 7, 1984 on behalf of victims in various US courts were consolidated and placed before the judge. Union of India had demanded $ 3.3 billion as compensation from the UCC. The suit was filed in the District Court of Bhopal after judge Keenan dismissed the claim on May 12, 1986 subject to the condition that UCC will submit to the jurisdiction of Indian courts.   

On December 17, 1987, Judge Deo, District Judge, Bhopal ordered an interim compensation of Rs. 350 crores. This was challenged before the High Court at Jabalpur, Justice S.K. Sheth reduced the interim compensation to Rs.250 crores. Union of India and UCC challenged this on September 8, 1988 before the Supreme Court. On February 14/15, 1989, Supreme Court approved an abrupt settlement arrived at in the appeal by UCC whereby $ 470 million (its equivalent then was Rs 615 crores) was to be paid by it and its Indian subsidiary to the Union of India in full and final settlement without admitting liability. The role of R. S. Pathak, the 18th Chief Justice of India who relinquished office midway post 1984 disaster unjust settlement on "casual election" to join as a Judge, International Court of Justice and that of Nariman has remained under scrutiny since then. One has learnt that Pathak was all ready to leave but was forced to wait because he had many many judgments pending. If one looks at his judgments between February 1989 and May 1989, one can find the urgency embedded in it. Notably, some of his judgements did not get delivered but were released.  

Pathak was an elected judge of the International Court of Justice following the death of M. Nagendra Singh, an Indian judge who was then serving his second term. He served in this position from 1989 to 1991. In 1991 India decided not to renominate Pathak but he entered the fray with the backing of Ireland. After the Irish government came under attack from legislators who blamed Pathak for approving, as Chief Justice of India, the $470-million Bhopal disaster settlement with UCC, Pathak withdrew from the race. Both Pathak and Nariman were disliked because of this settlement. 

Nariman's autobiography reveals how he quoted Pathak copiously to defend himself in his writings on Bhopal disaster case. Taking note of this Prof. Upendra Baxi wrote, " Mr Nariman's invocation of Chief Justice Pathak's sonorous invocation is the ultimate perfidy."    

Recollecting Nariman's respect for Pathak, A.J. Philip, a senior journalist writes, "It is jokingly said that if you have a few millions of rupees to hire the services of Nariman, you can murder anyone and get away with it. No, money is not the only determinant for him. As my memory goes, he did not charge a single penny, though he pored over my case and suggested many changes in the affidavit I and the reporter concerned had to file in the High Court. What mattered to him was that The Tribune Trust was headed by Justice R.S. Pathak, a former Chief Justice of the Supreme Court of India".    

In his autobiography, he has recorded that he faced national and international criticism. Laurie S. Wiseberg, the editor of Human Rights Tribune, a prestigious foreign publication criticing him in 1992 in an article titled " Fallen Angels?" for appearing on behalf of UCC even as he served as a member of the executive committee of International Commission of Jurists (ICJ), Geneva. Nariman had responded to this criticism. Prof. Upendra Baxi had resolved not share any public platform with Nariman ever since he assumed the UCC advocacy. Both exchanged arguments in this read in an 2004-5 issue of Seminar, a reputed Indian journal.     

Given the fact that he continued to be UCC's lawyer, he must have known about an order of the Madhya Pradesh High Court's Divsion Bench of Justices Sheel Nagu and Devnarayan Mishra dated November 28, 2023 has initiated contempt proceedings against officials of the state and Union governments. But the order was recalled on February 19, 2024. Initially, the order had found these officials guilty and served notice for their failure to comply with the Supreme Court's direction dated August 9, 2012 seeking maintainance of 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. Now, the order of High Court's Division Bench of Justices Sheel Nagu and Vinay Saraf dated February 19, 2024 states that "it would be appropriate that assistance of Monitoring Committee is sought. It is thus directed that each contemnor or his/her representative, who should not be below the rank of Class-1 Gazetted Officer should appear on the next date of meeting of Monitoring Committee to enable the Monitoring Committee to assess present state and extent of compliance of order of Apex Court dated 09.08.2012 passed in Writ Petition (C) No.50/1998 and various directions passed by this Court and thereafter prepare report under various heads showing compliance/non compliance. The Monitoring Committee is requested to assist this Court by submitting report as enumerated above as expeditiously as possible. List in the third week of April, 2024." The unending wait for justice for the victims of the disaster is unlikely to come to an end in near future.  

Before his departure Nariman witnessed how on March 14, 2023, the Supreme Court's Constitution Bench led by Justuce S. K. Kaul dismissed the Union government’s curative petition against the unjust settlement of February 1989 on ground that it was the government which had categorised the huge majority of gas victims as suffering from only “minor” injuries. In its curative plea, the Union of India prayed for another $8.1 billion (Rs 7,844 crore) over and above the $470 million already paid in a settlement in 1989 by UCC (now owned by Dow Chemicals Company). The order of Justice is S. K. Kaul is ridden with factual errors, which is yet to be rectified.  

One checked for use of the phrase "blood money" in Merriam-Webster Dictionary. It says, "The blood money earned by people who profited from the tragedy." The corporate criminals survive on blood money.
Shakespeare has immoralised the fate of unjust people nin his Macbeth. Lady Macbeth notices, "Hell is murky," and observes, "Yet who would have thought the old man to have had so much blood in him? Here's the smell of blood still. All the perfumes of Arabia will not sweeten this little hand". Judges and lawyers are judged even after the delivery of judgements. The cry of the victims of preventable disasters resonates even after the departure of judges like Pathak and lawyers like Nariman after performing their professional roles and having earned their share laurels.            

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The author is a law and philosophy researcher and a lawyer. He is an ex-Fellow of Berlin based International Research on Authoritarianism and Counter Strategies (IRGAC).

Anniversary  of the Union Carbide Disaster:-  37 Years : 37 Questions

3.  Why in the last 11 years has the MP government not filed a single application for urgent hearing of the curative petition?

4.  Why are there still no treatment protocols for the proper treatment of gas victims, who as a result get only symptomatic treatments that often harm them?

5.  In hospitals run by the government for gas victims why, for last 10 years, are 40% of Doctors' posts and 56% of Specialists' post left vacant?

6.  Why has the PM not found time to meet the gas victims or talk about the victims of the world's worst industrial disaster in any of his 5 visits to Bhopal?

7.  Why has the MP government failed to provide employment to any gas victims or their children while it was sitting on 85 crore ($11.6 million) amount of money for last 10 years?

8.  Doctors and Medical Researchers of BMHRC responsible for carrying out drug trials for multinationals without informed consent, resulting in at least 13 deaths in 13 trials, are not being prosecuted. Why?

9.        Why are reports by official scientific agencies concerning soil and groundwater contamination by Union Carbide/Dow Chemical in Bhopal being ignored by the MP government?

10.      Why has the MP government not made any efforts to monitor the spread of groundwater contamination, a scientific fact verified by IITR, Lucknow?

11.      Why has the prosecution, CBI, not made any attempt so far to extradite the legal representative of Union Carbide and make him appear in the criminal case on the disaster?

12.      Why doesn't the Bhopal Memorial Hospital & Research Centre (BMHRC) have a Gynaecology, Paediatrics, General Medicine departments till today ?

14. Why has the Chief Minister not fulfilled any of its promises made on 03/12/2011 till today?

16. Why is the MP government lying in the curative petition before the Supreme Court of India that 93% of gas survivors are only temporarily injured by gas exposure?

17. Why are 7 yoga centres built at the cost of 4crores lying vacant and unused for last 9 years?

19. Why has NIREH stopped carrying out research on health impact of Bhopal Gas Disaster & environmental  contamination when it was created for this sole purpose in 2011?

20.      Why are there no doctors for mental illnesses in the state government hospitals meant for the gas exposed population?

21.      Why has the Ministry of Environment Forests & Climate Change not accepted UNEP's offer to carry out a scientific assessment of soil and groundwater contamination in and around the Union Carbide factory ?

22.      Why has the MP government taken no steps to prevent a mass public poisoning due to the cultivation of fish and water chestnuts in the pond contaminated by Union Carbide?

23.      Despite recommendations by two senior medical experts, why hasn't the MP government included Yoga as part of healthcare provided to gas victims ?

24.      Why are more than 500 women widowed by the Bhopal Gas Disaster being denied their pension that was promised by the CM?

25.      Why is the MP government sitting on 45 Crores ($6miIIion) meant to provide social support to Bhopal victims for the last YY years?

26.      Why for the last 3 years has the Department of Bhopal Gas Tragedy, Relief & Rehabilitation not had a single IAS official who wasn't dedicated to another department?

29.      Why no victim of the Union Carbide disaster has received any compensation for mental illnesses caused due to toxic exposure despite scientific evidence of 30% of excess mental illnesses such as depression, anxiety disorder, insomnia and others?

30.      Why has the MP Government failed to address almost all of the concerns raised by the Supreme Court appointed Monitoring Committee for Medical Rehabilitation of Gas Victims since the committee's inception in 2004?

31.      Why has the CBI failed to make Dow Chemicals appear in the ongoing criminal proceedings on the disaster in the Bhopal District Court despite six summons issued by the Court since 2014?

32.      Why has the MP government failed to fulfil its 2010 promise to initiate a fast trial of the accused corporations and executives in the Bhopal criminal case?

37.      What happened to the money (Rs. 40 Crores) allocated in 2010 for houses for 2500 families residing near the Union Carbide factory affected by groundwater contamination?

STATEMENT OF BHOPAL GAS PEEDITH MAHILA UDYOG SANGHTHAN & BHOPAL GAS PEEDITH SANGHARSH SAHAYOG SAMITI  ON THE 37th ANNIVERSARY OF THE BHOPAL GAS LEAK DISASTER

For his valuable & selfless contributions in furthering the cause of the Bhopal gas victims, the Government of India conferred the 2020 Padma Shri Award posthumously to Shri Abdul Jabbar, former Convener, Bhopal Gas Peedith Mahila Udyog Sanghathan.  Jabbar’s wife, Sayra Bano, accepted the award from the Hon’ble President of India, Shi Ramnath Kovind, at the award ceremony held at the Rashtrapati Bhavan in Delhi on 08 November 2021.

Another year has passed without most of the core issues facing the Bhopal gas victims remaining unaddressed even 37 years after disaster of 02/03 December 1984. The poisonous gas leak disaster had resulted in the eventual death of at least 25,000 victims and had caused injuries in varying degree to over 550,000 others. The escape of toxic fumes from a pesticide plant’s storage tank containing about 40 tons of methyl isocyanate (MIC) – an extremely hazardous chemical – had spread to about 40 sq kms of area and had affected two-thirds of the city’s then population of around 900,000. The pernicious impact on flora and fauna in the affected area was equally grave. The pesticide plant was operated by Union Carbide India Limited (UCIL). UCIL was then controlled by Union Carbide Corporation (UCC) – a company now owned by the Dow Chemical Company, a subsidiary of Dow Inc., a giant U.S. multinational chemical company. 

Unfortunately, even over three and half decades after the disaster, neither the State nor the Central Government has attempted either to undertake a comprehensive assessment of the ramifications of the disaster or to take necessary remedial measures. The Supreme Court assisted Settlement of 14/15 Feb, 1989 for a sum of 470 million U.S. dollars (then about Rs,705 crores) – based on the assumption that only around 3000 victims had died and another 102,000 had suffered injuries in varying degree – was a complete sham with each gas-victim being finally awarded less than one-fifth of the sum allotted even as per the terms of that unjust settlement.

The current status of issues such as health care, compensation, prosecution of the accused, remediation of the environment, etc., may be briefly recounted as follows: 

HEALTH CARE: Apart from the fact that a fairly large health-infrastructure has been built in terms of buildings and number of hospital beds (about 1000 beds exclusively for gas-victims) because of pressure exerted over the years by organizations supporting the cause of the Bhopal gas victims, the quality of health care in terms of investigation, diagnosis, treatment, research and record-keeping continue to be abysmal as ever. The persistent apathy of the Indian Council of Medical Research (ICMR) and the Government of Madhya Pradesh in monitoring the health status of the Bhopal gas victims is shocking to say the least. They have failed to maintain proper medical records of hospitals and clinics through computerization and networking and have failed to supply health-booklet to each gas-victim with his/her complete medical record. That proper protocol for treatment of most gas-related ailments has not been evolved even 37 years after the disaster speaks volumes about the apathetic attitude of the concerned authorities in this regard. Mere symptomatic treatment and over-medication due to lack of proper monitoring has resulted in increasing number of renal failures among gas-victims. What is equally shocking is that even 37 years after the disaster, most of the gas-victims seeking treatment continue to be classed as “temporarily injured” in order to deny them enhanced compensation for permanent injury.  

Writ Petition (Civil) No.50 of 1998, which BGPMUS, BGIA and BGPSSS had filed on 14.01.1998 with pleas to restart disaster-related medical research, monitor & record health status of each gas-victim, improve health care facilities, develop appropriate protocol for treatment of each disaster-related ailment, etc., was upheld by the Supreme Court after 14 years of litigation on 09.08.2012. The Petitioners were further directed to pursue the matter before the High Court of Madhya Pradesh (as Writ Petition No.15658 of 2012), a task that BGPMUS & BGPSSS are actively engaged in at present. However, the matter continues to remain pending for the last nine years before the Madhya Pradesh High Court at Jabalpur since the Union of India has repeatedly failed to comply with numerous directions of the Court. As a result, several critical health needs of the gas victims remain largely unattended even 37 years after the disaster. 

COMPENSATION: The failure on the part of the Supreme Court to hear the long-pending Curative Petition against the unjust settlement of 14/15 Feb, 1989, has had an adverse impact on the interests of the gas-victims. Curative Petition (Civil) Nos.345-347 of 2010, which was filed by the Union of India on 03 Dec, 2010 to challenge the unjust settlement of 14/15 Feb, 1989 and to seek additional sum of at least another Rs.7728 crores as compensation was last listed before the Constitution Bench of the Court on 29 Jan, 2020. However, the hearing was postponed to 11 Feb, 2020. Sadly, the matter was never listed on that date or ever since then. Failure to dispose of the Curative Petition has also meant the indefinite postponement of the hearing of the Special Leave Petition [SLP(C) No.12893 of 2010] filed on 17 Mar, 2010 by eight members of BGPMUS and BGPSSS seeking enhancement of settlement sum by a factor of five in terms of the magnitude of the disaster as assessed by the Claim Courts and in terms of the gravity of injuries suffered by the gas victims on the basis of their medical records. Failure to dispose of the pending Curative Petition and the SLP for over a decade has effectively denied the gas-victims several thousands of crores of additional compensation that they are legitimately entitled to.

CRIMINAL CASES: The pace at which the pending criminal cases against the perpetrators of the Bhopal disaster are proceeding is concerned, there is not the faintest hope that they would ever be prosecuted in their life time since the whole process has become an almost complete farce. On the thirty-seventh anniversary of the Bhopal disaster, the gas-victims still fervently hope that all those who have the power to render justice to the gas-victims will not be found wanting in fulfilling their obligations.

ENVIRONMENTAL REMEDIATION: The environment in and around the former Union Carbide pesticide plant continues to remain contaminated with toxic waste, which was stored/buried within the plant premises as well dumped in the solar evaporation pond (dug outside the plant and lined with thin plastic sheets) during the operation of the plant from 1976 to 1984. In a preliminary study titled “Assessment and Remediation of Hazardous Waste Contaminated Areas in and around M/s Union Carbide India Ltd., Bhopal” that was jointly carried out by the National Environmental Engineering Research Institute (NEERI), Nagpur, and the National Geophysical Research Institute (NGRI), Hyderabad, during 2009-2010, it was estimated that “the total quantum of contaminated soil requiring remediation amounts to 11,00,000 MT [metric tons]”(p.68). Another 345 tons of toxic waste is stored in a shed within the plant. Representatives of BGPMUS and BGPSSS met Shri Vishvash Sarang, Minister, Bhopal Gas Relief & Rehabilitation Department, on 29.11.2021 and urged him to take the initiative in holding a workshop of all concerned parties, including international experts, to propose ways and means to remediate the contaminated site. It is hoped that the State Government would respond positively to the proposal since necessary technical expertise is available for the purpose.

Under the Circumstances, We Demand:

Speedy implementation of the Supreme Court Order dated 09 Aug, 2012 in Writ Petition (Civil) No.50 of 1998, which had directed the Union of India to provide the best medical care to the gas-victims;

Speedy Disposal of Curative Petition (Civil) Nos.345-347 of 2010, which is currently pending before the Supreme Court of India, for enhancement of compensation and for remediation of the contaminated site in and around the UCIL plant at Bhopal;

Setting up of a Special Court for speedy trial and prosecution of all the accused, who are responsible for causing the Bhopal disaster.

Proper rehabilitation of all needy gas-victims, especially widowed gas-victims; and

Provision of safe drinking water, free medical care and compensation to all victims of contaminated water and toxic waste.

A binding UN treaty alone can ensure that transnational corporations like UCC/Dow pay the price for industrial disasters. 

Liability for industrial disasters such as the 1984 Bhopal gas tragedy must be pinned on transnational corporations. New efforts for an enforceable treaty which are underway alone can ensure that business enterprises are subservient to both peoples’ will and legislative will. It can ensure the primacy of human rights and public interest over private economic interests.

The open-ended intergovernmental working group (OEIGWG) has had seven sessions so far.  Ahead of the seventh session, the Permanent Mission of Ecuador, on behalf of the Chairmanship of the OEIGWG, released a third revised draft legally binding instrument to regulate the activities of transnational corporations and other business enterprises. The third revised draft served as the basis for State-led negotiations during the seventh session, which took place from 25 to 29 October 2021.

Thirty  seven years after the Bhopal gas tragedy of 1984, the victims and the adversely affected ecosystems await relief and remediation. Lessons from such industrial disasters create a compelling logic for an internationally binding treaty for transnational corporations (TNCs) and human rights. To this end, a UN resolution of 2014 created the UN open-ended intergovernmental working group and tasked it to prepare the text of such a treaty. Given the fact that corporations are admittedly not meant to be “democratic public interest institutions”, such negotiations on an enforceable treaty is of great significance.

Prior to the current efforts initiated by Ecuador and supported by India, China, South Africa and others, to provide a legal remedy to wrongs committed by business enterprises, the UN Sub-Commission on the Promotion and Protection of Human Rights had approved the ‘UN norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights’.

These norms emerged as a step towards ensuring corporate accountability in August 2003. But the report of the special representative of the UN Secretary-General on business and human rights undermined these proposed mandatory norms under the influence of International Chamber of Commerce and the International Organization of Employers.

It chose to promote the Guiding Principles on Business and Human Rights in July 2011 as part of advocacy for the status quo of voluntary regulation by the companies while admitting that “while corporations may be considered organs of society, they are specialised economic organs, not democratic public interest institutions.”

The tremendous influence of US-based Union Carbide Corporation (UCC) became visible when I posed a question to the chief minister of Madhya Pradesh. I asked him about the disposal of the 336 tonnes of hazardous waste lying in the UCC factory, its liability and the disclosure of the report of the judicial inquiry commission on the 1984 Bhopal disaster. The Chief Minister chose to maintain a studied silence about all these questions. Significantly, although the Justice SL Kochar led commission submitted its report to the state government in February 2015; it has not been made public as yet.

In such a backdrop, it was remarkable that the foreign ministry under Sushma Swaraj changed India’s position with regard to a mandatory UN treaty. In its essence, the proposed treaty is an outcome of some 45 years of effort underlining that self-regulation by TNCs is not enough at all.

In order to inspire confidence, the new efforts for an enforceable treaty must ensure that business enterprises are subservient to both peoples’ will and legislative will. It should ensure the primacy of human rights and public interest over private economic interests. It should reaffirm the hierarchical superiority of human rights norms over trade and investment treaties and develop specific state obligations in this regard.

Gopal Krishna

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The author is a law and public policy researcher