India: Memorandum on The State of Affairs Twenty-Five Years After The Bhopal Gas Leak Disaster

16 November 2009

To:
 Dr. Manmohan Singh,
 Hon’ble Prime Minister of India,
 Prime Minister’s Office,
 South Block,

New Delhi 110001.

MEMORANDUM ON THE STATE OF AFFAIRS

TWENTY-FIVE YEARS AFTER

THE BHOPAL GAS LEAK DISASTER

Respected Sir,

On behalf of the Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS) and the Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS), we the undersigned, hereby, submit this Memorandum to draw your attention to the numerous problems faced by the gas-victims even twenty-five years after the Bhopal gas leak disaster.

Sir, you may recall that the city of Bhopal became victim of the world’s worst chemical disaster when, on the night of 02/03 December 1984, a huge toxic plume engulfed about two-thirds of the city for over two hours before it dissipated. The highly poisonous gases had leaked because of exothermic reactions that took place in an underground storage tank, which contained nearly 41 tonnes of methyl isocyanate (MIC), an extremely volatile and noxious chemical. The said storage tank had been installed at the pesticide plant of Union Carbide India Limited (UCIL), a subsidiary of Union Carbide Corporation (UCC) – a U.S. multinational company. The immediate human death toll, according to official figures, was around 2500 while it was again officially acknowledged that residents of 36 of the 56 municipal wards of Bhopal, i.e., approximately about 600,000 of the nearly 900,000 people of the city, had suffered injuries in varying degree. It is estimated that the death toll has since gone above 20,000. The impact on flora and fauna in the affected area was no different.

The ’Bhopal Poisonous Gas Leakage (1984) Inquiry Commission’ headed by the then sitting judge of the Madhya Pradesh High Court, Justice N.K.Singh, which was set up by the State Government on 06 December 1984, was abruptly wound up by the Government on 17 December 1985 even before it could complete the inquiry into the causes of the disaster. The truth is that even 25 years after the disaster, neither the State nor the Central Government has been made any attempt to either undertake a comprehensive assessment of the ramifications of the disaster or to take necessary remedial measures. As a result justice continues to elude the gas victims. The current status of the various aspects relating to the Bhopal disaster is as follows:

HEALTH STATUS:

1. Even 25 years after the disaster, on an average, everyday no less than 6000 gas-victims continue to visit the various medical centres in Bhopal, which have been specifically set up for the gas-victims, i.e., victims had made over 2,000,000 visits to the said medical facilities in the year 2008 alone. Victims suffer from a variety of ailments relating to respiratory system, eyes, nervous system, gastro-intestinal system, etc. The state of medical record keeping is abysmal. Despite specific directions of the Supreme Court in this regard, the State Government has not yet completed the task of computerisation of medical records. Shortage of essential medicines, malfunctioning and breakdown of critical medical equipments, shortage of medical specialists, etc., continue to be recurring problems. Although the Monitoring Committee for Medical Rehabilitation of Bhopal Gas Victims, which was set up by the Supreme Court at the instance of the victim groups on 17.04.2004, have submitted seven reports to the State Government detailing out remedial measures, hardly any action has been taken by the State government regarding the same. Moreover, after the untimely death of its first chairperson, Shri.O.P.Mehra, on 16.06.2008, the post continues to remain vacant and the functioning of the Monitoring Committee has been brought to a standstill. It is highly unfortunate that a committee, which was set up by the Supreme Court, has remained completely dysfunctional without a Chairperson for more than one and half years. There is an urgent need not only for reviving the Monitoring Committee but also for empowering it so that it could look into all problems concerning the gas-victims.

2. The Indian Council of Medical Research (ICMR) had discontinued all medical research relating to the disaster way back in 1994. The discontinuance of medical research relating to the disaster for 15 critical years tantamount to criminal negligence on the part of the concerned ICMR officials, who have displayed utter indifference towards the wretched fate of the hapless victims of the Bhopal disaster. Due to the persistent demand of the organisations representing the gas victims, the Supreme Court had passed an Order on 17.8.2004 to set up an Advisory Committee on Medical Research under the aegis of ICMR to review and set out the renewed agenda for research on Bhopal. Unfortunately the committee met only thrice and was unable to pursue its own recommendations because of the disinterest of Dr. N.K Ganguly, the then DG of ICMR and the ex-offico chairperson of the Advisory Committee. Although the new Director General of ICMR, Dr.V.M.Katoch, had promised to restart research work under the guidance of the Advisory Committee, nothing has materialised todate. Dr.P.M.Bhargava and Dr.C.Sathyamala were nominated by the victims’ organisations as their representatives in the Advisory Committee. In the recently held meeting of the Advisory Committee on 13 August 2009, Dr.C.Sathyamala made a Written Submission regarding the inaction on the part of the Advisory Committee regarding its own recommendations. Dr.Sathyamalas’ Written Submission to the Advisory Committee is appended below as ANNEXURE - 1. In addition, we may add that there is a strong case for reassessing the current medical status of the gas-affected population of Bhopal.

3. That the Monitoring Committee was exempted from monitoring the quality of health care provided to the gas-victims at the Bhopal Memorial Hospital and Research Centre (BMHRC), which was set up by a trust appointed by the Supreme Court of India in 1994, was an unfortunate decision. As of now, the BMHRC is not accountable to either the State or the Central Government or any other independent body about the manner in which it is functioning. The BMHRC does not submit periodical reports even to the Apex Court nor does it properly audit its accounts. Many of the departments of the hospital are under-staffed and functioning to less than fifty per cent of their capacity. Moreover the emphasis is treating private paying-patients than on providing appropriate treatment to gas-victims. Since more than Rs.600 crores of public money is involved, appropriate recommendations should be made by the Central Government to the Supreme Court forthwith to end this state of anarchy and lack of accountability on the part of the BMHRC. There is also a concerted move to deny free treatment to the gas-victims and place the hospital entirely at the service of private paying-patients. The Government of India should strongly resist any such devious move and ensure the BMHRC fulfils the purpose for which it was established.

COMPENSATION:

4. On 14/15 February 1989, the Government of India had arrived at a settlement with the accused, Union Carbide Corporation (UCC), USA, for a sum of 470 million US Dollars (effectively only about Rs.713 Crores at 1989 prices was paid by UCC) on the assumption that the number of gas victims was only around 105,000, including 3000 dead. (Out of the settlement sum of Rs.713 crores, Rs.113 crores was set-aside for those who had lost property, livestock, etc., and for specialised medical treatment.) In other words, Rs.600 crores was to be disbursed among the assumed number of 105,000 gas-victims as compensation at an average of Rs.57,143/- per victim at the 1989 value of the rupee. However, as per the latest report of the Office of the Welfare Commissioner, as on 30.12.2008, no less than 574,367 gas victims were actually awarded compensation, which works out to an average of Rs.12,410/- per victim at the 1989 value of the rupee despite almost the entire settlement sum of Rs.713 crores at the 1989 value of rupee being utilised for the purpose. This means that on an average the amount of compensation that each gas victim has received was only about one-fifth of the amount that he/she should have received as per the terms of the Bhopal Settlement, which itself was a measly amount.

5. Ipso facto, the Union of India has admitted that the total number of gas-victims is more than 574,367, including 469,367 victims who were kept out of the ambit of settlement in 1989. In theory, about Rs.100,000/- was awarded on an average in 5207 death cases and about Rs.25,000/- was awarded in 5,69,160 injury cases (including 10,084 acknowledged death cases where compensation was paid only for injury). Although, at the intervention of the gas-victims, compensation amounts were enhanced by 100 per cent in 2004, the real value of the total amounts that were paid as compensation is less than ONE-FIFTH of the original award in terms of the value of the Rupee at the time of the Settlement in 1989. The gas-victims were also denied interest for the period of undue delay in the adjudication and award of compensation – a process that stretched from 1992 to 2004, i.e., eight to twenty years after the disaster. (In contrast, in the Delhi Uphaar Cinema Tragedy case of 13 June 1997, on 24 April 2003 victims were awarded between Rs.15 lakhs and Rs.18 lakhs each in 59 death cases and Rs.One lakh each in 104 injury cases plus 9 per cent interest from the date of filing the claims in 1997. Incidentally, in the Uphaar case too death and injuries were caused due to inhalation of poisonous gases – mostly carbon monoxide [CO]. Incidentally, CO [Threshold Limit Value (TLV)=25 ppm] is 1250 times LESS poisonous and reactive than MIC [TLV=0.02 ppm], which caused the Bhopal tragedy!)

6. The Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS) and the Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS) were the major groups that filed review/writ petition opposing the Settlement not only because the Settlement amount was totally inadequate as compared to the magnitude of the disaster but also because of revocation of criminal cases instituted against the accused. Thereafter, vide Order dated 04.05.1989, the Supreme Court had assured the victim-groups that if the total number of dead and injured turned out to be more than the number on which the Settlement was based, the Settlement was liable to be reopened. When, vide Order dated 19.7.2004, the Supreme Court acknowledged the fact that the total number of gas-victims were more than 5,73,000, BGPMUS & BGPSSS filed an application dated 13.9.2004 seeking enhancement of compensation by a factor of FIVE, i.e., in terms of the magnitude of the disaster as acknowledged by the Supreme Court in the said Order dated 19.7.2004. However, vide Order dated 04.05.2007, the Supreme Court rejected the plea on the ground that the task of determination facts was that of the Welfare Commissioner, Bhopal.

7. As a result, nine gas-victims belonging to BGPMUS and BGPSSS filed a joint petition before the Welfare Commissioner, Bhopal, on 28 August 2008 urging the Welfare Commissioner to pay compensation to the victims at least at the value of the rupee prevailing on the date of the settlement. (Since the actual number of gas-victims was five times more than the assumed number at the time of settlement, justice demands that the total amount of compensation be proportionately enhanced by FIVE times. The said petition was filed on behalf of 101,000 gas-victims, who had earlier petitioned the Supreme Court in this regard vide application dated 13.10.2007, an application that was subsequently withdrawn by the applicants, BGPMUS & BGPSSS, on 25.02.2008.) On 29.11.2008, the Welfare Commissioner, Justice R.S.Garg, who is a sitting judge of the Madhya Pradesh (MP) High Court, heard the petition and vide Order dated 31.01.2009 rejected the same. The petitioners, the said members of BGPMUS and BGPSSS, filed a Writ Petition (No.11276 of 2009) before the MP High Court on 28.10.2009 to challenge the said Order of the Welfare Commissioner. The matter is yet to be heard by the Hon’ble Court.

ENVIRONMENTAL POLLUTION:

8. It is indeed a crying shame that there is no proper health-monitoring of the victims of environmental pollution resulting from the dumping of toxic waste in and around the Union Carbide factory site even prior to the 1984 disaster and from the leaching of the various toxic chemicals stored at the plant site into the ground, thereby, contaminating the soil and groundwater resources. It is recognised that many of the residents in and around the factory site, who were dependent on the polluted ground water as their main source of drinking water, have been afflicted with various toxin-related ailments. 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.

9. It is the considered view of the organisations representing the victims that the remediation of the contaminated soil and ground water in and around the closed Union Carbide factory is the sole responsibility of Dow Chemical Company, USA, which is the present owner of Union Carbide Corporation (UCC) and which has ipso facto taken on the liability 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. 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. Under the circumstances, it is the bounden duty of the Government of India to execute the recommendations of the said Technical Sub-Committee dated 26.8.2006 without further delay.

CRIMINAL CASES:

10. The CBI filed charge sheet against the accused in the criminal case before the Chief Judicial Magistrate (CJM), Bhopal, only on 01.12.1987. The charge sheet also stated that further investigations were to be carried out in USA for which the CJM issued a Letter Rogatory dated 06 July 1988. The said letter of request was issued to enable the CBI to carry out a comparative study of the safety systems installed at the Union Carbide plant at Bhopal with that of its sister plant at Institute (West Virginia, USA) and to verify whether UCC had installed inferior safety-systems at its Bhopal plant. Although the U.S. Government formally permitted the CBI to conduct the said inspection of UCC’s pesticide plant at Institute on 14.02.1989, the entire process was pre-empted by the Settlement that took place in the Supreme Court of India on 14/15.02.1989.

11. As a part of the Settlement, all the criminal cases instituted against the accused were revoked. It was primarily at the instance of BGPMUS & BGPSSS that the Supreme Court of India on 03.10.1991 revived the criminal cases against all the accused in the Bhopal gas leak disaster case. Subsequently after the revival of the criminal cases, the CBI again on 24.12.1991 sent a formal letter to the Indian Embassy in Washington, DC, to approach the U.S. Administration for reviving the permission granted to the CBI on 14.02.1989 to inspect the safety systems of UCC’s pesticide plant at Institute in West Virginia. However, since the Government of India has not shown any interest in the matter, the embassy officials have taken no further action in this regard.

12. The failure on the part of the Central Government to facilitate the visit of the CBI to the United States to execute the said Letter Rogatory issued by the CJM on 06.07.1988 is only intended to benefit the accused officials of Union Carbide in the criminal case. When there is prima facie evidence that the disaster resulted due to installation of under-designed safety-systems at the Bhopal plant as compared to the total containment safety systems that UCC had installed at its Institute plant in USA, the complete inaction of the Union of India in this regard amounts to subversion of justice. The Institute pesticide plant is still in operation and is currently owned by the German multi-national company, Bayer. Of the three facilities in the U.S. that stores MIC, over 90 per cent of the chemical is stockpiled at the Institute plant.

13. The Government of India has also not taken adequate steps to execute the non-bailable warrant of arrest issued by the CJM, Bhopal, on 27.03.1992 to seek extradition of Warren Anderson, the former Chairman of UCC and accused No.1 in the criminal case, from the United States. The inaction on the part of the Union of India to facilitate the execution of the said non-bailable warrant of arrest against Warren Anderson again amounts to subversion of justice for the benefit of the said accused in the criminal case. In fact, the CBI, under directions from the Ministry of External Affairs (MEA), filed an application before the CJM, Bhopal, on 24.05.2002 for reducing criminal charges against Warren Anderson from Section 304 Part-II to Section 304-A of IPC, which practically amounted to withdrawal of the charge under which the said accused No.1 could be extradited to India. The prosecution agency, instead of attempting to force the said accused to stand trial, was intervening on behalf of the accused to enable the accused to escape trial! On 17.07.2002, BGPMUS, BGPSSS and the Bhopal Group for Information & Action (BGIA) vehemently opposed the CBI’s move and pleaded with the CJM to reject the said application of the CBI. The CJM on 28.08.2002 upheld the plea of the victims-organisations and refused to accede to the CBI’s request. The CBI did not dare to challenge the CJM’s order in a higher court.

14. After UCC, USA became a wholly owned subsidiary of The Dow Chemical Company, USA, on 06 February 2001, BGPSSS, BGPMUS, and BGIA filed an application before the CJM, Bhopal, on 07 September 2001 imploring the Court to serve notice on Dow Chemicals Company, USA, to appear on behalf of UCC in the ongoing criminal case. In response to the said application, the CJM, Bhopal, on 06 January 2005, issued notice to Dow Chemical Company, USA, to appear before the Court on 15 February 2005. However, on 17 March 2005, the MP High Court at Jabalpur stayed the said notice of the CJM, Bhopal, dated 06 January 2005 on the basis of an application filed by Dow Chemical International Pvt. Ltd, Mumbai, a party that had claimed before the CJM, Bhopal, that it had no connection with the Dow Chemical Company, USA. While it took four years and several pleadings for BGPSSS, BGPMUS and BGIA to pursue the CJM, Bhopal to issue notice to Dow Chemical Company, USA, the matter was disposed of by the MP High Court in favour of Dow Chemical Company within five weeks without hearing BGPSSS, BGPMUS or BGIA on the matter! Such are the strange ways in which the judicial system functions in this country! Despite several attempts by BGPSSS and BGPMUS, the plea to vacate the stay is yet to be heard by the MP High Court.

15. Due to sustained pressure exerted by the victims groups, the GOI forwarded the necessary request to the US Government on 05 May 2003 seeking the extradition of Warren Anderson to India to stand trial. However, a year later, on 20.07.2004, the CBI informed the CJM that the US Government had rejected India’s request on technical grounds. The CBI also assured the CJM that it would attempt to remove the technical hurdles but since then the CBI has made no further submission on the progress of the case. BGPSSS and BGPMUS have been repeatedly pleading before the CJM to charge the concerned officials of the Government of India under Sections 217 and 221 of IPC for contempt of court for wilful non-implementations of the directions of the CJM dated 06.7.1988 and 27.3.1992. In response to the latest such application that BGPSSS & BGPMUS had filed before the CJM, Bhopal on 20.7.2009, the new CJM, Mr.M.P.Tiwari, promptly issued a fresh warrant of arrest against Warren Anderson on 22.7.2009 and has forwarded the necessary letters to the office of the CBI in New Delhi for appropriate action. On 31.7.2009, the CJM informed the applicants of this direction and also handed over a copy of the said warrant to the CBI counsel, Mr.C.Sahay and other CBI officials who were present in the court. On 19.8.2009, the CJM has directed the CBI to file a written reply in response to the application filed by BGPSSS & BGPMUS on 20.7.2009.

16. The Sessions Court, Bhopal, on 08.04.1993 had framed charges against accused Nos. 2 to 9 & 12 (eight officials of UCIL and the company UCIL) for punishable offenses under Sections 304 Part-II, 326, 324 and 429 of the Indian Penal Code (IPC) read with section 35 of IPC. On 27.04.1993, the said accused filed revision petitions in the MP High Court against the said order of the Session Court, Bhopal. However, on 01.08.1995, the MP High Court at Jabalpur dismissed the said revision petitions filed by accused Nos.2 to 9 & 12. On 16.10.1995, the said accused filed appeals against the High Court order before the Supreme Court. The Supreme Court upheld the appeals of the said accused on 13.09.1996 and reduced the above stated charges to Sections 304-A, 336, 337 and 338 IPC r/w Section 35 of IPC. To oppose the reduction of charges against the accused, BGPSSS filed a review petition in the Supreme Court on 29.11.1996, which the Supreme Court dismissed at the preliminary hearing itself on 10.03.1997. Subsequently, the trial against accused Nos.2 to 9 & 12 began before the CJM, Bhopal and it is still continuing. (With the demise of accused No.6, his name has been deleted from the list of accused.) BGPSSS & BGPMUS have been urging the CJM, Bhopal to re-charge the accused under Section 304 Part-II and other relevant sections of the IPC on the basis of the clinching evidence placed before the court during the process of trial. The CJM is very much empowered to do so under Section 221(a) of Criminal Procedure Code (CrPC). BGPSSS & BGPMUS have also expressed their willingness to depose before the court under provision 39 of CrPC.

LITIGATION IN THE U.S.

17. On 08.04.1985, legal proceedings for the recovery of compensation for the victims of the Bhopal disaster were initiated by the Union of India (UOI) against UCC in the New York Southern District Court. However, on 13.05.1986, Judge Keenan dismissed UOI’s suit on the ground of forum non conveniens, i.e., that the U.S. courts were not the right forum to seek justice and that the Indian courts were the right forum for that purpose. On 10.07.1986, UCC filed an appeal before the U.S. Court of Appeals for the Second Circuit challenging the order of Judge Keenan dated 13.05.1986. On 14.01.1987, the US Court of Appeals affirmed the decision of Judge Keenan with certain modifications. (The UOI subsequently filed the suit before the District Court Bhopal on 05.09.1986, which ultimately ended in the Settlement of 14/15.02.1989 before the Supreme Court of India.)

18. Nevertheless, on 15.11.1999, seven individual victims, including Sajida Bano, Haseena Bi and Sunil Kumar, and five organisations representing gas-victims, including BGPMUS, BGPSSS and BGIA, filed a suit before the New York Southern District Court against UCC and its former CEO, Warren Anderson, under the U.S. Alien Torts Claims Act (ATCA). The suit was filed with the support of the International Coalition for Justice in Bhopal, which was formed at the initiative of Ward Morehouse of the Council of International and Public Affairs, New York. H. Rajan Sharma, who is based in New York, is the primary attorney representing the victims. The suit sought damages for death and injuries due to the disaster of December 1984 as well due to pollution and contamination of soil and ground water in and around the Bhopal plant because of dumping of chemical waste during operation of the plant prior to the 1984 disaster. The trial court dismissed the lawsuit on 28.08.2000. On appeal the U.S. Court of Appeals for the Second Circuit on 15.11.2001 reinstated parts of appeal relating to pollution and contamination prior to 1984.

19. On 18.03.2003, the trial court dismissed the claim that UCC was responsible for the pollution and contamination. On 17.03.2004, the Second Circuit reversed that decision in part. It held that while personal injury claims were time-barred, property damage claims were not. The trial court dismissed the lawsuit on 05.10.2005. An appeal against the dismissal was again filed before the US Court of Appeals for the Second Circuit, which finally dismissed the case on 20.08.2006. Meanwhile, on 08.11.2004, another related lawsuit was filed on behalf of several individual plaintiffs injured by UCC’s groundwater pollution at Bhopal. While the lawsuit was dismissed at an early stage, the U.S. Court of Appeals for the Second Circuit reversed the dismissal on 03.11.2008. The case is currently pending before the Southern District Court of New York as case No. 04-08825 – Sahu et al v. Union Carbide Corporation et al. We urge the Government of India to extend its solidarity and support to the pleas of the said victims before the said Court.

REHABILITATION:

20. Very few initiatives have been taken by the State Government to rehabilitate the surviving gas-victims through appropriate avenues of employment, which are suited to their weakened constitution. Hundreds of widows of dead gas-victims are living in pitiable conditions as well. After paying a paltry sum as compensation, the Central and State Governments have washed their hands of the social responsibility towards the hapless gas-victims. Economic and social rehabilitation is the responsibility of the Central and State governments and we urge the Central Government to fulfil its responsibilities in this regard.

NATIONAL COMMISSION ON BHOPAL:

21. The organisations representing the cause of the gas-victims have been repeatedly demanding the setting up of a National Commission on Bhopal for tackling all the pending issues facing the gas-victims. It is high time that the Government of India acceded to the demand.

The Central Government should also consider releasing a commemorative postage stamp on the occasion of the 25th anniversary of the Bhopal disaster. It would be equally appropriate if the Bhopal disaster and its aftermath is included as an integral part of the school and college syllabus across the country.

(Abdul Jabbar Khan)
 Convener,
 Bhopal Gas Peedith Mahila Udyog Sanghathan,
 51, Rajender Nagar,
 Bhopal – 462010
 Tel: 0755 2730241
 Mobile: 094065 11720
 Email: swabhimankandra@rediffmail.com

(N.D.Jayaprakash)
 Co-convener
 Bhopal Gas Peedith Sangharsh Sahayog Samiti
 C/o Delhi Science Forum
 158, Saket, New Delhi – 110017
 Tel: 011 27666980
 Mobile: 099680-14630
 Email: jaypdsf@gmail.com

========================

ANNEXURE – 1 :
 Dr.Sathyamala’s Written Submission to Advisory Committee

13 August 2009

To:

The Chairperson, Dr.V.M.Katoch,

& Members of the Advisory Committee for Bhopal Gas-Victims

C/o Indian Council of Medical Research (ICMR)

New Delhi

Sub: WRITTEN SUBMISSION FOR CONSIDERATION OF THE ADVISORY COMMITTEE AT ITS 4TH MEETING ON 13 AUGUST 2009 AT NEW DELHI

Dear Dr. Katoch and fellow members of the Advisory Committee,

1. That the tasks for which the Advisory Committee was set up is clearly enumerated in the Order of the Hon’ble Supreme Court dated 17.9.2004 in Writ Petition No.50 of 1998. However, it is deeply distressing that during the last five years the Advisory Committee has met merely thrice and has failed to fulfil any of the tasks for which it was set up. I am glad to note that after the recent appointment of Dr.Katoch as the Director General of ICMR, he has taken the necessary initiative in calling this meeting of the Advisory Committee, which is taking place after a lapse of more than two years. For purposes of pointing out the drawbacks in our functioning and for suggesting appropriate remedial measures, I am making the following submissions, which I sincerely hope that the members of the Advisory Committee would duly consider.

2. That it is highly regrettable that due recognition has not been accorded to the valuable service being rendered by the Centre for Rehabilitation Studies (CRS), which replaced ICMR’s Bhopal Centre after the latter was abruptly closed down in 1994. The CRS, which has been functioning under extremely difficult and hostile conditions ever since, should be applauded for keeping alive the epidemiological survey among gas-victims and for conducting other morbidity studies with hospital-based data although it is grossly under-staffed and has been surviving on a shoestring budget.

3. That the six-monthly epidemiological survey that is being carried on in Bhopal for the last 25 years with a cohort of about 80,000 gas-victims is the only surviving medical research work related to the Bhopal disaster of the 25 such studied that were initiated by ICMR in 1985. Every effort should be made to salvage this invaluable study by taking appropriate remedial measures regarding any deficiency in design, methodology, manner of collection of data or evaluation of the collated data, etc.

4. That in this regard, it may be pointed out that although at its first meeting held in Bhopal on 16.03.2005 the Advisory Committee had made several recommendations, the fact is that even though FOUR years have lapsed since that meeting none of the recommendations that were made then have been fulfilled. Among the recommendations made then were the following:

1. Regarding point 1 of the terms of reference in the said Supreme Court order dated 17.09.2004, i.e., “To examine the treatment practices currently followed by medical personnel in the hospitals/clinics run by the Government for the Bhopal Gas victims for the various ailments suffered by them†, the Advisory Committee had recommended:

1. “that a list of procedures and investigations facilities available in different Gas Relief Hospitals including both Govt. and Private Hospitals may also be made available to this Committee†;

[My comment: To the best of my knowledge, no such information has been made available to the Advisory Committee till date. Such information should be made available without further delay.]

2. “that suggestions of Monitoring Committee would be made available to the Advisory Committee so as to avoid duplication and assist better understanding of issues being discussed.â€

[My comment: Reports of the Monitoring Committee were submitted to the Supreme Court and through the Court to the organisations representing the victims and to some members of the Advisory Committee. However, the Advisory Committee has not formally examined the Reports submitted by the Monitoring Committee till date. This should be done without further delay.]

2. Regarding point 2 of the terms of reference in the said Supreme Court order dated 17.09.2004, i.e., “To recommend/advice on the appropriate line of treatment to be offered to the Bhopal Gas victims†the Advisory Committee had recommended:

1. “that there should be creation of Central Registry, which should maintain a record of all individuals qualified under Gas relief from Govt. Hospitals, Medical College, and Govt. aided Gas relief Hospitals and BMHRC. Voluntarily, NGO’s and private clinics, who want to become a part of registry, may also provide this data. The Central Registry should include No. of visits to the Institutions and disease pattern, hospitalization rate including those in private Institutions wherever available, in reference to MIC exposure. This registry will be set up by Centre for Rehabilitation Studies (CRS) involving different institutions, with additional support of staff;

[My comment: Till date no such Central Registry has been established. Medical history of each gas-victim who was awarded compensation and who is regularly visiting hospital or clinic has not been maintained. Although at the 2nd meeting of the Advisory Committee on 31.01.2006 it was reported that the process of creating a computerised Central Registry had begun, there has been no further progress in the matter in the last 3 years. The lack of progress is certainly not due to the absence of appropriate technology or because of shortage of resources, it is nothing but an expression of lack of political will. In fact there appears to be conscious attempt at sabotaging the entire proposal. There is a clear basis for such suspicion because no attempt has been made to upgrade the Centre for Rehabilitation Studies (CRS), which is supposed to house the said Central Registry. The Advisory Committee must ensure that the work of establishing the Central Registry at the CRS is executed without further delay. The undue delay in executing this most fundamental task is a blot on the Advisory Committee.]

2. “that the information regarding Drug procurement policy and Quality Control measure adopted, be also made available to this Committee, by M.P. Gas Rehabilitation, Department.â€

[My comment: The Monitoring Committee reports have severely criticised the MP State Government’s drug procurement policy and quality control measures. However, the State Government has done little to rectify its errant ways. The Advisory Committee has to pass necessary strictures against the State Government in this regard and ensure that the State Government adopts a proper drug procurement policy and appropriate quality control measures.]

3. Regarding point 3 of the terms of reference in the said Supreme Court order dated 17.09.2004, i.e., “To recommend/advice on the structure and content of the research to be undertaken in order to improve the quality of the treatment being offered to the Bhopal Gas victims†, the Advisory Committee had recommended:

1. “that the CRS which is presently working under Director, KNH should be strengthened, CRS should be upgraded in such a manner so that more qualified persons may be inducted in CRS through contract appointments on open basis, staffing pattern and the terms and conditions for the services of existing staff under CRS should be brought at par of research staff of Department of Science and Technology. Deployment of current staff needs to be provided, and a post of Director/Consultant on contract basis be sanctioned immediately, for smooth functioning of research activities under CRS, by M.P. Govt.†;

[My comment: Till date no steps have been initiated to upgrade the CRS or to induct more qualified persons into it. No attempt has been made to improve the service conditions of the existing staff and to bring it on par with the research staff of the Department of Science & Technology. The ICMR is wholly responsible for non-implementation of this recommendation. The ICMR must take prompt action in this regard.]

2. “that a database of all the data published (and unpublished reports wherever available) on MIC Gas Victims from Government Institutions, BMHRC, and Voluntary agencies(NGO) and Private Nursing Homes (voluntarily), be created by Centre for Rehabilitation Studies (CRS), Bhopal.â€

[My comment: Till date no such database has been created. The Advisory Committee is guilty of not ensuring the implementation of its recommendation in this regard. Upgradation and strengthening of CRS is again central to the whole issue.]

4. Regarding point 4 of the terms of reference in the said Supreme Court Order dated 17.09.2004, i.e., “To recommend/advice on the structure and content of the research to be undertaken in order to document long term health consequences of toxic exposure including effect on children born to exposed parents after the disaster. The Advisory Committee shall meet from time to time and as found necessary consult with the Indian Council of Medical Research in this regard†, the Advisory Committee had recommended:

1. “that Indian Council of Medical Research may constitute a Task Force group to look into research available and provide future research needs for MIC Gas patients and proposed Dr. S.S. Agrawal, Ex. Director, ACTRC, Mumbai as Chairman of the Task Force Group, and Dr. S. Sriramcahari and Dr.. SK Jain to be members and other experts will be invited based on their speciality.â€

[My comment: Although at the 2nd & 3rd meetings of the Advisory Committee on 31.01.2006 & 09.03.2007 it was reported that the said Task Force had been set up and that it had made certain recommendations, there is no further information about any concrete action taken in implementing the said recommendations. This is extremely unfortunate considering the urgency of the matter.]

2. “The Advisory Committee recommended the following research projects for ascertaining the health status of the Gas exposed population:

# Analysis of the mortality and morbidity pattern in Gas affected population from hospital-based database in reference to MIC exposure.

[My comment: The CRS on its own has undertaken some preliminary studies in this regard. Although the findings based on limited manual data collection is starling, the information is not complete due to non-collation of data from all gas-relief hospitals/clinics. The pitfalls of non-creation of computerized Central Registry are apparent on the face of it.]

# To ascertain the satisfaction level of the health services in different institutions particularly the quality of services, accessibility of services, and utilization status of the facility, through community/hospital based study.

[My comment: Although individual victims and organizations representing gas-victims have filed complaints before the Monitoring Committee in this regard, no “community/hospital based study†for undertaking this task has been commissioned till date.]

# Study of the treatment seeking behavioral aspect of the Gas affected population in the different institutions, to ascertain future medical needs of the Gas Victims.â€

[My comment: To the best of my knowledge, no such study has been carried out till date. I attended a meeting convened by Prof A Pandey to discuss the study design but have no further information on it]

5. That the total inaction on the part of the Advisory Committee regarding its own recommendations constitutes a complete breach of trust reposed on the Committee by the Bhopal gas victims. After the ICMR had grossly betrayed their cause by summarily terminating almost all research projects relating to their health needs in 1994, the gas-victims had high expectations from the Advisory Committee. However, it seems that the Advisory Committee is still not seized of the urgency of tackling the critical health needs facing the gas-victims.

6. That the most critical aspect is the utterly poor state of medical record keeping and monitoring of the health status of the gas-victims. It is inexplicable that despite repeated promises, the CRS – the only governmental institution that has attempted to collate information and build up a database among other tasks – has not been provided with additional resources and crucial infrastructural support to carry on its work. Since there is no proper monitoring of the health status of the permanently injured victims, the tendency is to under-play the magnitude and the long-term effects of the Bhopal disaster and, thereby, to disregard the need for proper medical relief & rehabilitation.

7. That the fact that registration of cases of death of gas-victims was disbanded from 1998 onwards is again inexplicable; in the process gas-victims, who died due to complications arising from the gravity of the injuries they had suffered but who were compensated – in most cases – for temporary injury, goes unreported. Registration of all such death cases must be made compulsory with cause of death clearly stated in the death certificate.

8. That it is important for the Advisory Committee to verify whether the treatment protocols followed by the hospitals & clinics run by the Gas Relief Department and by the hospital & clinics run by the Bhopal Memorial Hospital & Research Centre (BMHRC) are the same. It would be totally irrational to have two types of treatment protocols for the same gas-victims.

9. That in this regard it may be pointed out that the Order of the Supreme Court dated 01.03.2005 in Writ Petition No.50 of 1998 exempted the BMHRC only from the ambit of the Monitoring Committee. The said Order has not exempted the BMHRC from the ambit of the Advisory Committee, which is a national level expert body that was constituted to make appropriate recommendations in the best interests of the gas victims. With regard to this, I would like to bring to the notice of the advisory committee that there was a discussion regarding the recommendation in 16th march 2005, of bringing all the facilities that are earmarked for the benefit of the gas victims including the BMHRC be brought under one umbrella for the smooth functioning. The Chairperson Prof Ganguly mentioned that he had received a letter from Justice Ahmadi that BMHRC did not fall under the purview of this SC advisory committee. I had stated that his letter needed to be circulated to the members of the advisory committee and appended to the minutes of this meeting as it has a bearing on the changed wording of the recommendation for bringing all facilities, both public and private, under one umbrella for central computerized registry. However, in the meeting of 9th March 2007, Prof Ganguly declined to circulate the letter stating that it was a “personal communication†.

10 That, any further delay in taking action on the Advisory Committee’s own recommendations would constitute yet another gross betrayal of the cause of the gas-victims.

Thanking you,

Yours sincerely,

(Dr.C.Sathyamala)

Member Advisory Committee