WAITING FOR JUSTICE
Union Carbide's Legacy in Bhopal By Meera Nanda Meera Nanda is a freelance writer, living and working in Schenectady, New York. THE YOUNGEST SURVIVING victims of the Bhopal disaster--those who were still in their mothers' wombs when the toxic gas spewed out from the Union Carbide plant on the night of December 2-3 1984-- finished first grade this summer. As the members of this new, gas-scarred generation make their debut into an uncertain future, they and the thousands of others who were directly exposed to the noxious fumes on that fateful night continue to suffer from chronic health problems while waiting for relief and justice. Both have evaded them so far. Two years ago, the Bhopal victims' sole legal representative, the government of India, led by the late Rajiv Gandhi, undertook a sudden turnabout without consulting the victims, it dropped all criminal charges against Union Carbide and settled for $470 million as "full and final" compensation--one sixth of the $3 billion it had sought in damages during the lengthy preceding litigation. As a result, the victims, subsisting on monthly government handouts amounting to $12 and struggling with their worsening health, have been forced into another round of litigation--this time against their own trustee, the government of India. Prominent Indian public interest lawyers working closely with the victims have challenged the country's Supreme Court to reconsider the grounds for the settlement. They have called into question the accuracy of the official count of the injured, the adequacy of the settlement and the government's right to drop all charges against Union Carbide without consulting the victims. The Supreme Court heard the last of all appeals for overturning the settlement in August 1990, and, though delayed several times, the final judgment is expected soon. Union Carbide--along with Wall Street and the Bombay Chamber of Commerce--welcomed the settlement It relieved Union Carbide of all responsibility for the world's worst industrial disaster at a bargain price. A deduction of a mere 50 cents from every share's 1988 dividends and $200 million in insurance money covered the corporate giant' s one-time payment of $420 million (with the remaining $45 million paid by the company's Indian subsidiary) to the Indian court. As Clarence Dias, a public interest lawyer who directs the New York-based International Center of Law in Development, puts it, "Union Carbide got off the hook cheaply at the victims' cost." Comparisons to other class-action suits illustrate how cheaply: U.S. courts awarded $2.5 billion for 60,000 claimants for asbestos-related injuries caused by Manville Corporation. A.H. Robins Company paid $520 million for 9,450 claims by users of the Dalkon Shield. Union Carbide's payment still lies untouched in an escrow account, awaiting the Supreme Court's final verdict. The tragedy in Bhopal began early on December 3, 1984, when methyl isocyanate (M[C) began leaking from an underground storage tank at a pesticide plant owned by Union Carbide. Forty tons of MIC spewed over crowded neighborhoods close to the plant, killing between two and three thousand people within a few months. Hundreds of thousands of people were exposed to the toxic fumes. According to the figures used by the government in the Supreme Court, 592,635 compensation claims had been filed at the time of settlement. Only half of the claimants had been medically examined, and barely 10 percent of those examined had the nature of their injuries categorized for the purpose of paying out compensation. While the "full and final" compensation was being worked out, one gas-exposed person was dying every day from gas- related injuries. Despite the lack of evidence to support its figures, the government of India convinced the Supreme Court that its count of 3,000 dead and 102,000 injured (including minor and temporary as well as severe and permanent injuries) was reasonable. The decision to set "fair" compensation at $470 million was based on those numbers. By June 1990, barely a year after the settlement, more claims had been examined and the official death toll had climbed to 3,787. The number of injured stood at 202,672--about twice the number on which the settlement was based. Close to 200,000 claims still remained to be examined. Caught in the legal-political morass, the victims have not received the medical attention they need to tend to their worsening health. Six and a half years after the accident, the classic symptoms of what has come to be known as the "Bhopal Toxic Gas Disease" persist and, in some cases, are getting worse. These symptoms, moreover, have begun to appear in those exposed persons who have until now been relatively free from gas-related ailments. It is now widely recognized by medical experts that MIC has caused "long term and multisystemic" damage to victims' bodies. The symptoms even cross the generational line: children born to pregnant women who were exposed to MIC show signs of delayed growth. And there is little hope for relief. Dr. M.P. Dwivedi, director of the Bhopal Gas Disaster Research Center, says that "quite a number of people will have to live with lingering illnesses, especially in the lungs and eyes." Since the accident, the Indian Council of Medical Research (ICMR), India's equivalent to the U.S. National Institutes of Health, has closely monitored the health of one fifth of the population of the gas-affected areas of Bhopal. Most of the ICMR's findings have been confirmed by independent medical researchers. According to the ICMR's 1990 annual report, "a large number of cases continue to be symptomatic even at the end of five years, but there is an increasing trend of morbidities." This contradicts Carbide's claim at the time of the disaster that MIC was only a "mild throat and ear irritant." Even after carrying out its own toxicological studies, Carbide still maintains that "appreciable exposure to MIC by both skin contact and inhalation results in temporary incapacitation followed by recovery and no permanent injury or sensitization," a conclusion at odds with the large amount of data accumulated from the Bhopal victims. The pattern of chronic, long-term effects seems to replicate the pattern observed for the acute symptoms that appeared shortly after the exposure: lungs and eyes, most severely affected by the gas at the time of the release, continue to show the most severe symptoms of chronic damage. Medical experts now believe that MIC burnt the small, moist airways in the lungs, creating lesions and wounds. As they healed, these lesions developed excess fibrous tissue which continue to block the airways and reduce their capacity to take in air. This damage has been so extensive that the ICMR has proposed using it as a diagnostic marker for identifying Bhopal gas victims. Eyes also continue to show an increase in inflammation, higher frequency of cataracts and blurred vision. There is some fear that MIC may have chemically altered the structure of the enzymes that degrade naturally occurring cyanide (found in cigarette smoke and as a breakdown product in foodstuffs). This may result in a low-grade accumulation of cyanide in victims' bodies over a long time. None of this evidence, however, had any bearing on the settlement. While the ICMR experts published their findings in international and Indian medical journals, they did not make them available to the victims or to their advocacy groups. And the government completely ignored the medical evidence collected by its own agency. In settlement hearings, it used an arbitrary scheme of categorizing injuries which, the victims' groups have charged, was based on incomplete medical examinations. It is not surprising then that the settlement makes no provision for the long-term follow up and treatment of victims--just as it set aside no funds for damage to the crops, soil and water or the death of plants and animals. As Soli Sorabjee, the attorney general of India under V.P. Singh's government (which replaced Gandhi's Congress Party in 1989 and in its year-long reign sought to overturn the Bhopal ruling) points out, the category of "no injury" cases assumes "no injury for all time" and makes no provision for those potentially injured persons who may manifest symptoms at a later time. The legal rights of victims The settlement, which blocked all civil and criminal proceedings, present as well as future, has ramifications beyond the victims' health and compensation. Critics have charged that the legal immunity the settlement granted Union Carbide sets a precedent which limits victims' rights and eliminates an important tool for holding multinational corporations engaged in hazardous activities accountable for their actions. Many legal experts agree with P.N. Bhagwati, India's retired chief justice, who has stated that by not ruling on the liability issue, the Indian Court "has lost the opportunity of advancing human rights jurisprudence from the Third World viewpoint." Even worse, while most major human-caused disasters--from asbestos-caused diseases to the thalidomide tragedy--have inspired legal and legislative reforms, the Bhopal disaster has led to a reversal of the progressive environmental and human rights protections that the Indian Supreme Court had been crafting in recent years. Over the years, the Supreme Court has expanded the scope of the fundamental rights promised by the Indian constitution. Barely two years before it put its seal on the Bhopal settlement, in a case involving leaks from the New Delhi plant of a major Indian chemical manufacturer, the Court in the Shrirarn decision had defined new standards of "absolute and non-delegable" liability for all inherently hazardous industries and activities. Such enterprises are no longer able to defend themselves by claiming that they had taken all reasonable care and that harm occurred without any negligence on their part. The Court made absolute liability the social cost for carrying out dangerous activities. But instead of affirming and extending this argument to the multinational corporations operating in India, the Court cut off the Bhopal litigation before any legal precedent for controlling the conduct of multinational enterprises--involving punitive damages as well as compensation to victims--could be established. Without a legal ruling, "the victims will have their money but no answers," says Indira Jaisingh, the lawyer who has led the challenge to the government's right to represent the victims. The lawsuits now before the Supreme Court allege that the government of India and the Court violated the victims' fundamental right to due process by failing to consult the plaintiffs before settling the case. So far, however, Union Carbide seems to be winning the legal battles. The Supreme Court has already ruled against a suit which alleged that the Indian government had no right to represent the victims. Originally filed in 1985 and reactivated after the settlement was reached, the lawsuit charged that by assuming the sole right to represent the victims, the government had denied the victims the right to choose their own lawyers. The government, moreover, is itself potentially liable for negligence that contributed to the disaster. While the Court castigated the government for not consulting the victims, its December 26, 1989 ruling denied that the government had any conflict of interest and upheld the right of the government to represent the victims. (Because the settlement involves only claims against Union Carbide, victims are free to bring lawsuits against the government for negligence.) The future of litigation Carbide has consistently maintained that the settlement is a "binding agreement" and that "the new administration may not disavow it because it disagrees with it." Though many Indian observers believe that the Congress Party's return to power in the elections concluded last May might influence the decision of the Supreme Court, there is no technical obstacle to the Court overturning the decision. Under Indian law, the Supreme Court must review its decision if challenged on procedural grounds. The settlement is not final and binding until the court has finished reviewing challenges to it, explains Dias. Even more hopeful to victims is the renewed possibility that the case may be heard in U.S. courts. The original Bhopal suits were sent to India by New York District Court Judge John Kennan, who ruled that his court was a forum non conveniens (an improper court) because the tort occurred in another country. In March 1990, however, the Texas Supreme Court ruled that a case involving foreign plaintiffs and two U.S. corporate defendants and alleging harms which occurred in a foreign country could be heard in Texas, where the companies did significant business [see "The South's Day In Court," Multinational Monitor, July/August 1990]. In fact, U.S. lawyers representing Bhopal victims had filed a lawsuit in Texas in 1985 before all 11 of the Bhopal cases filed in various states in the United States were consolidated in the New York District Court. After the favorable forum ruling in Texas last year, the litigants made an appeal for reopening the case. The Texas courts have not yet announced a decision on the matter. Dias believes that the issue will ultimately have to be decided in an out-of-court settlement because litigation will take too much time to be of any use to the victims. He says that if the current settlement is overturned, Union Carbide may be willing to enter into another settlement for an amount that does justice to the damage it has caused, since the company remains financially vulnerable as long as the disaster continues to hang over its head. It still has not received a full vote of confidence from Wall Street. The corporate giant has never fully recovered from Bhopal, with litigation and the possibility of criminal charges still damaging its image among investors. In 1989, the Wall Street Journal reported that Carbide stock which traded in "$50 range in pre-Bhopal days has never stayed above $30 for more than a few days since then." A year after Bhopal, the company faced another crisis, a takeover bid from the GAF Company, which pushed it deep into debt. Carbide was forced to sell off its consumer products division (which, as David Dembo, director of the New York-based Bhopal Action Resource Center, points out, immunized it from consumer boycotts), its agricultural division and even its headquarters building in Danbury, Connecticut. In 1989, the company's new chairman, Robert D. Kennedy, re- organized it into a holding company with three independent businesses in chemicals and plastics, industrial gases and carbon. While the corporation's profits have improved and its debt has decreased since then, it is still far from returning to its pre-Bhopal status. According to its 1990 Annual Report, the company's net income was down 46 percent and debt up by 18 percent compared to the previous year. The members of Corporate Social Responsibility, a religious organization which works to influence corporate policy at shareholders' meetings, who attended Union Carbide's 1991 general meeting report gloom among shareholders over their dwindling dividends. Putting Bhopal behind it, once and for all, even if it means a new settlement, may be in Carbide's interest, Dias points out. (In 1989, the shareholders rejected a proposal to increase the compensation, but, according to Dias, Carbide management is not bound by the shareholders' vote.) Union Carbide's new leaf? One indication of the company's desire to improve its reputation in the aftermath of Bhopal is its aggressive campaign to put a new face on its environmental record. Union Carbide has emerged as the chemical industry's most ardent champion of "environmental auditing," an in-house assessment of how a plant is complying with environmental legislation, and also as a strong supporter of waste reduction. In November 1990, Carbide was even invited to a major conference on environmental excellence in London, though it was forced to withdraw under a barrage of criticism from outraged British pressure groups and members of Parliament. Under scrutiny, some of Carbide's claims for success in reducing waste generation and air emissions have been found to be exaggerated. A critical analysis published in November 1990 by Robert Ginsburg, a toxicologist for the National Toxics Campaign and the Council for International and Public Affairs shows that "Union Carbide continues to be a major discharger of toxic substances into the environment and a major generator of toxic wastes." For the Bhopal victims, Carbide's claims to have turned over a new leaf are an especially cruel hoax. They have witnessed six and a half years of whitewashing, foot-dragging and politicking by the company as well as the government and the courts in India, and all they can do is hope someday to receive a modicum of justice.