Fractured/Earth

this is the first of three opinionated stories i wrote for et’s 50th anniversary. i cannot find the links to these on the website, and so am pasting the raw text itself.

Blackened and twisted from the heat of the reaction, tank 610 lies on its side. Twenty-six years ago, on the night of 2nd-3rd December, it is from this tank in Union Carbide’s Bhopal factor that Methyl Isocyanate leaked out and spread, cloudlike, across a large part of the city. It was the world’s worst industrial disaster. Official numbers estimate that almost 4,000 people died that night. Tens of thousands were permanently disabled.

It’s an event that exposes a strange paradox about the Indian state. Think about it. On one hand, in the years after the leak, India made radical changes to her environmental law. Till the leak, industrial risk was understood as something confined to the factory. It was not till Bhopal that the definition of the community at risk widened and brought the community living around the project into the calculus of industrial risk.

The legislative response was the Environmental (Protection) Act (1986). It authorizes the central government to protect and improve environmental quality, to control and reduce pollution from all sources, and to prohibit or restrict the setting and/or operation of any industrial facility on environmental grounds. Today, it is an umbrella Act from which myriad other environmental laws, like the Environmental Impact Assessment notification, etc, derive their authority.

Another response came from the Supreme Court where, while ruling on a subsequent Oleum Gas leak in Delhi, Justice PN Bhagwati added the principle of Absolute Liability to India’s legal liability regime. Says environmental lawyer Videh Upadhyay, “When the Indian government tried to hold Union Carbide responsible for the disaster, the best legal principle available to it was the strict liability principle. Derived from British Common Law, this says any industry engaged in hazardous activity is liable for adverse consequences even if the industry/enterprise is not directly responsible for them. However, mitigating conditions could be factored in, like acts of god, acts of strangers, etc.”

While ruling on the Oleum case, Justice Bhagwati did away with the exemptions. His order said: “Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortious principle of strict liability.”

This landmark legal principle, says Upadhyay, was developed in the backdrop of Bhopal. Joining other environmental principles like Polluter Pays and the Precautionary Principle, it has been used extensively since then.

It shows the caring side of the Indian state. But, look at how the victims have been treated, and you see something strikingly different.

In all these years, regardless of the party in power, the victims’ struggle for compensation and treatment has continued. A combination of disinterested gas relief hospitals and almost non-existent medical research into the effects of the gas leak on humans has resulted in the gas victims getting little more than palliative treatment for their medical problems. The symptoms get treated but little else more. Poor attempts at social and economic rehabilitation have resulted in them sinking deep into poverty.

Saddest of all, the number of victims has been swelled by a second generation of victims. Some are children born to badly-affected survivors are blind, lame, with limbs twisted or missing, deaf and mute, brain-damaged, with hare-lips, cleft palates, webbed fingers, cerebral palsy or tumours where there should be eyes. Others are those who unknowingly bought land abutting the ponds outside the plant where Carbide used to dump its chemical slurry. This water-affected population, reports Sambhavna Clinic, a charity set up to help gas victims, is showing an incidence of birth defects that is ten times the national average.

A strange paradox, indeed.