1984: the Dow story

easily. The burden of someone else’s mistake, greed, and ineptitude is being borne by a population that had no say in the matter.

But the governments at the national, state and local level have to also take the blame. Indeed, if blame is to be assigned, there are layers within layers. And like an onion, every layer stinks. But of all to blame and those who should pay for, Dow Chemicals, which purchased UC in 2001, is the least culpable.

First, our industrial pollution regime did not prevent the manufacture/storage of a large amount of patently hazardous material right in the centre of a densely populated area. The Centre did little to provide an enforceable regime. Our famous inspectors at the state level didn’t perceive the potential for such disaster in the plant. The state government never even asked UC to relocate to a safer environment. And the Bhopal local government had no idea how to cope with disasters.

Second, after the event occurred, again big mistakes were made. The Bhopal Gas Leak Act of 1985 ensured that individual action against UC was not possible and only the Central government could deal with the matter. This could have been a positive development, had it the ability to fight adequately for compensation/relief and provide it. That ability, and perhaps even intention, was missing. Under the aegis of a Supreme Court judgment, it gave up all claims (civil and criminal) in return for $470 million in 1989. Later, in 2001, the Court re-introduced the possibility of criminal claims.

Most, including this writer, believe the 1989 decision of the Centre was stupid. For one, the $470 million figure was derived on the basis of a head count of those who would suffer adverse health consequences of the leak. The problem is, no one can adequately predict them. It is extremely difficult to differentiate a particular ill-health episode caused by the leak, catalysed by it, or totally independent of it. And this is more so in the case of a chemical that has multiple ill-health outcomes. Consequently, one cannot provide either health care or compensation relief to the identified few, but to all who exhibit such symptoms.

The costs of care and compensation were therefore going to be far higher than what calculations based on increased probability of ill-health will yield. We would have to provide relief to all who claim, not just a few who we can tangibly prove have been directly affected. Indeed this is a problem being faced today. There are many who have made claims but not received relief, even while there are large amounts lying unutilised.

But that’s only one facet. Within hours of the leak it was clear that this was a huge tragedy. Within days, it was clear that a large amount of funds would come in. The first task of the government should have been to set up a large health care and relief system, without even waiting for UC’s money to come in. But we did not do so. A few clinics were set up, the number of hospital rooms were increased, some interim relief was provided, but nothing on the scale required. While the people were suffering and dying, our government was busy shouting about the horrible MNC and how it needed to pay. It may have been correct in its outburst, but it was also less than honest in its concern for the gas-affected.

The money finally came in 1989. Now we come across the most obvious consequence of governmental inaction. The government has no idea what to do with the millions of dollars. The judiciary kept telling the government to use it, but the government was unable to do so. It does not have the machinery in place to either provide quality health care to the affected, nor does it have the administrative wherewithal to properly identify the ‘truly’ affected. In the process large numbers continue to suffer.

When such state failure is observed, it’s natural for NGOs, fringe groups and well-meaning individuals to take matters into their hands. But here what is most curious is that those who are responsible for the mess — UC’s senior management, Centre, state, local governments, even the judiciary — are not being targeted. Instead those who came in much later and had no role to play in this tragedy are being targeted.

What should we have done? Health care relief should have received the first priority. A large, universally accessible tertiary health care system needed to be set up in Bhopal. This should have been accessible to all and the full range of health services required should have been provided. If this had cost us more than $470 million, so be it. And this should have been in place in 1984 itself. Second, monetary compensation needed to be paid. The principles for this are well identified but the recipients are not. Had the state and local government put their minds to it in 1984, the problem would have been much easier to handle. All it required was a proper health census in 1984. A costly exercise but one that was possible.

Third, the judiciary failed in 1989 in agreeing to the $470 million in lieu of protection from criminal and civil cases. It partially undid this in 1991 when it ruled no protection was to be given to UC and its managers against criminal cases. But it got into an area it had little understanding of and now our hands are tied to that $470 million figure. Moreover, our judicial system has also been unable to extradite the senior managers who should have been incarcerated for negligence.

When the government takes away an aggrieved party’s right to go to court (as it did by passing the Bhopal Gas Leak Act), it is taking on the task of providing adequate relief. If it cannot, then the government should be in the dock. The one entity that has no culpability in the matter is Dow Chemicals that agreed to take over UC in 2001, under the impression that the matter was closed.

The writer heads the economic research firm, Indicus Analytics