medico340- friend341 circle bulletin

April - July 2010

Survivors of the Bhopal Gas DisasterTwenty five years after

- Vinod Raina1

It is over twenty-five years since the Bhopal Gas Disasterhappened; on the night of December 3, 1984. Theimpact, when it happened, was catastrophic andgenocidal. Men, women and children, unaware of whatwas making them choke and fight for life-saving breathfled their warm beds in panic, running distraught,hopefully away from the murderous poisons that hadclouded the skies. In an hour or so, over 3000 of themcould not outrun the deathly poisons, and theycollapsed all over the city, in a grotesque dance of deaththat had no dignity. And hundreds of thousands froma city of million plus vanished from the city, retching,coughing and mortally scared. They escaped death, butthe poisons have made life hell for them, and theycontinue to suffer, and die from the effects even now.Over 15,000 have died till now. (Raina, 2001)

But in this 26th year after the disaster, it is worth takingnote of the fact that the US, which is now faced with theoil spill in the Gulf of Mexico due to the negligence ofBritish Petroleum is seeking accountability from BP ata level that it has consistently ignored in the case of UnionCarbide and its new owner, Dow Chemicals, bothresponsible for a much bigger disaster. In a letter sent toPresident Obama on June 16, 2010, the Bhopal victimsand another 125 eminent persons all round the world havereminded Obama of the responsibility of the US to thecountless victims of Bhopal. The Indian government,confronted by angry victims is already consideringreopening the legal issues surrounding the disaster.

That is because the legal situation continues to remainas murky as it was just after the disaster happened. Afterthe Government of India promulgated an ordinance thatgave it powers to file a class action suit against theUnion Carbide on behalf of all the victims, the US courtsthrew out the case claiming that the jurisdiction existed

only with the Indian courts. The Indian Supreme Court,instead of deciding the case, controversially brokeredan out of court settlement between the Indiangovernment and the Union Carbide for a one time andfinal compensation of 470 million US dollars, in theprocess absolving Union Carbide of any criminal orcivil liabilities

The 1989 Bhopal Settlement was based on theassumption that only 3000 people died and about102,000 person's sustained injuries due to thepoisonous gases that leaked from the Union Carbideowned pesticide plant in 1984. However in its orderof 26 October 2004, almost twenty years later, theSupreme Court, hearing review petitions filed by victimgroups, ordered the disbursement of the remaining over15000 million rupees from the settlement amount ona pro rata basis to all the 572,173 gas victims who hadalready been awarded compensation. The Court alsogave its seal of approval to the figure of 15,248 deaths,reported by the Bhopal Gas Tragedy Relief andRehabilitation department. (Raina and Kumar, 2004)

This was a victory of sorts for the thousands of ailingand diseased victims who have refused to let up pressureon the concerned parties, the Union Carbide, DowChemicals, the Madhya Pradesh Government and theCentral Government all these years, while keeping theSupreme Court of India, the Bhopal Courts and theCourts in the US engaged with a barrage of petitions.If the Union Carbide thought that it had found an escapefrom its culpability by selling its assets to Dowchemicals, the victims have refused to let it off the hook.And the Dow Chemicals plea that it had noresponsibility since the incident occurred when theassets did not belong to it has been challenged on thestreets and in the courts. The respective Governmentswho had hoped that the incident would die away afterthe shabby settlement, with the victims getting tired1

Email:<vinodraina@gmail.com>. English version of anarticle published in Spanish in Ecologica Politica, Barcelona

2 mfc bulletin/April-July 2010and fatigued, underestimated the resilience of the poorand ill victims - they have refused to be cast into thedustbin of history. For those who have witnessed thestruggles, been friends and supporters of the victimsand their organizations, the experience is asempowering as inspiring. The victory is howeversomewhat muted since even after accepting that themagnitude of the disaster was so overwhelming, thenature of compensation disbursement hasn't beenaltered. It remains unscientific and unconnected to thedegree of disability.

Medical Disabilities

There was no public knowledge of the medical effects ofthe main gas that escaped from the plant, namely, methylisocyanate (MIC). Union Carbide Corporation (UCC)initially pleaded ignorance about its medical effects,though later it was revealed it had results of research thatit had commissioned on precisely this aspect, though onrats, before the disaster happened. However it continuedto maintain that MIC could not cause permanentimpairment. Unfortunately, sections of Government-of-India-controlled scientists were of the same opinion. Thevictims' organizations, activists and NGOs, however, havefought to have their opinion acknowledged, namely, thatthousands of people have been permanently disabled bythe gases (Eckerman, 2005).

The Government of India had assigned the task of longterm medical studies to the Indian Council for MedicalResearch (ICMR). Unfortunately, the ICMR studieswere terminated ten years after the disaster, in 1994.But in their annual reports from 1990 to 1992, ICMRreported many long term health effects on the survivors.The International Medical Commission on Bhopal(ICMB), set up because of a great deal of personalinitiative of Rosalie Bertell also investigated long termeffects, 10-15 years after the exposure. According tothese reports, the survivors complain of breathlessness,coughing, chest pains, fatigue, body aches, abdominalpain, numbness and tingling in the limbs, weak sightand runny eyes, anxiety attacks, bad memory,concentration difficulties, irritability, headache andmental illness. An unusually large number of womenhave menstrual irregularities and excessive vaginalsecretions. Mothers complain of retarded physical andmental growth in children exposed at infancy or bornafter the disaster. Symptoms of fever, burning sensationsin the body, loss of appetite, numbness and tinglingin the limbs, backache, giddiness and panic attacksseem to have manifested 3-4 years after the disasterand are getting worse. A reasonable estimate is thatbetween 100,000 and 200,000 people are permanentlyimpaired (Eckerman, 2005).

After the closure of the ICMR research studies in Bhopalin December 1994, the Centre for Rehabilitation Studies(CRS) of the Madhya Pradesh Government has takenover responsibility for long term research. The cohortstudies show an overall over-morbidity among the gasaffected compared to the control group (GoMP, 2004).The eyes show chronic conjunctivitis, scars on thecornea, deficiency in the watering of eyes, permanentcorneal opacities and the early onset of cataracts (Dhara,1992). Eye diseases during the period 1996-2002 weretwice as high in an exposed group to a non-exposedone (GoMP, 2004).

One of the major health impacts has been on therespiratory tract. This includes abnormal lung functionwith obstructive and/or restrictive disease, aggravationof old diseases like tuberculosis and chronic bronchitis,and pulmonary fibrosis (Dhara, 1992). Permanent effectson the respiratory tract, 10 years after the leakage, wereshown by the IMCB (Cullinan, Acquilla and Dhara,1997). Doctors working in the areas affected by thegases agree that there has been a marked increase inthe number of tuberculosis cases in Bhopal (BhopalMemorial Hospital, 2000/2001).

The neurological impacts have been studied andneurobehavioral tests show impairment of memory,attention response speed and vigilance (Dhara, 1992),as well as finer motor skills (Eckerman, 1996). Thereare also neuromuscular symptoms such as tingling,numbness and muscular aches (Dhara, 1992). Theinvestigation by IMCB (Cullinan, Acquilla and Dhara,1996) showed clinical signs of central, peripheral, andvestibular neurological disturbance.

Regarding genetic impacts, chromosomal aberrationswere found to occur in exposed persons (Ghosh, 1990;Goswami 1990). An ongoing study on chromosomalchanges and birth defects indicates an increased rateof birth defects in gas affected families without previoushistory. A population-based cancer registry has beenestablished in Bhopal, but the onset of gas leak relatedcancers is not expected to occur before the 30 to 40year lag period (Dhara, 1992). It has however been statedby local groups that there is a definite rise in theincidence of different kinds of cancers in the gas affectedpopulation over the last few years. Cancers of the lungshave increased up to 20 percent compared to other citiesof the country, they claim.

Probably the worst sufferers in Bhopal are the womensurvivors, since with all the other health impacts, theirreproductive health seems to have been badly affected.Three months after the exposure, a small study showeda high proportion of leucorrhoea, pelvic inflammatorydisease, cervical erosion, excessive menstrual bleedings

mfc bulletin/April-July 2010 3and suppression of lactation (Morehouse andSubramaniam, 1986). Later menstrual cycle disruption,leucorrhoea and dysmenorrhoea, especially amongyoung women were reported. Even though no long termstudies on women's reproductive health have been done,it is common knowledge in Bhopal that a very largenumber of gas affected women, and their daughters,suffer from menstrual irregularities, profusemenstruations and premature menopause. One of thevery harsh social impacts of this has been the reluctanceof households to wed their sons to a gas affected womanor her daughter. In 1989, the still birth rate, the crudebirth rate, the perinatal death rate, the neonatal deathrate and the infant mortality rate were all high in severelyaffected areas, compared to the rates in control areas(ICMR Bhopal, 1990). The affected children have thesame symptoms as the adults, and in addition, thereare reports of intellectual impairment and epilepsy(BGIA, 1994). Failure to grow, delay in gross motorand language sector development were found inchildren born a considerable time after their mothers'exposure to the gases (BGIA, 1992).

The lack of accurate data on medical disabilities andthe extent of affected population is directly connectedto the enumeration of the people who ought to receivecompensation, and the quantum of compensation isrelated to the severity of disability. It is also at the heartof the continuing struggle of the affected survivors andthe official and corporate agencies, the latter alwaysmaking attempts to minimize both the numbers andthe severity, in order to reduce their liabilities. The lackof motivation of the official agencies to put into placea long term medical research mechanism and aneffective curative health system, or the corporates tofulfill such a responsibility is obviously a consequenceof their attempts to limit their liabilities.

The Toxic Wastes

One of the worst lingering issues of the Bhopal GasDisaster is the dispute over the disposal of the 350 metrictones of toxic wastes that are still present in theabandoned Union Carbide factory premises, taken overby the Dow Chemicals in 1999. Evidence suggests thatthese wastes have continuously polluted air, water andland in these 25 years after the disaster. Heavy monsoonrains have made the toxic chemicals leach intounderground water aquifers, a source of drinking waterfor a large population that continues to live close tothe abandoned factory. Greenpeace found evidence ofmercury in the breast milk amongst women living closeto the factory.

The dispute resolves around who ought to be responsibleand bear costs, where the wastes should be disposed or

incinerated and the suitability of the methods of disposal.Dow chemicals have continued to maintain that theiracquisition of the factory does not imply their taking overof liabilities pertaining to the period when they were notthe owners. This was in response to the plea of the centralMinistry for Chemicals and Fertilizer (MOCF) to theMadhya Pradesh High Court to direct Dow chemicals todeposit rupees 1000 million for the clean-up (Frontline,2007). The Madhya Pradesh High Court finally gavedirections for the packing and disposal of the wastes, tobe partly buried at a facility about 180 kilometers awayin Peethampur in Madhya Pradesh state and the largechunk, about 310 metric tones, to be incinerated at afacility in another state, in Ankleshwar in Gujarat, 680kilometres away. The Gujarat government petitioned theSupreme Court against the High Court order sending thewastes to Gujarat, claiming a back log at the facility inAnkaleshwar and the dangers of transporting the wasteslong distance. Survivor groups, who in the first instancewere forced to petition the courts for the disposal, havevoiced their concern against the modes of disposal -burying and incineration - calling them hazardous. Thestalemate continues while the wastes continue to pollutethe water and air of Bhopal, further threatening thealready debilitated health of the survivors.

It remains to be seen whether the renewed interest,spurred by the liabilities BP is likely to face for theGulf of Mexico oil spill, push the Indian and USgovernments to finally put into action appropriatemeasures that give adequate justice, compensation andmedical relief to the long denied Bhopal victims.

References

1. Government of Madhya Pradesh (GoMP), 2004; BhopalGas Tragedy Relief and Rehabilitation Department;<www.mp.nic.in/bgtrrdmp/setup>

2. Bhopal Memorial Hospital Trust; Annual Reports 2000,2001

3. Bhopal Group for Information and Action (BGIA), 1992.Health Damage Due to Bhopal Gas Disaster, Reviewof Medical Research in Compensation and Disbursement.

4. Bhopal Group for Information and Action (BGIA), 1994.Clinical profile of the Bhopal Gas Victims - A Summaryof ICMR Reports.

5. Cullinan P., Acquilla S.D., Dhara V.R., 1996. 'Long termMorbidity in Survivors of the 1984 Bhopal Gas Leak',Nat Med. J. India, 1996 (9)

6. Cullinan P., Acquilla S.D., Dhara, V.R., 1997. 'RespiratoryMorbidity Ten Years after The Union Carbide Gas Leakat Bhopal - A Cross Sectional Survey', BMJ 314

7. Dhara, V.R.; 1992. Health effects of the Bhopal GasLeak: A Review. Epidemiological Preview 1992 (14).

8. Eckerman, I; 1996. 'The Health Situation of Womenand Children in Bhopal'. International Perspectives inPublic Health, Buffalo, NY. Ministry of Concern forPublic Health; 1996 (11-12).

9. Eckerman, I; 2005. The Bhopal Saga - Causes andConsequences of the World's Largest Industrial Disaster.

4 mfc bulletin/April-July 2010Universities Press, India.

10. Frontline2007, <http://www.hinduonnet.com/fline/fl2402/stories/20070209001704300.htm>

11. Ghosh, B.B. et al; 1990. 'Cytogenetic Studies in HumanPopulations Exposed to Gas Leak at Bhopal, India',Environmental Health Perspectives, 1990 (86).

12. Goswami, H.K. et al. 1990. 'Search for ChromosomalVariations among Gas-Exposed Persons in Bhopal,'.Human-Genetics 84(2).

13. ICMR, Bhopal; Annual Report 1990. Bhopal Gas Disaster

Research Centre; Gandhi Medical College, Bhopal.14. Morehouse, W and Subramaniam, A; 1986. The Bhopal

Tragedy - what really happened and what it means forAmerican workers and communities at risk. The Councilon International and Public Affairs, New York.

15. Raina V. et al; 2001 (2nd edition). The Dispossessed:Victims of Development in Asia. Arena Press and ManoharPublications.

16. Raina V. and Raju Kumar; 2004. 'Twenty years of relentless

struggle of Bhopal gas victims', Seminar (544)

Letter to President Obama

Mr. Barack Obama June 2010PresidentUnited States of America

Dear President Obama,

With a great deal of interest we have been following your tough stand against British Petroleum for the oil spill in theGulf Of Mexico, particularly your demand to know whose 'ass needs to be kicked'. We think your demand for corporateaccountability for causing huge environmental damages is worthy of emulation by other governments around the World.

May we draw your attention to a bigger disaster that took place in the city of Bhopal in India in December 1984 thathas officially killed over 15,000 people (about 25,000 people unofficially) and seriously injured nearly half a millionpeople by now (the situation after twenty five years is attached for ready reference). This disaster was caused by anothermega corporate entity called Union Carbide, headquartered in the United States of America, unlike BP that belongs toGreat Britain.

Through 'friendly' interventions of the Reagan administration that ruled the US in 1984, not only was Warren Anderson,the CEO of Union Carbide sent back from India even though he was arrested and cases were registered against himand the Union Carbide, but similar overtures resulted in all criminal cases against Union Carbide to be dropped in ashameful out of court settlement for a paltry US$470m. Twenty six years later, the local court in Bhopal, fettered bythese collusive legal manipulations could at best convict six Indian officials of the Union Carbide India Limited for twoyears of jail, for which all the accused were given instant bail. The parent company based in the US, against whomcharges exist in Indian Courts, is unanswerable. So no one pays for the death of over 15,000 people! Another giantUS corporate, Dow Chemicals, that bought Union Carbide some years ago refuses to accept its liability for cleaningup the toxic wastes at the closed factory, that is still harming citizens of Bhopal, mainly from water that is contaminatedwith leached poisons stored in the abandoned factory.

Is it too much to expect that you use the same yardsticks of accountability you are using for BP for the terrible oilspill in the Gulf of Mexico, for corporations based in the country you rule?. Whose 'ass' should the citizens of Bhopalkick if governments selectively shield their corporations and officials from legal accountability? How would you react,for example, if because of the pressure of the British media that is asking Prime Minister Cameron to stand up to you,Mr. Cameron made a 'friendly overture' to you to back off from 'kicking anyone's ass', meaning British Petroleum's?If you wouldn't back off, then consistent with your stand, the citizens of Bhopal and the whole World demand fromyou that:

1. You signal/order that judicial processes be allowed, both in the US and India, to take their course in fixing responsibilityof corporations and individuals of the US, responsible for the Bhopal carnage; dismantling the manipulative obstaclesput up in these intervening years. This is necessary to restore the subverted system of justice.

2. You set processes in motion that make Dow Chemicals own up their responsibility for cleaning up the toxic messthat resides in the closed factory they now own.

3. You work with the same sense of collaboration with the Indian government on this issue to provide justice andproper compensation to Bhopal victims, that you proclaim you have achieved with the Indian government on theissue of 'global terrorism'.

Yours sincerely,

1. Abdul Jabbar - Bhopal Gas Peedit Mahila Udyog Sangathan (biggest organisation of Bhopal gas victims)

2. Vinod Raina - a resident of Bhopal

(cc: Prime Minister of India, Mr. Manmohan Singh)

mfc bulletin/April-July 2010 5Editorial

Bhopal was Inevitable-Dhruv Mankad*

Bhopal is also a metaphor for development as a disaster of sorts which demands that the casualties be forgotten and dictates

that a community that fails to develop is obsolescent. An entire structure of propaganda, erasure and amnesia on Bhopalwas orchestrated by science, government, and corporations which allowed the language of compensation as the only avenue

of expression of outrage and injustice - and even compensation was precarious at best.

- Arturo Escobar, Encountering Development

The Bhopal Gas Tragedy was an industrial catastrophe thatoccurred on the night of December 3, 1984 at the Union CarbideIndia Limited (UCIL) pesticide plant in Bhopal, MadhyaPradesh.. Estimates vary on the death toll. The official immediatedeath toll was 2,259 and the government of Madhya Pradeshhas confirmed a total of 3,787 deaths related to the gas release.1

Other government agencies estimate 15,000 deaths. Aroundmidnight on the fateful night, there was a leak of methylisocyanate (MIC) gas and other toxins from the plant, resultingin the exposure of over 500,000 people.

But, this Disaster was Inevitable!

The MIC gas leakage caused to the disaster, but this was notas sudden as it seems. We were warned about the leakageand its consequences. Here, 'we' I mean - the UCC, UCILmanagement, workers, public and our democratic representativesand the rulers.2 The technology to produce Sevin - a pesticide,used by UCIL the then Indian subsidiary of the US. companyUnion Carbide Corporation (UCC), (which is now a subsidiaryof Dow Chemical Company), was faulty and insecure. Reportsbefore and after the disaster by independent experts,organizations and auditors have brought this to our notice.

If no actions were taken either by UCC or UCIL or theGovernment of India or of MP despite these reports, was itreally an accident? Or Act 2 of the Epic of The Bhopal Tragedy?

Some 25 years after the gas leak, 390 tons of toxic chemicalsabandoned at the UCIL plant continue to leak and pollute thegroundwater in the region and affect thousands of Bhopalresidents who depend on it, though there is some dispute asto whether the chemicals still stored at the site pose any continuinghealth hazard. No actions are taken either by Dow Chemicals(because according to Dr Abhishek Manu Singhvi, DowChemical is not liable to do so. And H Rajan Sharma haschallenged his opinion.)3 or by UCC or by UCIL or by anypublic health authorities!

… And such Disasters are Still Inevitable!

Today, in the political arena, there is a debate about how andwhy Warren Anderson, the Chairman and CEO of Union Carbide,had been arrested and released on bail by the Madhya PradeshPolice in Bhopal on December 7, 1984. Or Arjun Singh thethen Congress Chief Minister ran away etc. etc. Anderson wasarrested at the airport and was taken to Union Carbide's houseafter which he was released six hours later on bail and flownout on a government plane. Now, he was declared abscondingby the police although his New York residential address iswell known. Was this an error of omission or of commission- the Act 3 of the Epic of The Bhopal Tragedy?

The UCC established a pesticide plant in India under a subsidiaryUCIL since the security rules for such industry are stringent,costly and are enforced strictly in the US. It is not profitableto do so there. Wasn't it the Act 1 of the Epic of The BhopalTragedy. Once the Government of India had accepted it undersuch 'relaxed' rules, its consequences were inevitable. Wasn'tAnderson's arrival in India after the Act 2 and his release wasalso a part of the drama?

Nowadays, these issues are discussed and debated by thepoliticians but the Politics of Governance does not limit it tothe politicians - it includes the intellectuals, the law makers,the entrepreneurs, the citizens. There are contradictory newsin the press4 about the Supreme Court bench headed by JusticeAhmadi in 1996 or the Bhopal police in 1984 diluted chargesto those of criminal negligence against the accused includingAnderson. Under the Indian Penal Code, culpable homicidenot amounting to murder (under Section 304 IPC) carries amaximum punishment of 10 years. Causing death by negligencenot amounting to culpable homicide carries a maximumpunishment of two years. That no action will be taken againstAnderson was a part of the plot. If it wasn't, then why theappeal in the court of arresting him through Interpol whenhe was on a tour of South East Asia was dismissed on assurancefrom an eminent lawyer that he would come on his own? Wasit not a sub plot of Act 3, since Justice Ahmadi on his retirementbecame the Chairperson of the UCIL's Trust for the victimsof the Tragedy? If the charges of culpable homicide were notdropped, why the June judgment, otherwise quite well argued,logical and balanced, has punished the culprits for 2 years,as if it was a criminal negligence?

Using the victims as guinea pigs was another 'side-business'carried out with blind eyes by medical councils, researchorganizations and drug controlling authorities. No clear lawsand codes for clinical trials in India were framed even whenloud and shrill whistles were blown by the 'referee and thelinesmen.' Whatever rules were there, they were not inspectedor applied. Where the Sanjays of our Hastinapur are or madeeye turners by visually impaired Dhritrashtras, aren't colossalMahabharats inevitable?

Politics of Law (Non) Enforcement

US laws and its enforcement agencies do not allow suchdisasters. Because its citizens including its entrepreneurs ensurethat they do not allow such tragedies to happen. The cultureof liberal democracy in US is embedded along with the principlesof justice. Rule of law is framed by the citizens and appliedby them. There are harsh punishments for breach of laws inthe US. (I am aware that this American 'liberal' democracyis limited to the territories of its interest and priorities.)*

Email <dhrvmankad@gmail.com>

6 mfc bulletin/April-July 2010In contrast, we are 'liberal' in enforcement. How many aroundus were fined heavily for not following the traffic rules ofsignal crossing, overtaking, and speed limit? How many doctors'registrations in the medical council were struck off for notfollowing the medical practice ethics and protocols? How manywere caught giving bribes? How many of us follow the principlesof 'equal before law' in day to day practices? Even if theserules are broken, we get scot free with a nominal fine orpunishment. My friend who is a traffic police person will 'mujhekuchh nahin karega, woh chhod dega'. We abhor the agenciesthat are empowered - by us, to enforce these rules albeit, on'others' but not on 'ourselves'!

The British did reform the practices of personalized justiceby the kings, vassals and their bureaucrats, by the castepanchayats. In the past 60 years, we are taking a U turn tothe previous feudal system of law enforcement and justice.And that too, this is under the guise of liberalism and democracy!We talk about Anderson, as a 'free criminal'. What about thefree criminals as rulers - at the cities, at the states and at thecentre? What about the Ketan Desais? Where enforcementof laws and rules like BNHRA and PNDTs are consideredimpractical, disasters like Bhopal Tragedy are inevitable. Weempower the status quoists because they come with solutionsand programmes which satisfy our immediate needs.Toothlessness of those who are committed to the principlesof justice will maintain the status quo, in this case, for thevictims of Bhopal - the Bhopals will not change.5

References

1. <http://www.mp.gov.in/bgtrrdmp/relief.htm>

2. Ingrid Eckerman. The Bhopal saga: cause andconsequences of the world's largest industrial disaster.New Delhi, India: Universities Press, 2005.

3. Chemical Industry and Public Health: Bhopal as anExample: Ingrid Eckerman: Essay in Master of PublicHealth, Nordic School of Public Health, Göteborg, Sweden,MPH 2001:24, pp 13-16 <http:/bhopal.bard.edu/resources/research.php?action=getfile&id=572583>

4. ‘Veil of Deception' by Dr H Rajan Sharma, in Frontline,Volume 25, Issue 07, Mar. 29-Apr. 11, 2008 archivedat <http://www.bhopal.net/opinions/archives/2008/03/veil_of_decepti.html>.

a. <http://www.ndtv.com/news/india/no-question-of-diluting-charges-against-anderson-former-sc-judge-30561.php>

b. <http://news.outlookindia.com/item.aspx?684794>

5. I am really grateful to Prakash Bal, a senior, committedjournalist of Maharshtra for his Marathi article -'Bhopalghadnarch hotey! Saptrang', Daily Sakal, Nashik Edition,Sunday, 13th June 2010, p 1-2. My editorial here is basedon a free translation of some of his writings. Obviously,the opinions expressed here are solely mine.

A Note from the Guest Editor: This issue of the bulletin carries articles on the aftermath of the Bhopal Tragedyparticularly for the millennium members of medico friend circle.

Some older mfc members were involved in the movement of the victims of the Tragedy (see Bulletins 109,112-119,121, 135. Also see. The Bhopal Disaster Aftermath: An Epidemiological and Socio-Medical Survey, medico friendcircle, March 1985) as an organization or in individual capacity (see 'Learning from the Relief Work', Abhay Bang, mfcbulletin, Issue 109, January 1985). There were debates and controversies within mfc and with organizations workingwith the victims. But, there was a unanimous agreement that what occurred before, during and after the Tragedy, thestate had failed in preventing the tragedy and in treating, rehabilitating or in providing justice to the victims. Thefailure prevails but we hope that the consensus also prevails.

Summary of Clouds of Injustice: Bhopal Disaster 20 years on, an Amnesty International Report, is an indictment ofall the actors of this epic - the UCC, UCIL, the Governments of India and Madhya Pradesh. It recommends that"Laws in host countries must be developed and enforced to allow national governments and local communities tocontrol the activities of companies operating in their territory." Samanvay Rautray in his story 'Bhopal missesrecompense law', reproduced from The Telegraph, Calcutta, of June 9, 2010, highlights that the US tort laws - whichprovide for substantial financial compensation to the victims and the fees to the 'ambulance chasing' lawyers - thatAmericans enjoy a greater degree of protection against industrial disasters. 'Bhopal and the U.S. Courts, Catastropheand the Dilemma of Law' by H. Rajan Sharma, a lawyer who is representing residents of Bhopal in a Federal classaction against Union Carbide in US courts, brings the legal story, outlines his case, and looks at what Bhopal meansfor the future of human rights. 'Causes of Bhopal disaster analyzed' by Davis Smith, a Collegian Science Writer of theDaily Collegian Online published independently by the students at Pennsylvania State (the e-newspaper <http://www.collegian.psu.edu> is still online!) narrates a seminar at the University in 1988 about Who was responsible forthe chemical plant disaster in Bhopal, India - the worst industrial accident in history - two and a half years ago. Thereport is fresh and relevant today because this worst industrial accident in history happened only twenty six yearsback.

Dhruv Mankad, Guest Editor

mfc bulletin/April-July 2010 7

Following the 1984 Bhopal gas disaster that killedthousands and maimed over half a million, agovernment-funded Bhopal Memorial Hospital andResearch Centre (BMHRC) was set up in the year2000 with the avowed aim of "providing super-speciality care to the survivors of the tragedy." Thehospital was also supposed to carry out "research onlong term effects of methyl-iso-cyanate (MIC)"chemical that caused the holocaust. MIC-afflictedpatients suffer from a variety of serious disordersinvolving respiratory, ophthalmic, gastro-intestinal,reproductive, nervous and immune systems. In otherwords they are seriously sick suffering from multipledisabilities.

Instead of concentrating on MIC-related issues, theHospital became a hot spot for conducting clinicaltrials on untested drugs that were primarily designedto help pharma companies. Drugs in the trialsincluded telavancin (patented by US companyTheravance), tigecycline (Wyeth), prasugrel,fondaparinux (GlaxoSmithKline) and fixed-dosecombination of cefoperazone with sulbactum(Magnex) sold by Pfizer in India.

Curiously cefoperazone is no longer marketed eitherin the United States or other advanced countries likeAustralia, United Kingdom, Ireland etc. Its fixed dosecombination with sulbactum was never approved inthe United States, the home base of Pfizer thoughit is sold in some developing countries like India(annual sales Rs. 70 crores), Chile, Colombia, Peruand Vietnam.

Except for fondaparinux, other agents tested in Bhopalwere all new chemical entities (NCEs) orinvestigational new drugs not approved for humanuse anywhere. Consequently their side effects werenot fully known when the trials started in Bhopal.The morbidity and mortality caused by these NCEson unfortunate, unsuspecting victims in the Bhopaltrials is not known.

Despite repeated requests, the Hospital has failed toproduce copies of prior approvals from the DrugsController General, India (DCGI) which aremandatory for all trials involving human beings andlegally should be in public domain. The trials startedin 2004 when phase III trials of new medicinesdiscovered abroad were not allowed in the countryunless the same were approved for sale in developed

Bhopal Gas Victims Used as Guinea Pigs

countries. Apparently the laws governing clinicaltrials were violated by administering unapproveddrugs.

Since testing new chemical compounds on humansalways involves unpredictable risks, the IndianCouncil of Medical Research (ICMR), Council forInternational Organisations of Medical Sciences(CIOMS) and WHO have issued codes of conductfor drug trials. Guidelines require that:

People with "reduced autonomy" should notbe subjected to trials. Bhopal gas victims havezero autonomy since they are totally dependenton treatment provided by the BMHRC. Can apatient refuse to take a drug prescribed by theattending doctor at the only hospital in thecountry meant for gas victims?

Trials are not normally mixed with medicalcare. If the investigator is serving both as aresearcher and the patient's physician, this factshould be told to the subject. In such cases theinformed consent should be sought by a thirdparty (e. g. by a neutral, independent physicianor in the presence of an NGO).

In disaster areas, the research should be aimedat effectively dealing with similar events infuture and not on non-specific drug trials.

Ethical standards applied in a host country(such as India) should not be less stringent thanthey would be for the same trials conductedin the country of innovation (such as UnitedStates or Britain). Can any hospital in the Westdare to conduct clinical trials on victims ofdisasters like the one in Bhopal?

The source of funds for the trial must bedisclosed to patients.

Subjects should be reimbursed for lost earnings,travel costs and other related expenses whileparticipating in trials.

The results of the trial should be communicatedto the participating subjects.

Many patients interviewed by NGOs and the mediahave categorically said that while being treated atthe BMHRC they were never told that they were"voluntarily participating in any drug trial."

Source: MIMS, Editorial, July 2010. Reproduced withthanks.

8 mfc bulletin/April-July 2010

Who was responsible for the chemical plant disasterin Bhopal, India -- the worst industrial accident inhistory -- two and a half years ago?

A great deal of often heated discussion accompaniedthis question in a seminar sponsored by the ChemicalEngineering department yesterday on differentperspectives of the Union Carbide chemical plantdisaster in Bhopal, India which killed about 1,500people and injured tens of thousands more.

The two primary speakers at the seminar, heldyesterday in Fenske laboratory, were T.R. Chouhan,a former plant operator, and Praful Bidwai, a seniorassistant editor of the Times of India, an Englishlanguage daily newspaper published in New Delhi,India.

The two men were preceded by University Professorof Chemical Engineering John McWhirter, who wasvice president and general manager of Union Carbide'sAgricultural Products division before coming to PennState.

McWhirter outlined for the audience of about 65students and faculty how the chemical involved --methyl isocyanate, commonly referred to as MIC -- is used as an intermediate in the production ofpesticides. Some of the pesticides are sold in the U.S.under such brand names as Sevin and Temik.

MIC is an extremely reactive chemical, which is whyit is used to produce the pesticides, McWhirter said.The MIC reacts with other compounds to produce apesticide, and the particular pesticide produceddepends on what is added to the MIC, he said.

Because MIC will react with almost anything, specialsafety precautions must be taken when dealing withthe chemical. The disaster in Bhopal occurred when2,000 pounds of water was accidentally introducedinto a storage tank containing 90,000 pounds of MIC,and the resulting reaction released a huge cloud oftoxic gases which spread over the southern part ofthe city, McWhirter said.

"It was easily the worst industrial accident on record,"McWhirter said.

Causes of Bhopal Disaster Analyzed1

-Davis Smith1

Collegian Science Writer

Chouhan talked about his experience with the MICplant in Bhopal, using diagrams to supplement hisassertions. He received 18 months of training for hisposition when he was hired in 1975 by Union CarbideIndia Limited, the Union Carbide Corporationsubsidiary which managed the Bhopal plant, he said.

After 1975, the training periods for plant operatorsbegan to decline, he said. In the late '70s, operatorswere receiving one year of training. This declinedfurther in the early '80s, so that by 1982, operatorsreceived six months of training before being put onthe job, he said. By 1984, operators received onlythree months of training, Chouhan said.

"In the two months of 1984 preceding the disaster,plant operators were receiving only one month oftraining," Chouhan said.

Chouhan's diagrams showed how supervisiondecreased in the plant in the years preceding thedisaster. When the plant opened in 1980, all of thepersonnel working in the plant were trained for workat that plant. At the time of the disaster, the vastmajority of the workers had been transferred from otherplants, he said.

Bidwai added that the safety features within the plantwere inadequate and had been dismantled.

"What we found was that each of the safety systemsof the plant had such a low design capacity that itcouldn't have possibly worked adequately to contain,prevent or minimize the toxic release of the plant,"Bidwai said.

"The safety features of the plant could not possiblyhave been designed to control a runaway reaction.That's the nature of a runaway reaction. (The safetyfeatures) were designed to prevent such a reaction inthe first place," McWhirter countered.

Bidwai and Chouhan maintained that the localmanagement of the Bhopal plant had no power to actindependently, and had to clear every action with theUnion Carbide head office in Danbury, Conn. Bidwaiinterviewed the manager of the Bhopal plant hoursafter the disaster, and the manager said that in hismanagement, he was told to refer everything to thehead office.

When he asked the manager if he was referring to thehead office of Union Carbide India Limited, the

1Reproduced with thanks in public interest from The Daily

College Online, Wednesday, March 30, 1988 and archived at<http://www.collegian.psu.edu/archive/1988/03/03-30-88tdc/03-30-88dnews-06.asp>.

mfc bulletin/April-July 2010 9manager responded that he was referring to the headoffice of Union Carbide Corporation in Danbury,Bidwai said.

"He was lying. He was flat out lying," McWhirter said.

"If (the management of Union Carbide Corporation)had been aware of what was going on in India, allhell would have broken loose. People make themistake of thinking that Union Carbide Corporationand Union Carbide India Limited are the samecompany. UCC owns 50.9 percent of UCIL, and allof the management decisions were made at the locallevel," he said.

Chouhan spoke about what he experienced on the

morning of Sunday, December 3, 1984, at about 2:00a.m. -- about two hours after the release of toxic gasesinto the atmosphere had begun. Chouhan wasawakened by the crying of his young son, and foundthe entire family to be suffering from severe eyeirritation, he said.

The next day, as Chouhan walked through Bhopaltoward the plant, he saw literally hundreds of peoplein intense agony and suffering. The city hospital,which was on the outskirts of the area affected by thecloud, was swamped with thousands of people. Thehospital was largely powerless to aid these people,he said.

Bharat Desai, 01 July 2010

<http://blogs.timesofindia.indiatimes.com/roving-i/entry/nariman-pay-your-dues-to>

There is perhaps one way Fali Nariman can erase the blotof Bhopal on his legal career - by donating to the gas victimsthe legal fees which Union Carbide Corporation (UCC) paidhim.

I am not the first to suggest this. The idea came five yearsago from Nariman's close friend and legal luminary, Prof.Upendra Baxi, who battled valiantly through the 1980s forthe survivors of the world's worst industrial disaster.

Nariman's autobiography 'Before memory fades', which wasreleased on June 15, has a chapter on Bhopal, where Baxi'ssuggestion can be found. A former Delhi University vice-chancellor, Baxi has much better credentials as a human rightscampaigner than Nariman. He currently teaches law at theUniversity of Warwick, UK.

The spat between Baxi and Nariman has its roots in a commentby the then Supreme Court Chief Justice, R S Pathak, whopresided over a Constitution Bench which approved thewoefully inadequate $470 million settlement which left Bhopalaghast in February 1989.

In December 2004, Nariman wrote a piece on 'Twenty Yearsafter the Bhopal Gas Tragedy' in the journal 'Seminar'. Hequoted Chief Justice Pathak as saying in the order: "It isindeed a matter for national introspection that public responseto this great tragedy which affected a large number of poorand helpless persons limited itself to the expression ofunderstandable anger against the industrial enterprise but didnot channel itself in any effort to put together a public-supportedrelief fund so that the victims were not left in distress, tillthe final decision in the litigation." In his article Narimanpleaded for, among other things, voluntary contributions tosuch a fund.

Prof. Baxi slammed Nariman as well as the judges. Seminarcarried his response to Nariman in the February 2005 issuewhich said: "Mr Nariman's invocation of Chief Justice Pathak'ssonorous invocation is the ultimate perfidy. Pathak ostensibly

Nariman, pay your dues to Bhopal before memory fadesand extravagantly laments, in his judicial performance, thatthe friends of Bhopal victims "did not channel itself in anyeffort to put together a public-supported relief fund so thatthe victims were not left in distress, till the final decisionin the litigation. This is a scandalous lie because, as alreadynoted, we persuaded the V P Singh Cabinet to put some interimrelief in place. Further, as far as we know, neither Pathak(who ordered the unconscionable settlement), norVenkatchaliah (who ignobly strove to legitimate this againstall canons of jurisprudence) has cared, as far as I know, tocontribute even a farthing from their earnings and savingsfor the amelioration of the Bhopal violated humanity.Regardless, may I now publicly urge Mr Nariman to at leastdedicate all the attorney fees earned from defending the UCCtowards the costs of medical and economic rehabilitation ofthe Bhopal violated? Many of us have dedicated our far moremeagre earnings for the cause!"

When Seminar asked Nariman to respond to Baxi's attack,he wrote back saying: "Lastly, as to what example can I setor have I set for aiding the Bhopal victims, I confess none:except to draw pointed attention to the grave deficiencies inour law (and what the Supreme Court had said way backin 1990 about the grave deficiencies in our existing law andthe need to reform it) - in order to guard against, and especiallyin order to guard against, future Bhopal-like disasters."

Sheer hypocrisy from a person who is having minor pangsof guilt over having taken up the Carbide case, but is stillnot willing to shed the load off his conscience. Who needsNariman to point out grave deficiencies in Indian law whichhe himself exploited to help an American transnational.Journalists i have been speaking to in Bhopal, including aceanti-Carbide campaigner Raajkumar Keswani feel that eventhe timing of the release of Nariman's autobiography, whichhit the stands just one week after the Bhopal gas verdict onJune 7, raises suspicion about his continuing pursuit to cashin on Bhopal.

In that case, Bhopal would not condone his actions even ifhe were to donate the legal fees which UCC paid him. Hewould also need to donate proceeds from the sale of hisautobiography!

10 mfc bulletin/April-July 2010

New Delhi, June 8, 2010:

The jet-set legal hawks, who represent victims ofcorporate wrong in America, might have made adifference had they been allowed to take up thecause of the Bhopal gas victims.

Under US tort laws, these lawyers can charge asmuch as 33 per cent of the total amount awardedunder any court order or offered as a settlementto the victims as "contingency" fee, lawyersfamiliar with American law said.

It is because of these tort laws - which providefor substantial financial compensation - thatAmericans enjoy a greater degree of protectionagainst industrial disasters.

But such award-linked fees are not permitted inIndia. Lawyers can only charge "professional" fees- not lucrative enough to chase ambulances andget victims to file suits seeking astronomical sumswhich they get to share.

Even 25 years after the gas tragedy, India doesnot have a formal law of torts which would allowvictims of any industrial tragedy to move courtfor compensation.

High litigation costs and delays plaguing the Indianjudicial system equally deter litigants fromapproaching courts for compensation in case ofa civil wrong.

Even if a litigant were to incur substantial expensesand move court for monetary compensation, there'sno certainty that he would win, lawyers said.

Moreover, litigants would also open themselvesup to costs slapped routinely by courts, Britishstyle, should they lose the case.

All this has meant that class action suits, in whicha large number of people move court to seekcompensation, have been a rare phenomenon inIndia, unlike as in the US, where such suitsoriginated and thrive, riding on the back of the"ambulance chasers".

Bhopal Misses Recompense Law1

Wanted, a law to let in "ambulance chasers"

- Samanwaya Rautray

In Britain, too, there is no direct equivalent ofthe US class action suit. But there are various formsof collective action and other mechanisms to pursue"group complaints".

In India, unfortunately, though courts have overthe years extended the scope of civil damages, thereis still no structured law to deal with mass-scaletragedies such as Bhopal, lawyers said.

In this case, the central government hurriedlybrought in a law - the Bhopal Gas Leak DisasterAct - which allowed the government to representthe interests of the victims. The idea was to stopthe ambulance chasers who flew into India withinhours of the tragedy.

But no attempt has since been made to put in placea law that would address such gross cases ofcorporate negligence - both in terms ofcompensation and the inescapable criminalconsequences that must follow, lawyers said.

Not even, they said, when the debate peaked overa stalled nuclear liability bill that limits theresponsibility of foreign firms in givingcompensation to victims of nuclear disasters.

If another tragedy on the scale of the one in Bhopalwere to hit Indians, victims would still have nolegal recourse to compensation, activists havewarned.

However, the history of the law of tort in Indiais old. The first tentative attempt to draw up aformal law of tort was first made in 1886 by SirFrederick Pollock. The law, called the Indian CivilWrongs Bill, was never passed.

Public interest petitions have helped pushed thecause of class action victims, especially in casesof custodial deaths and other instances of abuseof power by state authorities. The doors have alsoopened for class action suits in consumer cases.

A much-awaited companies' bill has a clause thatwould permit corporate class action suits. But fornow everything still remains on paper, lawyers said.

1Reproduced in public interest from The Telegraph, Calcutta,

Wednesday , June 9 , 2010

mfc bulletin/April-July 2010 11

June 17, 2010

The Chairman and Members of theGroup of Ministers on Bhopal.

Ensuring justice and a life of dignity for the peoplepoisoned by Union Carbide Corporation in Bhopal

On behalf of the survivors of the Union Carbidedisaster in Bhopal and those exposed to ground watercontaminated by Union Carbide's hazardous waste,we the undersigned seven organizations in Bhopal,wish to present our consensus regarding the decisionsand actions that must be taken by the Group ofMinisters on Bhopal to meaningfully address issuesof justice and the opportunities for a life of dignityfor the survivors.

We hope that the increased national and internationalawareness on the negligence of successive Central andState governments towards the survivors of Bhopalin the last 25 years, will inspire you to consider ourlong pending demands from the Central governmentin your meeting on June 18, 2010.

A) Medical, Economic, Social and EnvironmentalRehabilitation of the survivors of the disaster and thoseexposed to ground water contaminated by UnionCarbide's hazardous waste

1. Set up an Empowered Commission on Bhopalwith adequate authority and funds to be able to designand implement plans for medical care, training andemployment generation, monthly pensions for thosein need of support, supply of clean drinking waterand protection from poisons in the soil and groundwater in and around the abandoned Union Carbidefactory. The earlier GoM headed by Mr. Arjun Singhin its meeting on June 11, 2008 has already approvedthe setting up of the Empowered Commission onBhopal (ECoB) and the Government of India hasconveyed its commitment to setting up the ECoBthrough public declarations by M/s Prithviraj Chavanand Ramvilas Paswan on May 29 and August 8, 2008respectively. The proposal for the ECoB has beenapproved by several ministries and the PlanningCommission.

2. Make good the shortfall in compensation inaccordance with the directions of the October 3, 1991revised order on settlement of the Supreme Court ofIndia. There is documentary evidence to show thatthe settlement amount of 470 million dollars was notdecided on the basis of deaths and injuries causedby the disaster but on the ease with which Union

Bhopal Survivors' Letter to GOMCarbide Corporation could pay the amount from itsinsurance coverage and special fund. The actualnumber of people who died and are injured as a resultof the disaster is at least five times more than the figuresused in arriving at a settlement amount. There is alsosubstantial documentary evidence to show thatinjuries suffered by claimants were deliberately underassessed so that the overall damage caused by UnionCarbide could be tailored down to fit the paltrysettlement amount. While exposure related deathscontinue to occur to this day, registration of exposurerelated deaths was stopped, without forwarding anyreason or basis, in 1997. We believe that it is stillpossible to right the wrongs deliberately committedin the distribution of compensation if the Centralgovernment summons the necessary political will todo so.

3. Ensure provision of clean drinking water to theresidents of the communities within 3 kilometers ofthe abandoned Union Carbide factory particularly inthe North and North-east directions as per SupremeCourt order of May 7, 2005. Despite allocation of Rs.14.12 crores in 2006, due to the negligence of theMadhya Pradesh State government in this vital matter,today over 20, 000 people are forced to drink watercontaminated with cancer and birth defect causingchemicals and heavy metals and chemicals that causedamage to liver, kidneys, lungs, brain and the skin.The toxic contamination of ground water in thesecommunities has been documented in 12 governmentand independent studies starting from 1990 and mostrecently in December 2009 by the Central PollutionControl Board (CPCB) and the New Delhi based Centrefor Science and Environment.

4. Ensure excavation and containment ofthousands of tonnes of hazardous waste that lie allover the surface in the factory premises and are buriedwithin the factory premises and the Solar EvaporationLandfill 400 meters north of the factory. The safeexcavation and containment of hazardous waste willstop the ongoing leaching of toxic chemicals andheavy metals in to the aquifer and prevent furtherenvironmental damage.

B) Criminal Liabilities against Indian andForeign Accused

1. Set up a Special Prosecution Cell in the CBIfor securing the extradition of the absconding foreignaccused and enhancement of sentences against theIndian accused.

2. Send appropriate requests for extradition of

12 mfc bulletin/April-July 2010

authorized representatives of Union CarbideCorporation, USA and Union Carbide EasternIncorporated, Hong Kong and Warren Anderson.

3. Ensure execution of summons issued by ChiefJudicial Magistrate, Bhopal against authorizedrepresentative of The Dow Chemical Company, USAon January 6, 2005. There has been a stay on theexecution of summons in the MP High Court for thelast 5 years.

4. Ensure that the prosecuting agency inspects theMethyl Isocyante plant in Institute, West Virginia,USA as per order of Chief Judicial Magistrate (CJM),Bhopal, on 06 July 1988, to substantiate charges ofdouble standards of design safety.

5. Ensure that the prosecuting agency takescognizance and criminal action against the sale ofUnion Carbide patented technology to ReliancePetroleum Limited and other agencies while it isabsconding.

6. Ensure that a revision petition is filed by theprosecution against the June 7, 2010 order of theBhopal, CJM against the Indian accused in theSessions or the High Court.

7. Ensure that the Central government files acurative petition in the Supreme Court for a revisionof the order dated September 13, 1996 that dilutedthe criminal charges against Indian accused.

C) Environmental Liabilities

1. Pursue the application filed by the Centralgovernment in the High Court of Madhya Pradeshin May 2005 for making The Dow ChemicalCompany, USA pay Rs.100 Crores as advance forcleaning up the toxic contamination in and aroundthe abandoned Union Carbide factory. Enforce theappearance of The Dow Chemical Company, USAin the case by piercing the corporate veil and takingaction against its Indian subsidiary, Dow ChemicalInternational Private Limited.

2. Ensure safe transportation and disposal of thethousands of tonnes of hazardous waste in hazardouswaste treatment facilities in OECD countries.

3. Join the ongoing litigation in the US FederalCourt against Union Carbide and others forenvironmental clean up, payment of compensationfor personal and property damages and costs of healthmonitoring.

D) Action against crimes of The Dow ChemicalCompany, USA in India

1. Revoke registration for Dursban and three other

pesticides registered by payment of bribes by Dowto Agriculture Ministry officials.

a) Revoke the registration of the pesticidesregistered by payment of bribes

b) Initiate prosecution against Dow AgroSciencesIndia Ltd and responsible company officials forabetting the commission of the crime of bribe takingby Agricultural Ministry Officials, under Section 12of Prevention of Corruption Act, 1988.

c) Prosecute Indian officials including members ofthe Central Insecticide Registration Board whoreceived the bribe totaling 200 thousand dollars.

2. Revoke approval given to Reliance Industries topurchase absconder Union Carbide Corporation'strademark UNIPOL (PP) technology through DowGlobal Technology Inc.

a) Get CBI to submit application before CJMBhopal in MJC 91/1992 seeking attachment oflicensing and service fees paid by ReliancePetroleum Limited to Dow Global Technology Inc.towards UNIPOL technology.

b) Revoke the approval given to Reliance forlicensing UNIPOL

3. Stop all work on GACL-Dow's joint venturefactory in Dahej, Gujarat.

a) Direct FIPB to decline permission to Dow-GACL joint venture, or revoke any such approvalif already given.

b) Investigate and take action, includingprosecution of GACL-Dow officials for violation ofenvironmental and labour legislations. The plant onwhich work has begun has no environmentalclearance, no Consent to Establish and no permissionfrom the Directorate of Industrial Safety and Hygiene.

Thanking you.

Yours sincerely,

Safreen Khan, Children Against Dow-Carbide, Mob.9826994797

Balkrishna Namdeo, Bhopal Gas Peedit Nirashrit PensionBhogi Sangharsh Morcha, Mob. 9826345423

Abdul Jabbar, Bhopal Gas Peedit Mahila UdyogSangathan, Mob. 9406511720

Syed M Irfan, Bhopal Gas Peedit Mahila Purusg SangharshMorcha, Mob. 9329026319

Rashida Bee, Champa Devi Shukla Bhopal Gas PeeditMahila Stationery Karmchari Sangh, Mob. 9425688215

ND Jayaprakash, Bhopal Gas Peedit Sangharsh SahayogSamiti, Mob. 09968014630

Rachna Dhingra, Satinath Sarangi, Bhopal Group forInformation and Action, Mob. 9826167369

mfc bulletin/April-July 2010 13

June 22, 2010: Calling the Group of Minister's offer ofcompensation a smokescreen, all seven organizations forsurvivors' rights have strongly condemned therecommendations of the Group of Ministers on Bhopal. TheGroup of Ministers pretends to offer relief and rehabilitationbut the details reveal that issues of compensation,rehabilitation and corporate liability are totally ignored. Theorganizations said that the recommendations demonstratemore concern for the welfare of American corporations thanfor Bhopal survivors.

The organizations said that the compensation recommendedby the Group of Ministers will go to less than 10% of peopleknown to be exposed to Union Carbide's toxic gases. “TheGoM has based its decision on the notoriously flawed systemof damage assessment that was designed to downplay anddiminish the death and injury caused by Union CarbideCorporation. It has made no recommendations regardingreview of death claims or registration of exposure relateddeath claims after 1997, when such registration was arbitrarilystopped. "The GoM has denied any additional compensationto 521,000 [91%] survivors who received a paltry sum ofRs. 25, 000 for life long injuries,” said Abdul Jabbar,convenor of the Bhopal Gas Peedit Mahila Udyog Sangathan.

The Group of Ministers has gone back on its June 2008decision to concede Bhopalis long-standing demand to setup an Empowered Commission on Bhopal to overseerehabilitation. Instead, it proposes to transfer Rs. 720 croresto the Madhya Pradesh Government for medical, economic,social, and environmental rehabilitation. “More than Rs. 530crores have already been spent by the M.P. Governmentin the name of relief and rehabilitation, and there is nothingto show for this. The Rs. 720 crores will go the same way– into the pockets of the Ministers and bureaucrats” saidRachna Dhingra of the Bhopal Group for Information andAction. “The Madhya Pradesh Government's list ofequipment to buy includes fictitious equipment such as'automatic micro-organism detection instruments' and'identification & sensitivity of micro organism" that costmore than 35 lakhs," Dhingra added. "The Group ofMinisters could just as well put the money straight intothese bureaucrats' pockets and save on overhead costs."

The organizations also expressed dismay that the GoM hasfailed to recommend action for extraditing the authorizedrepresentatives of Union Carbide Corporation, USA andUnion Carbide Eastern, Incorporated that is now reincarnatedas Union Carbide Asia Pacific and Union Carbide Asia Ltd.“As 100% percent owner of Union Carbide, USA, DowChemical is guilty of sheltering a fugitive from justicepunishable by 3 years imprisonment under Sec 212 of theIndian Penal Code and the Group of Ministers has madeno directions regarding the summons against Dow Chemical

Press Statement from Bhopal Survivors on GOM Recommendationsissued by the Chief Judicial Magistrate of Bhopal DistrictCourt, on January 6, 2005,” said Balkrishna Namdeo,president of the Bhopal Gas Peedit Nirashrit SangharshMorcha.

The Group of Ministers has also failed to recommend anyaction to make Dow Chemical pay for the clean up of thethousands of tonnes of hazardous waste and extensivedamage to human health caused by contamination of groundwater. “The Group of Ministers and in particular certainmembers of it who are known to be Dow Chemical's agentshave made appropriate noises but their money is not wheretheir mouth is," said Safreen Khan of Children Against DowCarbide. “It has decided to spend Rs. 300 crores of publicmoney towards removal of toxic waste -- something whichis the legal responsibility of Dow Chemical." Survivors'organizations pointed out that Dow Chemical, through itslawyer Abhishek M. Singhvi, has refused to acceptjurisdiction of the Madhya Pradesh High Court for the lastsix years. Despite this, the Group of Ministers has not madea single recommendation towards making Dow Chemicalanswerable to Indian courts, even as the company continuesto do business in India. “This clearly displays an intentionby the government to let Dow Chemical off the hook andis just as criminal as the act of helping Anderson escapejustice. It is in fact a greater crime because Dow Chemical'songoing environmental disaster continues to maim and killpeople, including the unborn, as we speak today,” saidRashida Bi, president of the Bhopal Gas Peedit MahilaStationery Karmchari Sangh.

The organizations said that the recommendations of the Groupof Ministers are designed to please the US-India CEO Forum,that is meeting today in Washington, DC. Survivors'organizations point out that the Group of Minister'srecommendation of spending money from the publicexchequer to address the lingering issue of toxiccontamination follows from one of the founding principlesof the US-India CEO Forum that prescribes a “specific focuson resolving legacy issues such as those impacting Dow/ Bhopal tragedy of 1984 … to send a strong positive signalto US investors.” ( http://planningcommission.nic.in/reports/genrep/USIndia.pdf)

The organizations said that the GoM's recommendationsdemonstrate the failure of the media attention and publicawareness to change the UPA government's priorities ofFDI over the survival of ordinary people in this country.They said that hundreds of survivors will be traveling toNew Delhi tomorrow to place their concerns before theCabinet Committee that is expected to issue directives basedon the recommendations of the GoM in its meeting on June25, 2010.

14 mfc bulletin/April-July 2010

The juridical field is the site of a competition formonopoly of the right to determine the law. Withinthis field there occurs a confrontation among actorspossessing a technical competence which is inevitablysocial and which consists essentially in the sociallyrecognized capacity to interpret a corpus of textssanctifying a correct or legitimized vision of the socialworld. Such a process is ideal for constantly increasingthe separation between judgments based on the lawand naive intuitions of fairness.

-Pierre Bourdieu1

Around midnight on December 2-3, 1984, a pesticideplant leaked some twenty seven tons of a methylisocyanate, a highly toxic chemical gas, leaked outinto the air over the sleeping city of Bhopal. The resultstook the form of an enormous tide of death that welledup in the city's hospitals and morgues. Officialestimates, probably understated, put the toll at astaggering 2,000 dead but reliable unofficial estimatessuggest a soul- numbing figure of nearly 6,000 or moredead in the 48-hour aftermath of the disaster.

The cause of death was described in most cases aspulmonary edema, a polite medical euphemism foran excruciating manner of death by slow drowningin one's own bodily fluids. According to the IndianCouncil for Medical Research, more than 250,000people continue to suffer from permanent disabilitiesand chronic ailments as the result of exposure to thepoisonous gases on that night. This December marksthe twentieth anniversary of this unparalleled disaster,perhaps the single worst industrial catastrophe everto befall a civilian population. By some accounts, atleast 20,000 persons have died over the past twodecades. The International Commission for MedicalResearch on Bhopal has concluded that, due tochromosomal and genetic damage among the victims,the wake of this unprecedented catastrophe willcontinue to ripple through the next three to fourgenerations in Bhopal in the form of birth defects.

The word 'tragedy' has shown a talismanic insistencein appearing and reappearing in the context of thisincident. Perhaps it helps us soothe the conscience

Bhopal and the U.S. CourtsCatastrophe and the Dilemma of Law

- H. Rajan Sharma*

by lending an air of the inevitable or unavoidableto these events or maybe it helps us invoke thatFaustian mythology so typical of modern society inwhich nameless others are sacrificed at the hallowedaltar of progress for our technological hubris. But thisUniversary should not just memorialize the tragedyof Bhopal. It should be an occasion to recall thetravesty of what the victims have been made to endureover the past twenty years. Despite all the finesentiments and noble ambitions expressed in what theIndian Supreme Court, in this case, referred to as the“uncertain promise of law,” the fact of the matter isthat the law, in all its abstract majesty, has utterly failedto provide the victims of the world's worst industrialdisaster with so much as a semblance of justice overthe past two decades.

Instead, the law has been the principal author of akind of Kafkaesque parody of justice that has playeditself out in the courts of the United States and India.The so-called wheels of justice have, in this case,turned only to crush the hopes of the survivors beneaththem. The seemingly endless processes of the law have,in fact, perpetuated and compounded an injustice toofearful to contemplate, which has been allowed tostand without redress or remedy for twenty years, seventhousand three hundred days (to be precise), each daya shameful vindication of the maxim that holds thatlaws are like cobwebs, strong enough to only detainthe weak and too weak to constrain the strong.

The epitaph has yet to be written on the sordid recordof what may justifiably be called the Bhopal travesty.

The plant belonged to Union Carbide India Limited,an affiliate of Union Carbide Corporation, amultinational corporation headquartered in the UnitedStates. Union Carbide owned 50.9% of its Indianaffiliate at the time of the disaster and was responsiblefor transferring proprietary technology to the Bhopalplant for manufacturing Sevin, a patented product inwhich methyl isocyanate was one of the keyingredients. It was determined shortly after the disasterthat a “runaway reaction” of a highly volatile chemical,methyl isocyanate or MIC, had taken place in oneof the plant's storage tanks.

The most likely cause was the introduction of waterinto the tank. It is undisputed that a routine “water-washing” operation prescribed by the Americancompany's operating manuals were being conductedon the night of the disaster. Numerous independentinvestigations have concluded that, while the entry

*H. Rajan Sharma, a lawyer who is presently representing

residents of Bhopal in a Federal class action against UnionCarbide in US courts, brings the legal story up to date, outlineshis case, and looks at what Bhopal means for the future ofHuman Rights. A chapter, written in 2004, from The BhopalReader, edited by Bridget Hanna, Ward Morehouse, SatinathSarangi, Apex Press, 2006.

mfc bulletin/April-July 2010 15of water into the storage tank may have triggered therunaway reaction, the real causes of the catastrophecan be traced to the decision to store methylisocyanate in large quantities for long periods of time,the badly flawed design of the plant as well as thenear-total absence of safety provisions and emergency-preparedness measures. Needless to say, Union Carbidehas strenuously contested this version of events,disclaiming any managerial responsibility for thedesign, day-to-day operation of the UCIL facility orits safety features and asserting that its relationshipwith its Indian subsidiary was a hands-off or arm'slength relationship.

The survivors and their representatives, meanwhile,have maintained that the U.S. company deliberatelychose to bequeath to Bhopal an obsolete, dangerousand ill-equipped plant, with grossly inadequatetechnology, pointing to Carbide's methyl isocyanatefacility in Institute, West Virginia as an example ofthe company's discriminatory imposition of doublestandards of risk, safety and emergency-preparedness.The Institute plant, they argue, was designed withsignificantly higher parameters for safety andemergency-preparedness: e.g., computerized warningsystems, larger capacity safety devices, and saferprocesses for storage and containment of methylisocyanate. For the past two decades, Carbide hasinsisted that standards of design, technology, safetyand emergency-preparedness were either uniform orat least comparable at all of its worldwide operations,including at Bhopal. To date, Union Carbidecontinues to withhold scientific and medical researchon the toxicology of the leaked gases which couldassist in the treatment of innumerable victims on thespecious grounds that this information constitutes a“trade secret.”

In the disaster's aftermath, hundreds of lawsuits werefiled in jurisdictions across the U.S. against UnionCarbide by American contingency-fee lawyers. Thesewere ultimately consolidated into a single proceedingbefore Judge John Keenan in the Southern Districtof New York. Fearing that the victims claims mightbe exploited by an army of private lawyers, the IndianParliament enacted the Bhopal Gas Leak Disaster(Processing of Claims) Act, on March 25, 1985. Thelegislation was based on a doctrine under internationallaw known as “parens patriae” (literally, “parent ofthe country”), which held that the State was empoweredto act the legitimate protector of its citizens and theirenvironment. The Act conferred upon the Indiangovernment the full power and authority to act as theexclusive legal representative of the survivors in allclaims for compensation before foreign or domesticcourts, subject to its obligation to consult and

cooperate with the victims and their representativesin the prosecution of such claims. Framers of thelegislation argued that it would enable the Indiangovernment to provide centralized, integrateddecision-making and control to prosecute claims onbehalf of the mostly destitute victims, bringing allthe nation's resources to bear against the multinationalmight of the corporation.

Based on this legislation, the Indian government filedsuit against Union Carbide on April 8, 1985, in thecourts of the United States, where, in what can onlybe described as a profoundly ironic exercise, Indiaargued that the interests of justice required the caseto be tried in the United States on the grounds thatits own legal system was backward and procedurallyoutmoded, lacking any class action device or otherprovision for representative suits, burdened with thelegacy of colonialism, and subject to massive delayscaused by endemic docket backlogs. The companycountered that the case ought to be tried in the courtsof India, without burdening American taxpayers, andshowered praise upon the legal system of the “world'slargest democracy”, particularly to the extent it was“based on sound and established principles of Anglo-Saxon law.” On May 12, 1986, Judge Keenanconditionally dismissed the consolidated action onthe grounds that India was the more appropriate forumfor the resolution of this litigation. The decision rested,in part, on the notion that trying the case in the UScourts would amount to “yet another instance ofimperialism” imposing foreign legal standards upona developing country with “vastly different values”,different levels of “population” and “standards ofliving.” The dismissal was conditioned upon UnionCarbide's “consent to submit to the jurisdiction of thecourts of India.” Meanwhile, criminal proceedings andinvestigation had already been initiated against UnionCarbide and its former director, Warren Anderson, inthe Bhopal District Court in 1984 and formal chargesof “culpable homicide” and “causing death by useof a dangerous instrumentality” were framed by India'sprosecuting agencies on November 30, 1987. Thecharge of culpable homicide under the Indian PenalCode is equivalent to manslaughter, causing deathby reckless indifference.

By the time the case first reached the Supreme Courtof India on the issue of whether interim relief assessedagainst Union Carbide on behalf of the victims wasappropriate, litigation had continued in India for morethan five years without even reaching thecommencement of pretrial discovery. The mostlydestitute victims had received nothing in the way ofcompensation from their erstwhile 'parent,' the Unionof India. On February 14, 1989, Chief Justice Rajinder

16 mfc bulletin/April-July 2010S. Pathak interrupted the proceedings to announcethat he felt, in light of "the enormity of sufferingoccasioned by the Bhopal gas disaster and the pressingurgency to provide immediate and substantial reliefto the victims," that the case was "preeminently fitfor overall settlement."2 The Chief Justice then entereda judicial decree preliminarily recording the terms ofthis settlement which required Union Carbide to pay$470 million in damages in order to extinguish allcivil and criminal liability.

The Indian Supreme Court, however, gave the victimsand their able counsel a last opportunity to challengethe terms of the proposed settlement. In its finaldecision of October 1991, the Indian Supreme Courtjustified the settlement giving it final approval onthe grounds that the victims' fate could not be leftto the “uncertain promise of law,” but modified itsterms and conditions by mandating the prosecutionof criminal charges against Union Carbide and itsformer director, Warren Anderson, which had beenpending since 1987.3 Criminal charges against UnionCarbide and Warren Anderson were accordinglyrenewed in the Bhopal District Court. In March 1992,the Judicial Magistrate issued an arrest warrant forWarren Anderson and gave lawyers for Union Carbidea month in which to appear for trial. Neither of theparties presented themselves in court and UnionCarbide's official spokesperson stated that thecompany would flatly refuse to submit to thejurisdiction of India's criminal courts. Summons servedon Union Carbide through the U.S. Department ofJustice were ignored. In 1992, the Bhopal District Courtproclaimed the company and Mr. Anderson to be“absconders”, i.e. fugitives from justice. To date,neither Union Carbide nor Anderson have appearedto face the criminal charges pending against them inIndia. As recently as 2004, the Indian governmentsubmitted an extradition request for Anderson underthe Indo-US Treaty of Extradition which was,reportedly, rejected. Progress in the criminal caseagainst Indian officials has been, if anything, equallyglacial.

The compensation tribunals, established by the Unionof India, the erstwhile ‘parent’ of the disaster victims,did not even begin functioning until 1992. Present-day estimates by non-governmental organizationsindicate that over 90% of claimants have receivedless than $400 from the claims process in India, anamount insufficient to pay for medications over a fiveyear period. Meanwhile, tests of the water supply ofas many as sixteen communities residing near the plantsite and surrounding environs have revealed severeenvironmental contamination of the aquifer in Bhopalresulting from the indiscriminate disposal of toxic

chemicals and by-products produced there. Recent soiland water sample tests conducted by an independentBritish laboratory for Greenpeace and certain victims’organizations indicate massive contamination of soiland drinking water around the facility in Bhopal. Tocite one instance, the Greenpeace report states thatwater samples taken from the Bhopal site containedcarbon tetrachloride, a carcinogenic chemical, whichexceeded maximum tolerance limits established bythe World Health Organization by 1,705 times. UnionCarbide claims that it has no further responsibilityor liability for the environmental remediation of theplant site because it has sold its shares in its Indiansubsidiary and the land was returned to MadhyaPradesh in 1998.

In litigation before the Indian Supreme Court, theUnion of India has sought to utilize the interest earnedon the settlement fund, over the many years that itremained undistributed, to clean-up and remediate thebadly polluted plant site and the groundwater aquiferwhich provides the drinking water of as many as20,000 residents of affected communities. TheSupreme Court has, mercifully, denied its request andruled that the victims must receive the remainder ofthese sums to which they are legally and morallyentitled. But lawyers for political parties have filedobjections claiming, with truly democratic largesse,that these funds should be allocated to a dozen orso municipal wards in Bhopal where the effects ofthe disaster were felt principally in the form of atemporary inability to find good maids and kitchenhelp.

As an attorney who has had the privilege ofrepresenting the survivors’ cause in the courts of theUnited States, it pains me to admit that my own effortshave achieved only modest success in turning the tideof this battle. That litigation, commenced in 1999,consisted primarily of an effort to translate theunresolved criminal liability of Union Carbide intoan actionable violation of international human rightslaw. The complaint also included claims for damagesto physical health and property as a result of thecontamination of drinking water as well as forinjunctive relief in the form of clean-up andremediation by Union Carbide of the severely pollutedland for its factory, which still has thousands of metrictons of waste stored above-ground and buried in alandfill on site, and the aquifer in Bhopal. Those effortswere unavailing largely because the American courtsgave scant weight to our argument that Union Carbidecould not claim the benefit of the 1989 settlementsince the company had refused to appear to facecriminal charges in India. They concluded instead,ignoring the carefully framed arguments under

mfc bulletin/April-July 2010 17international law, that only the Indian governmenthad standing to complain of a breach of that settlementbecause it was the Indian state, not the victims onwhose behalf it was supposedly acting, which was aparty to that agreement.

On remand from the appellate courts, Union Carbidewas obliged, for the first time, to submit to certainlimited discovery for documents relating to the historyof its operations at Bhopal. One of the documents wasa UCC Capital Budget from 1973 for the transfer oftechnology which Union Carbide approved to theBhopal plant for the manufacture of the pesticidesincluding the technology for methyl isocyanate(“MIC”).

Under a section entitled “Technology Risks,” thedocument revealed for the first time that the“comparative risk of poor performance and ofconsequent need for further investment to correct itis considerably higher in the UCIL operation than itwould be had proven technology been followedthroughout,” noting in particular that “even the MIC-to-Sevin process, as developed by UCC, has had onlya limited trial run.” In March of 2004, the sameappellate court ruled that the claims of those affectedby environmental contamination may be allowed toproceed, including claims for environmentalremediation of the land of the Bhopal factory andgroundwater aquifer.

One of the imperatives of this anniversary should beto remedy the failure of law which made the Bhopaltravesty possible and to prevent its recurrence whenthe law is again confronted, as it almost certainly willbe in this age of globalization, with another disasterhaving the same international or cross-borderdimensions, and the same vexing complexities ofliability, corporate structure, jurisdiction, conflicts-of-law and forum. Legal reform is a cause that hasseldom, if ever, managed to fire the activist imaginationin India or elsewhere. If anything, however, the Bhopaltravesty offers a dizzying, vertiginous glimpse of howthe economic logic of globalization can becomeinextricably intertwined with a politics of catastrophe,in which developing countries bargain with foreigninvestors and multinational corporations by stakingthe health and lives of their citizens or theirenvironment like gambling chips. This kind of moralabyss is made possible and underwritten by the failuresand lacunae in the ‘rule of law’, domestic andinternational.

The forces that created Bhopal are on the marcheverywhere today. A recently released report by theUnited Nations Research Institute for SocialDevelopment, called for the implementation of sucha legally binding international code of conduct, some

60,000 multinational corporations in 1998 accountedfor more than one-third of world exports, with annualturnovers that dwarfed the gross domestic productsof most of their host states in the developing world.“There is a danger that corporate self-regulation, aswell as various partnership arrangements,” the reportwarned, giving the example of Bhopal, “are weakeningthe role of national governments, trade unions andstronger forms of civil society.”

As an Organization for Economic Cooperation andDevelopment (“OECD”) study pointed out, as earlyas 1993: “Environmentally-dirty industries,particularly resource-based sectors, have migrated overthe last two decades to lower income countries withweaker environmental standards; the result is ageographical shift in production capacity withinsectors with a consequent acceleration of industrialpollution intensity in developing countries.”4 Thestudy adds that “liberalised trade and investment rulesamong countries with unequal levels of environmentalprotection may create incentives for companies torelocate to jurisdictions with lower levels ofenvironmental regulation and lower compliance costs.”

The dilemma of law, as Bourdieu has pointed out, isthat any rule-based system no matter how impartiallyadministered or fairly conceived will tend inexorablytowards outcomes that are not necessarily consonantwith intuitive constructions of justice. By the sametoken, one can scarcely conceive of a politicaldispensation or social configuration that can betrusted, in and of itself, to deliver any ‘social justice’worth the name without something closely resemblingthe normative episteme of the rule of law.

Yet, the law cannot remain indifferent to the demandsof justice on the specious grounds of an appeal tohigher-order concepts of justice “under the law” asthe sole and exclusive foundation of its claims to“universal acceptance through an inevitability whichis simultaneously logical and ethical,” as Bourdieuhas written. In the last analysis, the law must secureacceptance of its moral authority from those who seekits protections by aspiring to deliver some modicumof meaningful justice or else depend entirely on thearmed power of the state to justify its pretensions tolegitimacy.

In the context of Bhopal, that objective requires Indiaand the international community to undertake thefollowing measures to ensure that the law will finallyremedy this perversion of justice on its twentiethanniversary. India must commit itself to legal reform.The Bhopal case presents the spectacle of an officialindictment of its own legal system by the country’sgovernment before the courts of a foreign power. Thisis nothing short of an acknowledgement that the

18 mfc bulletin/April-July 2010sovereign, with full knowledge of its consequences,has deliberately been unwilling or unable to remedythis problem in the more than half-century sinceindependence. Civil litigation in India remains subjectto delays of 20 years or more. These kinds of delaysare effectively tantamount to a denial of justice. Indiais a signatory to the International Covenant on Civil& Political Rights which provides, in Article 14, that:“In the determination… of his rights and obligationsin a suit at law, everyone shall be entitled to a fairand public hearing by a competent, independent andimpartial tribunal established by law.”

Legal reforms in India must include provisions forrepresentative suits or class actions to address mass claimsof liability like those in Bhopal. Never again shouldvictims be subjected to something like the Bhopal Actwhich not only enabled the government to function astheir lawyer, without observing the minimal professionalduties or ethical obligations of an attorney towards hisclient, but permitted the government to begin functioningas the client as well, stripping the victims of any legalpersonality and denying them any meaningful role inthe decisions that affected their case. Article 16 of theInternational Covenant guarantees that: “Everyone shallhave the right to recognition everywhere as a personbefore the law.”

In honor of the victims of Bhopal, India should leadthe effort to enact into international law by treaty orother instrument a legally binding and enforceable codeof conduct for multinational corporations, includingprovisions of liability concerning the export ofhazardous technology. Our legal strategy seems to havepresaged the UN Human Rights Norms for Businessand its Commentary which were recently approved bythe Sub-Commission on the Protection and Promotionof Human Rights. These do not, however, have the forceof law. India should work to transform these norms intoan international legal framework.

The International Law Commission (“ILC”), anauthoritative body charged by the United Nations withthe progressive development and codification ofinternational law, has already articulated the majorityview that international liability, arising fromtransboundary environmental harm like Bhopal,should be imposed on states that export hazardoustechnologies. Even before the disaster, some membersof the Commission and the Sixth Committee hadsuggested that the state of nationality of amultinational corporation should be liable when it“exports” dangerous industries to developing statesand harm results. During the discussions on theseissues, the U.S. delegation expressed their official viewthat “under customary international law, States aregenerally liable for significant transboundary harm

caused by private entities acting on their territory orsubject to their jurisdiction or control” adding onlythat “from a policy point of view, a good argumentexists that the best way to minimize such harm is toplace liability on the person or entity that causes suchharm, rather than on the State.” The Union of Indiaagreed that liability for environmental harmoriginating in another state “must be imputed to theoperator who was in direct physical control of theactivity.” But the split in the Commission on thisquestion, ensured that the Commission’s draft articlesof “International Liability for Injurious ConsequencesArising from Acts Not Prohibited By InternationalLaw”, remain unsettled on this point.5 India shouldwork to close this omission in the draft articles andresolve the issue of international liability for the exportof hazardous or dangerous technology.

Last but not least, India must secure the appearanceof UCC or its new parent, Dow Chemical, to face trialon the criminal charges pending against it in the BhopalDistrict Court. The criminal case against Indian officialshas dragged on for a number of years and judgespresiding over the case against UCC have beenrepeatedly transferred. A single judge should beappointed to preside over the entire matter and expediteproceedings so that the criminal case can be quicklyadjudicated and disposed of under the law. India hasan obligation to ensure that this crime is effectivelyprosecuted. Article 8 of the Universal Declaration ofHuman Rights stipulates that: “Everyone has the rightto an effective remedy by the competent nationaltribunals for acts violating the fundamental rightsgranted him by the constitution or by law.” Pursuantto Article 2 of the International Covenant on Civil &Political Rights, India has undertaken to “ensure thatany person whose rights or freedoms as hereinrecognized are violated shall have an effective remedy,”and to “ensure that the competent authorities shallenforce such remedies when granted.”

References

1 Pierre Bourdieu, “The Force of Law: Towards A Sociology ofthe Juridical Field,” Hastings Law Journal 38 (5): 814-53 (1987).2 Union Carbide Corp. v. Union of India, 1 S.C.C. 674, 675(1989).3 Union Carbide Corp. v. Union of India, Review Petition Nos.229 and 623-24 of 1989, 70 (1991).4 Candice Stevens, Synthesis Report: Environmental Policiesand Industrial Competitiveness, in Environmental Policies andIndustrial Competitiveness 7 (OECD ed., 1993).5 International Law Commission, Second Report onInternational Liability for Injurious Consequences Arising outof Acts Not Prohibited by International Law (Prevention ofTransboundary Damage from Hazardous Activities, A/CN.4/501, 5 May 1999.

Source: from Seminar 544: Elusive Justice.December 2004

mfc bulletin/April-July 2010 19

On the night of 2nd December 1984 over 35 tons oftoxic gases leaked from a pesticide plant in Bhopalowned by the US based multinational Union CarbideCorporation (UCC)'s Indian affiliate Union CarbideIndia Limited (UCIL). The gases that leakedconsisted mainly of at least 24 tons of poisonousMethyl Isocyanate (MIC) and other reactionproducts, possibly including toxins such ashydrogen cyanide, nitrous oxide and carbonmonoxide.

In the next 2-3 days more than 7,000 people died andmany more were injured. Over the last 20 years at least15,000 more people have died from illnesses relatedto gas exposure. Today more than 100,000 peoplecontinue to suffer chronic and debilitating illnessesfor which treatment is largely ineffective.

The disaster shocked the world and raisedfundamental questions about government andcorporate responsibility for industrial accidents thatdevastate human life and local environments. Yet 20years later, the survivors still await justcompensation, adequate medical assistance andtreatment, and comprehensive economic and socialrehabilitation. The plant site has still not been cleanedup. As a result, toxic wastes continue to pollute theenvironment and contaminate water that surroundingcommunities rely on. And, astonishingly, no one hasbeen held to account for the leak and its appallingconsequences.

Efforts by survivors' organizations to use the US andIndian court systems to see justice done and gainadequate redress have so far been unsuccessful. Thetransnational corporations involved – UCC and DowChemicals which took over UCC in 2001 – havepublicly stated that they have no responsibility forthe leak and its consequences or for the pollutionfrom the plant. UCC continues to refuse to appearbefore the court in Bhopal to face trial and theSupreme Court endorsed final settlement has leftsurvivors living in penury.

The Human Rights Impact of the Leak

The leak has claimed more than 20,000 lives so farand left more than a hundred thousand peoplechronically ill. The gas affected people suffer from

SummaryClouds of Injustice Bhopal Disaster 20 Years on

An Amnesty International Report ASA 20/015/2004

a variety of health problems including chronicrespiratory illness, eye disease, immune systemimpairment, neurological damage, neuromusculardamage, and mental health problems. Pregnantwomen had high rates of miscarriage at the time ofthe leak, and higher rates of miscarriage persistedeven among those who conceived after the gas leak.Gas affected women also suffer from manygynaecological disorders. Children have sufferedsevere health problems, including growth defects.There are indications that exposed people have agreater risk of cancer.

Despite the intensive work done immediately afterthe leak, the extent and the quality of medicalresearch has not been adequate to make decisionsabout de-toxification, short- and long-termtreatment, long-term health consequences and theimplementation of a program to compensate victims.Inadequate research has been further weakened by thelack of information from UCC about the nature of thegases released during the leak and their toxicity.

The Union Carbide Bhopal plant has been pollutingground water and soil since it began functioning inthe early 1970s primarily as a result of poor wastedisposal practices. The plant site, abandoned sincethe 1984 leak, continues to pollute the groundwater,the sole source of water for those around the plant,with many toxic substances, that according to somereports may be carcinogenic. This has also resultedin thousands more people being poisoned. Despiteknowledge about the extent of contamination andrepeated entreaties to do so, Union Carbide has nottaken substantive action to clean the plant site.

Those exposed to the gas leak were overwhelminglyfrom the poorest sections of society, and thedebilitating effects of the leak has entrenchedexisting poverty and disempowerment. A largenumber of gas affected people are unable to work dueto their illnesses or injury and have beenimpoverished. The high cost of treatment and meagrecompensation has further aggravated the economichardships of thousands of survivors. In addition gasaffected people are stigmatised and women inparticular are vulnerable to discrimination and socialostracism.

20 mfc bulletin/April-July 2010

Thousands of people in Bhopal were denied theirright to life, and tens of thousands of people havehad their right to health undermined. Thosestruggling for justice and the right to a remedy inBhopal have been frustrated in their efforts.Thousands of poor families have suffered illness andbereavement, further impairing their ability to realizetheir right to a decent standard of living. Womenfacing social stigma as a result of gas exposure havebeen denied their right to freedom fromdiscrimination. Those who were exposed to the gasand those around the plant who continue to beexposed to contaminated water have been deniedtheir right to a safe environment.

Role of Union Carbide Corporation

UCC owned 50.9% of the equity of UCIL, andmaintained extensive corporate, managerial,technical and operational control over UCIL. Despitethat, since the leak UCC has argued that the Bhopalplant was not under its control or management andthat UCIL was responsible, prior to the leak. However,in its general policy UCC detailed the intention to“secure and maintain effective management controlof an affiliate”. The company decided to storequantities of the “ultra-hazardous” MIC in the Bhopalplant in bulk, but did not equip the plant with thecorresponding processing or safety capacity. On thenight of the gas leak crucial safety systems includingthe cooling system, the liquid nitrogen pressure andthe vent gas scrubber—were not functional.

UCC transferred technology that was not proven andentailed operational risks. It did not apply the samestandards of safety in design or operations to Bhopalas it had in place in the USA. Most importantly forthose who lived and worked around the plant, andunlike in the USA, the company failed to set up anycomprehensive emergency plan or system in Bhopalto warn local communities about leaks.

As early as 1982, a UCC safety audit had highlightedmany major and minor safety concerns regarding theBhopal plant. There had been a number of accidentsat the plant prior to the leak and local media and theworkers union had repeatedly raised safety concernsin public.

Months before the December 1984 disaster, the UCCwas warned of the possibility of a runaway reactionin its similar to the one that caused the eventual leakin Bhopal occurring at the West Virginia MIC plant.

Amnesty International is not aware of any evidenceto show that this report was shared with UCIL or ofany appropriate preventive measures taken at theBhopal plant.

After the leak UCC maintained that MIC was nothingmore than tear gas even though the company's ownmanuals clearly said that MIC was a fatal poison. Tilldate UCC has refused to identify the reactionproducts released and related toxicologicalinformation of the products that leaked. This hasprevented doctors from developing an appropriatetreatment protocol for victims.

Later UCC also claimed that the leak was an act ofsabotage caused by a disgruntled employee, whomit has since refused to name. After UCC was takenover by Dow Chemicals, both companies used the newownership structure in an attempt to avoid anyresponsibility for the Bhopal disaster.

Urging that the case be thrown out of the USA, UCCargued before the US District Court that, “Indeed, thepractical impossibility for American courts andjuries, imbued with US cultural values, livingstandards and expectations, to determine livingstandards for people living in the slums or 'hutments'surrounding the UCIL, Bhopal, India, by itselfconfirms that the Indian forum is overwhelmingly themost appropriate. Such abject poverty and the vastlydifferent values, standards and expectations whichaccompany it are commonplace in India and the thirdworld. They are incomprehensible to Americansliving in the United States.”

UCC appealed against the orders of the Bhopal andMadhya Pradesh High Court to pay interim relief tothe gas affected victims of Bhopal.

The Settlement

In 1988 the Madhya Pradesh High Court upheld withsome modifications a Bhopal District Court rulingand ordered UCC to pay 250 crore rupees(approximately US$ 157 million at the prevailingrate) as interim compensation to the victims. On 14thFebruary 1989, even as UCC's appeal against thisdecision was being heard in the Supreme Court, theapex Court pronounced an order that endorsed asettlement that involved UCC paying 750 crorerupees (approximately US$ 470 million at theprevailing rate) not as fines, penalties or punitivedamages but “for the benefit of all victims” of the gasleak. In return all civil and criminal liabilities and

mfc bulletin/April-July 2010 21

charges against UCC and UCIL were dropped.Following widespread protests and an appeal theSupreme Court however reinstated criminalproceedings in 1991.

None of the victims or their representatives wereconsulted by the Supreme Court or the IndianGovernment before accepting this full and finalsettlement. At the time of settlement the number ofvictims and the full nature and extent of the damagessuffered was not even known. The settlement wasbased on an estimate of 105,000 victims (3000 dead,30,000 permanent or total disabilities, 20,000temporary or partial disabilities, 2,000 seriousinjuries, and 50,000 minor injuries). This figure wasarbitrary; at the time of the settlement, even thoughvictims had filed over 600,000 claims only 29,000of them had been categorized.

Over the years this has resulted in grave injustice tovictims since the money meant for 105,000 victimshas been distributed amongst more than more thanfive times the numbers of dead, injured and disabledused by the Supreme Court to calculate thesettlement. The 2003 annual report of the MadhyaPradesh Gas Relief and Rehabilitation Departmentreveals that by October 2003, compensation hadbeen awarded in 15,248 cases of death and at least554,895 cases of injury or disability.

Role of the Governments of India and MadhyaPradesh

The government of India and the state governmentof Madhya Pradesh were aware that the Bhopal plantused hazardous substances and processes, There werealso public warnings by the media and by workers'unions in the plant about dangerous conditions at theplant, as well as several accidents, some fatal. Justmonths before the accident, the state governmentgranted legal titles to thousands of people who hadbuilt homes around the plant site. However, AmnestyInternational has been unable to find evidence thatthe central or state government took adequate stepsto assess the risk to these local communities, mostof whom would be the first victims of the gas leak,or the surrounding environment. Nor did thegovernment impose strict safety standards or pressUnion Carbide to review safety mechanisms.

In 1985 the government of India enacted the BhopalClaims Act and took away from victims the right torepresent themselves and vested itself with the

exclusive right to represent victims.

In 1989 the government agreed to a settlement withUCC. In return for a modest and arbitrarily determinedfinancial payment to victims, the settlementbestowed sweeping civil and criminal immunity onUCC, trading off its legal liability. The governmentnegotiated settlement entirely excluded the victimsof the disaster from shaping the end of the case.

The payment of compensation to victims did not,however, begin until 1992 and involved numerousproblems including payment of inadequate sums,delayed payments, arbitrary rejection or downgradingof claims. Excessive bureaucracy in the claimsprocess led to the entry of middlemen and rampantcorruption, further reducing the amount ofcompensation money that victims were able to finallyget.

In 1994, the Indian Council for Medical Research(ICMR) stopped all further research on the medicaleffects of the Bhopal disaster without explanation.The full results of the research carried out and thedata with the ICMR have yet to be published.

The state Government efforts to providerehabilitation have proven largely ineffective. Thepoor quality of the health care system has meant thatmost survivors have had to spend most of theircompensation money on private medical treatment.The hospitals set for the treatment of gas victimsprovide only symptomatic treatment.

The social and economic rehabilitation measureshave been poorly implemented and have failed tolessen the impoverishment of already economicallyvulnerable survivors. Those orphaned and widowedby the gas leak are in a particularly precariouscondition.

Despite a Supreme Court order in May 2004 toprovide clean drinking water to communities affectedby the contaminated water the government ofMadhya Pradesh has not yet implemented the orderin full.

Conclusion

It is clear that both UCC/Dow and the Indian/MadhyaPradesh government failed to comply with theirrespective obligations and responsibilities to (a)prevent the gas leak and address its consequences,and (b) prevent and stop the continuing pollution

22 mfc bulletin/April-July 2010

of the environment and water through the dispersalof toxic and hazardous substances. The Bhopal casealso illustrates how companies evade their humanrights responsibilities and underlines the need toestablish a universal human rights framework thatcan be applied to companies directly.

Governments have the primary responsibility forprotecting the human rights of communitiesendangered by the activities of corporations, suchas those employing hazardous technology.

However, as the influence and reach of companieshave grown, there has been a developing consensusthat they must be brought within the framework ofinternational human rights standards. There is alreadya clear trend to extend international obligationsbeyond states, including to individuals (forinternational crimes), armed groups, internationalorganizations and private enterprises. AmnestyInternational supports this trend and believes thatcompanies have an inalienable responsibility for thehuman rights impact of their operations.

These human rights are explicitly guaranteed ininternational treaties which are legally binding onthe Indian state. Such obligations can be enforcedby Indian courts if they are incorporated into Indianlaw. The Indian Constitution guarantees the right tolife, and the Indian Supreme Court has held that thisincludes the right to health and to protection fromenvironmental pollution. The Court has alsodetermined that companies are responsible forenvironmental damage and for compensating anyoneharmed by their activities.

The UN Norms on the responsibilities oftransnational corporations and other businessenterprises with regard to human rights (UNNorms)—adopted by the UN Sub-Commission in2003—is a significant step towards generatinguniversally recognized, normative framework toidentify the responsibilities of companies for thehuman rights impact of their actions.

Amnesty International also maintains that there isno substitute for taking steps to regulate the activitiesof corporations in both host and home countries.Laws in host countries must be developed andenforced to allow national governments and localcommunities to control the activities of companiesoperating in their territory. Transnationalcorporations should avoid double standards in safety

and adopt the best practices in all aspects of safetyin all their operations.

The Bhopal disaster and its aftermath demonstrateclearly the need for an international human rightsframework that can be applied to companies directly,that could also act as a catalyst for national legalreform, and serve as a benchmark for national lawand regulations. Ensuring public participation andtransparency in decisions relating to the location,operational safety and waste disposal of industriesusing hazardous materials and technology is anessential step to heighten risk awareness andresponsible behaviour as well as to ensure betterpreparedness to prevent and deal with disasters likeBhopal.

The concerned Governments and the internationalcommunity must ensure that victims of human rightsviolations have effective access to justice andeffective redress for the harm suffered, withoutdiscrimination, and regardless of whether thoseresponsible for the violations are governments orcorporations.

Recommendations

Having noted the steps taken by governments inIndia to assist the victims of the Bhopal tragedy:

Amnesty International calls on the governmentsof India and Madhya Pradesh to:

- ensure the effective and prompt decontaminationand clean up of the Bhopal site by Union CarbideCorporation (UCC)/Dow Chemical Company, or toundertake the job if UCC/Dow is either unwillingor unable to do so;

- conduct a detailed assessment of the nature andextent of damage to health and environment fromimproper waste disposal and contaminants from theabandoned factory site and make public the findings;

- ensure Dow/UCC provide full reparations,restitution, compensation and rehabilitation for thecontinuing damage done to health and theenvironment by the ongoing contamination of thesite;

- ensure regular supply of adequate safe water forthe domestic use of the affected communities in linewith the order issued by the Supreme Court

- ensure adequate and accessible healthcare for allsurvivors, in particular by making sure the offer offree health care is extended without discrimination

mfc bulletin/April-July 2010 23to all those affected by the disaster, including tochildren born of parents affected by the gas leak;

- work with survivors’ organizations to establish amechanism for the distribution of all outstandingcompensation in a way that guarantees the victimsaccess to justice and due process, ensures transparencyand guards against corruption;

- reassess the compensation received by victims,following the 1989 settlement, and make up anyshortfall in line with the Supreme Court’s 1991 order;

- ensure that UCC makes available all informationabout the reaction products released on the day ofthe leak and full information regarding their toxicityand impact on people and the environment, and makesure that such information is passed on to the survivorsin languages they can understand;

- ensure that all studies carried out by the IndianCouncil of Medical Research and any other relevantresearch on the health impact of the gas leak are madepublic;

- conduct a thorough and transparent review of therehabilitation programs in consultation with survivors’groups;

- address the particular needs of women who face socialstigma and those who were orphaned as a result ofthe disaster.

Amnesty International further calls on the IndianGovernment to:

- invite relevant Special Procedures of the UNCommission on Human Rights to visit India andexamine the effect of UCIL/UCC activities and theBhopal disaster on contamination of the ground waterand the environment, and consequently on the humanrights of affected communities. Key procedures[mechanism] would include the Special Rapporteuron adverse effects on the illicit movement anddumping of toxic and dangerous products and wasteson the enjoyment of human rights, the SpecialRapporteur on the right of everyone to the enjoymentof the highest attainable standard of physical andmental health; the Special Rapporteur on adequatehousing as a component of the right of adequatestandard of living: and the special rapporteur on theRight to Food.

Amnesty International calls on the US government to:

- do everything within its legal authority to ensurethat Bhopal survivors are able to obtain redress;

- cooperate with the government of India to ensurethat UCC and/or Dow Chemical appear before ChiefMagistrate’s Court in Bhopal to face trial on thecriminal charges.

Amnesty International calls on Dow ChemicalCompany to ensure that UCC:

- effectively and promptly decontaminates the Bhopalfactory site, cleans up the groundwater and removesthe stockpiles of toxic and hazardous substances leftby the company when they abandoned the site;

- cooperates fully with those who are assessing the long-term health consequences of the gas leak and of thehazardous and toxic substances left on site since 1984;

- promptly makes public all information it has on allreaction products released on the day of the gas leakand full information regarding their toxicity andimpact on people and the environment;

- appears before the Chief Magistrate’s Court inBhopal in the criminal case.

Amnesty International calls on Dow ChemicalCompany to:

- provide promptly full reparations, restitution,compensation and rehabilitation for the continuingdamage done to people’s health and the environmentby the ongoing contamination of the site.

Amnesty International calls on the UN Commissionon Human Rights to:

- work towards the adoption of an international,universally recognized normative framework forbusiness, including minimum human rights standardsfor corporations to be incorporated into domestic law.

Amnesty International calls on the UN HighCommissioner for Human Rights to:

- take a leading role in multilateral efforts to clarifythe human rights responsibilities of transnationalcorporations and other business enterprises;

- offer the technical assistance of her office to ensurethat mechanisms of reparation for survivors of theBhopal tragedy accord with international humanrights standards.

A complete version of the Amnesty Internationalreport on Bhopal “Clouds of Injustice: BhopalDisaster- 20 years on”, ASA 20/015/2004, isavailable in Hindi, English and Arabic at <http://web.amnesty.org/pages/ec-bhopal-eng>.

24 mfc bulletin/April-July 2010

There are no parties with a differenceSimilar advice given to Union Carbide by two leading lights of Congress and BJP. We reproduce belowpage 1 and last 2 pages of their advice procured through an RTI by some friends. Also printed in fullis Dow’s letter to Government of India. The full 'advice' of these luminaries will be uploaded at the mfcwebsite. -Editor, mfc bulletin

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After a disastrous term rife with farmers' suicides andinflation when the farmers of Maharashtra suffered theworst, the Maharashtra Government has come up withanother policy to accelerate the farmers' and the state'sjourney to ruin. The Vilasrao Deshmukh Governmentin its regime had decided to give licenses to 36 newfactories which would produce alcohol from foodgrains like bajra and jowar and other food grains beingproduced in the state. In all 36 new factories witha total annual capacity of 110 crore liters of alcoholwould be given out to applicants to run, to produceconsumable alcohol from these food grains. The visionstatement of the gazette stated that the alcohol wasbeing manufactured for 'meeting the increasingdemands of grain based liquor of superior quality' fromEuropean countries, however, the Government ofMaharashtra has ironically stated that the alcoholbeing produced from these factories would have tobe consumed in the state of Maharashtra itself.

Salient Features of the Scheme

1) 36 new factories to be set up all overMaharashtra, which have the capacity toproduce 100 crore litres of potable andmarketable alcohol per annum.

2) The Government states that the alcohol is to beproduced from spoilt food grains, however, theGovernment food supply departments do nothave a record of the amount of spoilt food grainsin the state.

3) The Government and other allied organisationshave stated that the food grains used will be onlythe slightly blackened grains which are notconsumed by the people

4) All of the alcohol produced will be consumable.More than 95% of the alcohol produced wouldbe of drinking quality and not industrial alcohol,as is done from sugarcane molasses.

5) The plants will receive a subsidy of Rs 10 foreach liter of potable quality alcohol producedfrom food grains, provided the alcohol is soldin the state, for alcohol not sold in the state,

Addictive Policies of the Maharashtra GovernmentAlcohol at the Expense of Food Grain Availability

- Sagar Atre1

no subsidies will be given.

6) License holders under this scheme include AmitDeshmukh, elder son of former CM VilasraoDeshmukh (the first issued license, which hasalso already received a subsidy), Past healthminister Vimal Mundada, Dhaval PratapsinhMohite-Patil, Shweta Palwe (daughter of BJPLeader Gopinath Munde), and many otherpolitical leaders and their affiliates from the state.

7) The normal price of the bajra grains is Rs 10per kilogram. The amount of food grains requiredfor producing one liter of alcohol is 2.8 kgs ofgrains. After dilution into its retail forms, theprice of this alcohol exceeds Rs 1000, hencethe 'fair' price 'ensured' for the farmers will meanalmost a 40 times profit for the producers ofalcohol.

Some Food Facts Regarding this Problem

1) The total availability of grains (includes wheat,rice, maize, jowar and bajra) in Maharashtra foryear 2006-07 is 101 lakh tonnes.

2) Total food grain quantity required for one yearfor all the distilleries when run at their fullcapacity is 14 lakh tonnes.

3) Clearly 14% total food grains will be divertedfor Alcohol production creating scarcity of foodgrains in the rural markets.

4) Jowar bajra and maize constitute around 58 lakhtonnes of the total food grain produced and aretraditionally part of rural diet. In that case 24% of these grains will be diverted creating a foodcrunch in these areas.

5) Clearly farmers can't produce this much of blackjowar every year. Hence the issue is not just aboutthe bad or uneatable food grains.

6) These projects are going to need our share offood. Now the question is, do we have enoughfood to eat and to produce alcohol?

7) Per head food grain availability in Maharashtra:98 kg (total cereal prod average for 95-05,population of 2001 )

8) Per head food grain availability in India: 154kg (10 year average 1996-2006)

1Email: <sratre@gmail.com>. NIRMAN fellow, SEARCH,

Gadchiroli, Mahahrashtra.

mfc bulletin/April-July 2010 33

9) Thus we do not produce enough food grains forour need and the difference is not small. Weactually take 33% of our food grains from otherstates.

Some facts about Maharashtra's PDS

Total Amount of Grains in Maharashtra (PDS)

(000' tonnes) 05-06 06-07 07-08 08-09

Wheat 1563 1381 1274 1518

Rice 947 1124 425 439

1) The above table shows the figures for the lastthree years for Maharashtra of wheat and rice.We buy these grains from other states.

2) Considering that these two are not thetraditional food items in many parts of India,the Central Government allows states toprocure local coarse grains for distribution andcompensates the difference to the state.

3) Maharashtra Government does not distributejowar and bajra under PDS, whereas 18 otherstates are using their local coarse grains alongwith wheat and rice.

4) Even if Government. reduces the imports ofwheat only by 50% PDS can take more than7.5 lakh tonnes of jowar and bajra. Even Indiais not self reliant in terms of food grains.

Unsound Arguments, Unsound Policy

Since April 2006 India is importing wheat: 55 lakhtonnes in 2006-07 and 17.69 lakh tonnes in 2007-08. While the social sector and intelligentsia of thestate has immediately raised severe objections overthis issue, little has been done to respond, let alonerevoke this policy. Since all parties and their leadershave a stake in this issue, no party has been activelyor vociferously criticizing the decision of thegovernment. The Chief Minister of MaharashtraAshok Chavan has stated, “We agree that this decisionis maybe not completely a sound policy. Hence, theGovernment will not provide any licenses henceforward to any applicant. However, for the licensesalready given, our hands are unfortunately tied. Wecannot risk the economic loss of so many licenseholders who have already gone through the processof getting the license and setting up these factories.After analyzing the scenario, we have found out thatthe economic losses which would be incurred by allof them would be too big, and hence, this decision

will have to stand because of this scenario.” WhileChavan has said that he is not entirely in supportof the decision, he has stated that the situation iswhat is binding him to the verdict given by him.

The capacity of all these factories is touted to bearound 110 crore liters of alcohol per annum, whichamounts to 10 liters of alcohol per person in the state,taking into account the 10 crore population of thestate.

The decision has drawn even more flak mainly dueto its disastrous facets of the subsidy and the clausewhich states that the liquor will have to be sold inMaharashtra, a state whose rural areas are alreadygrappling with the problem of alcohol relatedproblems. In an extremely daring statement, theGovernment and the supporters of the scheme havestated, “This scheme will increase the sale of foodgrains like bajra, which are not being consumed bythe people of the state due to better alternatives. Ourtry is to give these farmers some respite through thispolicy.” The BJP and its leaders, who are usually atloggerheads with the Congress, have supported thispolicy, with its leader Gopinath Munde stating inAurangabad, “This policy is aimed at promotingthe cultivation and sale of bajra and other local foodgrains, which are fast being replaced by the othergrains like wheat. We wish to ensure a clientele forthese food grains.”

The social sector, in the meanwhile is puzzled withthe fact why the Government has chosen a way likealcohol to solve this problem. Social leaders like AnnaHazare, retired judge ChandrashekharDharmadhikari, doctor couples Dr Abhay and RaniBang and Dr Prakash and Manda Amte have statedthat replacing wheat with bajra from the PDS is initself a good solution. These social crusaders, in astatement have said, “Why do we perform the foolishact of getting wheat from Punjab when the peopleof Maharashtra are happy to eat bajra and other localgrains? We are wasting resources on wheat, deprivingincome to our own farmers by bringing in wheat,and now selling them alcohol made out of their ownfood grains, which will be the final blow to an alreadyimpoverished and miserable farming class. The bestoption will be to include the food grains into thestaple diet of the people through PDS, and notthrough alcohol.”

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Breach of Constitution

Apart from these moral arguments, this policy is alsoan outright breach of the constitutional principlesset out in its directives. The directive principle inArticle 47 of the Constitution of India states, “Thestate shall regard the raising the level of nutritionand the standard of living of its people and theimprovement of its public health as among theprimary duties and in particular, the state shall bringabout prohibition of the consumption except formedicinal purposes of intoxicating drinks and ofdrugs which are injurious to health.” This policyhence is a direct breach of this principle of theconstitution.

The PIL filed against the Government has beenrejected since the case was not presented in a mannergood enough to stand against the arguments of thegovernment. There is however, another problemwhich makes this issue more complicated. Mostagricultural organisations are in support of this policy,who are so driven to desperation that they are readyto accept this policy with the hope that their foodgrains will be wanted in the market, since they arenot part of the people's diet today due to the brightPDS policy of the government. Most agriculturalorganisations and their leaders argue that jowar, bajraand such food grains will be finally consumedthrough this policy, giving farmers a fair price. Thishowever, is quite a foolish argument, since it is abusiness principle that once the marketing andbuying prowess of these industries increases, theseindustries, being run by the powerful politicians aresure to resort to arm-twisting tactics with the farmers,bringing them back to the same place where theyare today; in a market with unfair prices where theirvoices of protest are drowned out by the market andthe middlemen who run the commercial aspect offarming. The only 'solace' is that there will be amplealcohol to drown their sorrows and fears, and moreintoxication to take that final step of suicide.

Some Core Messages

The saddest part of this is that most of the middle

class in Maharashtra views this as a problem whichis not related to them. What they do not realize isthat this alcohol will ultimately make it to theirdoorstep bringing with it hundreds of its socialconsequences in tow. From the existing internationalscientific evidence, a number of core messages canbe pondered, some of them are as follows:

The social costs of alcohol consumption amount tobetween 1% and 3% of gross domestic product.

About 20% of the total costs are direct costs,representing the amount actually spent on medical,social and judicial services.

About 10% of the total costs are spent on materialdamage.

About 70% of the total costs represent lost earningsof individuals who die prematurely or are unable toperform their productive tasks in the way they wouldhave if they had not been consuming alcohol.

This data comes from a research paper by the WHOin 2001, which studied the consequences of alcoholin many countries across the world. However, in placeslike India, where accurate data is so tough to obtain,the socio-economic damage alcohol is doing mightbe much greater.

The threat looms large upon the state of Maharashtra,and this time, it is not only the farmers who will suffer.This time, it is going to be the entire state ofMaharashtra, who is unawares or is feigning to beunaware of this policy which threatens to destroytheir future in a slow yet sure way. This time, it willnot be farmers' suicides which will make theheadlines, but the urban populations who will facethe full brunt of this poison, which the Governmentwants to inject in their veins, and that too, by throwingin a subsidy for those who are going to do it.

Data collection done by the Nirman team, led bySachin Tiwale, Nirman Fellow, Maharashtra andKnowledge Corporation Limited, Pune. For morefacts about the policy, the protests and the politicalfacets of this issue, log on to<www.foodtoalcohol.wordpress.com>.

mfc bulletin/April-July 2010 35

Plight of the ASHA in NRHM

Shri T K A Nair, Principal Secretary, November 16, 2009Prime Minister's OfficeRaisina Hill, South Block, New Delhi 110011

Respected Sir,

I am writing this letter to you about NRHM in general, but ASHA in particular. NRHM has enrolled thehelp of 7.3 lakh ASHAs in the country and they are the face of the NRHM in the country. NRHM is a valiantGOI effort to revamp the health system of our county, yet I have strong reservations about NRHM whichI have written about in EPW1. In the early days of NRHM I have helped develop some of the learning materialfor ASHA and am also member of GOI's the ASHA mentoring group (AMG) and also for Maharashtra. Assuch I have visited and met ASHAs in UP, Assam, J&K and Maharashtra. I am also member of CRM 2 &3. I feel that the ASHA programme is developing huge gaps in intentions and realities. Many ASHAs haverequested me to communicate their feelings to someone higher in GOI. It is my duty to bring this to yourkind notice lest something can be done even at this mid-course stage.

Good training, system support, supply- logistics, and respectable remuneration need to be the four pillarsor wheels of any health worker programme. ASHAs are also answerable to local people. None of these fourcan be compromised. I see that all four pillars are weak. If the situation continues as it is, I am sure ASHAprogramme will lose its pivotal role in whatever little we have achieved in NRHM--mainly the JSY led risein institutional births. More that that, I feel that we are exploiting these poor women of their labour. I amsure many have left the programme and there is no count.

In the recent J&K visit, I could get some statistics of work done by 89 ASHAs in CHC Ramgadh. Somefacts to note: average monthly income Rs 327/- (min 150 max 643) over a period of 7 months from April2009, of which Rs 150 comes as honorarium for mobilizing children for immunization. In fact they are doingjust JSY and immunization and a bit of FP by way of Laparoscopy cases. When the nation is giving doctorssalaries ranging from half to one lakh a month, 327/- is a pittance and often ASHAs slog at some personalcost, time and money. The village size and the potential cases for JSY will not permit any betterment inthis situation. In Maharashtra I met ASHAs who tell similar stories and so also in UP and Assam. We needto do a rapid appraisal of ASHA earnings both at desk and on the ground.

Why cannot we improve training, logistics, medicine supply and income side? The health ministry has nobodyto look after this important HR scheme and mentoring is 'outsourced' to NHSRC, which is also unable changethe situation significantly.

As for income we need to try a mix of monthly honorarium from the VHSC/PHC and some incentives. Ishall hasten to say that they need more support for more tasks and more utility for the village people. Evenstates can take this issue from their budgets. Unfortunately, the last A of ASHA (Activist) has become a euphemismfor not paying her. I wish I could present the photos and stories of ASHAs to communicate the emotive

1I feel that despite the great intentions and some achievements

of NRHM, there are serious design problems in NRHM-a) ignoring state primacy in health planning and strategy makingb) unhealthy and perhaps improper funding strategy throughhandpicked state society--bypassing assemblies and usualaccountability measures c) pseudo-decentralization andbypassing even Zilla parishads d) emphasis on symptomaticinterventions such as institutional births thru JSY rather thansystem reforms e) Ignoring the need to build village level systemsin favor of facile institutionalization of services f) ignoring therural private sector completely despite promise in NHP 2002g) splitting the health system into two parts - directorate andthe NRHM i) trivializing the concept of community healthworker (ASHA?) into mere case-mobilisers i) Focusing on MDGsrather than comprehensive health services. In my opinionNRHM has created serious problems that the system will repenttomorrow.

side of this injustice and management gaps of theASHA programme.

I feel that someone needs to attend to this issue, andhence this letter. Thanks.

Yours truly,Dr Shyam Ashtekar MD (P&SM)Director, School of Health Sciences,Yashwantrao Chavan Maharashtra OpenUniversity, Gangapur Nashik 422222Ph 0253-2230718email: shyamashtekar@yahoo.com

36 mfc bulletin/April-July 2010

New Delhi, India and Rio de Janeiro, Brazil, 20 April2010.

Civil society and public health groups from India,Brazil and several other countries today vehementlyobjected to the proposed India-European Union FreeTrade Agreement (FTA).

A petition created by the Working Group of IntellectualProperty (GTPI) of the Brazilian Network for theIntegration of People (REBRIP) entitled "Civil SocietyAgainst the EU-India Free Trade Agreement" wassupported by 651 persons from several places of theworld. This petition manifests concern about thenegative consequences of the proposed India-EU FTAfor the procurement of cheaper generic Indianmedicines, which are important for the sustainabilityof policies for guaranteed access to medicines in Braziland other Latin American countries. The petition isgoing to be sent to the European Commission,European Parliament and the Indian Embassy inBrazil.

In another move, Indian civil society and public healthgroups today submitted a joint letter signed by severalorganisations and individuals to the Government ofIndia protesting against the FTA and demanding thatit hold public consultations on FTAs it is negotiating,including the India-EU FTA.

India is currently negotiating several FTAs, mostimportantly with the EU, Japan, and the European FreeTrade Association, that are likely to drastically reduceaccess to newer medicines for people living with HIV,cancer and other diseases, both in India and otherdeveloping countries.

Limited access to leaked draft documents make clearthat India's trading partners in the North would likeIndia to dramatically expand intellectual propertyprotection, well beyond those required under India'scurrent international obligations, including the TradeRelated Aspects of Intellectual Property Rights(TRIPS) Agreement. For instance, the European Unionis attempting to restrict use of TRIPS-flexibilities andpushing for TRIPS-plus provisions - such as patentterm extensions, data exclusivity, patent linkages andadditional border measures that may block the freetransit of medicines - which will delay entry of genericsmedicines into the market. India's present patent lawwas crafted specifically to ensure both access tomedicines and TRIPS-compliance. If India agrees toany of the demands of the developed countries, it willhave an impact on access to medicines - not only forpatients in India, but in developing countries as far

Civil Society Groups in India and Across the World Protestagainst EU-India FTA

as Brazil. Indian generic pharmaceutical companiesprovide low-cost, high quality generic drugs to largeparts of the developing world and numerousinternational drug dispensing programmes.

On 12 March 2010, after a protest outside the Ministryof Commerce, Indian civil society actors met withIndian government officials from the Ministry ofCommerce who promised to hold a civil societyconsultation on all IP issues in FTA currently undernegotiation.

Loon Gangte, Delhi Network of Positive People, said,"Governments should not enter into any agreementsthat will increase intellectual property standards, anddecrease access to essential medicines. TRIPS alreadyhas a negative impact on access to medicines. FTAswill further erode accessibility and put these life-saving medicines beyond the grasp of millions, notonly in India, but the entire developing world. Patientsin other developing countries have already told meabout the painful impact they are facing because ofsuch FTAs."

According to Veriano Terto Jr., executive coordinatorof the Brazilian GTPI, "Indian generic medicines arelargely used by Brazilian AIDS patients. Thecontinuous production and supply of these medicineswithout additional patent barriers in India are vitalto the sustainability of the Brazilian access tomedicines. We recognise that Indian generic versionsplay an important role in the price negotiations inthe world. They are also key to promote pricecompetition and broader access to treatment in thedeveloping countries. The EU intellectual propertypolicies through the FTA in negotiation with Indiarepresents additional obstacles for universal accessto medicines in a global perspective. Furthermore, theBrazilian civil society is following with specialinterest the EU negotiations with India, because thereFTA negotiations are also ongoing between EU andMERCOSUL, which could impose restrictions to theaccess to medicines in the region."

Pointing out that India's constitutional andinternational human rights obligations would becompromised by such agreements, Prathibha S,Lawyers Collective HIV/AIDS Unit, India, said, "TheseFTAs push TRIPS-plus provisions, such as dataexclusivity, patent linkages, and patent-termextensions and also restrict TRIPS flexibilities. Theyinfringe upon national sovereignty by effectivelylegislating India public health policy from abroadwithout taking into account India's obligations under

mfc bulletin/April-July 2010 37its Constitution and international human rightsinstruments."

The most troubling aspect of these negotiations is thecomplete lack of transparency on the part of both theIndian and partnering governments. Negotiators onboth sides have consistently met in secret. While civilsociety and public health groups have not been invitedto these meetings, industry groups have been alloweda seat at the table effectively making guaranteeingan outcome that will turn back a decade's worth ofhard fought gains in access to medicines.

Mani Kandan, Programme Officer, Centre forEducation and Communication and a member ofForum Against FTA, "No consultations with civilsociety, trade unions, farmers, and other stakeholdershave been held. There has been great secrecysurrounding the FTA text. The right of millions ofpeople to access low cost, high quality medicines isbeing bargained away without even the smallestamount of input from the most affected persons.Democratic accountability requires that thesenegotiations take place in the open, with draftdocuments available to the public, so that non-

industry groups may contribute to these laws whichwill greatly affect them."

Civil society and patient's groups from India, Braziland across the world demand that the European Unionand others to withdraw their expansionist intellectualproperty demands. It is their obligation under theDoha Declaration and international human rights lawto refrain from promoting policies that will denymillions of suffering people access to medicines theyrequire. At the same time, it is hoped that theGovernment of India which, in 2005, heeded calls frompatients in developing countries and introducedhistoric public health safeguards in its patent law, willdo so again and demonstrate its commitment topatients over profit. A first step towards this wouldbe holding public consultations with civil societystakeholders and opening up the negotiations to publicscrutiny.

For more information, contact

Lawyers Collective HIV/AIDS Unit, IndiaPrathibha S and Mihir Mankad (New Delhi): 011 46805555 Julie George (Mumbai): 022 2287 5482 / 3Ramya S (Bengaluru): 080 4123 9130 / 31Email: aidslaw@lawyerscollective.org

The Madras office of the Patents Controller rejected, duringMay 2010, product patent it had previously granted topharmaceutical company Roche for the drug valganciclovir.Valganciclovir is primarily used as treatment and preventionof an infection caused by cytomegalovirus (CMV) in organtransplant patients, a highly lucrative market which Rochehas sought to defend by patenting the medicine. But CMValso affects people living with HIV, and if left untreated, cancause blindness and death.

If anything, this shows that Section 3(d) of India's PatentsAct, which prevents companies from filing unjustified patents,is working. Equally importantly, the Patent Office also foundseparately that the patent claims were obvious and thereforenot patentable. Through this decision, the Indian Patent Officehas also confirmed the right of patients groups to opposea patent after it has been granted, a matter on which Rocheclaimed there was ambiguity. This follows a similar recognitionin 2002 in Thailand of patients as 'persons interested' in theoutcome of a patent application.

The decision will provide much needed relief as it secures theway for generic competition, which is the most effective andsustainable way of bringing drug prices down. To date, theprice of valganciclovir is prohibitively expensive - Roche marketsthe drugs for up to US$8,500 for a four-month treatment coursein high-income countries. In India, the Roche price for a standardprotocol is approximately $5,950. In December 2006, manyNGOs approached Roche for a discount, but even the 'discounted'price was so high that some AIDS projects opted out ofproviding this treatment for CMV.

Valganciclovir Patent RejectedBackground to the Case

In June 2007, Roche was granted a patent for valganciclovirin India, but the Chennai Patent Office (one of four officesthat make up the Indian Patent Office) took this decisionwithout hearing the arguments of public interest groups,including the Indian Network for People Living with HIV/AIDS (INP+) and the Tamil Nadu Networking People withHIV/AIDS (TNNP+), that opposed the granting of the patent.In December 2008, the Madras High Court in Chennai thereforedecided to set aside Roche's patent until these arguments couldbe heard. The Chennai Patent Office, during the course ofthis hearing, refused to hear all the arguments made by theoppositionists and rejected the pre-grant opposition, after whichthe public interest groups approached India's Supreme Court.The Supreme Court directed the groups to join the post-grantopposition proceedings that were already taking place throughoppositions filed by generic companies and the Delhi Networkof Positive People (DNP+). At this stage Roche challengedthe legal standing of DNP+ to oppose the patent after it hadbeen granted, claiming an ambiguity in India's patent law.

Having heard the arguments of all the public interest groupsand the generic companies, the Indian Patent Office has nowdetermined that Roche's claims for a product patent onvalganciclovir were invalid and recognised only the validityof one of the process claims made by Roche. It has alsoheld that patients groups can file post-grant oppositions.

The legal battle may continue however if Roche decides toapproach IPAB (the Intellectual Property Appellate Board),the High court and, if need be, finally the Supreme Court.

38 mfc bulletin/April-July 2010

Adivasi Samrakshana Sangham & Plachimada Struggle Solidarity Committee[Address: Veloor Swaminathan and Mariappan, Convenors, Adivasi Samrakshana Sangham

Veloor House, Kannimari, Kannimari P.O, Palakkad District, Kerala 678 534 & R.Ajayan, Convenor, PlachimadaStruggle Solidarity Committee, Neerajam, Kudappankunnu, Thiruvanathapuram - 43, Kerala]

01 July 2010

PRESS RELEASE

We salute the eight year long struggle of the people ofPlachimada and its supporters everywhere, particularly ofKerala, for ensuring that the Kerala Government takes a firmdecision to constitute a Plachimada Claims Tribunal basedon the recommendations of 22 March 2010 of its High PowerCommittee. Attempts of Coca Cola to delay, subvert and derailthe decisions have clearly been defeated for the time being.The Government and the legislative assembly should nowtake the next bold step to constitute not only the Plachimadatribunal but also establish a strong legal and institutionalmechanism to make sure that Plachimadas are not repeatedelsewhere. Justice to Plachimada is awaited and the strugglefor justice will continue.

The Plachimada Claims Tribunal to be constituted under Article323 B of the Constitution of India by the Kerala Assemblyis to adjudicate disputes relating to compensation due to waterand air pollution, loss of agricultural crops, loss on incomefrom animal husbandry, diseases affecting human beings inthe surrounding area, loss of employment, the psychologicalimpact, ecological and other damages due to the excess drawaland pollution of groundwater and surface water by theCompany in the past, present and future.

The recent Bhopal case judgment opened up to reveal in greatdetail how the governments and the courts were shamefullycompromised to ensure failure in providing justice to the Bhopaliswhile protecting the criminal Union Carbide in the world's worstindustrial disaster.

The Kerala Government's integrity and decisiveness can bedemonstrated only when it follows up on the otherrecommendations of the High Power Committee whichunequivocally stated that: "The compensation is not to beviewed as a quid pro quo for not initiating criminal charges.Therefore, Government may proceed against HCBPL inaccordance with various laws" as "the Company has violateda number of provisions

in the various laws is irrefutable. Some of the major Actswhich have been violated by HCBPL are as below:

(1) Water (Prevention and Control of Pollution) Act, 1974

(2) The Environment (Protection) Act, 1986

(3) The Factories Act, 1948

(4) Hazardous Waste (Management and Handling) Rules,1989

(5) The SC-ST (Prevention of Atrocities) Act 1989

(6) Indian Penal Code

(7) Land Utilization Order, 1967

(8) The Kerala Ground Water (Control & Regulation) Act,2002

(9) Indian Easement Act, 1882."

We demand immediate filing of cases by theGovernment on behalf of the people of Kerala againstCoca Cola for its criminal liabilities[1] as this alonewill ensure that Coca Cola is not let off the hook forits crimes and compensates for the loss, current, pastand future.

Sincerely yours

Veloor Swaminathan R.AjayanAdivasi Samrakshana Sangham Plachimada Struggle Solidarity

Committee

[1] Extract from Report of the High Power Committee,Government of Kerala, 22 March 2010, p.83-4.7.4. CRIMINAL LIABILITIESApart from the liability to pay compensation as discussed above,the Coca Cola Company has violated other provisions of law forwhich the Company has to be made answerable. Thecompensation for damages suffered in tort as well as remediationdoes not in any way affect the criminal liability of the Companyunder various laws. The compensation is not to be viewed as aquid pro quo for not initiating criminal charges. Therefore,Government may proceed against HCBPL in accordance withvarious laws, some of which are discussed below.The land in possession of the HCBPL was in possession ofdifferent cultivators from whom it was got registered for theCoca Cola Company. This transfer is a clear violation of theKerala Land Utilization Order 1967. HCBPL had obtained alicense from Perumatty Grama Panchayat for installing 2600hp electric motor for running Coca Cola bottling plant formanufacturing, storing and sale of aerated water and cooldrink. However, no licenses have been obtained from thePanchayat for installing motor for drawing water. The Companystarted extracting water from the bore well and the open wellsby using electric pumps without any license obtained from thePanchayat. In such activities, the Company has violated theprovisions of the Kerala Land Utilization Order 1967. Inunlawfully depleting ground water and polluting the waterresources, the Company has violated the provisions of the Water(Prevention and Control of Pollution) Act of 1972, TheEnvironment (Protection) Act, 1986 and The Kerala GroundWater (Control & Regulation) Act, 2002. In having dumpedhazardous sludge in an irresponsible fashion and in giving itaway to farmers as beneficial manure the Company is liableunder the Indian Penal code, The Factories Act, 1948 andHazardous Waste (Management and Handling) Rules, 1989.These acts of the Company have affected the economic andsocial well being of SC and ST people and thus the Company isliable to be proceeded under the SC/ST (Prevention of AtrocitiesAct) 1989. Further the Company has been blatantly violatingthe order of Supreme Court dated 14/10/2003.

mfc bulletin/April-July 2010 39

Dear Sir,

We would like to congratulate the StandingCommittee and its respected members for taking upthis issue which has been of deep concern to all ofus as the decision regarding GM crop will have farreaching consequences to the health of our nation.

We would like to place our concerns against GMOsin our food in the light of the available scientificliterature. The following are our deep concerns withregard to impact of GM food on our health.

Introduction

Even though the phenomenon of GM technology isrelatively new, considerable authentic scientificliterature regarding bio-safety and health issues relatedto GMOs has now become available. The scientificreports suggest potential serious harm to human healthwith consumption of GMOs. What is even more scaryand dangerous is what is 'yet unknown' and wouldreveal itself in foreseeable and distant future as someeffects have been observed to manifest themselvesafter 3rd or 4th generation among experimentalanimals fed GM foods like GM corn/ soya etc.

It is a scientific fact that existing GM process is atbest unpredictable. The resultant new species createdCANNOT BE RECALLED, even if detected to beharmful subsequently, unlike some agrochemicalsrecalled (eg DDT, Endosulphan) when found toxic afterrelease for use by farmers.

The American Academy of Environmental Medicine,an organization of professional doctors, has noted thatGM foods have not been properly tested for humanconsumption, and because there is ample evidenceof probable harm, it recommends the public to avoidGM foods when possible. It has also asked for amoratorium on GM food and implementation ofimmediate long term independent safety testing andlabelling of GM foods, which is necessary for thehealth and safety of consumers.

Based on existing knowledge and clinical experience,the Adverse Health Effects of Bt Toxin &/or GeneticEngineering process can be grouped in the followingcategories:-

1. Damage to fertility and reproductive health.Serious reduction in size of litter, growth andage of offspring, inability to conceive byoffspring , manifesting itself after 2-3

Concerned Health Professionals for Biosafety in Food1 Shrihari Apts, Behind Express Hotel, Alkapuri, Vadodara 390 007

E-mail: drbjshah@gmail.com/sahajbrc@yahoo.comMarch 15, 2010Sub: Genetically Modified Seeds/Crops in India - discussions in the Parliamentary Standing Committee

generations.

2. Causation/ initiation of Cancers.

3. Unpredictable Mutations/ distortion of Cellularstructure.

4. Immune reactions and allergies. Dose-responserelationship clearly demonstrable.

5. Horizontal Gene Transfer from ingested food tohuman gut bacteria and eventual detection offoreign DNA in blood, and soil, which portendsgrave implications. Evidence of trans-genematerial found in foetuses of pregnant animalsfed GM food.

6. Multi-organ damage, notably to Liver, Kidneys(organs related to detoxification of food/poisons).

7. Distortions in Lipid and Carbohydratemetabolism.

8. Accelerated ageing. Possible accumulation ofreactive Oxygen species(ROS).

9. Detection of Antibiotic Resistant Marker genes(used in the Genetic Engineering process) inhuman/ animal gut bacteria, portendingdisastrous consequences e.g. Kanamycinresistant gene detected in gut bacteria in GMfeeding trials can seriously jeopardize NationalTuberculosis Control Programme due to gravepre-existing problem of Multi-Drug-Resistant(MDR) and Extreme-Drug-Resistant(XDR) Tuberculosis in India as well asother parts of the world.

10. Catastrophic consequences on Ayurveda (andSidha)-the most precious heritage of India, e.g.Bt Brinjal (Solanum melongena) trans-genematerial likely to escape in open field cultivation,can distort medicinal properties of medicinalplants of "Solanum" species/ even some varietiesof Brinjal itself used in Ayurvedic medicines. Sameapplies to accidental/ unintended contaminationof non-target species of plants having medicinalproperties, thereby loss of genetic heritage ofprecious plants of India.

11. Large scale deaths of cattle/ goats/ sheep grazingon Bt Cotton fields in Andhra Pradesh. Post-mortemexaminations revealed multi-organ damage.

A brief analysis of concerns in and about current

40 mfc bulletin/April-July 2010scientific literature regarding biosafety of geneticallymodified crops is attached here for your reference.

There have also been other serious concerns regardingbio-safety of Bt brinjal:

1. Several international experts have pointed outserious inadequacies with the methodology andstudy design in the toxicological study for BTBrinjal conducted by Mahyco. Experts haveobserved that "the interpretation of resultssponsored by Mahyco is not scientificallyacceptable" and hence consumption of BTBrinjal can not be considered safe.

2. How can one rely the about the safety of BTBrinjal based on the data supplied by thecompany making the product? This kind ofpractice in the pharmaceutical sector has beenquestioned for the last 10 years. There areexamples of establishing the safety of the productbased on malpractices by the companiesincluding manipulation and hiding the data.

3. People have found conflict of interest at variouslevel while clearing BT Brinjal for commercialcultivation by GEAC.

Based on the above facts and issues, we demand that:

1. Long-term, multi generational studies should bedone to prove safety of any GM food/ productfor human use especially reproductive effects

on mothers and teratogenic effects on children.

2. In view of the toxicological effects reported bycertain studies, the protocols for bio safety ofGM products need to be updated. The safetystudies should include not only chemicalanalysis of macro/micronutrients and knowntoxins, but more sophisticated analyticalmethods like mRNA fingerprinting, proteomics,secondary metabolite profiling and otherprofiling techniques may be required. DetailedAllergic testing also needs to be done. A neutralscientific committee should be formed to framethe protocol.

3. Review of toxicological studies done byMahyco by an independent expert panel.

4. Immediate moratorium on GM food till the newdetailed bio-safety protocols is prepared andfacilities are made accessible for all requiredanalytical methods.

5. Ban on all GM crop trials till point no. 4 isachieved.

6. All the bio-safety data of studies done by anyagency and regulatory procedures should be kepttransparent and made accessible in publicdomain, even in future.

Sincerely yours, etc.

A. Adverse Effects of Transgenic Bt foods

There have been a series of scientific reports indicatingside effects of transgenic Bt corn or potatoes on theanimals. To quote a few:

1. In July 2008, Austrian researchers found thatfeeding rats a diet containing the transgenic cornNK603 x MON810 affected the reproduction ofmice that was detected in 3rd and 4th generationin the reproductive assessment by continuousbreeding (RACB) study design. Some effects onthe kidneys were also observed.1

2. In November, 2008, Italian researchers concludedthat "the consumption of Bt MON810 maize …induced alteration in intestinal and peripheralimmune response of weaning and old mice."2

3. In December 2009, Joël Spiroux de Vendômoiset al., studied the rats with feeds of three maincommercialized genetically modified (GM)maize (NK 603, MON 810, MON 863), whichare present in food and feed in the world. They

observed that it causes hepatorenal toxicity.Other effects were also noticed in the heart,adrenal glands, spleen and haematopoieticsystem.3

4. Mice fed potatoes engineered to produce the Bttoxin developed abnormal and damaged cells,as well as proliferative cell growth in the lowerpart of their small intestines (ileum).4

How can transgenic Bt food be considered "safe"when there are so many studies showing adverse effectsof Bt foods? Some studies have shown adverse effectson 3rd generation at the earliest and that too byReproductive Assessment by Continuous Breeding(RACB) study design. The toxicological studies doneby Mahyco do not include studies beyond 90 daysof exposure. How can we consider Bt brinjal "safe"without proper, multigeneration studies?

B. Variety of Adverse Effects Due to GM Foodin General

Certain studies have shown that the GM food can

Brief Summary of Concerns in and about Current Scientific LiteratureRegarding Biosafety of Genetically Modified Crops

mfc bulletin/April-July 2010 41change the cell structure itself! Two of them:

1. Researchers studied effect of feeding GMsoybean on mice and found out that it causedsignificant modifications in the nuclei(irregularly shaped nuclei) in the hepatocytesof GM fed mice.5

2. Scientists studied pancreatic acinar cell nucleion the mice fed on genetically Modifiedsoybean. The modifications observed inpancreatic acinar cell nuclei of GM-fed micecould be related to the reduction in digestiveenzyme synthesis and secretion and caninfluence the pancreatic metabolism in mouse.6

Several animal studies indicate serious health risksassociated with GM food consumption includinginfertility, immune dysregulation, accelerated aging,dysregulation of genes associated with cholesterolsynthesis, insulin regulation, cell signalling, andprotein formation, and changes in the liver, kidney,spleen and gastrointestinal system. There is more thana casual association between GM foods and adversehealth effects. Animal studies also show alteredstructure and function of the liver, including alteredlipid and carbohydrate metabolism as well as cellularchanges that could lead to accelerated aging andpossibly lead to the accumulation of reactive oxygenspecies (ROS). One study, done by Kroghsbo et al.,has shown that rats fed transgenic Bt rice trended toa dose related response for Bt specific IgA. Also,because of the mounting data, it is biologicallyplausible for Genetically Modified Foods to causeadverse health effects in humans.23

C. Increase in Allergic reactions

Allergic reactions occur when the immune systeminterprets something as foreign, different, andoffensive, and reacts accordingly. All GM foods, bydefinition, have something foreign and different. Andseveral studies show that they provoke reactions. Toquote a few:

1. Rats fed Monsanto's GM corn had a significantincrease in blood cells related to the immunesystem.7

2. GM potatoes caused the immune system of ratsto respond more slowly.8

3. GM peas provoked an inflammatory responsein mice, suggesting that it might cause deadlyallergic reactions in people.9

4. Scientists have demonstrated highimmunogenicity of Cry1A proteins administeredby intragastric route and cautioned the use oftransgenic plants for human consumption.10

5. There have been reports of allergic reactions toBt spray. The reaction was severe enough tocause hospitalisation in some of the cases.11,12,13

6. Bt toxin might also trigger reactions by skincontact. In 2005, a medical team reported thathundreds of agricultural workers in India aredeveloping allergic symptoms when exposed toBt cotton, but not when exposed to naturalvarieties.14

Although, there may be many causes, it mightbe difficult to identify whether GM foods weretriggering allergic responses in the population.Since our country does not conduct regularstudies or keep careful records, we need to doallergic studies in great detail before GM foodis permitted for human consumption.

D. GMOs are inherently unpredictable

It has been scientifically proved beyond doubt thatgenes are not carriers of a single trait. The effect ofevery gene is determined by the total situation in thecell. Therefore, the transfer of a single gene can notyield intended results and is inevitably unpredictable.

Insertion of transgene can lead to mutation, deletionand alterations of the genomic structure. All this canchange RNA, protein, enzymes and other countlessnatural products in the organism. To cite an example,

The gene of soybean glycinin was transferred intopotatoes with the aim to increase their protein content.However, the improvements in protein content oramino acid profile were minimal. In fact, the totalprotein content of the GM potatoes after the genetransfer became significantly less than that of thecontrol line. Even more unfortunately, the contentsof some vitamins were reduced while the amounts ofboth solanine and chaconine increased in the GM lines.In this light the claimed substantial equivalence ofthe GM and parent lines was not supported by thepublished results.15

As some of the changes are unpredictable and it isonly possible to compare the known properties andconstituents of GM and conventional plants.Unknown components are not looked for and in thatcase how can we analyse them?

Scientists have opined that just chemical analysis ofmacro/micronutrients and known toxins is at bestinadequate and, at worst, dangerous. Moresophisticated analytical methods need to be devised,such as mRNA fingerprinting, proteomics, secondarymetabolite profiling and other profiling techniques.

Do we have facilities for this kind of studies? Are theymandatory at present? How are we going to label it

42 mfc bulletin/April-July 2010safe without detailed investigations?

E. Horizontal Gene Transfer

The issue of Horizontal Gene Transfer (HGT) shouldnot be taken lightly.

There is evidence that relatively long fragments ofDNA survive for extended periods after ingestion.DNA may be detected in the faeces, the intestinal wall,peripheral white blood cells, liver, spleen and kidney,and the foreign DNA may be found integrated in therecipient genome. When pregnant animals were fedforeign DNA, fragments may be traced to small cellclusters in foetuses and newborns.16

In pigs fed GM and non-GM corn, transgene and genefragments were detected in the lower gastrointestinaltract (rectal and cecal).17 In chicks fed GM corn,antibiotic resistance marker gene was found in theirstomach.18 The transgene for a Bt corn line(the fulllength of the coding portion for Cry1AB) was foundin-tact in sheep rumen ( the first compartment of aruminant animal's stomach). The authors concluded,"DNA in maize grains persists for a significant timeand may, therefore, provide a source of transformingDNA (i.e. Horizontal gene transfer) in the rumen.19

The transfer of marker gene can lead to manyundesirable consequences not even thought of. Thereis a possibility of resistance to antibiotic Kanamycindue to HGT. Kanamycin is currently used in manyinfectious diseases and is a second line treatment fortuberculosis (TB). Drug resistant TB is a major publichealth problem in India. What will happen if we losean important second line drug?

F. Studying Effects of GM Food on par withPharmaceuticals, Monitoring and RegulationIssues

In view of the above unpredictability of GM foodswe contend that GM Foods, including Bt Brinjals needto be treated on par with medicines - for approval andregulatory purposes. At a genetic level there is nodifference between a genetically modified food andmedicine. Therefore the same level of precautionswhich are taken for pharmaceuticals need to be takenfor GM Foods and Bt Brinjal in this instance.

Trials on three mammalian species - the norm for GMfoods - need to be done before human trials first toestablish safety of the food followed by .Phase 1, 2,3 and 4 (post-marketing surveillance studies) trialson human beings.

Postmarketing trials - or monitoring for adverse effects- is going to be really difficult, if not impossible. India'srecord of adverse drug reaction monitoring of drugs

is next to nothing. Pharmacovigilance exists in nameonly. Indeed, that puts in doubt any viability andeffectiveness of any regulatory mechanism for BtBrinjals and GM foods in general, considering alsothe impossibility of labelling in a diverse market ina country that exists at several levels of poverty andilliteracy at the same time.

With possibility of lateral contamination of Bt geneswithin and across species, damage across populationsand markets is going to be practically irreversible -a fact complicated by absence of gene and seed banksof varieties of non-GM foods. Lateral contaminationalso effectively destroys choice for the consumer whodoes not want to consume Bt Brinjal.

Pharmaceuticals are consumed mostly at times ofdisease by affected sections of populations. It has beendifficult to ensure sale only on prescription across the400,000 retail pharmacy outlets in India leadingpossibly to all kinds of drug resistance problems andadverse drug reactions. Bt Brinjals and GM vegetableswould be consumed by entire populations across thecountry, especially in the absence of clear choice. Ourgovernance, adverse drug reaction monitoring andregulatory problems in pharma have barely beensolved, if at all - how do we expect to solve the samefor an item of daily consumption like brinjals acrosspopulations, in the event of monitoring adverse effectsof Bt Brinjal.

G. Methodological Inadequacies in the StudyDesign

Several international experts have pointed out seriousinadequacies with the methodology and study designin the toxicological study for BT Brinjal conductedby Mahyco.

Experts have observed that "the interpretation ofresults sponsored by Mahyco is not scientificallyacceptable" and hence consumption of BT Brinjal cannot be considered safe.20,21

The first independent, critical analysis of the datagenerated by the company had been done by Prof Eric-Gilles Seralini who is the President of the ScientificCouncil of the Committee for Independent Researchand Information on Genetic Engineering (CRIIGEN)and who had been in the French GMO RegulatoryCommission. He has concluded, "the two main organsof detoxification, liver and kidney, have beendisturbed in this study"22

How can we consider Bt Brinjal as "safe for humanconsumption" when there are serious inadequaciesin the study design itself and all the studies claimingsafety of the product are either done or sponsored

mfc bulletin/April-July 2010 43by the same company?

H. On Acceptance of Mahyco Data Submittedby M/s Mahyco

The response of the EC 2 is that this is in line withthe "practices for data generation are in line with thenational and international norms followed in case ofother products such as pharmaceuticals."

These so-called practices in the pharmaceutical sectorhave been questioned for the last 10 years. Theexperience of Merck's hiding unfavourable data withrespect to Rofecoxib (subsequently withdrawn by thecompany and/or banned in several countries), theselective publication of data including an entire fakejournal by, again, Merck, the almost complete absenceof published data on unsuccessful clinical trials, etc.-these and several others have been routinelyquestioned.

[See for instance: 1) Hopewell S, Loudon K, Clarke MJ,Oxman AD, Dickersin K. Publication bias in clinical trialsdue to statistical significance or direction of trial results.Cochrane Database of Systematic Reviews 2009, Issue1. Art. No.: MR000006. DOI: 10.1002/14651858.MR000006.pub3. 2) See for instance: ErickH Turner, Annette M Matthews, Eftihia Linardatos,Robert A Tell, Robert Rosenthal. "Selective Publicationof Antidepressant Trials and Its Influence on ApparentEfficacy." The New England Journal of Medicine. Boston:Jan 17, 2008. Vol. 358, Iss. 3; pg. 252.]

The GEAC therefore needs to do better than that interms of blindly relying on company produced datafor large scale policy decisions. One may add herethat the ethical record of parent company Monsantodoes not inspire confidence in their neutrality. Mostof the GLP procedures are not capable of detectingfraud or wilful manipulation or even ensure theabsence of the same.

I. Conflict of Interest - at Several Levels

According to the website http://www.indiagminfo.org/, the following are the new facts emerging on theExpert Committee which recommended Bt Brinjal forclearance (EC2 or Expert Committee II):

The Chairperson, Prof Arjula Reddy, confessesto coming under pressure from "AgricultureMinister, GEAC and the industry" to approveBt Brinjal (Attached report has Dr PushpaBhargava's statement on a telephonicconversation that Prof Reddy had to this effectwith Dr Bhargava, the Supreme Court observer

to GEAC, the apex regulatory body in India)

The Member-Secretary, Review Committee onGenetic Manipulation (RCGM in the DBT), DrK K Tripathi has a Central Vigilance Commissioncomplaint pending against him for exercisingundue discretionary powers to promote interestsof companies of his choice (Mahyco, in thisinstance) and harm others. He sat in the ExpertCommittee which was considering Mahyco'sapplication, while the CVC complaint was stillbeing examined!

At least two Bt Brinjal developers in the ExpertCommittee bring in conflicting interests. Oneof them is part of the Consortium project thatis developing Bt Brinjal in India with Americanaid!

At least two members sat in the ExpertCommittee, reviewing their institutions' ownfindings on Bt Brinjal biosafety!

At least two members who were expresslyrepresenting the Union Health Ministry sat asobservers in the Expert Committee withoutproviding any inputs into the EC2 process.

Further, the GEAC deviated from the agreedmandate for the Expert Committee, as minutedin its January meeting minutes, to set up a newmandate that allowed the EC2 to recommendBt Brinjal for cultivation. The Expert Committeewas also privy to some data that was never putout in the public domain for independentscrutiny and analysis but which was used fordecision-making.

This represents a huge conflict of interest andcompromises the recommendations of the report. Alsoin the interests of transparency, the Government needsto come clean on the data accessed by the Committeeand that was not put out in the public domain.

J. Recommendation by American Academy ofEnvironmental Medicine

The American Academy of Environmental Medicineafter reviewing the literature, has noted that GM foodshave not been properly tested for human consumption,and because there is ample evidence of probable harm,it recommends the public to avoid GM foods whenpossible and asks the members to provide educationalmaterials concerning GM foods and health risks. Ithas also asks for a moratorium on GM food andimplementation of immediate long term independentsafety testing and labelling of GM foods, which isnecessary for the health and safety of consumers.23

44 mfc bulletin/April-July 2010References

1. Velimirov A, Binter C, Zentek J, "Biologicaleffects of transgenic maize NK603xMON810 fedin long term reproduction studies in mice".November 2008 ISBN 978-3-902611-24-6

2. Finamore A et al. "Intestinal and Peripheralimmune response to MON810 maize ingestionin weaning and old mice". J. Agr. Food Chem.56(23), 11533-11539 (2008)

3. Joël Spiroux de Vendômois et al., "A Comparisonof the Effects of Three GM Corn Varieties onMammalian Health", International Journal ofBiological Sciences 5(7):706-726 (2009)

4. Fares NH, El?Sayed AK, "Fine StructuralChanges in the Ileum of Mice Fed on EndotoxinTreated Potatoes and Transgenic Potatoes,"Natural Toxins 6(6): 219-233 (1998)

5. Malatesta M et al., "Ultrastructural,morphometrical and immunocytochemicalanalyses of hepatocyte nuclei from mice fed ongenetically modified soybean", Cell Structureand Function 27:173-180 (2002)

6. M. Malatesta et al. "Fine structural analyses ofpancreatic acinar cell nuclei from mice fed ongenetically modified soybean". EuropeanJournal of Histochemistry 47(4): 385-388 (2003)

7. Burns JM, "13?Week Dietary SubchronicComparison Study with MON 863 Corn in RatsPreceded by a 1?Week Baseline FoodConsumption Determination with PMI CertifiedRodent Diet #5002," December 17, 2002 http://www.monsanto .com/monsanto /conten t /sci_tech/prod_safety/fullratstudy.pdf, see alsoStéphane Foucart, "Controversy Surrounds aGMO," Le Monde, 14 December 2004; andJeffrey M. Smith, "Genetically Modified CornStudy Reveals Health Damage and Cover?up,"Spilling the Beans, June 2005, http://www.seedsofdeception.com/Public/Newsletter/J u n e 0 5 G M C o r n H e a l t h D a n g e r E x p o s e d /index.cfm

8. Pusztai A, "Can science give us the tools forrecognizing possible health risks of GM food,"Nutrition and Health, 2002, Vol16 pp 73?84

9. Prescott VE, et al, "Transgenic expression of beanr?amylase inhibitor in peas results in alteredstructure and immunogenicity," Journal ofAgricultural Food Chemistry Vol. 53 No.23(2005)

10. Vázquez-Padrón RI et al. "Characterization of themucosal and systemic immune response inducedby Cry1Ac protein from Bacillus thuringiensisHD 73 in mice". Brazilian Journal of Medical andBiological Research 33: 147-155 (2000)

11. Green M et al., "Public health implications of the

microbial pesticide Bacillus thuringiensis: Anepidemiological study, Oregon, 1985-86". Amer.J. Public Health 80(7): 848-852 (1990)

12. Noble MA et al. Microbiological andepidemiological surveillance program tomonitor the health effects of Foray 48B BTKspray, Vancouver, B.C. Ministry of forests,Province of British Columbia, Sept 30,(1992)

13. I.L.Berbstein et al., "Immune responses in farmworkers after exposure to Bacillus thuringiensispesticides", Environmental Health Perspectives107(7): 575-582 (1999)

14. Gupta A et. al., "Impact of Bt Cotton on Farmers'Health (in Barwani and Dhar District of MadhyaPradesh)," Investigation Report, Oct-Dec 2005.

15. Mosenthin R, Zentek J and Zebrowska T (Eds.);"GMO in animal nutrition: potential benefits andrisks" in book "Biology of Nutrition in GrowingAnimals"; 2006 pp 513-540)

16. Traavik T and Heinemann J, "Geneticengineering and omitted health research: Still noanswers to aging questions", TWNBiotechnology and Biosafety Series 7, 2007)

17. Chaudhury et al. "Detection of geneticallymodified maize DNA fragments in the intestinalcontents of pigs fed StarLink CBH351", Vet HumToxicol. 45(2):95-6 (2003)

18. Chambers PA et al., "The fate of antibioticresistance marker genes in transgenic plant feedmaterial fed to chickens", J. Antimic. Chemothe.49: 161-164 (2000)

19. Paula S et al., "Fate of genetically modified maizeDNA in the oral cavity and rumen of sheep", BrJ Nutr. 89(2): 159-66 (2003)

20. Effects on health and environment of transgenic(or GM) Bt brinjal By Pr. Gilles-Eric SERALINI,University of Caen, France, and President of theScientific Council of the Committee forIndependent Research and Information onGenetic Engineering (CRIIGEN). January 2009.The critical review of Mahyco's data on Btbrinjal is commissioned by Greenpeace.

21. A review of Mahyco's GM Brinjal food safetystudies by Dr Judy Carman BSc (Hons) PhD MPHMPHAA. The Institute of Health andEnvironmental Research Inc. (IHER), January 2009

22. Seralini G-E et al. "New analysis of a rat feedingstudy with a genetically modified maize revealssigns of hepatorenal toxicity". Arch. Environ.Contam. Toxicol. 52, 596-602 (2007)

23. Statement by the Executive Committee of theAmerican Academy of Environmental Medicineon May 8, 2009, available on http://www.aaemonline.org/gmopost.html accessedon 18/01/2010

mfc bulletin/April-July 2010 45

As you are aware, there are many scientific and otherconcerns with regard to Genetically ModifiedOrganisms in our food and farming systems. Thenation-wide debate on Bt Brinjal has bought to thefore the fact that even the scientific world is quitedivided on this issue and there are quite a few socio-political, ethical, cultural and economic concerns toocentred around this technology. We have for a longtime now been asking for a statute which will haveits mandate as protecting Indians' health andenvironment from the risks of such technologies asGenetic Engineering. Rather than set up a NATIONALBIOSAFETY PROTECTION AUTHORITY with sucha mandate, the Department of Biotechnology, whichseeks to promote GM crops, is proposing to set upa Biotechnology Regulatory Authority of Indiathrough a Bill to be introduced in the Parliament inthe upcoming session. It is in this context that weseek your urgent attention and we request you toensure that this Bill does not get passes through theParliament. The following are the important andserious objections around this Bill.

1. WRONG BILL FOR REASONS: The Bill wantsto set up a single-window clearing house for GMcommercial applications and makes theprocessing of such applications as the mainpurpose of the Regulatory Authority. However,this very mandate is wrong and assumes that aninherently unsafe technology can be made safeby making the regulation effective and efficient!The main purpose of Biotechnology Regulationshould be to protect the health (human andanimal) and environment of India from the riskposed by modern biotechnology and itsapplications. Therefore, we need a NationalBiosafety Protection Authority.

2. OBJECTIONABLE CONFLICTING INTEREST,BEING UNDER MINISTRY OF SCIENCE &TECHNOLOGY: This so-called autonomousregulatory authority should NOT be housedunder the Ministry of Scientific & Technologyor more specifically within the Department ofBiotechnology (the draft Bill emerged from theDBT). This will be a major conflict of interestin itself and if it housed under this Ministry, themandate itself becomes questionable; it is notin any doubt that every legislation draws its

Introduction of Biotechnology Regulatory Authority of IndiaBill in the Coming Session - Serious Objections

mandate from the Ministry it is housed underand housing this under MoST is objectionableand does not fulfill the mandate of protectingthe health and environment of Indians. ThisAuthority should be under the Ministry ofEnvironment & Forests or under the Ministryof Health & Family Welfare.

3. OBJECTIONABLE OVER-RIDING POWER TOBE CONTAINED IN THIS BILL: This statuteproposes to take away from the Constitutionalauthority that state governments have over theirAgriculture and Health in the Indian federalstructure. The proposed Bill envisages only anadvisory role for the state governments in theform of State Biotechnology RegulatoryAdvisory Committees with no decision-makingpowers. This is simply not acceptable on at leasttwo counts: this ignores the constitutionalpowers that the state governments have overtheir Agriculture & Health; it also ignores andcould impinge on or override the somewhatprogressive legislations like BiotechnologicalDiversity Act, with a mandate also to conserveand sustainably use biological diversity withsome decentralized authority.

4. SETS IN PLACE OPAQUE AND COMMERCE-FRIENDLY FUNCTIONING RATHER THANTRANSPARENT, PRO-PEOPLE FUNC-TIONING: The legislation, instead of expresslyhaving clauses on information disclosure, thattoo before decision-making for independent orpublic scrutiny, has brought in clauses onretaining Confidential Commercial Information.This is only to protect business interests at theexpense of the best interests of common citizens.

5. DECISION-MAKING TO BE VESTED IN THEHANDS OF A FEW TECHNICAL EXPERTSWHEREAS THE ISSUE REQUIRES BROAD-BASED DECISION-MAKING: Final decision-making, especially in the case of environmentalrelease cannot be left to technical experts alonethe current Bill proposes a 3-member decision-making body of technical experts. It is proposedthat decision making on a subject like thisshould be vested in the hands of a broad-basedinter-ministerial body which also hasrepresentatives of consumers and farmers

46 mfc bulletin/April-July 2010

organizations.

6. NARROW RISK ASSESSMENT PROCEDURESNOT ACCEPTABLE & NO INDEPENDENTTESTING BEING ASKED FOR IN THE BILL:Risk assessment in the proposed Bill has beenleft narrowly to science based evaluation of theapplicant's data. This is completely inadequateand risk assessment should consist ofindependent testing too for cross-verification ofbiosafety data. Therefore, having independenttesting and analysis capabilities in the form ofrequired laboratories etc., need to be set up anddecision-making cannot be based on cropdeveloper's data alone.

7. NO RISK MANAGEMENT PLANS: Riskmanagement aspects like reviewing approvalsand permissions, time-bound permissions,clauses for revoking and cancellations ofapprovals etc., do not figure in the currentproposals, unfortunately and this makes the Billinadequate.

8. No environmental releases should be allowedbefore biosafety is conclusively proven. The Billremains silent on a crucial aspect like this,incorporated in legislations elsewhere.

9. REGULATION AND DECISION-MAKINGMADE ONLY INTO A TECHNICAL ISSUE: Theproposed legislation also makes modernbiotechnology regulation into only a technicalrisk assessment and risk management. Ti ignoresthe bottom line set out in the Task Force reporton Agri-Biotechnology and operationalising thesame. That is the reason why a broad-baseddecision-making body is essential.

10. NO MECHANISMS FOR PUBLICPARTICIPATION: The proposed legislation hasno clauses on public participation. TheCartagena Protocol on Biosafety (under theConvention on Biological Diversity) Article 23.2says that Parties shall consult the public indecision-making process regarding livingmodified organisms and India is a signatory tothis.

11. CLAUSES MEANT TO HARASS CIVILSOCIETY: Section (63) is completelyobjectionable and is meant to harass civil societygroups concerned about the application of thishazardous technology. This clause says:whoever, without any evidence or scientific

record misleads the public about safety of GMOsand products thereof shall be punished withimprisonment and fine!

12. LACK OF PROPER LIABILITY REGIME: Theliability clauses in this proposed legislation arevery weak. To begin with, there need not be anydistinction made between companies,universities, society, trust, governmentdepartments etc. the penal clauses should applyuniformly. Two, the legislation should haveexpress clauses on Redressal or Compensationand Remediation or Cleaning up. The legislationshould also have a clause that makes the cropdeveloper solely liable for nay leakage,contamination and so on throughout every stageof the product development cycle. Further, thepenalty of one year imprisonment and two lakhrupees fine is no deterrent and this should bemade more rigorous.

13. SHORTCOMINGS IN THE APPELLATETRIBUNAL PROVISIONS: Provisions related toBiotech Regulatory Appellate Tribunal: TheTribunal should be constituted in a more broadbased fashion. Further, no time bar for appealsshould be imposed. There should also be no baron who can appeal and it need not be justapplicants.

WHAT WE DEMAND INSTEAD IS A NATIONALBIOSAFETY PROTECTION AUTHORITY

Any regulatory regime around GMOs should have theprimary mandate of protecting health of people andthe environment from the risks of modernbiotechnology. Ti should necessarily have thefollowing components as cornerstones of thelegislation:

Precautionary Principle as the central guidingprinciple.

Going in for the GM option only in case otheralternatives are missing.

Separating out very clearly the phases ofcontained research and deliberate release anddistinct regulatory mechanism for both, in asequential fashion.

No conflicting interests to be allowed anywherein the regulation and decision-making.

Transparent functioning: information disclosureand public/independent scrutiny.

mfc bulletin/April-July 2010 47

Democratic functioning including publicparticipation - even here, data to be put out inthe public domain and public participationincluded before the decision-making processand not just informing after a decision is made.

Risk assessment- (a) prescribing rigorous,scientific protocols and asking the cropdeveloper to take up studies and then doindependent analysis of the dossier supplied bythe crop developer and evaluate/review of thesame; (b) to also take up independent testingby having all facilities and institutionalstructures in place for the same and evaluatingthe results.

Risk management- including monitoring,reviewing, revoking of approvals.

Liability - including penal clauses, redressal andremediation.

Labeling regime for informed choices this coverstraceability an identity preservationrequirements.

Oversight and appellate mechanisms.

In the case of India, given that it is a federalstructure and given that Agriculture is a statesubject, special clauses which allow the stategovernments to form their own regulatorysystems and mechanisms.

On-going Post Market monitoring of every GMcrop.

Further, the law should be governed by principles likePopular Pays, Inter-generational equity (a keyprinciple in environmental jurisprudence now which

covers conservation of options, conservation of qualityand conservation of access, for present and futuregenerations) etc.

In countries like Norway, the law also ahs provisionsto answer questions like "Is this ethically and sociallyjustifiable?" before a GMO is cleared. That wouldautomatically include socio-economic and ethicalconcerns within the regulatory regime.

It is worthwhile to remember here that the need foran independent credible regulatory regime wasarticulated by the 2004 Task Force Report onAgricultural Biotechnology and this report clearlypointed out that the following should be the bottomline for any biotechnology regulatory policy: thesafety of the environment, the well being of farmingfamilies, the ecological and economic sustainabilityof farming systems, the health and nutrition securityof consumers, safeguarding of home and external tradeand the biosecurity of the nation. These importantaspects or cornerstones do not find place in theproposed Bill sought to be introduced.

We therefore urge you to reject the BIOTECHNOLOGYREGULATORY AUTHORITY OF INDIA Bill beingproposed by the Department of Biotechnology/Ministry of Science & Technology, it is a wrong Billdrafted by the wrong people for the wrong reasons.Instead, we urge you to collectively enact aNATIONAL BIOSAFETY PROTECTIONAUTHORITY Act in India, under the Ministry ofEnvironment & Forests or Ministry of Health & FamilyWelfare, keeping in mind the sustainable developmentinterests of all Indians.

(Text of letter to Parliamentary Standing Committee)

MFC Annual MeetTheme

Towards Achieving UniversalAccess to Health Care

Dates

January 7-9, 2011

Venue

Nagpur

ARE YOU AN ETHICS COMMITTEE MEMBEROR INTERESTED IN THE FUNCTIONING OF

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This group is an online e-forum for ethics committeesin India to exchange experiences, network and identifysolutions for commonly encountered problems or concernsin the functioning of ethics committees. This group ismoderated and membership requests need to be referredby existing members or sent to the moderator(dranantbhan@gmail.com) with a note explaining thereason for interest in joining the forum and affiliation.

48 mfc bulletin/April-July 2010

Editorial Committee: Anant Bhan, Dhruv Mankad, Mira Sadgopal, C. Sathyamala, Sukanya, Sathyashree, ‘Chinu’ Srinivasan.Editorial Office: c/o, LOCOST, 1st Floor, Premananda Sahitya Bhavan, Dandia Bazar, Vadodara 390 001. Email:sahajbrc@youtele.com. Ph: 0265 234 0223/233 3438. Edited & Published by: S.Srinivasan for Medico Friend Circle,11 Archana Apartments, 163 Solapur Road, Hadapsar, Pune 411 028.

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ContentsSurvivors of the Bhopal Gas Disaster - Vinod Raina 1

Letter to President Obama 4

Bhopal was Inevitable - Dhruv Mankad 5

Bhopal Gas Victims Used as Guinea Pigs 7

Causes of Bhopal Disaster Analyzed - Davis Smith 8

Nariman, pay your dues to Bhopal before memory fades 9

Bhopal Misses Recompense Law - Samanwaya Rautray 10

Bhopal Survivors' Letter to GOM 11

Press Statement from Bhopal Survivors on GOM Recommendations 13

Bhopal and the U.S. Courts - H. Rajan Sharma 14

Clouds of Injustice Bhopal Disaster 20 Years on 19

Opinion of Arun Jaitley 24

Opinion of Abhishek Singhvi 27

Letter from Dow Chemicals to Govt. of India 30

Addictive Policies of the Maharashtra Government - Sagar Atre 32

Plight of the ASHA in NRHM - Shyam Ashtekar 35

Protest against EU-India FTA 36

Adivasi Samrakshana Sangham & Plachimada Struggle Solidarity Committee 38

Letter of Concerned Health Professionals for Biosafety in Food 39

Biotechnology Regulatory Authority of India-Serious Objections 45

to Manisha Gupte, 11 Archana Apartments, 163Solapur Road, Hadapsar, Pune - 411028. (Pleaseadd Rs. 15/- for outstation cheques). email:masum@vsnl.comMFC ConvenerConvening Group: Premdas, Sukanya & RakhalContact Person: Rakhal - +91 9940246089c/o Community Health Cell, No. 31 PrakasamStreet, T. Nagar, Chennai 600 017Email: <rakhal.gaitonde@gmail.com>MFC website:<http://www.mfcindia.org>