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The Bhopal Catastrophe

22 July 2010 30,376 views One Comment

Politics, Conspiracy and Betrayal

Despite the Union Carbide Corporation (UCC) being criminally liable for the Bhopal catastrophe, the government, though being the sole representative of the victims, colluded with the UCC and compromised the interests of the affected people. The UCC and its Indian subsidiary, the Union of India and the state of Madhya Pradesh made sure that the victims would not obtain compensation comparable to the damages awarded in similar mass tort actions in the United States. Moreover, even with the re-institution of criminal liability, the UCC accused have been allowed to evade prosecution. The trial court in Bhopal had no option but to hand down a sentence, equivalent to what is given for causing death by negligence in a traffic accident! Bhopal has hastened the decline in the standards of judicial decisions on the environment more than any other case, writes senior advocate Colin Gonsalves

The paltry payments made to the victims, the escape of the chairman of the Union Carbide Corporation (UCC), Warren Anderson on a government plane, the neglect of the babies born subsequently with terrible deformities and ailments, the inability of the state to clean the contaminated soil, the petty sentences rendered and the 26 long years in the trial court, all seem separate instances which, though regrettable, are treated as issues of governance and not one of politics, conspiracy and betrayal. Let us not look at the past, we are advised, let us look to the future to ensure that such an incident does not take place again. But unless we understand the treachery of the past, it is impossible to change things for the future.

Indira Gandhi’s death and the appointment of Rajiv Gandhi as Prime Minister of India marked the end of the era of the Indian version of social democracy started by Jawaharlal Nehru and the beginning of American-style globalisation. Rajiv Gandhi started off well with Ronald Reagan, the then President of United States. It is said that the understanding between these two leaders ultimately led to the pitiable settlement being agreed to by India, the quashing of all criminal liability and the removal of Anderson from Indian soil. The then Madhya Pradesh Chief Minister, Arjun Singh, naturally, will be made the scapegoat as if decisions of this magnitude could be taken without the prime minister’s approval.

In the power play of globalised politics, all this is understandable, though it may make us angry. But the inability of the Supreme Court of India to stand firm and side with the people of India against UCC and the government of the United States of America (USA) left many Indians confused and frustrated. The long line of decisions starting from 1989 ultimately left them bitter.

It was in the interests of the victims to have the cases tried in the US where substantial damage would have been awarded. In the Exxon Valdez oil spill case, where no one died, $507 million was awarded. In the Vioxx drug case, where 47,000 consumers suffered heart attacks, strokes or death, $4.85 billion was paid on an average of $103,000 per plaintiff. In asbestos litigation, jury verdicts range anywhere from $1 million to $20 million in compensation per person. In the Lockerbie bombing case, Libya paid $2.7 billion or $10 million per family.

Legal luminaries flocking to represent Dow Chemical was understandable. Nani Palkhivala made a strenuous attempt by filing affidavits in the US courts to have the litigation brought to India. The then Attorney General, Soli Sorabjee, argued against giving the victims a hearing and justified the quashing of criminal proceedings. What was inexplicable was the attitude of the judiciary. In February 1989, in a cryptic three-page order containing no reasons, the Supreme Court accepted the settlement of $470 million as “just, equitable and reasonable” and quashed all criminal proceedings. In May, reasons were given as an afterthought. Chief Justice RS Pathak then resigned on being nominated by India to the World Court at The Hague. After indignant protests in the country, in 1991, the Supreme Court reinstated the criminal proceedings. In 1996, in a decision likely to have far-reaching consequences, the Supreme Court quashed the charges of culpable homicide not amounting to murder and voluntarily causing grievous hurt and introduced the criminal negligence charge carrying a maximum sentence of two years. The hands of the trial court were tied. It is now up to the present Chief Justice of India to right this historic wrong.

Background

On the night of December 2, 1984, there was a massive leak of methyl isocyanate (MIC), a highly toxic gas which resulted in the death of 20,000 persons and disablement of more than 2,00,000 persons.1 The gas affected not only those living but even the generations that came thereafter. As a result of a high-level conspiracy between UCC, the US government, the Union Government of India and government of the state of Madhya Pradesh, Warren Anderson was secretively taken away from Bhopal on a government plane and allowed to leave the country.

Thereafter, 3,500 cases were filed by victims claiming damages of a total of $150 billion. These claims were made on the pleading that the UCC Corporate Policy Manual, testimonies available and documents gathered demonstrated “pervasive decision-making presence of UCC in all vital matters relating to the location of the plant, the designing of the plant, the production and storage of ultra hazardous substances, toxic chemicals and gases, the designing of safety systems and the monitoring of accidents review of the operational safety systems”.2

Later, Morehouse and Subramanian did a sophisticated analysis of compensation and rehabilitation costs and worked these out to about $4 billion.3

Litigation in America

The Union of India filed a suit on  April 8, 1985 in the US District Court (Southern District of New York) against UCC for compensation and punitive damages. Earlier, on February 20, 1985, Parliament enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 purporting to speedily, effectively and equitable securing all claims arising out of the Bhopal gas leak.

UCC then filed a motion to dismiss the Union of India’s suit pursuant to the doctrine of forum non conveniens. In this Nani Palkhivala filed an affidavit in the American Court saying that the Indian courts were competent to effectively handle tort litigation of this magnitude. Marc Galanter, a leading US scholar on the Indian legal system, filed an affidavit to the contrary. Palkhivala was wrong then and was proved wrong by subsequent developments in the Indian courts. Marc Galanter’s stand was vindicated. Palkhivala said that there was “no doubt that the Indian judicial system can fairly and satisfactorily handle the Bhopal litigation”.4 “The charge of inordinate delays” he said, “is wholly inapt and inapplicable as regards the Bhopal case”.5 He was confident that “the unprecedented Bhopal case will receive unprecedented treatment in India”.6 He ended with a demeaning and degrading observation that the “$9.5 billion which I believe represents that total aid given by the US to the Indian Republic over the last 35 years is exceeded by the aggregate claims made on behalf of the Bhopal victims”.7

Marc Galanter argued in his affidavit8 that India “has only incompletely emerged from the heritage of colonial rule…the Indian system is characterised by massive backlogs of cases and enormous delays… (which) can be considered a permanent feature of the Indian system…tort law in India is undeveloped…(and of the few tort cases) none deal with the problems arising from complex technologies…the Bar in India does not presently possess the pool of skills, the fund of experience or the organisational capacity to effectively and efficiently pursue massive and complex litigation…and the Indian legal system contains a paucity of devices to promote timely resolution of complex cases.”

On May 12, 1986 federal Judge John F Keenan allowed the application of UCC but imposed three conditions:

(1) That UCC shall consent to the jurisdiction of the courts of India and shall continue to waive defences based on the statute of limitation;

(2) That UCC shall agree to satisfy any judgement rendered by an Indian Court against it and if applicable, upheld on appeal, provided the judgement and affirmance “comport with minimal requirements of due process”; and

(3) That UCC shall be subject to discovery under the Federal Rules of Civil Procedure of the US after appropriate demand by the plaintiffs.

UCC filed an appeal before the US Court of Appeal for the Second Circuit, and the Appellate Court set aside the second and third condition.

In the Bhopal district court

In the meanwhile, on September  5, 1986, Union of India filed a suit for damages in the district court of Bhopal being regular suit no 1113 of 1986. In that suit, UCC gave an undertaking to preserve and maintain unencumbered assets to the extent of $3 billion. Pursuant to this undertaking, the district court lifted the injunction against UCC’s selling assets. This perhaps was a mistake we will come to regret. On December 17, 1987, the district court ordered interim relief of Rs 350 crore. This was reduced by the high court on April 4, 1988 to 250 crore.

In the meanwhile a charge sheet was filed under Sections 304, 324, 326, 429 read with Section 35 of the Indian Penal Code (IPC) against Warren Anderson and others.

SC and the victims

On February 5, 1989, in a cryptic three-page order containing no reasons at all, a constitutional bench of the Supreme Court of India, headed by the then Chief Justice RS Pathak quashed “all criminal proceedings related to and arising out of the disaster”. Without any discussion on the “mass of data” placed before the Supreme Court and the extensive pleadings filed by the parties, the Supreme Court abruptly closed the case with the observation: “we are of the opinion that the case is pre-eminently fit for an overall settlement between the parties covering all litigations, claims, rights and liabilities related to and arising out of the disaster”. The Supreme Court found the settlement sum of $470 million “just, equitable and reasonable”.9

A couple of months later, the Supreme Court woke up to the need to provide reasons for its rather dismal decision. On May 4, 1989, reasons were set out in a separate decision.10 It was “the compelling need for urgent relief” which prompted the Court to make the initial order; UCC, through counsel, offered $350 million. “Shri Nariman stated that his client was of the view that the amount was the highest it could be up to”. The Attorney General of India “submitted that any sum less than 500 million US dollars could not be reasonable”. The victims were excluded from these proceedings. In this casual, perfunctory manner, the final compensation package was decided. It may be remembered that in the Exxon Valdez oil spill case, the jury awarded $2.5 billion which was later reduced by the Supreme Court of the US to $507 million. Moreover, no one died in this case. Perhaps more comparable is the 2008 Merck & Co Inc case which settled claims by 47,000 consumers who suffered heart attacks, strokes, or death from using the pharmaceutical product Vioxx. The company agreed to pay $4.85 billion, representing an average of $1,03,000 per plaintiff.

An even larger public health disaster in the US has been the use of asbestos as an insulation material. Asbestos exposure has been proven to cause mesothelioma, a rare and  deadly form of lung cancer. In asbestos litigation, jury verdicts can range anywhere from $1 million to $20 million in compensation per plaintiff. However, where a settlement is reached, these amounts are substantially lower. Legal analysts have estimated that asbestos litigation in the US has cost over $250 billion and has involved more than 7,30,000 plaintiffs.

The 1988 bombing of Pan Am Flight 103, or “the Lockerbie bombing”, is another example of a large class action settlement. In a private agreement reached in May 2002, Libya committed to pay approximately $2.7 billion to resolve wrongful death claims by the families of those killed, representing $10 million per family.

Sadly, there is no reference in the Supreme Court order to any international norm or standard or practice regarding damages, paid in similar or comparable circumstances. The calculations done by the Supreme Court show that it compared the Bhopal disaster with motor accident cases. “It is well known”, said the Supreme Court, “that in fatal accident actions where children are concerned, the compensation awardable is in conventional sums ranging from Rs 15,000 to Rs 30,000 ($500 in 1989).”

The Court then awarded Rs 2 lakh ($4,000) in each case of death and total permanent disability and Rs 1 lakh ($2,000) in each case of permanent partial disablement. This judgement ends prophetically with the sentence “those who trust this Court will not have cause for despair”.11

Apart from the paltry amounts awarded, the hurtful part of the decision was the quashing of all criminal cases.

The ‘Constitutional’ Act

On December 22, 1989 the constitutional bench of the Supreme Court in Charanlal Sahoo vs Union of India12 looked into whether the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 and the Bhopal Gas Leak Disaster (Registering and Processing of Claims) Scheme, 1985 were constitutionally valid. The Court decided to look into whether “the act has been worked in any improper way”.13 The Supreme Court upheld the right of the union government to be the sole representative of the victims even to the exclusion of the victims themselves. Reference was made to the parens patriae doctrine which obliges the state to protect its citizens. But the Court failed to recognise that the Union of India was, on the contrary, colluding with UCC and compromising the interests of the victims. After observing that “if the victims had been given an opportunity to be heard, they would, inter alia, have pointed out that the amount agreed to be paid by UCC was hopelessly inadequate and that UCC, its officers and agents ought not to be absolved of criminal liability, and that the central government itself was liable to have been sued as a joint tort-feasor”,14 the Supreme Court inexcusably upheld the exclusion of the victims, on the specious argument that “no useful purpose would be served by giving a post decisional hearing…having regard to the fact that there are no further additional data and facts available with the victims which can be profitably and meaningfully presented to controvert the basis of the settlement.”15 This was entirely incorrect because as revealed subsequently, there was a gross underestimation of the number of deaths and injuries and the lasting nature of the ill effects of the gas leak on individuals, livestock and the environment. Therefore, said the Supreme Court: “though settlement without notice is not quite proper to do a great right after all it is permissible sometimes to do a little wrong”.16

To meet the argument repeatedly made that the Union of India was a joint tortfeasor as, inter alia, its agency and instrumentalities (the Life Insurance Corporation and others were shareholders in Union Carbide of India Ltd – UCIL), and that the plant was permitted to operate by the Indian authorities close to a heavily populated area, the Supreme Court brushed aside these objections holding that “the circumstances that financial institutions held shares in the UCIL would not disqualify the Government of India from acting as parens patriae”.17 The Supreme Court recognised that “perhaps, theoretically, it might have been possible to constitute another independent statutory body…entrusted with the task of agitating or establishing the same claims”.18 The Court observed that “the question whether there is scope for the Union of India being responsible or liable as a joint tortfeasor is a difficult and different question. But even assuming that it was possible that the central government might be liable in a case of this nature, the learned attorney general was right in contending that it was only proper that the central government should be able and authorised to represent the victims.”19

The then Attorney General, Soli Sorabjee, made a series of unfortunate submissions, urging “that the allegation that a large number of victims did not give consent to the settlement entered into, is really of no relevance…”20 Hearing the parties after the settlements would also not serve any purpose…21 “Quashing of criminal proceedings was done by the Court in exercise of plenary powers under articles 136 and 142 of the Constitution.”22

On the quantum of damages, though the Supreme Court recognised “that the measure of compensation in these kinds of cases must be correlated to the magnitude and capacity of the enterprise…not on the basis of actual consequences suffered … because such compensation must have a deterrent effect”,23 nevertheless the Court concluded “we are of the opinion that justice has been done to the victims”.24

The majority decision ended on an ominous note with the Supreme Court referring to “the atmosphere that was created in the country”. “Attempts were made”, said the Supreme Court, “to shake the confidence of the people in the judicial process and also to undermine the credibility of this Court. This was unfortunate… the credibility of the judiciary is as important as the alleviation of the suffering of the victims…we hope these adjudications will restore that credibility”.25

In a separate concurring decision, justice KN Singh warned that “if the act was declared unconstitutional, the settlement under which the UCC has already deposited a sum of Rs 750 crore…would fall and the amount of money which is already in deposit with the registry of this Court would not be available for relief to the victims.”26 This was a patently wrong conclusion. Even if the settlement was set aside, it was open to the Supreme Court to impound the amount deposited by a way of interim payment for the victims. The whole tenor of this decision suggests an unwarranted helplessness on the part of the Supreme Court, firstly, because “it is difficult to foresee any reasonable possibility of the acceptance of…the observations made by this Court in MC Mehta’s case27 (according to which damages) would be much more than normal damages… (and) must be computed on the basis of the capacity of a delinquent made liable to pay.”28 A second unwarranted observation was made to the effect that if the government did not assume monopoly of the litigation the victims would be helpless to proceed. “Because of the situation” said the Supreme Court, “the victims were under disability in pursuing their claims”. Thus, the tenor of all the Supreme Court judgements is to the effect that the Government of India and the judiciary were doing the victims a favour by acting on their behalf in the manner in which they did.

The notion that the victims were incapable of acting on their own was wrong then, and, with the rich experience of history, has been proved totally wrong even today. Many non-governmental organisations (NGOs) gathered around, collecting extensive data which the state of Madhya Pradesh and Union of India refused to look at. Many lawyers both in India and America offered their services pro bono to support the victims. Suits were meticulously drafted and had they been allowed to proceed evidence would have been elaborately led to establish the claims of the victims against UCC, UCIL, Union of India and state of Madhya Pradesh. All that the Supreme Court had to do was to ensure that the cases proceeded on a fast track and that all technical impediments and objections were brushed aside. Instead of this the State of Madhya Pradesh, the Union of India, Union Carbide and the government of US entered into unholy alliance to undermine and sabotage the efforts of the victims to obtain compensation comparable to the damages awarded in similar mass tort actions in the US and to have the accused prosecuted speedily in India. Instead of seeing through this unholy alliance, the Supreme Court let down the people of Bhopal by clearing a settlement that was patently paltry and by allowing the litigation in the trial court to drag on for 26 years. Returning to the concurring but separate decision of justice KN Singh, a pious sermon on the role of multinational and transnational corporations follows. “Multinational companies in many cases exploited the underdeveloped nations and in some cases they influenced political and economical policies of host countries which subverted the sovereignty of those countries. There have been complaints against the multinationals for adopting unfair and corrupt means to advance their interests in the host countries.”29 Referring to the UN Code of Conduct on Transnational Corporations, justice KN Singh held that “a transnational corporation should be made liable and subservient to laws of our country and the liability should not be restricted to the affiliate company only but the parent corporation should also be made liable for any damage caused to the human beings or ecology. The law must require transnational corporations to agree to pay such damages as may be determined by the statutory agencies and forums constituted under it without exposing the victims to long drawn litigation”.30

Justices S Ranganathan and AM Ahmadi made a separate decision partly dissenting regretting that the Supreme Court had put an end to all litigation without first considering the issue of validity of the statute. The court found it “unfortunate”31 that though the writ petitions impugning the act were pending before the Supreme Court these petitions were not decided and the settlement was approved and all the litigation closed in the 1989 decisions of the Supreme Court.

The court then found itself “in somewhat of a predicament32 as it has to pronounce on the validity of the provisions of the Act in the context of the implementation of its provisions in a particular manner and, though we cannot express any views regarding the merits of the settlement, we are asked to consider whether said settlement can be consistent with a correct and proper interpretation of the Act”.33

Then in a startling display of unawareness of the principles of natural justice, particularly in the context of mass tort actions, justices Ranganathan and Ahmadi compared the situation to a Karta of a Hindu undivided family. The Union of India in its parens patriae position qua the victims was similar to that of a Karta qua the junior members of a family who “are not to be consulted before entering into a settlement!”

Scolding the victims

The two judges then went on to berate the victims and their supporters for being “apparently not alert enough to keep a watching brief in the Supreme Court”.34 Despite the vehement protests repeatedly made regarding the paltry amount of the settlement, which were carried in the national media, the two judges assert: “no attempt appears to have been made to put forward a contention that the amount of settlement was inadequate”!35 Then comes the most startling statement that “there was a day’s interval between the enunciation of the terms of the settlement and their approval by the Court.”36 By this the Court meant that 24 hours after the disclosure of the terms of the settlement was adequate for persons to protest and the approval given by the Court a day after the disclosure of the settlements was justified.

All in all, a reading of the majority decisions and the two minority decisions show how out of touch the Supreme Court was with the suffering, grievances and demands of the victims and how the Court proceeded quite regardless of the views expressed on behalf of the victim families.

Restoring the criminal cases

Once again “a hue and cry was raised against the settlement by victim groups”.37 “Considerable heat was generated throughout the Court hearing and the press was also none too kind on this to Court”.38 A series of review petitions were filed in the Supreme Court once again seeking a “Fairness Hearing”, inclusion of additional victims in the list of persons to be compensated, higher compensation amounts and the restoration of the criminal cases. The Supreme Court noticed the pleadings to the effect that the “toll of lives has since gone up to around 4,000 and the health of tens of thousands has come to be affected and impaired… though it was initially assumed that MIC caused merely simple and short-term injuries…it has now been found by medical research that injury… is to the entire system including nephrological lymphs, immune and circulatory systems… and has mutagenic effects and that the injury… is progressive… Indeed the effects of exposure of the human system to this toxic chemical have not been fully grasped. Research studies seem to suggest that exposure to these chemical fumes renders the human physiology susceptible to long-term pathology and the toxin is suspected to lodge itself in the tissues and cause long-term damage to the vital systems… The potential risk of long term effects is presently unpredictable.”39 Despite this the Court concluded that “as of now, medical documentation discloses that there is no conclusive evidence to establish a causal link between cancer incidence and MIC exposure”.40

The Court then noticed the pleadings in the review petitions to the effect that UCC, holding 50.9 shares in UCIL, “retained and exercised powers of effective control over its Indian subsidiary in terms of its corporate policy”.41 The plea was that UCC established and maintained the Bhopal chemical plant “with defective and inadequate safety standards which compared with designs of UCC’s American plants, manifested an indifference and disregard for human safety”.42 Despite this, the Court warned that the settlement ought to be accepted as “we should not proceed on the premise that the liability of UCC has been firmly established”.43 Thus the whole approach of the Court was pessimistic and diffident. The Court appeared unsure as to the liability of the UCC and the connected inability of UCIL to pay substantial damages.

The positive aspect of this decision was the direction to restore the criminal prosecution in the following terms:

we hold that no specific ground for withdrawal of the prosecutions having been set out the quashing of the prosecutions requires to be set aside…The memorandum of settlement… leaves no manner of doubt that a part of the consideration for the payment of $470 million was the stifling of the prosecution and, therefore, unlawful and opposed to public policy.

Then the Court rejected the “Fairness Hearing” argument as well as the argument that the settlement was vitiated because it did not contain a “re-opener” clause to take into consideration those injuries that were not anticipated earlier. This conclusion came after the Court admitted that:

what was transacted with the Court’s assistance between the Union of India on one side and the UCC on the other is now sought to be made binding on the tens of thousands of innocent victims who had a right to be heard before the settlement could be reached or approved…Any paternalistic condescension that what has been done is after all for their own good is out of place.44

Dealing with the argument that, if the settlement were to be set aside, the money deposited would have to be returned to UCC, the Supreme Court held that while this may be true, UCC would be required to abide by the earlier interim order requiring UCC to maintain unencumbered assets of the value of $3 billion during the pendency of this suit. The Supreme Court also directed the Union of India to stand guarantee to make up the deficit in case the settlement sum deposited proved for any reason to be inadequate.

Justice Ahmadi wrote a dissenting judgement. “I find it difficult to persuade myself to the view that if the settlement fund is found to be insufficient, the shortfall must be made good by the Union of India”.45

In May 1996, a public interest petition was filed in the Supreme Court on behalf of the victims complaining that from 1994 onwards instructions were issued to the deputy commissioners adjudicating claims not to continue with the adjudication and to direct all claimants to go to the Lok Adalats. The grievance was made that since adjudication has come to a grinding halt the victims were compelled to go to the Lok Adalats where “payments were restricted to the bare minimum of Rs 25,000 in a large number of cases.”46

Quashing the charges

In September 1996, a Bench of the Supreme Court quashed the charges against the accused persons47 overriding the submissions of the Additional Solicitor General appearing for the Union of India who submitted that “there was ample material produced by the prosecution which clearly indicated that all the accused concerned shared common criminal knowledge about the potential danger of escape of the lethal gas”.48 Such was also the finding of the Vardarajan Committee, which was appointed by the Government of India to look into the causes of the accident. The evidence on record showed:

that these accused even though stationed at Bombay shared the criminal knowledge of the other personnel of the company who were actually handling the Bhopal plant… had criminal knowledge regarding the defective working of the plant and…were no longer interested in its safe keeping…(so that) no remedial steps were taken.49

Without going into the extensive evidence on record pointing in the direction of criminal culpability the Supreme Court quashed charges under 304 Part II (culpable homicide not amounting to murder which is attracted if the act done is with the knowledge that it is likely to cause death but without any intension to cause death), 324 (voluntarily causing hurt) and 326 (voluntarily causing grievous hurt) IPC. These sections were quashed on the questionable reasoning that there was no evidence on record to show that the accused had knowledge “on that fateful night” that “they were likely to cause death”.50 This phrase “on that fateful night” is found repeatedly in the judgement. What the Court is saying therefore is that although the accused generally understood that they were storing a highly toxic chemical in an inappropriate manner and in a dangerously defective plant and knew generally that the leakage of gas could cause death nevertheless they were liable to be exonerated of these charges because there was no evidence to show that they knew that the gas was likely to leak “on that fateful day” causing death. After quashing all the charges thus, the accused would have been discharged. To avoid this, the Supreme Court introduced the charge of criminal negligence under Section 304-A.

Role of CJM, Bhopal

By order and judgement dated June 7, 2010, the trial court convicted all the accused persons under Sections 304-A, 336, 337 and 338 r/w section 35 of the IPC, 1860 and sentenced them to two years imprisonment and a fine of Rs 1,00,000 each.

The trial court noticed that industrial licensing related to pesticides was granted by the director general of technical development. Licenses were provided by the industrial department of the ministry of chemicals and fertilisers, Government of India for manufacturing 5,000 tonnes of MIC-based pesticides. The government of India also approved a foreign collaboration between UCIL and UCC on the assurance given by UCC “that the company have technical knowledge of several years of manufacturing MIC in USA successfully.”51 UCIL acquired the Bhopal plant from UCC, US, which was 50.9 percent shareholder in the company. A design and transfer agreement and a technical services agreement were entered into between the two companies. The Court records that “both these agreements categorically record that UCC was a global leader in the field of MIC based pesticides having been engaged in this field for many decades prior to these agreements. The accused company made every effort to acquire the best possible technology and design that was then available.” The whole technology was imported from UCC, US.52 The entire plant was set up by the UCC personnel under control and supervision and start up procedure was done by Warren Woomer, who is a specialist in MIC.53 This is how the manufacture of MIC started at the Bhopal plant in 1979. The Court also noted that “in 1980s an American, Warren Woomer came to India and remained here for two years in the capacity of general works manager”.54

The Court elaborately set out the “major design defects brought to the notice of the Court”.55 Also that “the problem was made worse by the plants’ location near a densely populated area, non-existent catastrophe plants and shortcomings in healthcare and socio-economic rehabilitation”,56 and concluded that the parties responsible for the disaster were UCC, government of India and Government of Madhya Pradesh.57 The Court found that there was a storage failure in that huge quantities were stored with all the safety systems “either out of order or shut down”.58 MIC is required to be stored preferably at zero degree centigrade, but the Court found that the refrigeration system had been closed down and that “the directions for shut down was given by the Production Manager, SP Choudhary and by Warren Woomer, overall in-charge of the plant”.59 The Court also found that the Vent Gas Scrubber and Flare Tower were not in working order and were “kept shut down”.60 “No explanation is there on the part of the accused persons why it was kept shut down/inoperational.”61 Though the MIC was to be stored under pure nitrogen pressure of 1 kg/cm2 the pressure was 0.25. That the plant was “running negligently”62 was reported by “a team of experts headed by Poulson from UCC, USA, who came to Bhopal after the death of an employee of UCIL in 1982.63 Reports were sent from Bhopal to UCC about the rectification of defects.64 The Bhopal plant was at the time of the incident “running in loss of near about Rs 5 crore.”65

The Court then records the defence of Keshub Mahindra to the effect that “he only used to chair the meeting of the board. He was not concerned with the day-to-day business. He was not concerned with the safety aspect.”66 None of the matters were ever placed before the board of directors.67 These arguments were rejected. Referring to the role of a non-executive director, the Court observed that “she is usually involved in planning and policymaking…are expected to monitor and challenge the performance of the executive directors and the management and to take a determined stand in the interests of the firm and its stakeholders. They are generally held equally liable as executive directors…”68 The Court concluded that the present case was “not a case of vicarious, but a personal liability. In the modern times, there is an ever increasing awareness and expectations of the duties and responsibilities of large corporations in matters of health and safety.”69 Then the conviction and the sentence followed.

In concluding the Chief Judicial Magistrate observed:

the tragedy was caused by the synergy of the very worst of American and Indian cultures. An American corporation cynically used a third world country to escape from the increasingly strict safety standards imposed at home. Safety procedures were minimal and neither the American owners nor the local management seemed to regard them as necessary. When the disaster struck there was no disaster plan that could be set into action. Prompt action by the local authorities could have saved many, if not most, of the victims. The immediate response was marred by callous indifference.70

The Court ended by declining payment of compensation under Section 357(3) of the Criminal Procedure Code on the grounds that the compensation settlement had been entered into. This is an interesting point. Damages were awarded in the settlement for injuries caused in civil proceedings. Compensation in criminal law proceedings is awarded “to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system”.71 In that case the Supreme Court regretted courts not exercising “their salutary powers under this section as freely and liberally as could be desired.”72

Lessons of Bhopal

After 1985, judicial activism went into a tailspin. Bhopal hastened the decline in the standards of judicial decisions on the environment more than any other case. It taught industrialists a memorable lesson. If you can get away with Bhopal, you can get away with anything. If after thousands of people died in Bhopal, Union Carbide and the board of directors could get away with petty compensation and no criminal liability (under the 1989 judgement), then one need not fear the law.

Poor people do not count. This was the second lesson. The tragedy of Bhopal was that the gas leaked into the quarters where the poorer people lived. Had the toxic cloud drifted in the direction of the Secretariat, the Bhopal litigation may have taken a different turn. As things turned out the wind direction changed and Arjun Singh, then Chief Minister of Madhya Pradesh, was able to board his helicopter and decamp.

Poor people died like flies and the litigation dragged on for years. Advocates made fools of themselves in American courts arguing with fawning patriotic zeal that courts in India were up to the mark, and Judge Keenan took advantage of this to disguise his basically pro-business attitude with patronising sweet-nothings. Who are we to tell the Third World what they should be doing? They have their values, their courts, their standards. Who are we to decide what compensation is payable? With words of this kind the litigants were banished from American courts, with their strict liability and high levels of compensation and low levels of judicial corruption, into the labyrinthine mess of the Indian judicial system.

Double standards

Thus, with Keenan’s judgement, double standards for transnational corporations became the norm. American corporations were required to follow higher standards of safety in America and also abide by the right to information laws and the higher level of compensation. But operating in the backwaters of the developing world, they were free to work in secrecy, bribe officials and lie in court. Were transnational corporations to be prosecuted in American courts according to American law for disasters abroad, the occupational health and safety scene in the developing world would have improved dramatically.

The undue haste with which the full Bench of the Supreme Court pushed through the settlement and quashed the criminal proceedings was later partially corrected when the Court reversed itself and restored criminal liability. This haste to push through the settlement was in sharp contrast to the manner in which the judicial proceedings went on for years. The Court’s performance was a fitting answer to Nani Palkhivala’s grand arguments that the Indian judicial system was competent to handle the Bhopal litigation.

And when Chief Justice Pathak went to the World Court at The Hague soon after criminal liability was quashed and then tried to hang on for a second term by unusual means, eyebrows were raised. The result of all this was a clear signal to the lower judiciary that the environment was taboo and to industrialists that it was business as usual.

So, many years later, when an inflammable gas leaked and ignited causing an explosion that shook the Indian Petrochemical Corporation Ltd’s (IPCL) factory at Nagothane in Maharashtra and killed 50 workers, it was history repeating itself. The management was hopelessly unprepared. The hospital within the complex in which thousands resided had beds for only seven patients. The doctors said that they were not surgeons. They did not know how to give an intravenous drip. They claimed that they had neither the equipment nor the medicines and that they were never informed of how to deal with victims of chemical explosions. The hospital had only two ambulances with two beds each. One was so old it broke down at the gate. The workers’ bodies were, therefore, taken to hospital by contractor’s trucks. Acting in a panic the doctors evacuated the factory without first treating the injured and dying. They were taken northwards towards Alibag over roads pitted so badly that some of the workers died on the way. After hours they reached Alibag only to find the civil hospital without medical supplies. The trucks then turned around and came south to Mumbai. At Sion Hospital the doctors found all the workers dead. They said that had elementary emergency aid been provided by spraying the workers with cold water immediately after the explosions and then by covering them in light cotton clothing and had intravenous drips been administered it would certainly have been possible to save lives. As in Bhopal, transnational corporations were involved in the fabrication of the IPCL plant and these foreigners were working in the premises when the explosion took place. They immediately left the factory and caught the first flight home. Thus even after Bhopal no industrialist had learnt that a disaster management plan was necessary. Not very different is the story of the recent hazardous chemical leak from Century Rayon, Thane.

Government attitudes in Bhopal sent a similar signal down the line to all the expert bodies. When on behalf of government, the Tata Institute of Social Sciences sent a team to Bhopal to document the number of persons affected and the degree of injury, much work was put in but the records are mysteriously missing. Voluntary groups doing similar work had their offices raided, their activists arrested, their records seized by the police and later destroyed so that documentation of the nature and extent of injuries was deliberately done away with leading ultimately to only about one-third of the victims getting compensation. From the top came the warning to zealous officers that the environment was not to be taken seriously.

The courts and the government repeated this performance when activists of the Narmada Bachao Andolan were routinely beaten up and arrested and treated as anti- nationals and anti-development. Despite the failings of the Narmada project, the high court refused to entertain the petition and the Supreme Court in this matter of national importance passed a one page order directing the construction to proceed apace with perfunctory remarks regarding rehabilitation. As with the Amnesty report on torture in India, it sometimes takes a foreign committee’s report to make India sit up and take notice. There could not be a more scathing indictment of the Narmada project than the Morse Committee report. Yet, in a situation where the governments of Gujarat, Madhya Pradesh, and Maharashtra have no intention of rehabilitating anyone according to the Narmada Water Disputes Tribunal. Award and the supplementary agreements, all that BD Sharma, the intrepid ex-Commissioner for scheduled castes and Tribes could get from the Supreme Court in his public interest petition was a direction against him, for the work on the dam to go ahead.

Corruption

The casual attitude of the courts has taught the pollution control boards a thing or two. Steeped in corruption and headed by politicians, these boards fabricate anything for anybody at a price. At the centre of the putrefaction of social life, the pollution control boards – themselves cesspools of corruption – have become a law unto themselves. Reports are fabricated, investigations stage managed, approvals granted fraudulently and accidents covered up. And the position of the Union Minister for the Environment, once a punishment posting, has become the most lucrative ministry. Crores of rupees in bribe money flow through the corridors of Paryavaran Bhavan.

The pollution control boards get away with this because courts do not question their reports. In property matters, affidavits, reports and other documents are scrutinised closely by the writ courts, but in environmental matters, even the most outrageous, casual or contradictory reports would pass muster. When expert bodies act independently and fearlessly then it is understandable that courts not substitute their eclectic knowledge of the subject for the scientific reasoning of the expert body. But when the pollution control boards act mala fide, should the courts keep their eyes shut?

The obsession judges have with the amount of money spent on projects is another misplaced concern. What lawbreakers routinely tell the courts, in effect, is: “perhaps we have broken the law and harmed the environment but we have spent so much money; let us continue with the construction, otherwise we stand to lose more money.” And the courts succumb. Because of their property and profit orientation, judges rarely calculate the enormous costs in terms of environmental destruction.

It takes courage to condemn a mega project that will harm the environment. But it must be done and in clear terms. Judicial pronouncements on the environment in India tend to appear to say much more than they do. The Sriram case, for example, used wonderful language and several quotations and relied on many precedents and is said to lay down the principle of strict liability. The casual reader might believe that strict liability now exists in India. But when read carefully the judgement is otherwise. Subsequent decisions of the Supreme Court have not taken the Sriram case as laying down strict liability. We are told that one of the judges who delivered the decision – a prominent public interest litigation proponent – has, after retirement, in opinions given to industrialists, said that the doctrine of strict liability as laid down in Sriram’s case was obiter.

Thus, after Bhopal, the separation between what judges pretended to say and what they actually said grew. Grand judgements were not uncommon but they had little effect because the operative part of the orders were like little pipsqueaks as compared to the lion’s roar of the quotations and lofty ideals. By these techniques the judiciary caused the public to believe that the judiciary was receptive whereas quite to the contrary judicial decision-making was characterised through this period by timidity and domination by industry.

As the judiciary went into decline, the movement grew and took on the dimensions and characteristics of a mass movement. Now we are truly on the threshold of a second national movement. Public life has become so corrupt, standards are so abysmally low and looting the exchequer has become so much a national pastime that nothing short of a national cleansing of the rot that pervades Indian society will do.

The environment movement once stood on the fringes of the human rights movement together with other issues as just another issue. Today it stands centre stage. The nexus between environment issues and life itself indicates that the struggle for a healthy and sustainable environment is a struggle for changing the whole of society itself. Basic values, attitudes, approaches, priorities and lifestyles are called into question and the environment has transited in the people’s minds from just another issue to the subterranean strata of all movements. It is not simply an issue of forests or water or the air but the living together in harmony of all people and their harmony with nature.

–The writer is founder, HRLN

Notes

1. See Ward Morehouse and M Arun Subramaniam, The Bhopal Tragedy: A Report for the Citizens Commission on Bhopal (Council on International and Public Affairs, New York, 1986).

2. Mass Disasters and Multinational Liability: The Bhopal Case, prepared by Upendra Baxi and Thomas Paul under the auspices of the Indian Law Institute (Bombay: M N Tripathi, 1986), p iv.

3. Ibid, p 2.

4. Ibid, p 225, 228.

5. Ibid, p 228.

6. Ibid.

7. Ibid, p 229.

8. Ibid, p 162.

9. 1989 1SCC 674.

10. 1989 3SCC 38.

11. add.

12. 1990 1 SCC 613.

13. 636.

14. 655.

15. 707.

16. 705.

17. 675.

18. 693.

19. 695.

20. 673.

21. 674.

22. 677.

23. 685.

24. 705.

25. 707.

26. 709.

27. 1987 1SCC395.

28. 704.

29. 712.

30. 713.

31. 715.

32 .715.

33. 715.

34. 726.

35. 726.

36. 726.

37. 1991 4 SCC 584.

38. 693.

39. 612.

40. 677.

41. 614.

42. 614.

43. 677.

44. 670.

45. 690.

46. 2000 10 SCC 507.

47. 1996 6 SCC 129.

48. 140.

49. 154.

50. 157.

51. State of Madhya Pradesh through CBI vs Sir Warren Anderson; in the Court of the Chief Judicial Magistrate, Bhopal, MP; Criminal Case No 8460 of 1996, para 25.

52. Para 34.

53. Para 34.

54. Para 34.

55. Para 37.

56. Para 38.

57. Para 38.

58. Para 53.

59. Para 56.

60. Para 64.

61. Para 64.

62. Para 78.

63. Para 78.

64. Para 80.

65. Para 115.

66. Para 118.

67. Para 135.

68. Para 137.

69. Para 184.

70. Para 216.

71. Manish Jalan vs State of Karnataka (2008 9 Scale 814).

72. 818

–Published in EPW, Vol. xlv, No. 26&27

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One Comment »

  • SK Ayubi said:

    Phenomenal. I’ve been researching Bhopal for a while now and can tell you hands down that this is one of the most informative pieces available on the internet. It needs to be publicized/ spread around!

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