June 14, 2010

by Praful Bidwai

So scandalously paltry and pro-corporate was the settlement that Attorney General Soli Sorabjee, no flaming radical, moved the Supreme Court to restore the criminal liability of UCC, its fully owned Hong Kong-based subsidiary Union Carbide Eastern, and United Carbide India Ltd (UCIL) and its directors. The Court did so in 1991. For the victims, this was a minor victory. They hoped that after denying them fair compensation, society would at least redeem itself by recognising the magnitude of their suffering and delivering exemplary punishment to those responsible for the disaster.

That was not to be. In 1996, the Supreme Court diluted the charges against the accused from culpable homicide to causing death by negligence, punishable with just two years’ imprisonment. Eight accused have now been sentenced by a Bhopal magistrate for two years. A ridiculous fine of Rs 1 lakh was levied on seven accused and an even more laughable Rs 5 lakhs on UCIL. They have been let off on bail of Rs 25,000. It’s a safe bet that most of them won’t serve any jail term at all as the case moves to the higher courts. Worse, three of the accused, former UCC chairman Warren Anderson, UCC and Union Carbide Eastern, weren’t even brought to trial.

The verdict has treated a grave disaster, which claimed 15,000-plus lives and injured over 200,000, as a mere traffic accident. There couldn’t be a meaner way to insult the catastrophe’s victims and trivialise their pain and disorders, including damage to lungs, liver, kidneys and the immune system.

Even today, Bhopal continues to be haunted by toxicity. Hundreds of tonnes of poisonous waste lie in the Carbide factory, which has contaminated drinking water for 30,000 people. Yet, neither UCC nor UCIL accepts an obligation to clean up the site. Nor does Dow Chemical, a multinational with a foul record, which bought out UCC. The government is laying out the red carpet for Dow—at the expense of the Bhopal victims.

As if all this didn’t rub enough salt into their wounds, former Chief Justice of India AH Ahmadi has tried to justify his 1996 order diluting criminal charges. He pleads there’s no “vicarious liability” in such cases: “If my driver is driving and meets with a fatal accident, I don’t become liable to be prosecuted” for causing death by negligence.

This argument is specious. There’s no similarity between an individual driver’s fault and the culpability of a corporation and its directors for the unsafe design, operation and maintenance of a hazardous plant. This culpability stands enlarged in Bhopal because the plant’s owners and operators knew it was accident-prone. Indeed, it had witnessed a series of fatal accidents involving phosgene, a war gas, and methyl isocyanate. A safety audit had found 30 faults in its operation. The truth is, the plant was grossly under-designed for safety.

In such cases, the principle of corporate liability demands that owners are made to take full responsibility for all mishaps. This principle is rightly being applied to BP for the oil spill off the Louisiana coast in the US. President Barack Obama says he wants to “kick ass” and “make sure that they BP pay every single dime owed to the people along the Gulf Coast”. The liability principle should apply with even greater force to the much greater disaster in Bhopal. Violating the principle can only encourage corporations to behave irresponsibly, cut corners on safety, cheat on regulations and expose the public to avoidable harm. No civilised society can allow that.

Justice Ahmadi is not the only person in high office to have worked in favour of Carbide. The Rajiv Gandhi government in December 1984 released Warren Anderson who had been arrested in Bhopal and flew him in a state plane to Delhi. Anderson absconded thereafter. Now, former CBI Joint Director RB Lall has disclosed that the Ministry of External Affairs ordered the Bureau in 1994 not to pursue extradition against Anderson, a legally declared absconder. The government failed to serve an arrest warrant on Anderson on the ludicrous plea that he was “untraceable”—when his address in a posh New York City suburb was widely known and was communicated to the Indian government.

The larger picture that emerges is one of India’s high functionaries vying with one another to let Carbide off the hook, and every single institution failing the victims. Consider this.

· The government appropriated the victims’ right to legal defence under the doctrine of “the state as parent” but failed to focus sharply on gathering clinching evidence to show that UCC was responsible for the design and day-to-day operation of the Bhopal plant and the accident was caused by basic deficiencies in its safety system design. The design wouldn’t have passed muster in any country with a half-way responsible licensing authority.

· The Supreme Court comprehensively failed to engage with the issue of Carbide’s liability after the original suit was sent back from the US on the ground of forum non conveniens. All it was interested in was an out-of-court settlement, to which it drove an all-too-willing government.

· The Indian Council of Medical Research set up countless research projects on the toxicity of methyl isocyanate and its products and the injuries they cause. But it failed to produce a simple treatment protocol which would tell a general medical practitioner what medicines to administer for lung injuries, eye damage, nervous system disorders or poisoning of the kidneys or liver, and what physiotherapy would help the victims. It wound up its projects in 1994—without producing useful results.

· The Council of Scientific and Industrial Research failed to inform the public of the long-lasting toxic effects of MIC on human health and the environment and to produce a grading of severity of injuries correlated to exposure based on distance, wind direction and so on. So, while deciding on compensation, people living far away from the plant and relatively unaffected by gas exposure were equated with the grievously injured living close by.

· The government demanded over $3 billion in compensation from Carbide, but without explanation, suddenly agreed to $470 million. We will never know what the full trade-off was. But high appointments were made abroad and at home to repay favours delivered in reaching the collusive settlement.

Bhopal has witnessed not one, but many tragedies: the gas leak disaster in 1984, the settlement in 1989, and monumental corruption in the distribution of compensation in the mid-1990s. Most victims got as little as Rs 12,000 for a lifetime of suffering. Much of it went into repaying debts or bribing corrupt officials. The judgment is the latest tragedy.

The government has learnt nothing from the disaster. India’s environmental and occupational safety regulations haven’t been tightened. In fact, the environmental impact assessment process has been undermined through an unconscionable relaxation of requirements to document hazards, rigorously scrutinise proposals and strictly monitor compliance

India’s legal system remains abysmally weak and ineffective in punishing negligence and bringing corporations to book. There’s no law of torts (civil wrongs) worth the name in India. It was promised in 1984. It’s again promised today. Powerful interests have been complicit in denying and subverting justice for the Bhopal victims. Indeed, the entire system has conspired against them.

Particularly appalling is the record of India’s Big Business. No industry association or chamber of commerce has had the integrity or courage to comment on the appalling new judgment. This forfeits Indian industry’s claim to be an enlightened part of the community. It has proved utterly retrograde.

Worse, industry has colluded with Dow. Dow has found an enthusiastic ally in industrialist Ratan Tata. Mr Tata has offered “to lead and find funding” for the “remediation” (cleansing) of the Bhopal plant site so that Dow can invest in India. Dow is lobbying the government and has retained Congress party spokesperson Abhishek Manu Singhvi as its lawyer, besides enlisting powerful functionaries like Messrs Montek Singh Ahluwalia, P Chidambaram and Kamal Nath. Yet, the last two are part of the just-established Group of Ministers on Bhopal. They must be dropped forthwith.

With this judgment, “Emerging Superpower” India has been reduced to a Fourth World country. This story of shame can only end if the government appeals against the judgment, gets proper criminal liability restored by the Supreme Court, seriously pursues the case against all the accused, and brings a modicum of justice to the victims.—end—