The News International, 28 June 2010

by Praful Bidwai

Carbide got away with $470 million, equivalent to its insurance cover plus interest, for causing the world’s greatest industrial disaster. It didn’t even have to liquidate major assets. The spill’s death-toll (11) is tiny beside Bhopal’s, although the impact on fisheries and the environment will be enormous. But BP’s bosses are in trouble. Its chairman had to apologise repeatedly for referring to the affected fisherfolk and petty businessmen as “small people”. Its CEO Tony Hayward got serious flak from the administration for attending a yacht race at the height of the crisis.

Carbide chairman Warren Anderson was briefly arrested in Bhopal. But he was released within hours, treated like a VIP, and flown to Delhi in a state plane. Why, he had a meeting not just with Foreign Secretary Rasgotra, but also with India’s president.

In the US, corporations and politicians are straining to align themselves with strong anti-BP public opinion. In India, companies and industry associations have been largely silent on the June 7 Bhopal judgment which treated the disaster on a par with a traffic accident. Worse, some business leaders, including Deepak Parekh — one of India’s best-regarded executives, who serves on many companies’ boards — found the verdict harsh. They warned it would scare independent directors away from companies.

They ignore the notion of strict or no-fault liability. Negligence which causes public harm can only be deterred if severely punished. Being corporate decision-makers, directors are liable — even if they aren’t personally responsible for every design detail or operational hazard.

Their culpability is greater — as in Bhopal — if they have prior knowledge of the hazards. Union Carbide’s directors clearly knew of the Bhopal plant’s potential for fatal accidents. These had occurred before December 1984.

This doesn’t argue that the US government and legal system are pro-people, only that India’s legal system is institutionally flawed. Its self-appointing higher judiciary is unaccountable. It hasn’t developed instruments for punishing corporate crimes. The Indian establishment is, like those in the neighbourhood, cravenly pro-rich, pro-corporate and pro-American. This includes top judges, lawyers, opinion-shapers and bureaucrats who inherit a colonial state structure indifferent to the people.

Yet, so great has been the public outrage over the latest Bhopal judgment that the government reconstituted the Group of Ministers on Bhopal, which has submitted its report. On its positive side are recommendations for a curative petition on the judgment and the 1989 compensation award; expediting Anderson’s extradition; and speeding up the case against Carbide’s successor, Dow Chemical, in the Madhya Pradesh High Court.

On the negative side are its silence on Dow’s liability and its paltry recommendations for relief to the victims.

A curative petition asking the Supreme Court to modify its 1996 order downgrading criminal charges against UCC, Carbide’s fully-owned Hong Kong-based subsidiary Union Carbide Eastern, and its 51 per cent-subsidiary Indian subsidiary Union Carbide India Ltd (UCIL), is welcome. But this shouldn’t stop at restoring the charge of culpable homicide.

The Indian Penal Code clearly defines murder in subsection 4 of Section 300: “If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury ….”

Carbide indisputably committed such acts by operating an unsafe, poorly designed plant — which, it knew, would lead to large-scale fatalities. The plant’s pipeline design was faulty. A 1982 safety audit said it had 30 major flaws. Logically, the accused must be re-tried for murder.

Yet, Anderson and UCC and UCE directors weren’t even tried in Bhopal because they absconded. This violates a condition stipulated in Judge Keenan’s order, which sent the case back to India — namely, they would stand trial in India and abide by an Indian judgment.

Not only does this warrant Anderson’s extradition; it allows India to press fresh charges against UCC in the US, including contempt of court. This must be done expeditiously. The 1989 compensation award was based on the assumption of 3,000 deaths. But the official death-toll is five times higher and the number injured 10 times greater. The average compensation for death was Rs100,000 — a travesty given that death in rail accidents and natural disasters is better compensated.

In Bhopal, about 200,000 people were significantly injured, but 574,000 were given compensation. This reduced the amount paid to the seriously affected. This couldn’t even pay for their medical treatment, leave alone get damages for suffering or disability. The victims’ categorisation was arbitrary. Over 92 per cent were categorised as having “minor” injuries. Only 3,241 people (0.7 per cent of those affected) were categorised as severely injured. This makes nonsense of surveys by the Indian Council of Medical Research and other agencies.

The GoM-proposed enhanced compensation looks impressive. But it will cover only 42,208 people and exclude 91 per cent of those affected. This is grossly unjust.

The GoM report fails to mention the need for a high-level Empowered Commission on Bhopal, including medical and rehabilitation experts, NGOs, and the victims’ representatives, which collates all available evidence and organises adequate compensation and medical treatment. This was demanded by the victims and agreed to by the government in 2008. But the GoM doesn’t even mention it.

Yet, new medical facilities must be urgently established so the victims can live with dignity, and freedom from pain and humiliation. These must be staffed by competent, sensitive professionals who understand the need to rebuild the survivors’ lives in their entirety.

Now, consider the GoM’s negative side. It doesn’t hold Dow liable for land and water contamination around the Bhopal plant because Dow doesn’t own it. What matters is that Carbide created a liability over and above the accident through the contamination. Carbide knew this and its likely effects, having conducted numerous site surveys. By natural justice principles, a successor company inherits both the assets and liabilities of the corporation it purchases. Dow is clearly obliged to clean up the Bhopal site and compensate the 30,000 people who are forced to drink the polluted water.

To evade this responsibility, Dow’s chairman Andrew Liveris has pressed his nefarious case through business leader Ratan Tata, Home Minister P Chidambaram and other bigwigs. He has twice met Prime Minister Manmohan Singh. However, it’s imperative to hold Dow liable as Carbide’s successor.

If the government presses charges against Carbide in the US for violating the conditions under which the litigation was sent to India, the issue of liability will inevitably arise. That must be settled now.

The effort to bury the Bhopal legacy is misguided. Unfortunately, the legacy lives on. Justice demands that it is brought to an honourable, dignified closure in a fair and transparent manner. The GoM has failed to do that.

The writer, a former newspaper editor, is a researcher and peace and human-rights activist based in Delhi.