The Bhopal Catastrophe: It was in the interests of the victims to
have the cases tried in the US where sub-
Politics, Conspiracy and Betrayal stantial damage would have been award-
ed. In the Exxon Valdez oil spill case,
where no one died, $507 million was
awarded. In the Vioxx drug case, where
Colin Gonsalves 47,000 consumers suffered heart attacks,
strokes or death, $4.85 billion was paid on
Despite the Union Carbide he paltry payments made to the an average of $103,000 per plaintiff. In as-
Corporation being criminally victims, the escape of the chairman bestos litigation, jury verdicts range any-
of the Union Carbide Corporation where from $1 million to $20 million in
liable for the Bhopal catastrophe,
(UCC), Warren Anderson on a government compensation per person. In the Locker-
the government, though being the plane, the neglect of the babies born bie bombing case, Libya paid $2.7 billion
sole representative of the victims, subsequently with terrible deformities or $10 million per family.
colluded with the UCC and and ailments, the inability of the state to Legal luminaries flocking to represent
clean the contaminated soil, the petty Dow Chemical was understandable. Nani
compromised the interests of the
sentences rendered and the 26 long years Palkhivala made a strenuous attempt by
affected people. The UCC and its in the Trial Court, all seem separate in- filing affidavits in the US courts to have
Indian subsidiary, the Union of stances which, though regrettable, are the litigation brought to India. The then
India and the state of Madhya treated as issues of governance and not Attorney General, Soli Sorabjee, argued
one of politics, conspiracy and betrayal. against giving the victims a hearing and
Pradesh made sure that the
Let us not look at the past, we are advised, justified the quashing of criminal pro-
victims would not obtain let us look to the future to ensure that such ceedings. What was inexplicable was the
compensation comparable to the an incident does not take place again. But attitude of the judiciary. In February 1989,
damages awarded in similar mass unless we understand the treachery of in a cryptic three-page order containing
the past, it is impossible to change things no reasons, the Supreme Court accepted
tort actions in the United States.
for the future. the settlement of $470 million as “just,
Moreover, even with the Indira Gandhi’s death and the appoint- equitable and reasonable” and quashed all
re-institution of criminal liability, ment of Rajiv Gandhi as Prime Minister of criminal proceedings. In May, reasons
the UCC accused have been India marked the end of the era of the were given as an afterthought. Chief
Indian version of social democracy started Justice R S Pathak then resigned on being
allowed to evade prosecution.
by Jawaharlal Nehru and the beginning of nominated by India to the World Court at
The trial court in Bhopal had no American-style globalisation. Rajiv Gandhi The Hague. After indignant protests in the
option but to hand down a started off well with Ronald Reagan, the country, in 1991, the Supreme Court
sentence, equivalent to what is then President of United States. It is said reinstated the criminal proceedings. In
that the understanding between these 1996, in a decision likely to have far-
given for causing death by
two leaders ultimately led to the pitiable reaching consequences, the Supreme
negligence in a traffic accident! settlement being agreed to by India, the Court quashed the charges of culpable
Bhopal has hastened the decline quashing of all criminal liability and the homicide not amounting to murder and
in the standards of judicial removal of Anderson from Indian soil. voluntarily causing grievous hurt and
Arjun Singh, naturally, will be made the introduced the criminal negligence charge
decisions on the environment
scapegoat as if decisions of this magni- carrying a maximum sentence of two
more than any other case. tude could be taken without the prime years. The hands of the Trial Court were
minister’s approval. tied. It is now up to the present Chief Jus-
In the power play of globalised politics, tice of India to right this historic wrong.
all this is understandable, though it may
make us angry. But the inability of the Background
Supreme Court of India to stand firm and On the night of 2 December 1984, there
side with the people of India against UCC was a massive leak of methyl isocyanate
and the government of the United States (MIC), a highly toxic gas which resulted in
Colin Gonsalves (email@example.com), a of America (USA) left many Indians con- the death of 20,000 persons and disable-
senior advocate of the Supreme Court of India, fused and frustrated. The long line of ment of more than 2,00,000 persons.1 The
is executive director of the Human Rights Law decisions starting from 1989 ultimately gas affected not only those living but even
Network, New Delhi.
left them bitter. the generations that came thereafter. As a
68 June 26, 2010 vol xlv nos 26 & 27 EPW Economic & Political Weekly
result of a high-level conspiracy between receive unprecedented treatment in India”.6 against UCC’s selling assets. This perhaps
UCC, the US government, the Union Govern- He ended with a demeaning and degrad- was a mistake we will come to regret. On
ment of India and government of the State ing observation that the “$9.5 billion 17 December 1987, the district court
of Madhya Pradesh, Warren Anderson was which I believe represents that total aid ordered interim relief of Rs 350 crore. This
secretively taken away from Bhopal on a given by the US to the Indian Republic was reduced by the high court on 4 April
government plane and allowed to leave over the last 35 years is exceeded by the 1988 to 250 crore.
the country. aggregate claims made on behalf of the In the meanwhile a charge sheet was
Thereafter, 3,500 cases were filed by Bhopal victims”.7 filed under Sections 304, 324, 326, 429 read
victims claiming damages of a total of Marc Galanter argued in his affidavit8 with Section 35 of the Indian Penal Code
$150 billion. These claims were made on that India “has only incompletely emerged (IPC) against Warren Anderson and others.
the pleading that the UCC Corporate Policy from the heritage of colonial rule…the
Manual, testimonies available and docu- Indian system is characterised by massive Supreme Court and the Victims
ments gathered demonstrated “pervasive backlogs of cases and enormous delays… On 5 February 1989, in a cryptic three-
decision-making presence of UCC in all (which) can be considered a permanent page order containing no reasons at all, a
vital matters relating to the location of feature of the Indian system…tort law in constitutional bench of the Supreme Court
the plant, the designing of the plant, the India is undeveloped…(and of the few tort of India, headed by the then Chief Justice
production and storage of ultra hazardous cases) none deal with the problems aris- R S Pathak quashed “all criminal proceed-
substances, toxic chemicals and gases, the ing from complex technologies…the Bar ings related to and arising out of the
designing of safety systems and the moni- in India does not presently possess the disaster”. Without any discussion on the
toring of accidents review of the opera- pool of skills, the fund of experience or “mass of data” placed before the Supreme
tional safety systems”.2 the organisational capacity to effectively Court and the extensive pleadings filed by
Later, Morehouse and Subramanian did and efficiently pursue massive and com- the parities, the Supreme Court abruptly
a sophisticated analysis of compensation plex litigation…and the Indian legal sys- closed the case with the observation: “we
and rehabilitation costs and worked these tem contains a paucity of devices to pro- are of the opinion that the case is pre-
out to about $4 billion.3 mote timely resolution of complex cases.” eminently fit for an overall settlement be-
On 12 May 1986 federal Judge John F tween the parties covering all litigations,
Litigation in America Keenan allowed the application of UCC but claims, rights and liabilities related to and
The Union of India filed a suit on 8 April imposed three conditions. arising out of the disaster”. The Supreme
1985 in the US District Court (Southern (1) That UCC shall consent to the jurisdic- Court found the settlement sum of $470
District of New York) against UCC for com- tion of the courts of India and shall con- million “just, equitable and reasonable”.9
pensation and punitive damages. Earlier, tinue to waive defences based on the stat- A couple of months later, the Supreme
on 20 February 1985, Parliament enacted ute of limitation; Court woke up to the need to provide rea-
the Bhopal Gas Leak Disaster (Processing (2) That UCC shall agree to satisfy any sons for its rather dismal decision. On 4
of Claims) Act, 1985 purporting to speedi- judgment rendered by an Indian Court May 1989, reasons were set out in a sepa-
ly, effectively and equitable securing all against it and if applicable, upheld on rate decision.10 It was “the compelling
claims arising out of the Bhopal gas leak. appeal, provided the judgment and af- need for urgent relief” which prompted
UCC then filed a motion to dismiss the firmance “comport with minimal require- the Court to make the initial order; UCC,
Union of India’s suit pursuant to the doc- ments of due process”; and through Counsel, offered $350 million.
trine of forum non conveniens. In this Nani (3) That UCC shall be subject to discovery “Shri Nariman stated that his client was of
Palkhivala filed an affidavit in the American under the Federal Rules of Civil Procedure the view that the amount was the highest
Court saying that the Indian courts were of the US after appropriate demand by it could be up to”. The Attorney General of
competent to effectively handle tort litiga- the plaintiffs. India “submitted that any sum less than
tion of this magnitude. Marc Galanter, a UCC filed an appeal before the US Court 500 million US dollars could not be rea-
leading US scholar on the Indian legal of Appeal for the Second Circuit, and the sonable”. The victims were excluded from
system, filed an affidavit to the contrary. Appellate Court set aside the second and these proceedings. In this casual, perfunc-
Palkhivala was wrong then and was third condition. tory manner, the final compensation pack-
proved wrong by subsequent develop- age was decided. It may be remembered
ments in the Indian courts. Marc Galant- In the Bhopal District Court that in the Exxon Valdez oil spill case, the
er’s stand was vindicated. Palkhivala said In the meanwhile, on 5 September 1986, jury awarded $2.5 billion which was later
that there was “no doubt that the Indian Union of India filed a suit for damages in reduced by the Supreme Court of the US to
judicial system can fairly and satisfactorily the District Court of Bhopal being regular $507 million. Moreover, no one died in
handle the Bhopal litigation”.4 “The suit no 1113 of 1986. In that suit, UCC gave this case. Perhaps more comparable is the
charge of inordinate delays” he said, “is an undertaking to preserve and maintain 2008 Merck & Co Inc case which settled
wholly inapt and inapplicable as regards unencumbered assets to the extent of claims by 47,000 consumers who suffered
the Bhopal case”.5 He was confident that $3 billion. Pursuant to this undertaking, heart attacks, strokes, or death from using
“the unprecedented Bhopal case will the district court lifted the injunction the pharmaceutical product Vioxx. The
Economic & Political Weekly EPW June 26, 2010 vol xlv nos 26 & 27 69
company agreed to pay $4.85 billion, and Processing of Claims) Scheme, 1985 Supreme Court recognised that “perhaps,
representing an average of $1,03,000 were constitutionally valid. The Court de- theoretically, it might have been possible
per plaintiff. cided to look into whether “the act has to constitute another independent statu-
An even larger public health disaster in been worked in any improper way”.13 The tory body…entrusted with the task of agi-
the US has been the use of asbestos as an Supreme Court upheld the right of the un- tating or establishing the same claims”.18
insulation material. Asbestos exposure ion government to be the sole representa- The Court observed that “the question
has been proven to cause mesothelioma, a tive of the victims even to the exclusion of whether there is scope for the Union of
rare and highly deadly form of lung can- the victims themselves. Reference was India being responsible or liable as a joint
cer. In asbestos litigation, jury verdicts made to the parens patriae doctrine which tortfeasor is a difficult and different ques-
can range anywhere from $1 million to obliges the state to protect its citizens. But tion. But even assuming that it was possi-
$20 million in compensation per plaintiff. the Court failed to recognise that the ble that the central government might be
However, where a settlement is reached, Union of India was, on the contrary, col- liable in a case of this nature, the learned
these amounts are substantially lower. luding with UCC and compromising the attorney general was right in contending
Legal analysts have estimated that asbes- interests of the victims. After observing that it was only proper that the central
tos litigation in the US has cost over $250 that “if the victims had been given an op- government should be able and autho-
billion and has involved more than portunity to be heard, they would, inter rised to represent the victims.”19
7,30,000 plaintiffs. alia, have pointed out that the amount The then attorney general, Soli Sorabjee,
The 1988 bombing of Pan Am Flight agreed to be paid by UCC was hopelessly made a series of unfortunate submissions,
103, or “the Lockerbie bombing”, is anoth- inadequate and that UCC, its officers and urging “that the allegation that a large
er example of a large class action settle- agents ought not to be absolved of crimi- number of victims did not give consent to
ment. In a private agreement reached in nal liability, and that the central govern- the settlement entered into, is really of no
May 2002, Libya committed to pay ap- ment itself was liable to have been sued as relevance…”20 Hearing the parties after
proximately $2.7 billion to resolve wrong- a joint tort-feasor”,14 the Supreme Court the settlements would also not serve any
ful death claims by the families of those inexcusably upheld the exclusion of the purpose…21 “Quashing of criminal pro-
killed, representing $10 million per family. victims, on the specious argument that ceedings was done by the Court in exer-
Sadly, there is no reference in the “no useful purpose would be served by cise of plenary powers under articles 136
Supreme Court order to any international giving a post decisional hearing…having and 142 of the Constitution.”22
norm or standard or practice regarding regard to the fact that there are no further On the quantum of damages, though
damages, paid in similar or comparable additional data and facts available with the Supreme Court recognised “that the
circumstances. The calculations done by the victims which can be profitably and measure of compensation in these kinds of
the Supreme Court show that it compared meaningfully presented to controvert the cases must be correlated to the magnitude
the Bhopal disaster with motor accident basis of the settlement.”15 This was entire- and capacity of the enterprise…not on the
cases. “It is well known”, said the Supreme ly incorrect because as revealed subse- basis of actual consequences suffered …
Court, “that in fatal accident actions quently, there was a gross underestima- because such compensation must have a
where children are concerned, the com- tion of the number of deaths and injuries deterrent effect”,23 nevertheless the Court
pensation awardable is in conventional and the lasting nature of the ill effects of concluded “we are of the opinion that
sums ranging from R 15,000 to Rs 30,000 the gas leak on individuals, livestock and justice has been done to the victims”.24
($500 in 1989). the environment. Therefore, said the The majority decision ended on an
The Court then awarded Rs 2 lakh Supreme Court: “though settlement with- ominous note with the Supreme Court
($4,000) in each case of death and total out notice is not quite proper to do a great referring to “the atmosphere that was
permanent disability and Rs 1 lakh ($2,000) right after all it is permissible sometimes created in the country”. “Attempts were
in each case of permanent partial disable- to do a little wrong”.16 made”, said the Supreme Court, “to shake
ment. This judgment ends prophetically To meet the argument repeatedly made the confidence of the people in the judicial
with the sentence “those who trust this that the Union of India was a joint tort- process and also to undermine the credi-
Court will not have cause for despair”.11 feasor as, inter alia, as its agency and in- bility of this Court. This was unfortu-
Apart from the paltry amounts award- strumentalities (the Life Insurance Corpo- nate…the credibility of the judiciary is as
ed, the hurtful part of the decision was the ration and others were shareholders in important as the alleviation of the suffer-
quashing of all criminal cases. Union Carbide of India Ltd – UCIL), and ing of the victims…we hope these adjudi-
that the plant was permitted to operate by cations will restore that credibility”.25
The Act Upheld as Constitutional the Indian authorities close to a heavily In a separate concurring decision, jus-
On 22 December 1989 the constitutional populated area, the Supreme Court tice K N Singh warned that “if the act was
bench of the Supreme Court in Charanlal brushed aside these objections holding declared unconstitutional, the settlement
Sahoo vs Union of India12 looked into that “the circumstances that financial in- under which the UCC has already deposit-
whether the Bhopal Gas Leak Disaster stitutions held shares in the UCIL would ed a sum of Rs 750 crore…would fall and
(Processing of Claims) Act, 1985 and the not disqualify the Government of India the amount of money which is already in
Bhopal Gas Leak Disaster (Registering from acting as parens patriae”.17 The deposit with the registry of this Court
70 June 26, 2010 vol xlv nos 26 & 27 EPW Economic & Political Weekly
would not be available for relief to the prosecuted speedily in India. Instead of Then in a startling display of unaware-
victims.”26 This was a patently wrong con- seeing through this unholy alliance, the ness of the principles of natural justice,
clusion. Even if the settlement was set Supreme Court let down the people of Bho- particularly in the context of mass tort ac-
aside, it was open to the Supreme Court to pal by clearing a settlement that was pat- tions, justices Ranganathan and Ahmadi
impound the amount deposited by away ently paltry and by allowing the litigation compared the situation to a Karta of a
of interim payment for the victims. The in the Trial Court to drag on for 26 years. Hindu undivided family. The Union of
whole tenor of this decision suggests an Returning to the concurring but sepa- India in its parens patriae position qua the
unwarranted helplessness on the part of rate decision of justice K N Singh, a pious victims was similar to that of a Karta qua
the Supreme Court, firstly, because “it is sermon on the role of multinational and the junior members of a family who “are
difficult to foresee any reasonable possi- transnational corporations follows. “Multi- not to be consulted before entering into
bility of the acceptance of…the observa- national companies in many cases exploit- a settlement!”
tions made by this Court in M C Mehta’s ed the underdeveloped nations and in
case27 (according to which damages) some cases they influenced political and Scolding the Victims
would be much more than normal dam- economical policies of host countries The two judges then went on to berate the
ages… (and) must be computed on the which subverted the sovereignty of those victims and their supporters for being
basis of the capacity of a delinquent made countries. There have been complaints “apparently not alert enough to keep a
liable to pay.”28 A second unwarranted against the multinationals for adopting watching brief in the Supreme Court”.34
observation was made to the effect that if unfair and corrupt means to advance their Despite the vehement protests repeatedly
the government did not assume monopoly interests in the host countries.”29 Refer- made regarding the paltry amount of the
of the litigation the victims would be help- ring to the UN Code of Conduct on Trans- settlement, which were carried in the
less to proceed. “Because of the situation” national Corporations, justice K N Singh national media, the two judges assert: “no
said the Supreme Court, “the victims were held that “a transnational corporation attempt appears to have been made to put
under disability in pursuing their claims”. should be made liable and subservient to forward a contention that the amount of
Thus, the tenor of all the Supreme Court laws of our country and the liability settlement was inadequate”!35 Then comes
judgments is to the effect that the Govern- should not be restricted to the affiliate the most startling statement that “there
ment of India and the judiciary were do- company only but the parent corporation was a day’s interval between the enuncia-
ing the victims a favour by acting on their should also be made liable for any damage tion of the terms of the settlement and
behalf in the manner in which they did. caused to the human beings or ecology. their approval by the Court.”36 By this the
The notion that the victims were inca- The law must require transnational cor- Court meant that 24 hours after the
pable on acting on their own was wrong porations to agree to pay such damages disclosure of the terms of the settlement
then, and, with the rich experience of his- as may be determined by the statutory was adequate for persons to protest and
tory, has been proved totally wrong even agencies and forums constituted under it the approval given by the Court a day
today. Many non-governmental organisa- without exposing the victims to long after the disclosure of the settlements
tions (NGOs) gathered around, collecting drawn litigation”.30 was justified.
extensive data which the State of Madhya Justices S Ranganathan and A M Ahmadi All in all, a reading of the majority deci-
Pradesh and Union of India refused to made a separate decision partly dissenting sions and the two minority decisions show
look at. Many lawyers both in India and regretting that the Supreme Court had put how out of touch the Supreme Court was
America offered their services pro bono to an end to all litigation without first con- with the suffering, grievances and de-
support the victims. Suits were meticu- sidering the issue of validity of the statute. mands of the victims and how the Court
lously drafted and had they been allowed The court found it “unfortunate”31 that proceeded quite regardless of the views
to proceed evidence would have been though the writ petitions impugning the expressed on behalf of the victim families.
elaborately led to establish the claims of act were pending before the Supreme
the victims against UCC, UCIL, Union of Court these petitions were not decided Restoring the Criminal Cases
India and State of Madhya Pradesh. All and the settlement was approved and all Once again “a hue and cry was raised
that the Supreme Court had to do was to the litigation closed in the 1989 decisions against the settlement by victim groups”.37
ensure that the cases proceeded on a fast of the Supreme Court. “Considerable heat was generated through-
track and that all technical impediments The court then found itself “in somewhat out the Court hearing and the press was
and objections were brushed aside. of a predicament32 as it has to pronounce also none too kind on this Court”.38 A
Instead of this the State of Madhya on the validity of the provisions of the Act series of review petitions were filed in the
Pradesh, the Union of India, Union Car- in the context of the implementation of its Supreme Court once again seeking a
bide and the government of US entered provisions in a particular manner and, “Fairness Hearing”, inclusion of additional
into unholy alliance to undermine and though we cannot express any views re- victims in the list of persons to be com-
sabotage the efforts of the victims to ob- garding the merits of the settlement, we pensated, higher compensation amounts
tain compensation comparable to the are asked to consider whether said settle- and the restoration of the criminal cases.
damages awarded in similar mass tort ment can be consistent with a correct and The Supreme Court noticed the pleadings
actions in the US and to have the accused proper interpretation of the Act”.33 to the effect that the “toll of lives has since
Economic & Political Weekly EPW June 26, 2010 vol xlv nos 26 & 27 71
gone up to around 4,000 and the health of Then the Court rejected the “Fairness which clearly indicated that all the ac-
tens of thousands has come to be affected Hearing” argument as well as the argu- cused concerned shared common criminal
and impaired… though it was initially ment that the settlement was vitiated be- knowledge about the potential danger of
assumed that MIC caused merely simple cause it did not contain a “re-opener” escape of the lethal gas”. 48 Such was also
and short-term injuries…it has now been clause to take into consideration those in- the finding of the Vardarajan Committee,
found by medical research that injury… is juries that were not anticipated earlier. which was appointed by the Government
to the entire system including nephrologi- This conclusion came after the Court of India to look into the causes of the ac-
cal lymphs, immune and circulatory sys- admitted that cident. The evidence on record showed
tems…and has mutagenic effects and that what was transacted with the Court’s assist- that these accused even though stationed at
the injury… is progressive… Indeed the ance between the Union of India on one side Bombay shared the criminal knowledge of
effects of exposure of the human system and the UCC on the other is now sought to be the other personnel of the company who
made binding on the tens of thousands of in- were actually handling the Bhopal plant…
to this toxic chemical have not been fully
nocent victims who had a right to be heard had criminal knowledge regarding the de-
grasped. Research studies seem to suggest before the settlement could be reached or fective working of the plant and…were no
that exposure to these chemical fumes approved…Any paternalistic condescension longer interested in its safe keeping…(so
renders the human physiology susceptible that what has been done is after all for their that) no remedial steps were taken. 49
to long-term pathology and the toxin is own good is out of place.44 Without going into the extensive evi-
suspected to lodge itself in the tissues and Dealing with the argument that, if the dence on record pointing in the direction
cause long-term damage to the vital sys- settlement were to be set aside, the mon- of criminal culpability the Supreme
tems… The potential risk of long term ef- eys deposited would have to be returned Court quashed charges under 304 Part II
fects is presently unpredictable.”39 Despite to UCC, the Supreme Court held that while (culpable homicide not amounting to
this the Court concluded that “as of now, this may be true, UCC would be required murder which is attracted if the act done
medical documentation discloses that to abide by the earlier interim order re- is with the knowledge that it is likely to
there is no conclusive evidence to estab- quiring UCC to maintain unencumbered cause death but without any intension to
lish a causal link between cancer inci- assets of the value of $3 billion during the cause death), 324 (voluntarily causing hurt)
dence and MIC exposure”.40 pendency of this suit. The Supreme Court and 326 (voluntarily causing grievous
The Court then noticed the pleadings in also directed the Union of India to stand hurt) IPC. These sections were quashed
the review petitions to the effect that UCC, guarantee to make up the deficit in case on the questionable reasoning that there
holding 50.9 shares in UCIL, “retained and the settlement sum deposited proved for was no evidence on record to show that
exercised powers of effective control over any reason to be inadequate. the accused had knowledge “on that fate-
its Indian subsidiary in terms of its corpo- Justice Ahmadi wrote a dissenting judg- ful night” that “they were likely to cause
rate policy”.41 The plea was that UCC ment. “I find it difficult to persuade myself death”.50 This phrase “on that fateful
established and maintained the Bhopal to the view that if the settlement fund is night” is found repeatedly in the judgment.
chemical plant “with defective and inade- found to be insufficient, the shortfall must What the Court is saying therefore is that
quate safety standards which compared be made good by the Union of India”. 45 although the accused generally under-
with designs of UCC’s American plants, In May 1996, a public interest petition stood that they were storing a highly toxic
manifested an indifference and disregard was filed in the Supreme Court on behalf chemical in an inappropriate manner and
for human safety”.42 Despite this, the Court of the victims complaining that from in a dangerously defective plant and knew
warned that the settlement ought to be ac- 1994 onwards instructions were issued to generally that the leakage of gas could
cepted as “we should not proceed on the the deputy commissioners adjudicating cause death nevertheless they were liable
premise that the liability of UCC has been claims not to continue with the adjudica- to be exonerated of these charges because
firmly established”.43 Thus the whole appro- tion and to direct all claimants to go to the there was no evidence to show that they
ach of the Court was pessimistic and diffi- Lok Adalats. The grievance was made that knew that the gas was likely to leak “on
dent. The Court appeared unsure as to the since adjudication has come to a grinding that fateful day” causing death. After
liability of the UCC and the connected ina- halt the victims were compelled to go to quashing all the charges thus, the accused
bility of UCIL to pay substantial damages. the Lok Adalats where “payments were re- would have been discharged. To avoid this,
The positive aspect of this decision was stricted to the bare minimum of Rs 25,000 the Supreme Court introduced the charge
the direction to restore the criminal pros- in a large number of cases”.46 of criminal negligence under Section 304-A.
ecution in the following terms:
Quashing the Charges The Decision of the Chief Judicial
we hold that no specific ground for with-
drawal of the prosecutions having been set In September 1996, a Bench of the Magistrate, Bhopal
out the quashing of the prosecutions re- Supreme Court quashed the charges By order and judgment dated 7 June 2010,
quires to be set aside…The memorandum of against the accused persons47 overriding the Trial Court convicted all the accused
settlement… leaves no manner of doubt that
the submissions of the Additional Solicitor persons under Sections 304-A, 336, 337 and
a part of the consideration for the payment
of $ 470 million was the stifling of the prose-
General appearing for the Union of India 338 r/w section 35 of the IPC 1860 and sen-
cution and, therefore, unlawful and opposed who submitted that “there was ample tenced them to two years imprisonment
to public policy. material produced by the prosecution and a fine of Rs 1,00,000 each.
72 June 26, 2010 vol xlv nos 26 & 27 EPW Economic & Political Weekly
The Trial Court noticed that industrial directions for shut down was given by the no disaster plan that could be set into action.
licensing related to pesticides was granted Production Manager, S P Choudhary and Prompt action by the local authorities could
have saved many, if not most, of the victims.
by the Director General of Technical by Warren Woomer, overall in-charge of
The immediate response was marred by
Development. Licenses were provided by the plant”.59 The Court also found that the callous indifference.70
the Industrial Department of the Ministry Vent Gas Scrubber and Flare Tower were
of Chemicals and Fertilisers, Government not in working order and were “kept shut The Court ended by declining payment
of India for manufacturing 5,000 tonnes down”.60 “No explanation is there on the of compensation under Section 357(3) of
of MIC-based pesticides. The government part of the accused persons why it was the Criminal Procedure Code on the
of India also approved a foreign collabora- kept shut down/inoperational”.61 Though grounds that the compensation settlement
tion between UCIL and UCC on the assur- the MIC was to be stored under pure nitro- had been entered into. This is an interest-
ance given by UCC “that the company have gen pressure of 1 kg/cm2 the pressure was ing point. Damages were awarded in the
technical knowledge of several years of 0.25. That the plant was “running negli- settlement for injuries caused in civil pro-
manufacturing MIC in USA successfully.”51 gently”62 was reported by “a team of ex- ceedings. Compensation in criminal law
UCIL acquired the Bhopal plant from UCC, perts headed by Poulson from UCC, USA, proceedings is awarded “to reassure the
US, which was 50.9% shareholder in the who came to Bhopal after the death of an victim that he or she is not forgotten in the
company. A Design and Transfer Agree- employee of UCIL in 1982.63 Reports were criminal justice system. It is a measure
ment and a Technical Services Agreement sent from Bhopal to UCC about the rectifi- of responding appropriately to crime as
were entered into between the two com- cation of defects.64 The Bhopal plant was well of reconciling the victim with the
panies. The Court records that “both these at the time of the incident “running in loss offender. It is, to some extent, a construc-
Agreements categorically record that UCC of near about Rs 5 crore”.65 tive approach to crimes. It is indeed a step
was a global leader in the field of MIC The Court then records the defence of forward in our criminal justice system”.71
based pesticides having been engaged in Keshub Mahindra to the effect that “he In that case the Supreme Court regretted
this field for many decades prior to these only used to chair the meeting of the Courts not exercising “their salutary pow-
Agreements. The accused Company made board. He was not concerned with the ers under this section as freely and liber-
every effort to acquire the best possible day-to-day business. He was not con- ally as could be desired”.72
technology and design that was then cerned with the safety aspect.”66 None of
available.” The whole technology was im- the matters were ever placed before the Lessons of Bhopal
ported from UCC, US.52 The entire plant board of directors.67 These arguments After 1985, judicial activism went into a
was set up by the UCC personnel under were rejected. Referring to the role of a tailspin. Bhopal hastened the decline in
control and supervision and start up pro- non-executive director, the Court ob- the standards of judicial decisions on the
cedure was done by Warren Woomer, who served that “she is usually involved in environment more than any other case. It
is a specialist in MIC.53 This is how the planning and policymaking…are expect- taught industrialists a memorable lesson.
manufacture of MIC started at the Bhopal ed to monitor and challenge the perform- If you can get away with Bhopal, you can
plant in 1979. The Court also noted that ance of the Executive Directors and the get away with anything. If after thousands
“in 1980s an American, Warren Woomer Management and to take a determined of people died in Bhopal, Union Carbide
came to India and remained here for two stand in the interests of the firm and its and the Board of Directors could get away
years in the capacity of General Works stakeholders. They are generally held with petty compensation and no criminal
Manager”.54 equally liable as Executive Directors…”68 liability (under the 1989 judgment), then
The Court elaborately set out the “ma- The Court concluded that the present case one need not fear the law.
jor design defects brought to the notice of was “not a case of vicarious, but a person- Poor people do not count. This was the
the Court”.55 Also that “the problem was al liability. In the modern times, there is second lesson. The tragedy of Bhopal was
made worse by the plants’ location near a an ever increasing awareness and expec- that the gas leaked into the quarters
densely populated area, non-existent ca- tations of the duties and responsibilities of where the poorer people lived. Had the
tastrophe plants and shortcomings in large corporations in matters of health toxic cloud drifted in the direction of the
healthcare and socio-economic rehabilita- and safety.”69 Then the conviction and the Secretariat, the Bhopal litigation may
tion”,56 and concluded that the parties re- sentence followed. have taken a different turn. As things
sponsible for the disaster were UCC, In concluding the Chief Judicial Magis- turned out the wind direction changed
government of India and Government of trate observed: and Arjun Singh, then Chief Minister of
Madhya Pradesh.57 The Court found that the tragedy was caused by the synergy of the
Madhya Pradesh, was able to board his
there was a storage failure in that huge very worst of American and Indian cultures. helicopter and decamp.
quantities were stored with all the safety An American corporation cynically used a Poor people died like flies and the litiga-
systems “either out of order or shut third world country to escape from the in- tion dragged on for years. Advocates made
creasingly strict safety standards imposed at
down”.58 MIC is required to be stored pref- fools of themselves in American courts ar-
home. Safety procedures were minimal and
erably at zero degree centigrade, but the neither the American owners nor the local
guing with fawning patriotic zeal that
Court found that the refrigeration system management seemed to regard them as nec- courts in India were up to the mark, and
had been closed down and that “the essary. When the disaster struck there was Judge Keenan took advantage of this to
Economic & Political Weekly EPW June 26, 2010 vol xlv nos 26 & 27 73
disguise his basically pro-business atti- at Nagothane in Maharashtra and killed destroyed so that documentation of the
tude with patronising sweet-nothings. 50 workers, it was history repeating itself. nature and extent of injuries was
Who are we to tell the Third World what The management was hopelessly unpre- deliberately done away with leading
they should be doing? They have their pared. The hospital within the complex in ultimately to only about one-third of the
values, their courts, their standards. Who which thousands resided had beds for victims getting compensation. From the
are we to decide what compensation is only seven patients. The doctors said that top came the warning to zealous officers
payable? With words of this kind the they were not surgeons. They did not that the environment was not to be
litigants were banished from American know how to give an intravenous drip. taken seriously.
courts, with their strict liability and high They claimed that they had neither the The courts and the government repeat-
levels of compensation and low levels of equipment nor the medicines and that ed this performance when activists of the
judicial corruption, into the labyrinthine they were never informed of how to deal Narmada Bachao Andolan were routinely
mess of the Indian judicial system. with victims of chemical explosions. The beaten up and arrested and treated as
hospital had only two ambulances with anti-nationals and anti-development.
Double Standards two beds each. One was so old it broke Despite the failings of the Narmada project,
Thus, with Keenan’s judgment, double down at the gate. The workers’ bodies the high court refused to entertain the
standards for transnational corporations were, therefore, taken to hospital by con- petition and the Supreme Court in this
became the norm. American corporations tractor’s trucks. Acting in a panic the doc- matter of national importance passed a one
were required to follow higher standards tors evacuated the factory without first page order directing the construction to
of safety in America and also abide by treating the injured and dying. They were proceed apace with perfunctory remarks
the right to information laws and the taken northwards towards Alibag over regarding rehabilitation. As with the
higher level of compensation. But operat- roads pitted so badly that some of the Amnesty report on torture in India, it
ing in the backwaters of the developing workers died on the way. After hours they sometimes takes a foreign committee’s re-
world, they were free to work in secrecy, reached Alibag only to find the civil hospi- port to make India sit up and take notice.
bribe officials and lie in court. Were tal without medical supplies. The trucks There could not be a more scathing indict-
transnational corporations to be prose- then turned around and came south to ment of the Narmada project than the
cuted in American courts according to Bombay. At Sion Hospital the doctors Morse Committee report. Yet, in a situa-
American law for disasters abroad, the found all the workers dead. They said that tion where the governments of Gujarat,
occupational health and safety scene in had elementary emergency aid been pro- Madhya Pradesh, and Maharashtra have
the developing world would have vided by spraying the workers with cold no intention of rehabilitating anyone ac-
improved dramatically. water immediately after the explosions cording to the Narmada Water Disputes
The undue haste with which the full and then by covering them in light cotton Tribunal. Award and the supplementary
Bench of the Supreme Court pushed clothing and had intravenous drips been agreements, all that B D Sharma, the in-
through the settlement and quashed the administered it would certainly have been trepid ex-Commissioner for scheduled
criminal proceedings was later partially possible to save lives. As in Bhopal, tran- castes and Tribes could get from the
corrected when the Court reversed itself snational corporations were involved in Supreme Court in his public interest peti-
and restored criminal liability. This haste the fabrication of the IPCL plant and these tion was a direction against him, for the
to push through the settlement was in foreigners were working in the premises work on the dam to go ahead.
sharp contrast to the manner in which the when the explosion took place. They im-
judicial proceedings went on for years. The mediately left the factory and caught the Corruption
Court’s performance was a fitting answer first flight home. Thus even after Bhopal The casual attitude of the courts has
to Nani Palkhivala’s grand arguments that no industrialist had learnt that a disaster taught the pollution control boards a thing
the Indian judicial system was competent management plan was necessary. Not or two. Steeped in corruption and headed
to handle the Bhopal litigation. very different is the story of the recent by politicians, these boards fabricate any-
And when Chief Justice Pathak went to hazardous chemical leak from Century thing for anybody at a price. At the centre
the World Court at The Hague soon after Rayon, Thane. of the putrefaction of social life, the pollu-
criminal liability was quashed and then Government attitudes in Bhopal sent a tion control boards – themselves cess-
tried to hang on for a second term by similar signal down the line to all the pools of corruption – have become a law
unusual means, eyebrows were raised. expert bodies. When on behalf of govern- unto themselves. Reports are fabricated,
The result of all this was a clear signal to ment, the Tata Institute of Social Sciences investigations stage managed, approvals
the lower judiciary that the environment sent a team to Bhopal to document the granted fraudulently and accidents cov-
was taboo and to industrialists that it was number of persons affected and the de- ered up. And the position of the Union
business as usual. gree of injury, much work was put in but Minister for the Environment, once a
So, many years later, when an inflam- the records are mysteriously missing. Vol- punishment posting, has become the most
mable gas leaked and ignited causing an untary groups doing similar work had lucrative ministry. Crores of rupees in
explosion that shook the Indian Petro- their offices raided, their activists arrested, bribe money flow through the corridors of
chemical Corporation Ltd’s (IPCL) factory their records seized by the police and later Paryavaran Bhavan.
74 June 26, 2010 vol xlv nos 26 & 27 EPW Economic & Political Weekly
The pollution control boards get away compared to the lion’s roar of the quotations 22 677.
with this because courts do not question and lofty ideals. By these techniques the 24 705.
their reports. In property matters, affida- judiciary caused the public to believe that 25 707.
vits, reports and other documents are the judiciary was receptive whereas quite 26 709.
27 1987 1SCC395.
scrutinised closely by the writ courts, but to the contrary judicial decision-making 28 704.
in environmental matters, even the most was characterised through this period by 29 712.
outrageous, casual or contradictory re- timidity and domination by industry. 30 713.
ports would pass muster. When expert As the judiciary went into decline, the 32 715.
bodies act independently and fearlessly movement grew and took on the dimensions 33 715.
then it is understandable that courts not and characteristics of a mass movement.
substitute their eclectic knowledge of the Now we are truly on the threshold of a sec- 36 726.
subject for the scientific reasoning of the ond national movement. Public life has 37 1991 4 SCC 584.
expert body. But when the Pollution Con- become so corrupt, standards are so abys- 39 612.
trol Boards act mala fide, should the mally low and looting the exchequer has 40 677.
courts keep their eyes shut? become so much a national pastime that 41 614.
The obsession judges have with the nothing short of a national cleansing of the 43 677.
amount of money spent on projects is rot that pervades Indian society will do. 44 670.
another misplaced concern. What law- The environment movement once stood 45 690.
46 2000 10 SCC 507.
breakers routinely tell the courts, in on the fringes of the human rights move- 47 1996 6 SCC 129.
effect, is: “perhaps we have broken the ment together with other issues as just an- 48 140.
law and harmed the environment but we other issue. Today it stands centre stage.
have spent so much money; let us contin- The nexus between environment issues 51 State of Madhya Pradesh through CBI vs Sir
ue with the construction, otherwise we and life itself indicates that the struggle Warren Anderson; in the Court of the Chief Judi-
cial Magistrate, Bhopal, MP; Criminal Case No
stand to lose more money.” And the courts for a healthy and sustainable environment 8460 of 1996, para 25.
succumb. Because of their property and is a struggle for changing the whole of so- 52 Para 34.
53 Para 34.
profit orientation, judges rarely calculate ciety itself. Basic values, attitudes, ap- 54 Para 34.
the enormous costs in terms of environ- proaches, priorities and lifestyles are 55 Para 37.
mental destruction. called into question and the environment 56 Para 38.
57 Para 38.
It takes courage to condemn a mega has transited in the people’s minds from 58 Para 53.
project that will harm the environment. just another issue to the subterranean 59 Para 56.
60 Para 64.
But it must be done and in clear terms. strata of all movements. It is not simply an
61 Para 64.
Judicial pronouncements on the environ- issue of forests or water or the air but the 62 Para 78.
ment in India tend to appear to say much living together in harmony of all people 63 Para 78.
64 Para 80.
more than they do. The Sriram case, for and their harmony with nature. 65 Para 115.
example, used wonderful language and 66 Para 118.
several quotations and relied on many 67 Para 135.
68 Para 137.
precedents and is said to lay down the 1 See Ward Morehouse and M Arun Subramaniam, 69 Para 184.
principle of strict liability. The casual The Bhopal Tragedy: A Report for the Citizens Com- 70 Para 216.
mission on Bhopal (Council on International and 71 Manish Jalan vs State of Karnataka (2008 9 Scale
reader might believe that strict liability Public Affairs, New York, 1986). 814).
now exists in India. But when read care- 2 Mass Disasters and Multinational Liability: The 72 818.
Bhopal Case, prepared by Upendra Baxi and
fully the judgment is otherwise. Subse- Thomas Paul under the auspices of the Indian
quent decisions of the Supreme Court Law Institute (Bombay: M N Tripathi, 1986), p iv.
have not taken the Sriram case as laying 3 Ibid, p 2. More Retail Outlets for EPW
4 Ibid, p 225, 228.
down strict liability. We are told that one 5 Ibid, p 228. The Economic & Political Weekly (epw) is
of the judges who delivered the decision 6 Ibid. now available at a number of additional
7 Ibid, p 229.
– a prominent public interest litigation 8 Ibid, p 162.
proponent – has, after retirement, in 9 1989 1SCC 674. You can now buy the latest issues of the
opinions given to industrialists, said that 10 1989 3SCC 38.
epw at Landmark, Odyssey, Crossword,
the doctrine of strict liability as laid down 12 1990 1 SCC 613. Sankars and other select bookstores
in Sriram’s case was obiter. 13 636. across the country. Please look for epw
Thus, after Bhopal, the separation be- 14 655. at the Outlook Counter at the above
tween what judges pretended to say and 16 705. mentioned stores.
what they actually said grew. Grand judg- 17 675. If you need any help locating a store
ments were not uncommon but they had 18 693.
please call us at 022-40638282 and we
little effect because the operative part of the 20 673. would be able to assist you.
orders were like little pipsqueaks as 21 674.
Economic & Political Weekly EPW June 26, 2010 vol xlv nos 26 & 27 75