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The Bhopal Catastrophe

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					PERSPECTIVE




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



                                                 T
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 (colin.gonsalves@hrln.org), 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
                                                                                                                                  PERSPECTIVE

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
PERSPECTIVE

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
                                                                                                                                      PERSPECTIVE

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
PERSPECTIVE

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
                                                                                                                                         PERSPECTIVE

   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
PERSPECTIVE

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
                                                                                                                                                 PERSPECTIVE

    The pollution control boards get away              compared to the lion’s roar of the quotations           22   677.
                                                                                                               23   685.
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.
                                                                                                               31   715.
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.
                                                                                                               34   726.
then it is understandable that courts not              and characteristics of a mass movement.
                                                                                                               35   726.
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.
                                                                                                               38   693.
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.
                                                                                                               42   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.
                                                                                                               49   154.
law and harmed the environment but we                  other issue. Today it stands centre stage.
                                                                                                               50   157.
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.
                                                       Notes
                                                                                                               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.
                                                                                                                    retail outlets.
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,
                                                       11 add.
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
                                                       15 707.
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.
                                                       19 695.
                                                                                                                    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

				
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