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december 27, 2014 vol xlIX no 52 EPW Economic & Political Weekly10

With a Parent Like This Bhopal Disaster and Union of India

C Sathyamala

The story of Bhopal of the 30 years of disaster is not that of corporate crime alone but also that of the nexus between national governments and transnational corporations; of state and capital. And, irrespective of the government in power, the nature of the state has not changed.

This December marks the 30th an-niversary of the Bhopal gas leak disaster, infamously known as the biggest chemical disaster in the world, in which more than 40 tonnes of a mixture of poisonous gases spewed out of the pesticide plant of Union Carbide India Limited (UCIL), the Indian subsidiary of the US transnational Union Carbide Corporation (UCC) in Bhopal on the night of 2-3 December 1984. This year is also signifi cant in that Warren Anderson, the chairman of UCC at the time of the disaster, died on 29 September, with a permanent epithet that of an absconder and a fugitive from Indian justice. On 7 December, four days after the disaster, when Warren Anderson had arrived in Bhopal, he was arrested by the local police (the charges were culpable homi-cide not amounting to murder, grievous assault, and the killing and poisoning of human beings and animals), put under house arrest for a few hours in the UCIL guest house atop the Shamla Hills, Bhopal, granted bail by the local court against a personal bond of Rs 25,000, and transported the same day by a state aircraft to New Delhi and then off to the US, never to return to stand trial as per his bond commitment.

The Face of Corporate Crime

On 1 December 1987, initial charges were fi led against Anderson, and, when, even after repeated summons, he did not appear in the Bhopal court, he was de-clared an absconder and a non-bailable arrest warrant was issued in February 1989 by the chief judicial magistrate (CJM) for repeatedly ignoring summons. In February 1992 he was declared a fugi-tive and in August 2002 an order for extradition to stand trial was passed.1 Though the American authorities stated that they were unable to locate him, he

was found in his luxurious home in Hampton by Greenpeace activists.2, 3 The extradition order was rejected by the US authorities in June 2004.

Warren Anderson, who drew the colle ctive wrath of the gas victims, and whose effi gy was burnt during every anniversary of the disaster (and when-ever the occasion demanded) and whose death by hanging was one of the popular slogans of the survivors organisations, came to signify the face of corporate crime of UCC. His continued state of freedom4 seemed to make a mockery of the victims struggle for justice and for fi nding a meaning to their sufferings brought on by criminal negligence in pursuit of prof-it (the various cost-cutting measures in the Bhopal plant, for instance) by a cor-poration under his stewardship.5

State Complicity

However, the story of Bhopal, of the 30 years of disaster, is not that of corpo-rate crime alone but that of the nexus between national governments and transnational corporations, of state and capital, a complicity that can be traced from the time UCC applied for an indus-trial licence for the manufacture of methyl isocyanate (MIC)-based pesticide at their Bhopal facility. Although UCC had applied for an industrial licence as early as January 1971, it was only fi ve years later, on 31 October 1975, in the early months of Emergency that a licence was granted. The approval was said to have overridden opposition from offi cials in the Ministry of Industrial Develop-ment and later offi cials were aware of the obsolete, discarded technology and faulty machinery being transferred to India (Krishna 2010a). Post-disaster investigations would show the fl outing and circumvention of several regulations by the Indian government, including the Foreign Exchange Regulation Act and safety norms that had set the stage for the disaster (Delhi Science Forum Report 1985). The critical episode of the arrest and release of Warren Anderson initiated the next chapter in the complicity of the Union of India (UoI) in the acts of UCC. As per partially declassifi ed Central

C Sathyamala (csathyamala@gmail.com), an epidemiologist, is a member of the Supreme Court Advisory Committee on Medical Research in Bhopal. She was the fi rst convenor of the Delhi-based Bhopal Gas Peedith Sangharsh Sahyog Samiti, a coalition of over 30 organisations founded in 1989 in the aftermath of the settlement. As a medical expert, she was also an intervener in the review petition challenging the settlement.

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Intelligence Agency (CIA) documents, it has now been revealed that it was Rajiv Gandhi who had ordered the release of Anderson and provided for his safe transit (Krishna 2014a).6, 7

The main act, one could say, began with the passing of the Bhopal Gas Leak Disaster (Processing of Claims) Act 1985, which gave exclusive rights to the Indian government to litigate on behalf of the victims. This was under the doc-trine of parens patriae (parents of the na-tion) and was passed on the considera-tion of protecting the victims who were mostly poor and non-literate from the ambulance-chasing American lawyers who had fl own down to take the thumb impressions (sometimes by paying a price) from the victims authorising them to represent the signatory in the US courts. Under this Act, the Indian gov-ernment had the legal right to do what-ever it wished to on behalf of the vic-tims. It could put up a good defence, or settle the case, or could have opted not to fi le the suit and instead could have di-rectly negotiated to settle the case.

Thus, while the Indian government fi led a suit in the Southern District of New York in 1985, negotiation had begun on settling the dispute well before any-one had had an opportunity to estimate the nature and extent of injury, the number of dead and injured and the long-term consequences of the disaster (Jaising and Sathyamala 1992: 106). A proposal by the American lawyers to settle the case for $350 million was op-posed by the Indian government who fi led for a compensation of $3.3 billion. Ironically, it was the Indian constitutional expert, the late Nani Palkhivala who successfully argued on behalf of the UCC in the US courts and demolished the Indian case for the suit to be heard in the American courts (Mohanty 2010). While throwing out the Indian suit, judge Keenan stated:

In the courts view to retain the litigation in this [American] forum would be yet an-other example of imperialism, another situa-tion in which an established sovereign in-fl icted its rules, its standards and values on a developing nationTo deprive the Indian judiciary of this opportunity to stand tall be-fore the world and to pass judgment on be-half of its own people would be to revive a

history of subservience and subjugation from which India has emerged (the presid-ing judge, as quoted in Elkin 1986).

Faced with this pious postcolonial dis-course, the Indian government had but only one option to accept Keenans de-cision. The rest, as they say, is history.

Settling of the Case

In February 1989, the Supreme Court of India settled the case and the UCC and UOI agreed to an amount of $470 million in settlement of all claims past, present and future and to quash all criminal charges against UCC. This time the UCC was represented by another Indian constitutional luminary, Fali Nariman. Justice R S Pathak who facilitated the settlement was awarded with a posting in the International Court of Justice in The Hague.8 Till today, the reason(s) for the scaling down of the compensation amount from a demand of $3.3 billion to $470 million has not been made public.

The outcry this settlement created, nationally and internationally, forced the Supreme Court to come out with a clarifi catory order in May 1989 which was based on mythical fi gures of the number of dead and injured since not even 10% of the 6,00,000 claimants had been evalu-ated for personal injury and even those who had been were evaluated on an arbitrary and faulty process of injury as-sessment deigned to underestimate the quantum and nature of injuries (Sath-yamala et al 1989). The appropriation of the citizens legal rights to litigate meant the appropriation of medical informa-tion as well which had consequences for both research on the health impact of the toxic gases and treatment measures.9

Although in 1989, the Supreme Court upheld the constitutional validity of the Act in the hearings challenging the states exclusive rights to defend the victims, the Court conceded that victims should have been given notice prior to the settlement and that the quashing of criminal proceedings was beyond the purview of the Act. Buoyed by this ruling and the change in the government, the victim groups fi led review petitions against the settlement. The challenge to the settlement rested on three major grounds. First, the amount settled for

was inadequate as both the nature and number of injured was unknown at the time of the settlement. Second, there was no provision for compensating inju-ries that may develop in future. The third pertained to the illegal quashing of criminal liability. However, the UOI which was legally the sole representative of the victims refused to fi le a review petition on its own. Moreover, when the Court asked if the government would be prepared to return the compensation money were the settlement to be dis-solved, there was an awkward silence.

For no apparent reason, during the review, the Court refused to go into the question of the number of victims or the nature of injury due to the toxic gases. As a result, the governments own esti-mate based on faulty criteria was accepted without question (Jaising and Sathyamala 1992). In October 1991, the Supreme Court held that the settlement was beyond challenge and that in the event of a shortfall, the Government of India was liable to make good the shortfall. One reason stated for upholding the set-tlement was that no new evidence had been produced in front of the Court. This was despite the fact that victim groups had shown using data from independent studies and the data gathered by the Indian Council of Medical Research (ICMR) that there were grounds to challenge the Personal Injury Evaluation of the Directorate of Claims. Further, the ICMR data was being placed for the fi rst time in the Court as it had until then been held under the Offi cial Secrets Act.10

Onset of Criminal Proceedings

The situation became more curious with the onset of criminal proceedings.

The government [said] it had nothing to do with the quashing of the criminal proceed-ings. The Supreme Court claim[ed] to have the power to go beyond law but [said] it had not been given grounds for doing so at that stage. It [the Supreme Court] does not say why, [and] then, it did what it did. It leaves it in the realm of conjecture: if the government had invited the court, the court may be obliged. So, it would appear, the Supreme Court had quashed the criminal proceedings for no statable [sic] reason. This became clearer with the court explaining that the quashing of criminal proceedings was not a consideration for the settlement. That is, no party to the

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settlement was making it a condition with-out which the settlement would not stand. Mr Nariman drew a distinction between mo-tive and consideration, and the court adopt-ed it, although what is motive [was] not ex-plained. If the quashing of the criminal cases was not to help negotiate the settlement and get the company to agree to pay $470 million which was $120 million more than it had agreed to pay why was it in the order and in the terms of settle ment? (Ramanathan 2010; emphasis as in the original).

In 1996, the Supreme Court diluted the charges of culpable homicide not amounting to murder (which would at-tract 10 years of imprisonment) framed against the nine accused by the lower courts to direct result of rash and negli-gent act carrying a maximum penalty of two years only. According to the learned judges, even if the management had acknowledged that they were run-ning a defective plant or that they were storing toxic materials in contravention of regulations, this knowledge could not be considered suffi cient grounds to prove that the management had knowledge that such acts could cause death and suf-fering (Sathyamala 1996). Justice Ahmadi who presided over this judgment and who later dismissed a review petition fi led against his order, a fortnight before he retired, was appointed as the Chairman of the Bhopal Memorial Hospital Trust set up by UCC after his retirement. Today, with litigations continuing in various courts, the complete arbitrary nature of the settlement pertaining to compensa-tion has become clear.

The settlement wasbased on the assump-tion that only 3,000 victims had died and another 1,02,000 had suffered injuries in varying degree. These were merely imagi-nary fi gures of dead and injured since the 6,00,000 claims that had been fi led until then had neither been processed nor catego-rised. Fifteen years later, in 2004, after adju-dicating all the claims (including another 4,00,000 cla ims that were fi led between 1989 and 1996), the Claim Courts concluded that the dead and injured gas-victims num-bered nearly 5,73,000, i e, a fi gure that was fi ve times greater than the one that formed the basis of the settlement! Thus, all that the gas victims (including next of kin of the dead) got was a pittance from the Settlement Fund on an average, just about $820 each! The Claim Courts too had underestimated the total number of dead (which actually is well over 20,000) and seriously injured in the absence of health records (Jayaprakash 2014).

This does not include the new genera-tions of victims (children born to the gas exposed) or the manifestation of newer injuries such as cancer whose prevalence rate has risen in Bhopal (ICMR undated).

UCC and UOI vs the Gas Victims

More often than not, while attending the daily hearings on the review petitions against the settlement in the Supreme Court in 1990, it was not clear whether the case being heard was UCC vs UoI or UCC and UOI vs the gas victims. Subse-quently, although the cou rts have grant-ed several reliefs to the victims, even simple actions such as the computerisa-tion of patient records and the non-issu-ance of health booklets (patient re-tained health records) despite repeated orders (Jayaprakash and Sath ya mala 2014) are not complied with. This goes to show that irrespective of whichever government is in power, the nature of the state has not changed.

Notes

1 Bhopal Gas Tragedy: How Warren Anderson Got Away from Our Grasp, India Today, 1 No-vember 2014, accessed on 18 December 2014, http://indiatoday.intoday.in/story/bhopal-gas-trag edy-warren-anderson-union-carbide-dow-chemicals-rajiv-gandhi-congress-arjun-singh/1/ 398605.html

Warren Andersons Extradition Plea Pending with US: CBI, Rediff.com, 3 April 2013, accessed on 18 December 2014, http://www.rediff.com/news/report/ warren-andersons-extradition-plea -pending-with-us-says-cbi/20130402.htm

Bhopal Gas Tragedy: A Chronology of Events, The Hindu (2010), accessed on 19 December 2014, http://www.thehindu.com/news/na-tional/bh opal-gas-tragedy-a-chronology-of-events/article448771.ece

2 Anderson and His Wife Lillian Own a Luxurious Home in the Hamptons, accessed on 18 Decem-ber 2014, http://news.rediff.com/slide-show/ 2010/jun/07/slide-show-1-Warren-Andersons-nine-hundred-thousand-dollar-luxury-home-in-new-york.htm

3 In 2010, Soli Sorabjee who was the attorney general during the time of the review petitions which argued against the quashing of the criminal case gave the opinion that it would be futile to seek for the extradition of Anderson. See CNN-IBN Focus on Relief, Not Extradition: Sorabjee, accessed on 18 December 2014, http://ibnlive.in.com/news/focus-on-relief-now-not-extradition-sorabjee/123870-37-64.html

4 Anderson retired in 1986 at the age of 65 and in Later Years He Gardened and Fished with his Wifeand Baked Swedish Bread, following an Old Family Recipe. See D Martin, Warren Anderson, 92, Dies; Faced India Plant Disaster, The New York Times, 30 October 2014, accessed on 18 December 2014, http: //www.nytimes.com/2014/10/31/business/vw-m-anderson-92-dies-led-union-carbide-in-80s-.html?_r=0

5 Anderson was said to have increased the pro-ductivity and sales of UCC after he took over as the Chairman and CEO in 1982 and acquired several companies. At the time of the Bhopal disaster, UCC had 700 plants in 38 countries with over 1,00,000 employees. See The Telegraph, 3 November 2014, accessed on 18 December 2014, http://www.telegraph.co.uk/news/obituaries/ 11205397/ Warren-Anderson-obituary.html

6 The facsimile of the document states that Anderson was released on orders from the Central Government and also states that while the disaster was unlikely to have a major effect on the elections that were to follow in two weeks time the new government was likely to move cautiously in developing future foreign investment and industrial policies and rela-tions with multinationals specially US fi rms. See S Haider, Rajiv Govt Freed Anderson: CIA Papers, 11 June 2010, accessed on 18 Decem-ber 2014, http://ibnlive.in.com/news/rajiv-govt-freed-warren-anderson-cia-papers/ 123873-37-64.html

7 It has conjectured that Andersons release was in exchage for the release of the late Yunus Mohammad, as a swap deal between Rajiv Gandhi and the US government (Krishna 2010b).

8 Justice R S Pathak had become the Chief Justice of India in December 1986 and relinquished offi ce in June 1989 after delivering the judg-ment on the Bhopal settlement to take up the post in The Hague.

9 For a detailed discussion on the consequences of medical appropriation, see Sathyamala and Jayaprakash (2012).

10 In fact, as interveners in the Supreme Court Case, we were told by the then attorney general in categorical terms not to raise the issue of the categorisation of injuries in the Court. However, we went ahead with our argument on the process of injury evaluation. (Writ Petition No 11708 of 1985 fi led on 1 August 1985 by Dr Nishith Vohra and two gas victims. C Sathyamala became a co-petitioner in 1989 and the case was argued by Senior Counsel Indira Jaising).

References

Delhi Science Forum Report (1985): Bhopal Gas Tragedy, Social Scientist, 13(1), pp 32-53.

Elkin, L (1986): Judge: Indian Courts Should Handle Bhopal Lawsuits, accessed on 19 December 2014, http://www.apnewsarchive.com/1986/Judge-Indian-Courts-Should-Handle-Bhopal-Law-suits/id-b41883cb0193d7ee39baae251c485 354

ICMR (undated): Health Effects of the Toxic Gas Leak from the Union Carbide Methyl Isocyanate Plant in Bhopal. Technical Report on Population Based Long-term Clinical Studies (1985-94) (New Delhi: Indian Council of Medical Research), ac-cessed on 5 November 2012, http://www.icmr.nic.in/fi nal/tech_rep_clinical.pdf.

Jaising, I and C Sathyamala (1992): Legal Rights and Wrongs: Internationalising Bhopal, Dev Dialogue, 1-2, pp 103-15.

Jayaprakash, N D (2014): The Path to Sustainable Development: Lessons from the Bhopal Disaster, paper presented at the Right to Development Anniversary Event organised by the Offi ce of the High Commissioner for Human Rights, United Nations Organisation, Geneva, on 2 December 2014, on the eve of the 30th anniversary of the Bhopal disaster.

Jayaprakash, N D and C Sathyamala (2014): Victims of Apathy: Bhopal Disasters Unenviable Legacy, Medico Friend Circle Bulletin, 361-62, pp 1-7.

Krishna, G (2010a): The Emergency and Bhopal, Outlook http://www. outlookindia.com/article/The-Emergency-And-Bhopal/265858, accessed on 18 December 2014.

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(2010b): Adil Shahryar, Anderson Swap Deal?, accessed on 18 December 2014, http://www.toxicswatch.org/2010/07/adil-shahryar-anderson-swap-deal.html

(2014): Endless Quest for Indias Baghdad Continues, Medico Friend Circle Bulletin, 361-62, pp 21-22.

Mohanty, P (2010): Bhopals Hall of Shame: The Power People Who Gassed the Victims, accessed on 19 December 2014, http://www.

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Ramanathan, U (2010): Bhopal: An Unsettling Settlement, The Hindu, accessed 19 December 2014, http://www. thehindu.com/opinion/op-ed/bhopal-an-unsettling-settlement/article 525466.ece

Sathyamala, C (1996): A Requiem for Bhopal, Medico Friend Circle Bulletin, November- Dece mber, No 236-37.

Sathyamala, C and N D Jayaprakash (2012): The Bhopal Disaster and Medical Research, Economic & Political Weekly, Vol XLVII, No 49, pp 37-40.

Sathyamala, C, N Vohra and K Satish (1989): Against All Odds: Continuing Effects of the Toxic Gases on the Health Status of the Surviv-ing Population in Bhopal: Preliminary Report of a Medical Survey Carried Out Five Years after the Disaster, mimeo, New Delhi.