Anxiously waiting outside the court of the chief judicial magistrate Mohan Tiwari in Bhopal on 7 June, 36-yearold Raghu Jaidev and many other victims of the Bhopal catastrophe were crestfallen, some of them, outraged, upon hearing the verdict of the trial that had lasted 23 long years. “Rich people always get away”, said Jaidev, “we poor keep fighting till we die”. The accused, part of the management of Union Carbide India Ltd (UCIL), including its chairman Keshub Mahindra, got away with a sentence equivalent to what is given for causing death by negligence in a traffic accident! And, they were out on bail minutes after the verdict was announced.
The release of 45 tonnes of methyl isocyanate gas (MIC) on the night of 2/3 December 1984 from the Bhopal plant of Union Carbide Corporation’s (UCC) Indian subsidiary UCIL killed some 8,000 people in the vicinity in the next 72 hours and left innumerable others blinded, suffering from major pulmonary disorders, with abnormal pregnancy outcomes, psychiatric disorders, and/or a whole host of other acute and chronic morbidity conditions. Many more were to die as a result in the years to come and the numbers suffering toxic exposure and damage are now estimated at half a million. No one knows for sure and no government agency has cared to establish with some certainty how many really breathed their last on that terrible night, how many have died since then of the after-effects and how many continue to carry the burden of the world’s worst industrial disaster. Even now, around 350 of the affected persons are believed to die every year of the after-effects. Indeed, children of the gas-affected parents, born after the night of 2/3 December 1984, were also afflicted, some with serious deformities. Further, the ground water of the factory and its immediate vicinity is contaminated from the leakage of toxins from the abandoned factory, in turn, polluting the water table, but Dow Chemical Company, which acquired the shares of UCC in 2001, denies any responsibility for UCC’s Bhopal liabilities even though environmental damage was not included in the settlement that UCC and the government of India concluded in 1989. In Bhopal, the survivors do not, as yet, even have access to safe drinking water!
How may one portray the Bhopal catastrophe and the labyrinthine quest for justice in the corridors of power of the executive, the legislature and the judiciary over the past 26 years? Frankly, if MF (Maqbool Fida Husain), India’s Picasso, were to paint a mural of Bhopal, its portrayal of the pain and the anguish, the wounds that have yet to heal, the continuing protests even in the face of utter defeat, the inequities of the whole system of power and wealth insofar as the victims are concerned, the monster that is capitalism would surely be profoundly depressing. Nevertheless, such a mural, like Picasso’s Guernica, would keep the name of Bhopal on the lips of generations to come. MF’s works have not been marked by a sense of political awareness, but if the victims were to call upon him to paint a Bhopal mural, he might just depict the vast suffering inflicted — by the UCC, the UCIL, the Supreme Court of India, the state of Madhya Pradesh (MP), and New Delhi hand-in-glove with Washington — in an unforgettable idiom.
The UCC didn’t think twice about the likely grave harm that large-scale storage of MIC at its Bhopal facility entailed; its double standards didn’t permit such storage at its West Virginia plant. There was not the least discomfort in locating such a hazardous plant in the heart of the old city of Bhopal where multitudes, indeed, millions of poor people dwelt and scraped out a bare livelihood. The Indian and MP governments too didn’t seem to bother, let alone seek the consent of those people. Indeed, it is clear that the UCC never parted with crucial information regarding the toxicity and epidemiology of the MIC-based technology it decided to adopt. Did the government of India and the MP government, responsible for monitoring health and safety, even insist on such disclosure? The UCIL management even shut down the refrigeration system in order to cut operating costs, something that increased the risk of the disaster, but the government inspectors didn’t bat an eyelid. The sophistication of the safety systems at the West Virginia plant and the outmoded nature of the same at the Indian plant said a lot, especially in the wake of an earlier gas leak in the latter in 1982, which killed two workers there. UCC is said to have suppressed the safety audit it undertook in the aftermath of that leak. All this suggests that UCC was totally, recklessly indifferent to the health and wellbeing of its workers and the people of Bhopal.
Now, even if one were to ignore all of the above, why did UCC first refuse to admit that the emissions on the night of 2/3 December 1984 contained MIC? Even when thousands of people died and many more suffered all kinds of morbidity, the UCC still didn’t part with the toxicological and epidemiological information that it had. Its legal liability alone bothered it; limiting that liability was its sole concern. It denied the link to any long-term adverse health effects, indeed, even immediate ailments. It contested the award of interim compensation, even as it publicised its “corporate social responsibility” in the form of the donation of sewing machines to some of the female victims.
What of the omissions and commissions of the government of India and the MP government? Warren Anderson, the CEO of UCC, on arrival in Bhopal was put under “house arrest” on 7 December 1984, but was, very soon, granted bail, put on a government plane and allowed to leave the country, ostensibly on condition that he would come back to face the criminal charges against him. Nevertheless, the tacit understanding, it seems, between Washington and New Delhi, was that he would never come back to India again.
Law as business descended on the victims of Bhopal in the immediate aftermath of the disaster. I still recall the news reports of US lawyers swooping like vultures on the Bhopal victims to obtain “powers of attorney”. It is always so difficult for poor and unlettered victims to prove the harm inflicted on them, to corroborate who and what caused that harm, to establish that the injuries have to be compensated for. The Indian government enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act of 1985, claiming to act as “parens patriae” on behalf of the victims, but ultimately, later on, “sold” their interests to UCC for a pittance. However, in May 1986, the court of Judge John F Keenan in New York dismissed the case of the Indian government from his court on the ground of forum non conveniens, as argued by one of the most eminent lawyers of India’s moneybags, Nani Palkhivala, on behalf of UCC. But with the Union of India — a “sovereign, socialist, democratic republic” assuring its citizens of justice, equality, and liberty — acting as parens patriae on behalf of its citizen-victims against the giant corporation that UCC was, the stenographers of power declared that justice was on its way. The reality of India is, of course, one where monstrous injustice is the rule, even as its dominant classes and their representatives swear by satya (truth) and ahimsa (non-violence). The government as the sole representative of the victims didn’t even think it should consult them; it colluded with the UCC to compromise the interests of the victims.
In 1987 India’s Central Bureau of investigation (CBI) filed its charge-sheet against Anderson and UCC on grounds of culpable homicide and summons was served on all the accused. But Anderson ignored even a later non-bailable warrant against him. Indeed, in the two years that went by, the Union of India reached an out-of-court settlement with UCC, brokered by the then Chief Justice of the Supreme Court of India, R S Pathak, which dropped all criminal charges against the accused in return for a compensation of $ 470 million, this, when the government had initially asked for $ 3 billion. The compensation, needless to say, was a pittance, far, indeed, remote from being in proportion to the damage caused. The UCC and the government of India succeeded in depriving the victims of compensation at a level comparable to what is generally awarded as damages in similar tort actions in the US.
The settlement was however challenged in the Supreme Court, and the criminal charges were re-instituted, and revived at the end of 1991 (the Supreme Court, however, deemed the petty compensation to be “just, equitable and reasonable”). But Anderson and UCC ignored the summons, and were ultimately declared “absconders”, with New Delhi all the while claiming that it was only Washington that was against Anderson’s extradition. Closer to the truth is the complicity of Washington and New Delhi in continuing to abide by the deal that the latter had sealed with UCC. The cases involving UCC and UCIL and its management were now separated and the Trial Court in Bhopal framed charges, including those of culpable homicide, against the latter. The charge of culpable homicide was however challenged but upheld by the MP High Court, only to be questioned by the Supreme Court which, in 1996, directed the CBI to drop the charge and instead charge the accused of UCIL with death caused by negligence. The highest court in the land, in effect, reduced the Bhopal disaster to the equivalent of a traffic accident! Earlier, in 1994, UCC was allowed to sell its 51% shareholding in UCIL, thus making matters easier for it, for it now no longer owned any assets in India. Indeed, no measures were taken by the CBI, which directly reports to the prime minister, to get Dow Chemical, which, as mentioned, took over UCC in 2001, to appear in court on UCC’s behalf.
The 7 June judgment of the Trial Court in Bhopal, coming 23 years after the CBI first filed its charges against the accused, has to be seen in the light of the Supreme Court weakening the case against the prosecution in its order of 1996, which significantly lightened the charges on the accused from culpable homicide to death by negligence. The lower court thus could not have done anything meaningful in ensuring justice. The highest court of the land, it may be said, ensured that the judicial system would deny justice to the victims of Bhopal and, in effect, come out on the side of the wealthy, those who effectively manipulated the levers of political power. The government, it seems, is beyond redemption, that is, if one goes by its moves to limit the liabilities of the operators and equipment suppliers in the 2010 Civil Liability for Nuclear Damage Bill. Meanwhile, it will be a miracle if any of the accused ever goes to jail; the matter is bound to drag on in the superior courts for years on end. After all, as aam aadmi (common man) Raghu Jaidev implied — all the state’s decision-making bodies discriminate against the poor.
The callous indifference of successive governments in New Delhi and Bhopal — even now, following the public outrage after the Trail Court’s June 7 judgment, they are desperately trying to convey the impression of their doing the victims a favour by acting on their behalf — only deepens the pain, the anguish in the face of defeat.
Bernard D’Mello (email@example.com) is deputy editor, Economic & Political Weekly, and a member of the Committee for the Protection of Democratic Rights, Mumbai. This article is based on an editorial he wrote, which was published in the June 12 issue of the magazine.