25 years and still waiting
Vidya Subrahmaniam IN THE HINDU DECEMBER 2, 2009
The Anderson saga is one more reminder that the powerful can always count on official help.
In the fall of 2002, Greenpeace campaigner Casey Harell paid a surprise visit to the New York State private estate of Warren Anderson, and found him living a “life of luxury”. Nothing odd about the discovery except that in the eyes of the law Mr. Anderson was untraceable, and had been so since 1992 when an Indian court, exasperated by his refusal to heed multiple summons for trial, declared him a fugitive from justice.
Mr. Anderson was chairman and chief executive officer of the United States-headquartered Union Carbide Corporation (UCC) at the time of the lethal December 2-3 methyl isocyanate leak from Carbide’s pesticide plant in Bhopal and faced charges on many counts, including culpable homicide. The UCC chief, or “Accused no 1” in a December 1, 1987 chargesheet filed by the Central Bureau of Investigation against him and 11 others, including UCC, USA; Union Carbide (Eastern), Hong Kong; and Union Carbide India Limited (UCIL), had been placed under house arrest soon after the disaster but won his release on a promise to return to India to stand trial.
Neither Mr. Anderson nor Carbide would turn up in the Indian court and for obvious reason. The toxic gas leak had caused a human tragedy of unprecedented proportions: Around 4,000 (unofficially 8,000) immediate deaths and over a lakh people permanently disabled. In the years to come, the death toll from long-term exposure would mount to 20,000, tens of thousands of children would have birth defects, and many millions would fall gravely ill from drinking water contaminated by the massive amounts of chemical waste dumped in and around the Carbide factory grounds. UCC and its CEO would have had hell to pay had they chosen to face charges.
Mr. Anderson had been in hiding for ten years when Greenpeace, and before that a British newspaper, tracked him down. Mr. Harell would remark after the meeting: “If a team of journalists and Greenpeace managed to track down India’s most wanted man in a matter of days, how seriously have the U.S. authorities tried to find him in all these years? The U.S. has reacted swiftly on curbing the financial corporate crimes of Enron and WorldCom, but has clearly not made much of an effort to find Anderson, responsible for the deaths of 20,000 people in India.”
The searing comment underscored the dubious role played by the world’s most powerful democracy in protecting the key perpetrator of the world’s worst industrial disaster. Seventeen years after he was proclaimed an “absconder”, Mr. Anderson, now 88, continues to elude the long reach of the law. However, it is not just that the wheels of justice showed no inclination to move in the U.S. The Indian government has been no less lethargic in bringing Mr. Anderson to justice. It sent out a formal request for his extradition in May 2003, close to two decades after the crime. As Bhopal activist Nityanand Jayaraman would tell The Hindu on the 25th anniversary of the gas leak: “In the case of Anderson, the [Indian] government’s heart is just not on the job.”
Indeed, the Bhopal saga is a painful reminder of the unconscionable way justice plays out for the poor in this country — with victims fighting a battle so long and hard that justice has little meaning when it finally arrives. Following an unjust settlement reached between Carbide and the Indian government in 1989 (the Indian government sued the corporation for $3 billion but settled for 15 per cent of the amount), survivors were awarded a lifetime average compensation of Rs.25,000, far below international compensation standards. But even this meagre amount would reach the awardees after long delays, protracted red tape and bribes paid to lawyers, middlemen and touts. Compensation would not reach some survivors until 2005, and till date no compensation has been awarded to those born with disabilities and those drinking contaminated water.
The struggle for compensation at least got somewhere, unlike l`affaire Anderson which shows no signs of coming to fruition. In all these years, the gas leak survivors have got used to being told that they must move on, that they must put their tragic past behind them. It is a familiar story. Sikh victims of the 1984 pogrom have heard this nugget of wisdom as have Muslim victims of Ayodhya 1991 and Gujarat 2002. It is as if the perpetrator of a criminal act somehow becomes less guilty if he holds out long enough.
Astonishingly, this was the official stand taken by the Indian government with regard to Mr. Anderson. On August 6, 2001, then Attorney-General Soli Sorabjee advised the Vajpayee government in writing against pursuing Mr. Anderson’s extradition. He argued that it would be difficult for the Indian government to satisfy the “probable cause” requirement necessary for securing Mr. Anderson’s extradition. As the phrase itself suggests, “probable cause” means something more than a mere suspicion but less than the quantum of evidence required for conviction.
Mr. Anderson exercised managerial control and supervision over the operations of UCIL, he approved and ratified the standards in design, safety and operations at UCIL, which were far inferior compared to UCC’s plant in West Virginia, he knew that Carbide had sent a team to inspect the Bhopal plant before the disaster which noted leaking valves in the plant and warned of the “potential for the release of toxic materials”. To show Mr. Anderson prima facie guilty of a grossly irresponsible act that killed, maimed and continues to cause grievous hurt to millions of people was hardly a huge challenge.
Mr. Sorabjee thought otherwise. Worse, he also pointed to “humanitarian considerations” likely to be cited by the U.S. government against Mr. Anderson’s extradition. “The reasons are humanitarian concerns, such as Mr. Anderson’s age, said to be 81 years old, and [his] health and length of time that has elapsed, almost 17 years, between the event and the Indian government’s decision to make a formal request for extradition.” In other words, it was the fault of the victims that Mr. Anderson had grown old while the Indian government took its own time — despite countless petitions to successive governments and prayers before the Bhopal District Court — to take up the extradition question with the U.S. government.
Yet the more the government dithered, the stronger was the survivors’ determination to fight to the end. They organised themselves under various banners and fought simultaneous battles on many fronts — in India as well as in the U.S. Each setback spawned a further round of protest marches, hunger strikes and petition-making. In November 1999, survivor organisations filed a class action suit against UCC and Mr. Anderson in the Southern District Court of New York, charging them with violating international human rights law, environmental law and international criminal law. Federal Judge John F. Keenan would twice throw the case out before agreeing to hear the case again following a partially successful appeal in the Second Circuit Court of Appeals (New York).
A fresh twist in the case came with the 2001 acquisition of UCC by The Dow Chemical Company. The latter persisted with the lie that it had acquired the assets of UCC without its liabilities. It also refused to surrender Carbide (now its subsidiary) for trial. To add insult to injury, Dow also landed law suits on protestors who besieged its offices in India, shouting, “Dow, you now have Union Carbide’s blood on your hands”. Dow claimed $10,000 in compensation for alleged loss of work resulting from the demonstrations.
In all this, the CJM’s court in the Bhopal District Court remained as the lone flicker of hope for the Bhopal gas survivors. The court struck blow after blow for them. From the 1988 letters rogatory issued to the U.S. administration seeking permission for the CBI to inspect the safety systems at UCC’s West Virginia plant to proclaiming Mr. Anderson an absconder in 1992 to persistently seeking information from the CBI on the status of extradition proceedings to quashing the agency’s 2002 attempt to dilute the charge against Mr. Anderson from culpable homicide (punishable with imprisonment up to 10 years) to criminal negligence (punishable with imprisonment up to two years), the District Court was as pro-active as the Indian government was laid back.
The CBI’s 2002 attempt at dilution of charges was of a piece with Mr. Sorabjee’s 2001 advice to the government against seeking Mr. Anderson’s extradition. However, with the Bhopal magistrate standing firm, the CBI was left with no option but to request the Ministry of External Affairs to seek Mr. Anderson’s extradition, which the MEA did, obviously reluctantly, in May 2003.
In July 2004, the U.S. government expectedly rejected the Indian request. It stated that the request did not meet the requirements of Article 2(1) and 9 (3) of the extradition treaty between the U.S. and India.
What now? On July 22, 2009, the CJM’s court in Bhopal issued a fresh warrant of arrest against Mr. Anderson, and ordered the CBI to produce him before the court for trial. Unfortunately, the meandering path the case has taken so far gives no cause for hope. Indeed, it is difficult to believe that the Indian government, even less its U.S. counterpart, will persuade the 88-year-old “Accused no 1” to come to India one last time — to stand trial for a crime he committed a quarter of a century ago.