LAW RESOURCE INDIA

Gas tragedy,solid farce

Posted in CRIMINAL JUSTICE SYSTEM, HUMAN RIGHTS, JUSTICE, LIBERTY AND JUSTICE by NNLRJ INDIA on June 14, 2010

Ashok Malik

Frankly, the biggest villain of the Bhopal gas tragedy is not American capitalism, Union Carbide or its Indian subsidiary. It is not even the managers of the Union Carbide factory in Bhopal and the local Government officials who obviously ignored safety protocols. It is the Indian criminal justice system. It has taken 25.5 years for a city court to convict those it says are responsible for the gas leak of December 1984, and for the instant death of 4,000 people. (In subsequent years, more died due to after-effects; those numbers can only be estimated and, to be fair, have been exaggerated by self-serving activists who have made Bhopal a little industry of their own.)

The judgement is not perfect. Indeed, if the larger social intent of a justice system and a conviction is to send a message to others, to would-be perpetrators of similar crimes, the judgement fails quite miserably. Today, India is a laughing stock. Don’t be fooled by the words and statements of anti-market and environmental protesters in the West, who are appearing on television shedding crocodile tears for Bhopal. More than a victim, India has come across as a joke republic.

So slothful and weak has the judicial system proved that it has almost justified the decision of Warren Anderson, the then chairman of Union Carbide, to jump bail, flee India and never come back. The man is 89. Presuming he had agreed to show up for trial, he would have been doing the rounds of courts in Bhopal for close to a quarter century. If he had been convicted in June 2010, his lawyers would have appealed to the Madhya Pradesh High Court and then the Supreme Court. That process could well have taken another five years. So Anderson would possibly have been 94 before India’s apex court either confirmed his conviction or freed him. Considering the original crime was committed when he was aged 63, and that he retired from Union Carbide at 65, a third of his life, his entire post-retirement phase, would have been washed away by the Indian legal system.

Obviously, he — and his lawyers —anticipated this fairly early. As such, though declared a fugitive by a Bhopal court in 1992, he decided to stay put in America. Remember, Union Carbide had very clever lawyers at that point. In December 1985, the issue of justice for Bhopal took a critical turn when a New York court ruled against the Union of India’s petition that the case needed to be tried in the United States, and that the Indian legal system wasn’t up to the task.  Testifying on behalf of Union Carbide, Nani Palkhivala, one of India’s finest legal minds, said, “The Indian judicial system can fairly and satisfactorily handle the Bhopal litigation.” He discounted fears of delays and urged Union Carbide to submit to Indian jurisdiction. Palkhivala was being a good lawyer. He was protecting his client’s interest. Why blame him?

In the past 25 years, India — the Indian system, Government and judiciary — have shown no urgency to expedite the Bhopal case and the process of justice for that abominable negligence of December 1984. That is why when Indians — from television anchors to Law Minister Veerappa Moily — talk of how Anderson hasn’t or couldn’t be extradited but should be, it sounds not sombre but laughable. If you take 25 years to settle an open-and-shut case — pinning responsibility for why the leak happened — do you really deserve to have any extradition request taken seriously?

Several issues have been conflated and confused in recent days. Was the quantum of compensation the Government of India and the Supreme Court agreed Union Carbide would pay enough? What are the conditions in Bhopal (they are actually better than activists, posing for day-tripper disaster tourists, would have us believe, but that is another matter)?

Important as these issues may be, they have nothing to do with the case that reached a conclusion on June 7. That case was limited to allocating guilt for the gas leak, and finding and punishing those who, deliberately or otherwise, ignored safety norms and did not activate measures to neutralise the likelihood of atmospheric poisoning.

Has the judgement served its purpose? Not quite; and that is unrelated to whether or not Anderson should have been extradited or whether or not Union Carbide (or Dow Chemicals, its successor company) needs to pay more damages.

Why has the judgement not served its purpose? It has convicted eight employees of Union Carbide India Ltd, holding the chairman and the works manager guilty under the same section of the Indian Penal Code. Can the liability of a company chairman living in Mumbai (then Bombay) and a works manager responsible for the immediate running of the chemicals plant be the same? Is this not stretching the frontiers of the concept of remote liability? The issue of a non-executive director’s limited liability was meant to check financial fraud and protect the interests of shareholders. Is it correct to interpret it in the context of collateral incidents and accidents?

These are uncomfortable and politically incorrect questions. Meanwhile, public hysteria, complemented by an unstructured media-driven campaign, is celebrating the conviction of Keshub Mahindra, non-executive chairman of Union Carbide India Ltd when the tragedy occurred. Mahindra was 60 then; he is 85 now and may be 90 by the time the case is decided by the Supreme Court. Unlike Anderson, he was an Indian and stayed in India for the length of the trial. Yet, did he deserve conviction — or was this simply a concession to populism?

Astonishingly, not one Government official — whether responsible for ensuring safety rules were adhered to or for assessing the potential health impact of the chemicals factory on the neighbouring Old Bhopal community — has been indicted. There is a familiar ring to this. The dazzle of big names has the media and NGOs chasing high-profile defendants rather than the truly guilty. It is difficult to believe this ‘tall poppy syndrome’ does not weigh upon lower courts. Delhi’s Uphaar fire (1997) is a case in point. Sushil Ansal was convicted despite being only a former director of the cinema company. The genuinely guilty party, Delhi Vidyut Board, got away with the trial of merely a junior engineer.

That such a ridiculous, delay-prone and impressionable criminal justice system hasn’t been fixed in a quarter-century is the continuing scandal. The fear of quick and effective punishment is just not there — and that makes the incentive to prevent another Bhopal disaster that much weaker.

http://www.dailypioneer.com/262022/Gas-tragedysolid-farce.html

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