BY UPENDRA BAXI IN THE FRONTLINE
THE recent decision of Judge Mohan P. Tiwari is viewed as awarding a piffling punishment and lavish due process treatment by granting bail to the convicted seven UCIL officials. The Bhopal-violated communities of suffering and rightless people already see in this the Fourth Bhopal Catastrophe in the making. I avoid the term Bhopal ‘victims’, because it denies the unprecedented heroic agency and struggle of the Bhopal-violated. They cannot help wondering why the current media and popular outrage was not at hand in the first three catastrophes. The DNA of the fourth catastrophe needs to be decoded via some consideration of the executive and judicial authorship of the preceding three catastrophes.
The First Bhopal Catastrophe
This occurred on December 3, 1984, with the explosive escape of 47 tonnes of methyl isocyanate (MIC) from the Union Carbide Corporation (UCC) and Union Carbide India Ltd (UCIL) factory/plant located in a densely populated area in Bhopal. UCC was a majority shareholder and for all purposes made key operational decisions concerning the ultra-hazardous manufacture, storage and safety, in blithe disregard of the best industry standards and of good corporate governance.
The pre-trial discovery proceedings before United States District Judge John F. Keenan, where for the first time a sovereign post-colonial state dared to sue a mighty multinational corporation for causing an unprecedented mass disaster, fully establish the fact that UCC preferred systematically to ignore early warning signals of the potential of massive toxic release, specially demonstrated by the 1982 gas ‘leak’ that killed two workers and its own subsequent in-house safety audit report that stressed the urgency of the need for adequate safety systems at the Bhopal plant replicating the state-of-the-art digitalised safety systems of the UCC West Virginia plant, which produced and stored minuscule amounts of MIC compared with the Bhopal plant.
It is also worth recalling that the plant was declared ‘safe’ by the then Chief Minister of Madhya Pradesh, Arjun Singh, whose culpability now begins at last to be as seriously discussed as that of the UCC Chief Executive Officer Warren Anderson. Incidentally, the Bhopal-violated heard from Jairam Ramesh, the current Union Environment Minister, on the eve of the ‘Silver Jubilee’ of the first catastrophe that neither the subsoil nor the water was contaminated by the residual toxicity of the MIC explosion! Eminent political leaders who criticise Bhopal activists for dramatising the environmental risk still aggravating the plight of the Bhopal-violated see no harm in minimising the long-term lethal potential of Bhopal 1984. A silver lining in the toxic cloud over the Bhopal-violated flickered bright but only briefly. Via the Bhopal Ordinance, and later the Act, some of us were able to persuade the Union of India to assume the responsibility of prosecuting UCC in a U.S. court since it claimed that it was no longer under Indian jurisdiction. Judge Keenan described the first catastrophe as the largest peacetime industrial disaster, less colourfully than Justice Krishna Iyer, who was to name it “Bhoposhima”.
The final result of this endeavour was to bring UCC back under Indian jurisdiction. Ironically, while the Union of India argued that its own legal system was not geared to deliver justice to the Bhopal-violated, Judge Keenan insisted that it would constitute legal “imperialism” were he not to recognise that the Indian judicial system had the capacity to stand “tall” before the entire world.
Thus Judge Keenan, while constraining the UCC submission to Indian courts, was careful to subject any future UCC liability to a later determination by the New York equivalent of our “small causes” courts, leaving it to decide whether due process was accorded to UCC in the Indian trial process.
It was this factor that the Indian UCC attorneys so cleverly deployed to secure the Supreme Court of India settlement orders, serving the ultimate end of immunity and impunity of MNCs, CEOs and their counterparts among the top echelons of political and adjudicatory leadership.
The Second Bhopal Catastrophe
The Supreme Court settlement orders mark the beginning of the end of the constitutional idea of India.
Not merely did the Supreme Court settle the UCC liability to $470 million against the Union of India’s damage claims of $3 billion-plus, but it further sought to justify this amount and the grant of complete immunity from any criminal liability for UCC and its global affiliates. Later, of course, given the exertions of the Bhopal-violated, the court, on review, cancelled this immunity, though leaving cruelly intact the meagre amount thus sanctioned for hundreds of thousands of survivors whose real-life needs for health care and livelihood were thus rendered of little serious regard.
Further, the court fully legitimises the denial of the presence and voice of the Bhopal-violated as a constitutional necessity, as it were! The settlement orders denied even an opportunity of hearing to the Bhopal-violated parties to the case. The trend continues to grow. For example, on February 14, 1994, when Justice A.M. Ahmadi allowed the sale of UCC shares to the UCIL, he declined to hear the Bhopal-violated petitioner-parties before him. Even as late as June 7, 2010, some Bhopal-violated parties were denied entry into the precincts of the court, and the “integrity” of the judicial process had to be enforced by the imposition of prohibitory orders, denying even a modicum of their presence on a judgment day!
The Third Bhopal Catastrophe
I name thus the multifarious, even nefarious, “bureaucratisation of justice” practised by the tribunals established for the disbursement of compensation. The Bhopal-violated people are subjected to some staggering burdens of proof concerning their severe multiple injuries, thus reducing their eventual compensation, when not altogether denied, to the lowest possible amount! Further, the tribunals made impossible demands for evidence of “genuine” claims, as opposed to “fake” ones, even to the point of cruelty, casting the burden of proof requiring full evidence of people who participated in the funeral processions, lest even the MIC-affected people manipulate the evidence of death certificates!
As if this were not enough, the violated people were required to demonstrate the nature and extent of the injury beyond a shadow of reasonable doubt! No wonder, then, that a large number of the violated people either still await compensation or are denied their rightful share of it. Further, even as late as mid-2010, the Bhopal-violated have been denied the dignity of any full Supreme Court invigilation of the arbitrariness, callousness, and injustice of the administration of compensation disbursement, aggravating the Third Catastrophe.
Things would have been different indeed
If the same media and popular outrage had been articulated on February 14-15, 1989, when the Supreme Court passed the judicial settlement orders, or when the court declined to admit that the settlement amount was grossly inadequate, it would probably have ameliorated the suffering of the Bhopal-violated.
Public opinion should have come down heavily on the Supreme Court decision of September 13, 1996, in which the court diluted the charges against UCIL officials on the grounds that the principal responsibility lay with UCC rather than UCIL officials. Public outrage was also called for on July 13, 2004, when the U.S. government rejected the entirely justified pleas for the extradition of Warren Anderson on the grounds that no charges had yet been framed against him. The Bhopal court’s decisions declaring him and an official of UCC Eastern as proclaimed absconders and the failure of successive Central governments to bring them to book did not shock the ‘nation’ as much as the current decision! Perhaps, all over again, political parties and their leaderships now seek to fall over each other as the best defenders of the “victims”.
The first and now the second generation of Bhopal-violated know well, in their blood and bones, that the Indian ruling classes are the great descendents of Professor William Dicey who practise to a point of perfection his advice that one must never weigh “the butcher’s meat in diamond scales”. The question is how and why the mass media, trade unions, and activist communities, barring valiant exceptions that prove the rule, remained so indifferent for about 25 years. As against the political and public outcries, Judge Tiwari proceeds with great care in deciding the only issue before him: whether the accused were guilty under Section 304-A of the Indian Penal Code. He had no jurisdiction to go beyond what the Supreme Court mandated by way of criminal proceedings. There was little that the judge could have done other than to proceed within the confines of the indictment.
He holds that “in determining negligence” under the Section mens rea has no place and “knowledge (of likely harm) is enough to constitute the offence”. He rejects the pleas that expert evidence, even when verified by examination and cross-examination, may not be the basis of conviction. Further, the learned judge maintains that his decision to convict the key officials of UCIL did not involve any extension of vicarious liability for the acts of other persons; rather they were culpable for acts of gross negligence as they failed to do what they should have done concerning the parlous condition of the plant and safety systems.
Judge Tiwari further dismisses the plea of leniency in sentencing the seven UCIL officials to a two-year imprisonment under Section 304-A, IPC, and a one-year sentence under Section 338/35 IPC, with varied associated fines. The concluding paragraph of the judgment preserves intact every part of the case and the archives until the appearance before the court of the absconders Warren Anderson and UCC and its subsidiary UCC Eastern.
A fourth catastrophe in the making
The UCIL seven are most likely to prolong further reconsideration, review, and reversal of this verdict, all the way to the Supreme Court. They are also likely to press their plea that their conviction is based on some version of vicarious liability for either the acts of UCC or the defaults of their employees. Already, Justice Ahmadi has reportedly stated the day after the decision that outside conspiracy or abetment, Indian law does not provide for vicarious liability for the gross negligent acts of others. Already, it is being reported that the Government of Madhya Pradesh is seeking enhanced sentence. Given the fact that successive regimes in Madhya Pradesh have been UCC-friendly rather than solicitous of the Bhopal-violated, this move must be received with an Everest of salt. Further, some hasty appeals and revisions by activist lawyers and Bhopal-violated communities may unwittingly reinforce the case for the UCIL seven.
In the process, all over again, the suffering of the Bhopal-violated communities will again become sub judice. Even worse, the authors of their tragic fate may eventually resume a life of immunity and impunity.
Alternative moves ahead?
If so, the most important question is how to prevent the fourth catastrophe from fully unfolding.
To be sure, a first step would be to name and shame each and every elected official and civil servant complicit with the UCC assault on the Bhopal-violated. The elected officials must be debarred by a change in the Representation of People’s Act from holding any public or constitutional office and civil servants thus named must be denied all forms of superannuated service in public or private sector, and their pensions should be reduced at least by half. We must demand that the Union of India make good its claim of $3 billion-plus (minus the settlement amount, if so required, but with compound interest) to the Bhopal-violated community, to be disbursed by a citizens’ trust by way of relief and rehabilitation of at least the first- and second-generation Bhopal-violated. Given the proud boast of the high annual GDP growth, this remains far from an insensible public demand. Additionally, an annual corporate Bhopal tax/levy should assist the present as well as the future needs of the Bhopal-violated.
Replacing the current standard Bhopal clause now included in every agreement of foreign investment limiting or eliminating liability for mass disasters, we should think of an alternative provision that requires all investors and MNCs to contribute annually a certain percentage of their net profits to a superfund that would respond to at least the minimum needs of those adversely affected.
In the interim, the 24/7 mass media should dedicate a percentage of their advertisement revenues to a public trust that will further engage the tasks of health care and livelihood rights of the Bhopal-violated. The media, chastising now, and rightly so, politicians who thrive parasitically on the windfall of toxic capitalism, would carry greater credibility with suffering Indian humanity were they to do this. After all, massive profits are made by making a commodity of human and social suffering.
More fundamentally, we need to think of the Bhopal catastrophes in terms of cross-border nomadic practices of MNC “terror”. The United Nations now begins to describe “terrorism” as a political project in which non-state, yet state-like, actors deploy asymmetrical and indiscriminate violence against innocent civilians with the aim to overawe lawfully elected governments or to transform state policies. Even as we condemn insurgent violence everywhere on the planet, we should begin to think of ways in which ‘terrorist’ forms of corporate governance may at least be held answerable to indictments of crimes against humanity. Warren Anderson is no way a counterpart of Osama bin Laden, until you listen to the voices of suffering humanity affected by their comparable predatory ventures. The Bhopal-violated are indeed close cousins of the victims of 9/11 and 26/11.
How may we name and think through the commonalities and differences amongst these critical events is all that matters for the suffering humanity and the rightless peoples of the hyper-globalising world. As ‘uncle’ Marx wrote in 1850, profound social transformation occurs only when thinking humanity remains capable of suffering and t he suffering humanity begins to think.