BY JUSTICE V R KRISHNA IYER IN THE HINDU
There is still no bar on trying the corporate perpetrators of the Bhopal tragedy, including Warren Anderson.
The Bhopal mega-crime trial is over. The barbarity has ended in a light sentence, although the victims are countless. Eight officials of the erstwhile Union Carbide India Limited have been convicted and sentenced to two years’ rigorous imprisonment. The judge has given the maximum possible punishment for the crimes as charged. The Supreme Court had pared down the charge: from homicide not amounting to murder to culpable negligence not amounting to murder.
The corporate culprit that was based in the United States, or its successor-entity, or its then Chairman, Warren Anderson, are not in the picture now. The poignant omission was set out thus: “Under the settlement, Union Carbide agreed to pay $470 million to the Indian Government on behalf of all the Bhopal victims in full and final settlement of all past, present and future claims arising from [the] Bhopal disaster. The entire amount has to be paid before 31st May, 1989. In addition, to facilitate the settlement the Supreme Court exercised its extraordinary jurisdiction and terminated all the civil, criminal and contempt of court proceedings that had arisen out of the Bhopal disaster and were pending in subordinate Indian courts.”
The right to life is a fundamental right in India. So this macro-murder, the worst industrial carnage in history, is a huge blot. An untested facility was installed in India with no examination of the potential dangers, as if it were a mere soda factory. The act of installation in itself was a crime.
But India is just a brown colony for white Americans! When it comes to the U.S., international law is the vanishing point of punitive jurisprudence. The catastrophe occurred in December 1984. It was not too big for Indian courts to handle. But, shamefully a Chief Justice of India and a great lawyer gave the opinion that the Indian judicature would take several life-times to try such a mega-crime and that it had better be tried in U.S. courts.
A corporate Director usually does not personally commit crimes himself or herself. These are committed perhaps without their knowledge, but with their connivance and vicarious awareness. Nevertheless, culpability exists in a higher dimension of punitive jurisprudence. This is the basis of culpability in corporate crimes and offences. To plead that Union Carbide or Anderson did not physically switch on equipment or were not responsible for the acts of commission or omission that caused the leakage is no argument of innocence. But for the installation of such a facility, the deaths would not have happened. If a nuclear plant were set up that exploded and wiped out thousands of lives, those who set up and operated it are vicariously guilty, not by mens rea but morally and legally. In this larger sense, Carbide and Anderson have much to explain. But they were in India, a dollar colony, and so no prosecution was not pursued; it remains to be launched.
The question is: will the Government of India dare demand the repatriation of Anderson and prosecute Carbide or its corporate successor-entity? Is there a bar on the score that a trial against lesser officials for a lesser offence that has gone on for 25 years? And that the government has received money by way of an amoral settlement? No principle of jurisprudence permits a huge crime to be settled by the government without the knowledge of the victims under the pretense of parens partriae. If the state can corruptly take cash and make up for the murder of its citizens, our jurisprudence deserves to be disobeyed. Such an act will go against ancient dharma and modern principles and values, which consider life to be beyond negotiation. Indian life is not so cheap as to be bartered away in deals.
The mega-criminals, namely, Union Carbide and Anderson, have not stood trial, charged with Section 304 of the Indian Penal Code that pertains to the real crime involved. There is much agitation over the fact that fiat justitia failed. When disasters of such dimensions occur as a result of the vicarious action of corporate persons and other individuals in power who have not faced trial, a disaster liability law exists. There is no room for immunity here, and no previous trial can exculpate the guilt. When small criminals go to work, a big noise is made to prosecute them. But when monstrous crimes are committed by mighty individuals through lethal instruments, should they be let off? That will make the law immoral, inhuman and violative of justice.
No human principle of law can empower a state — except perhaps a Hitlerite dictatorship — to write off the lives of its citizens after receiving money from the killer. Such an atrocious rule will warrant invasion, occupation and elimination of lives of citizens of another country. Some such payment appears to have been made for Bhopal. No written text of the law exists in India or elsewhere under which if ‘A’ were murdered by ‘B,’ the state can compromise prosecution and claims by receiving a sum of money. In an overpopulated country such as India, whenever a murder takes place the state can make up for its deficit by receiving a sum to settle the claim? The Buddha and Gandhiji were born in vain if this were to be the law. Over countless cadavers, a wicked principle of jurisprudence is being presented: of crime without punishment, however grave the crime. Meanwhile, the government, without any sense of humanism, settles the crime, guided by barbarity. Sans a trace of humanity it received money in a bloody bargain and used it to build a luxury hospital where the poor have no access.
Ralph Nader, in a powerful introduction to America Inc., wrote of the insensitivity and incompetence of jurisprudence when challenged by the corporate juggernaut: “In no clearer fashion has the corporation held the law at bay than in the latter’s paralysis toward the corporate crime wave. Crime statistics almost wholly ignore corporate or business crime; there is no list of the ten most wanted corporations; the law affords no means of regularly collecting data on corporate crime; and much corporate criminal behaviour (such as pollution) has not been made a crime because of corporate opposition. For example, willful and knowing violations of auto, tire, radiation, and gas pipeline safety standards are not considered crimes under the relevant statutes even if lives are lost as a result.”
The best that has been said on this is by Winston Churchill: “The Dark Ages may return — the Stone Age may return on the gleaming wings of science; and what might now shower immeasurable material blessings upon mankind may even bring about its total destruction. Beware, I say! Time may be short.”This horror is becoming a reality in India. We must resist this new homicidal jurisprudence and try by a fresh prosecution Union Carbide and Anderson. The Union of India has much to answer for the slaughter. Fiat justitia ruat caelum. The law must have a conscience.