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Buckling under pressure from MNCs

By Rakesh Shukla

The sorry 26-year saga of the Bhopal gas leak case -- in which the Supreme Court reduced charges from culpable homicide not amounting to murder to death by negligence while the administration bent over backwards to accommodate Warren Anderson -- spotlights the inadequacy of the Indian system to fix liability in industrial disasters and bring the guilty to book

Even Kafka, the prescient author of The Trial and accustomed to the absurd and random ways of the world and its bureaucracies, may have been bit astounded at the sudden outpouring in India of grief and concern for the Bhopal gas leak victims/survivors. This sudden concern follows on the two-year imprisonment handed out to former chairman of UCIL Keshub Mahindra and others, the maximum punishment permissible for the offence of which the accused were charged and convicted.  

Over the past 26 years, the victims and survivors of the December 1984 gas leak have sat on dharnas and hunger fasts for months, demanding justice and a clean-up of the toxic mess at the UCIL site/neighbourhood. Neither the government in power, nor the opposition, and barring a stray reporter not even the media, would spare them the time of day after the initial few months.    

There was a complete absence of concern before 1984 too, and yet the 1984 tragedy was a chronicle of death foretold. In December 1981 two workers were injured and Mohamed Ashraf, a plant operator in the Carbide factory, died from phosgene gas leak. At the time, journalist Raj Kumar Keswani wrote a series of articles warning of serious security lapses in the Carbide plant. The final article titled ‘Bhopal sitting on top of a volcano’ was published in the Hindi daily Jansatta six months before the gas tragedy in December 1984. 

In May 1982 three American engineers from UCC came to Bhopal to appraise the running of the plant. Their report presented to UCC described the surroundings of the site as being strewn with oily old drums, used piping, pools of used oil and chemical waste likely to cause fire. It condemned the shoddy connections, the warping of equipment, the corrosion of several circuits, the absence of automatic sprinklers in the MIC and phosgene production zones, and the risk of explosion in the gas evacuation flares. It also reported leaks of phosgene, MIC and chloroform, ruptures in pipework and sealed joints, absence of any earth wire on one of the three MIC tanks and poor adjustment of certain devices where excessive pressure could lead to water entering the circuits. It is pertinent to note that the gas leak on December 2/3, 1984 occurred due to large amounts of water entering a tank containing methyl isocyanate (MIC), increasing the temperature and raising the pressure to a level that the tank was not designed to withstand. This forced the emergency venting of pressure from the holding tank, releasing a large volume of toxic gases into the atmosphere.  

In October 1982, MIC escaped from a broken valve, seriously affecting four workers and causing eye irritation and breathlessness among people in the nearby communities. This was a clear indication of the potential risk to public life. The text of a poster put up by the Workers Union of the Union Carbide Plant in Bhopal in October 1982, two years before the gas tragedy reads: “Lives of thousands of workers and citizens in danger because of poisonous gas. Spurt of accidents in the factory, safety measures deficient.” In an attempt to cut costs in 1983 200 skilled workers and technicians were asked to resign. In the MIC unit alone, the manpower in each shift was cut by half. In the control room, only one man was left to oversee some 70 dials, counters and gauges, which relayed, among other things, the temperature and pressure of the three tanks containing the MIC. In March 1983 Shahnawaz Khan, an advocate, served a legal notice on Union Carbide pointing out security lapses. 

It is against this factual matrix that the Supreme Court of India chose to intervene and reduce the charge from culpable homicide not amounting to murder to causing death by a rash and negligent act punishable by a maximum of two years imprisonment.  

However, Keshub Mahindra and the other accused had no right to appeal against the charge of culpable homicide not amounting to murder. The Supreme Court was approached under a jurisdiction which was purely discretionary and the Court routinely throws out 95% of petitions of this nature observing that the accused should put forth their arguments before the trial court. To contend today that the Supreme Court and criminal-justice machinery functioned in a routine manner unaffected by the status of  Warren Anderson, head of a multinational and Keshub Mahindra, currently the Chairman of Mahindra & Mahindra, the largest producers of SUVs in India, strains credulity.  

The prelude to the farce of a well-known individual such as Warren Anderson, head of a multinational corporation being declared a ‘proclaimed absconder’ and ‘untraceable’ took place immediately after the tragedy. The arrest of Anderson, then Chairman of Union Carbide Corporation (UCC), on December 7, 1984 consisted of being comfortably ensconced in the company guesthouse and released on a bond of Rs 25,000 the same day. Even though charged with the serious offence of ‘culpable homicide’, the conditions of confinement to the city and deposit of passport in court, routinely imposed while granting bail, were not sought by the prosecution in a case where the likelihood of the accused fleeing the jurisdiction of the court was high. In fact Anderson was cosseted and well protected from the media glare by the state government and flown to New Delhi in an official aircraft. The present plea advanced by the Congress that Anderson’s departure from Bhopal was facilitated due to apprehension of law and order problems, even if accepted at face value, does not explain the connivance in his departure from India.  

The Government of India (GOI) enacted the Bhopal Gas Disaster (Processing of Claims) Act in 1985, arrogating to itself the exclusive rights to represent and act on behalf of the survivors/victims of the gas leak. In 1989 the Supreme Court of India endorsed a settlement between Union Carbide Corporation (UCC) and GOI under which Union Carbide was to pay $ 470 million in settlement of all present and future claims. The settlement clearly favouring UCC (even the government had admittedly claimed $ 3 billion), was endorsed by the Court ostensibly in view of “the enormity of human suffering occasioned by the Bhopal gas leak disaster and the pressing urgency to provide immediate and substantial relief to victims of the disaster”. The victim-survivors underwent years of agony and suffering as claims tribunals set up by the government processed claims and awarded paltry sums as compensation. 

The attitude of the government and the judiciary towards the criminal prosecution of corporations and its officers is aptly illustrated by the fact that the 1989 settlement with UCC not only concluded all civil proceedings, but included the quashing of all criminal charges. Even though serious charges like culpable homicide are not compoundable under Indian law and cannot be quashed by an agreement between the parties, the Supreme Court affixed its seal of approval on the settlement. It is interesting to note that UCC, which after the conviction has issued a statement that the Corporation and its officials are not subject to the jurisdiction of Indian courts as the Bhopal plant was owned and operated by UCIL, petitioned the Supreme Court of India and entered the settlement brokered by the Court. Strident protests and petitions resulted in the Indian Supreme Court setting aside the part of the ’89 settlement quashing the criminal charges with regard to the gas tragedy.  

Rhetorical demands to hang Anderson apart, the offence of murder under Section 302 IPC punishable by death or life imprisonment, could not have been made out as mens rea or the intention to cause death is a crucial ingredient to establish murder. Culpable homicide not amounting to murder punishable with life imprisonment under Section 304 IPC Part I also requires the intention to cause death or of causing bodily injury likely to cause death and is unlikely to be made out in the circumstances. This brings us to Section 304 Part II IPC which requires the knowledge -- but not the intention -- that the act is likely to cause death.  

The death of plant operator Mohammed Ashraf in December 1981, the series of articles by journalist Keswani warning of the risks with the final article titled ‘Bhopal sitting on top of a volcano’ published in the Hindi daily Jansatta six months before the gas tragedy in December 1984, the report of the three American engineers, the incidents prior to December 1984 of gas leak from the plant and injuries, the legal notice by Advocate Shahnawaz Khan, clearly establish the knowledge that the running of the plant could result in deaths bringing it within the ambit of culpable homicide not amounting to murder.   

The saga of 26 years at the trial stage of the Bhopal case spotlights the inadequacy of the Indian legal regime in the areas of investigation, fixing liability, compensation and punishment in case of industrial disasters. Leave aside heeding the lessons from the Bhopal gas tragedy in the areas of civil and criminal liability in the current debate on the controversial Civil Nuclear Liability Bill, the government has chosen to remove the provision which provided for the liability of the suppliers in case of gross negligence. Buckling under pressure from multinational corporations, and now from the global nuclear industry, it seems that the lessons have yet to be learnt. 

(Rakesh Shukla is a Supreme Court advocate) 

Infochange News & Features, June 2010