Untitled Document

The Bhopal Gas Leak Disaster: The lessons of the past and the challenges for future

(Before the Bar of History: We stand weighed and found wanting)

By Shiva Kant Jha

When I look back on all the events pertaining to the Bhopal gas leak disaster in their synergic perspective, I get inclined to cast verdict on ourselves in words I borrow from G.K.Chesterton:

"These are peoples that have lost the power of astonishment at their own actions.... They have grown used to their own unreason; chaos is their cosmos; and the whirlwind is the breath of their nostrils. These nations are really in danger of going off their heads en masse; of becoming one vast vision of imbecility,"

This article is in two parts: Part-I drawing certain lessons from what happened in the past, and Part –II containing reflections on the options now under consideration of our government after the judgment of the Bhopal court on June 7, 2010.

Part I

It is essential to examine how we acted so that if misfortune strikes us again we may have in our consciousness the wisdom of the past to stand us in good stead. On an overview of the events we have witnessed, I make the following comments feeling, as Winston Churchill said, "it is wrong not to lay the lessons of the past before the future:

The Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 was enacted so that our government could act, parens patriae, "to ensure", says the 'Statement of Objects and Reasons for the Act, "that the interests of the victims of the disaster are fully protected and that the claims for the compensation or damages for loss of life or personal injuries or in respect of other matters arising out of or connected with the disaster are processed speedily, effectively, equitably and to the best advantage of the claimants." It also certified that the legal position had been "examined carefully with reference to the laws obtaining in the United States of America and in our country".

We know that in our country it is the Cabinet which concentrates in itself the virtual control of both legislative and executive functions, barring rare situations of Parliamentary no-confidence. The decision to act parens patriae was of the executive government though this could not have freed our Parliament from its duty to hold the executive to account if it acted with the remissness of omission or commission. In the matter of the Bhopal disaster, it seems no Parliamentary vigilance on actions of the executive government was maintained. If someone is driven to feel that the enactment was a mere ploy to deflect people's wrath at the disaster and our government's response to it, he might have some point. Was that a part of strategy to steal fire to turn it into a mere squib, or to steal our people's thunder to turn that into mere thud? God knows.

In view of the wide and deep spectrum of that worst industrial disaster, our government was duty bound to appoint a facts finding commission consisting of eminent technical professionals of established integrity soon after the disaster for drawing up well-documented Report on the disaster for information of people, and also for aggressive litigation at the domestic or international fora. It should have appointed simultaneously a commission of legal experts to gather information to reveal the precise relationship between the Union Carbide India and its U.S holding company and other associates and affiliates. The domestic courts and the International Court of Justice permit the lifting of the corporate veil to determine the relationship inter se the subsidiary and holding companies to see if some reality was being evaded or some fraud hibernated. This exploration would have helped ascertain the incidence and quantum of liability by way of compensation to the persons wronged. For these exercises, our government should have taken total control of the Union Carbide India Limited (UCIL) so that evidences and materials were neither removed nor doctored. The proper forum for all the litigations pertaining to the disaster was in India where the cause of action had occurred, where lots of humans had got asphyxiated by noxious gas, where people's rights to life had been crushed into chemical sleazy murk. It was an insult to this nation to say that our judicial system was not competent to go ahead with the litigation of this sort. The idea that fighting with a mighty MNC would be futile because the poor cannot struggle against the rich and their MNCs could only be a Devil's pleading. If we go ahead with this sort of fear psychosis during this phase, when the MNCs are ruling our country, we are in for bad times. Our government should have invested the inquiry commission with statutory powers to investigate the affairs pertaining to the disaster; and should have appointed a special court both to monitor and decide the cases within a short time frame. . Our government should have prayed the court for injunctions and restraints to operate against all assets of the corporations to ensure the payment of liability when judicially determined. After exhausting these possibilities, our government could have moved even the U.S. courts to pursue, like the Furies (ill fate) in Aeschylus's the Oresteia, against the U.S. companies, if our court could discover their nexus of evil with the Indian subsidiary. International law permits litigations to enforce private rights even in foreign jurisdictions: but our government was not so advised. Once upon a time it had pursued public rights in foreign jurisdiction to receive in Government of India v. Taylor (27 ITR 356 HL) the rebuff of the House of Lords that 'the public law rights are not given effect in foreign jurisdictions unless permitted by treaty'. As our government had become a party, it could have explored the possibility to move the International Court of Justice by initiating an action against the U.S Government in terms of the international law of Nationality, and for the breach of human rights recognized by the UN Declaration. But our government wasted time here and there, and became overjoyed by accepting the terms of an over-all settlement under the benediction of our Supreme Court per its judgment of February 4, 1989 for the payment of a sum of U.S. Dollars 470 millions terminating all the pending and possible civil and criminal actions. Those whose swan song went unheard deserve to be excused if they say plaintively: 'Mystery, thy name is Government.'

The judgments delivered by the Supreme Court pertaining to the issues of the Bhopal gas disaster showed that neither the government nor our superior judiciary responded to the problems with alacrity, insight, commitment, and milk of human kindness. The events showed that the parties were eager to settle all the issues somehow for the MNC to get good riddance. But by 1991 Judgment the Supreme Court modified the earlier order holding that the quashing of criminal proceedings was not justified, and thus recognizing the competence of the appropriate courts to go ahead in the criminal proceedings. In view of the reach of the disaster and the infinite capacity of an MNC to drag things, doctor evidences, hire experts, seek governmental intervention, and intrude into domestic affairs, our courts were up against new realities emerging in our strange brave world. Our courts failed in displaying judicial creativity which it should have done keeping in mind the principle Judge Manfred Lachs of the ICJ stated in the North Sea Continental Shelf Case:" Whenever law is confronted with facts of nature or technology, its solution must rely on criteria derived from them."
To illustrate my point: our Supreme Court in its 1996 Judgment held that prima facie the accused could be charged only under Section 304A of the Indian Penal Code ( the offence of causing the death of by doing any rash or negligent act not amounting to culpable homicide punishable with imprisonment for a term upto two years, or with fine, or with both) and not under Section 304-II for culpable homicide not amounting to murder when the act is done with the knowledge "that it is likely to cause death, but without any intention to cause death, or causing such bodily injury as is likely to caused death" punishable with imprisonment for a term which may extend to ten years, or with fine, or with both. The Section 304-II contemplates an act done with knowledge that it is likely to cause death without any intention. The spectrum of 'knowledge' in a given case, or the probability of 'intention' at work required the exploration of the terms' 'full hermeneutic circle' to ascertain not only the vertical and horizontal incidence of a culpable act, but also to determine extent and impact of the uniqueness of the sinister effects of the act. The terms 'knowledge" and "likely" could have been creatively widened to take into account the disaster of this sort in our society with fast changing technology but stagnant, if not decadent, morality. The Court failed to display judicial vigilance and creativity. Hence they are not wrong who weighed the Court for this act, and found it wanting. It is surprising that none persuaded the Court that in such matters the right judicial technique is what Prof. Schmitthoff says about the great judge Lord Denning: "He thinks of the result before he considers the legal reasoning on which it has to be founded." Our government, as a careful litigant should have moved the court to get the decision corrected in exercise of the Court's inherent judicial powers ex debito justitiae. This case even deserved the judicial monitoring of investigation as done by the Supreme Court in Vineet Narain (1993), or by the Patna High Court in supervising the investigation into the infamous Fodder Scam.

The Bhopal gas leak disaster could not have come at a worse moment. In 1982 there were serious efforts to invite the NRIs to invest in India. Dr. Manmohan Singh, then Governor of the Reserve Bank of India, endorsed with verve the policy of NRI portfolio investment, and the efforts to augment foreign exchange reserve. It had become fashionable to pursue the neoliberal agenda. The foreign investors had their own agenda to pursue. India too was brought under the spell of neoliberal philosophy. It reached the point of amazement and shock when by 2003 even our Supreme Court tilted towards neoliberalism in Azadi Bachao Andolan (2003) when it excused the abuse of the Indo-Mauritius Double Taxation Convention because it encouraged "capital and technology inflows. It was justified "as a necessary evil in a developing economy." During 1987-98 our country was passing through political turmoil marked by quick changes in government, and stood disgraced by serious allegations of corruption against persons occupying high position. The capitalists, politicians and bureaucrats were out to placate the MNCs. When a society comes to this pass, those who wield public powers tend to lose their sense of duty to become just 'one vast vision of imbecility'. The Bhopal disaster was too big to be managed well by small people with abysmal moral deficit.

It is amazing that our government did not think (it does not think even now) to formulate strategies to deal with grave problems which the MNCs can create in a nation's domestic jurisdiction by inflicting on us disasters, even more gruesome, on account of their ruthless commercial, nuclear, or technological operations. Our government is duty bound to devise an effective national protocol, and legal regime to respond to such challenges. Besides, it must work at international plane to develop an effective international regime with punitive powers to oversee the ways the MNCs functioned in different countries.

Reflections on the steps which the GoM suggested

The judgment of June 7, 2010 delivered by the Chief Judicial Magistrate anguished most of our countrymen. It is felt by many that the punishment given was not proportionate to fault committed, or crime done. It is reported by the press that the GoM, appointed by government, has recommended four instant steps as an emergency response to its raging criticism. These are: (i) to enhance the compensation for the victims; (ii) to make fresh efforts to seek extradition of ex-Union Carbide Chief Warren Anderson; (iii) to move a curative petition before the Supreme Court against the Court's 1996 decision; and (iv) to file applications for fast tracking cases concerning the liability of Dow Chemicals, which took over Union Carbide.

None can object to the enhancement of compensation to the Bhopal gas leak victims. But the question is: Who should foot the Bill, we from our Consolidated Fund, or the crooks who wrought this tragedy? No doubt we should help our fellow citizens in distress. But then the government should tax more the India Inc to replenish our Consolidated Fund.

In the matter of getting Warren Anderson extradited our government acted in strange melodramatic inaction. Neither law nor diplomacy was harnessed effectively to our service. Our government, which is often seen as a mere bleating little lamb tagged behind the U.S.A., should have sought some benefit for the distressed from their newly developed affaire d'amour with the U.S.A. We all known the route of extradition is tedious and labyrinthine. More so, when the person to be extradited is from the world's hegemone, and also nearing his journey's end.

They say that our government should move a curative petition to get the 1996 judicial directive vacated for setting afoot a fresh trial. When a review petition against an order is dismissed, and no petition ex debito justitiae is preferred, the order becomes final. The Supreme Court has recently invented in Rupa Ashok Hurra v. Ashok Hurra (2002) the procedure for moving a 'curative petition' for re-consideration of a decision. But for this the case must come within the parameters prescribed in Rupa whichheld that "a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner." I doubt if there are good reasons for getting the 1996 decision reviewed through the curative procedure. As things stand, the curative petition might succeed if our government can show (to our consternation, of course) materials to prove that the "Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias"; or can persuade the court to widen the province of the 'curative jurisdiction' by making it co-terminus with the wide jurisdiction ex debito justitiae.

It is unwise to let the MNCs escape on account of their donning corporate garbs. In this phase, when the corporations rule the world, all the crooks and knaves want the corporate shell to remain impregnable so that only those can lift their veil of gossamer for whom they are the whores. But why should our government bother to lift the corporate veil to see the face of the bride who brought a big dowry of FDI or hot money! So goes on the entente cordiale of collusion and fraud for mutual gains.

I wish the government succeeds in its objective to fast track cases concerning the liability of Dow Chemicals, which took over Union Carbide. No harm in trying even now what should have been tried long before. I wish our government acquires the wherewithal to achieve its objective. Our nation can keep on hoping, what else it can do?

As a citizen of this great Republic I suggest the following for consideration by persons far abler than me:

(a) We may consider whether it is worthwhile to move a writ petition under Article 32 of our Constitution against the judgments of 1989, 1991 and 1996 as the Court failed to protect people's fundamental rights which it was bound to protect. As a creature of our Constitution, it was itself under duty to sustain and protect people's fundamental rights, more so when they were in the deepest distress needing succour and clemency from all. If the Court rejects this prayer on the ground that the superior courts are not amenable to the writ jurisdiction, our government should try to get the Constitution itself amended so that the reach of the Aricle 32 is not narrowed. As an organ of the State, with constitutionally conferred powers, the Supreme Court too deserves to be considered subject to the Art. 32 jurisdiction. This would be a prayer to the very institution of the Supreme Court to do justice by protecting people's fundamental rights which it failed to protect in those decisions.

(b) Our government may consider the feasibility of actions at the international plane invoking the international law of Nationality and the norms of humanitarian succour and intervention.

(c) Though much time has been lost, yet it would be worthwhile to constitute a commission of inquiry to examine all the relevant aspects including the principles governing civil and penal compensation and penalty. In granting compensation the points to be seen are, besides the loss of the earning years of one's life, the deprivation of enjoyment and opportunities which one gets in society, and the possibilities of personal attainments. To discriminate the worth of an Indian from that of an American is a crime against humanity indicating evident moral depravity.

(d) Our government may consider seeking remedy against the errors simply by invoking the Supreme Court's inherent power to act ex debito justitiae---to do that real and substantive justice for the administration of which alone it exists or to prevent abuse of the court.

(e) If our government considers it futile to set up a commission with a comprehensive agenda, people may think of setting a body to examine all the issues, including the way our government played its role as parens patriae. This knowledge can be of help in responding to more serious future challenges. Besides, it can evolve, or suggest changes, in the law of torts and crimes to respond to the challenges of the sort the Bhopal disaster posed. We may consider as a model provided by the Peoples' Commission, consisting of Krishna Iyer, Chinappa Reddy, Desai, and Sachar (all former Judges), which drew up the Peoples' Commission Report on GATT on the constitutional implications of the Final Act embodying the results of the Uruguay Round of Multilateral Trade Negotiations. If the government fails to act, perhaps our informed citizenry would resort to such a Peoples' Commission.