The Bhopal Gas Tragedy

DEATHLY GAS – THE BHOPAL TRAGEDY
RAJEEV DHAVAN


One generation has gone by. Twenty six years after the fatal gas release of methyl isocyanate on 3 December 1984 in Bhopal 15,000 died, 8,00,000 were exposed to the gas and genetic defects will be handed down inter-generationally. Oddly, Carbide Chairman, Warren Anderson, was arrested in Bhopal but released the next day on 4 December 1984. Carbide’s strategy was evasive. First, it got India’s Supreme Court (SC) to reduce the charges to causing death by negligence to limit punishment. Second, in 1989 the infamous deal included exculpating Carbide from criminal proceedings altogether. Mercifully the Supreme Court lifted the criminal immunity it gave to Carbide in 1992. Third, Carbide (US), denied criminal jurisdiction to India. Fourth, Anderson remained a proclaimed offender. In 2004, Anderson extradition was refused by the US.

The trial, thus, became an Indian affair. With Anderson excluded, 9 UCIL officials – 1 having died during trial – were Indians. Unfortunately it is the Supreme Court which reduced the charge to death by negligence carrying punishments upto 2 years or fine or both (Section 304A). Otherwise corporate liability would have been tested under culpable homicide amounting to murder carrying imprisonment for 10 years (Section 304 Part II). Can a person knowing that death would be caused be pronounced merely negligent? There was more to this case than was permitted to surface.
The multinationals always win, leaving the nationals to take the blame. National corporates resist liability. But few laws in the world give immunity to corporates. Under Indian penal law, a “person” includes corporates and collectivities (Section 11). The Standard Chartered case (2005) tried to settle the law to impose corporate liability by way of fine even where the mandatory sentence is imprisonment. In the Bhopal case, the corporates are missing. It is the officers who have paid the price.
We do not have an effective law against corporate liability, against Indian or multinational corporates even, and especially in cases of ‘mass disaster’ where the killing could have been anticipated but profits were zealously pursued. Multi-national enterprises are gifts to the companies of the North nations to play with and exploit the resources and people of the South even if this results in a killing spree. In the first place, corporates offences relating to hazardous activity of the Bhopal kind have already been treated as cases of absolute liability under the civil law. In criminal law, they should be treated as cases of strict liability with the accused (including corporations) having to show lack of fault. Second there should be a law to inculpate multinationals who control, are in charge of or involved in the activity or its beneficiaries. This has been much mulled over but not enacted due to national and multinational pressure. Greed and profits without full responsibility is not acceptable.
As far as the present verdict of 7th June 2010, it has a design fault perpetuated by the SC which has much to answer in this regard. In September 1996, Justice Ahmadi changed the charges to death by negligence which carried imprisonment upto 2 years instead of 10. As late as 2009-100, Abdul Jabbar of the Bhopal Gas Peedit Mahila Udyog argued that defence witness, T.R. Raghuram, had shown that Warren Woomer (UCIC’s manager) had ordered the shut down of the refrigeration system in 1982 and was fully in charge. Without support from CBI’s counsel, Jabbar’s application was rejected by the Bhopal Court because the Supreme Court’s order of 1996 had tied its hands. This means that the Bhopal Court could order upto only 2 years imprisonment instead of 10 years. This cross has to be borne by the Supreme Court, along with its handing of inadequate compensation in the civil case.
This brings us to the question of the fine, which even on the reduced charge of death by negligence (Section 304A) was unlimited. Now 8 lakhs (one each) is to be collected from 8 persons. Was this the promised end? 8 lakhs of criminal liability for misery by mass death, injury, incapacitation and genetic disorders over a period of almost 26 years. A figure somewhere nearer 10-50 crores would have been appropriate even if the punished claim impecuniosity. The message that this sends out to corporate managers is that the air at the end of tunnel is not financially turbulent.
But, why was the trial delayed even after 1996. Contrast Kasab’s trial in the attack on Mumbai. When India’s justice system wants to work, it does so. When it wants to devote its time to Reliance squabbles, it does so. But cases like Bhopal are given low priority.
The present Bhopal verdict decided what was expected. The Court’s hands were tied by the Supreme Court lowering the charge in 1996. The punishment could have been higher. The multi-national went scot free. The absconder, Warren Anderson, sips tea in New York.