Bhopal: An unsettling settlement

Bhopal: An unsettling settlement

Usha Ramanathan

The course that the law took in cases involving the Centre and Union Carbide Corporation raises several questions.

A survivor of the Bhopal gas tragedy during a demonstration at Jantar Mantar in New Delhi.

The path to the criminal trial and conviction of Keshub Mahindra and six others on June 7, for ‘rash and negligent' conduct that resulted in the death of over 20,000 people and injury and harm to over 5,00,000 people, is full of curious twists and unexplained turns. The dilution of charges in 1996 — from culpable homicide to rashness and negligence — is presided over by a question mark. But the history of this leniency travels further back in time to 1989 when all criminal cases, in process and that may arise in future, in relation to the Bhopal gas disaster were quashed by the Supreme Court when Union Carbide Corporation (UCC) paid $470 million. In February 1989, the court said this would “enable the effectuation of the settlement.” But in December 1989, another bench of the court found that the Claims Act, under which the government had taken over the litigation, had nothing to do with the criminal cases, and that part of the settlement did not derive from the Act but was beyond it. And in 1991, the court, unable to sustain the quashing of criminal cases, backtracked and the criminal cases were revived. This was before the dilution of the charges in 1996. The quashing of criminal cases continues to be shrouded in a mystery that could be resolved if those who were part of the settlement proceedings could be called upon to reveal what they know.

A chronology:

In the beginning, there was the law. In March 1985, Parliament enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act. This gave the Central government the exclusive right to “represent, and act in place of every person who had made a claim, or was so entitled to make a claim, for all purposes connected with such claims in the same manner and to the same effect as such person.”

On February 14, 1989, while an appeal relating to interim compensation was pending before it, a five-judge bench of the Supreme Court found “this case is pre-eminently fit for an overall settlement … covering all litigations, claims, rights and liabilities … related to and arising out of the disaster.” So it “ordered” that UCC pay $470 million and, “to enable the effectuation of the settlement,” all civil proceedings would “stand concluded in terms of the settlement” and “all criminal proceedings related to and arising out of the disaster shall stand quashed wherever they may be pending”. The next day, advocates for the Union of India and UCC and Union Carbide India Limited (UCIL) filed “Consequential Terms of Settlement” which included a clause that read “and all such criminal proceedings including contempt proceedings stand quashed and accused deemed to be acquitted.”

On May 4, 1989, propelled by protests led by victims' groups and their supporters, the Supreme Court explained how it had arrived at the sum of $470 million. But about the “part of the settlement which terminated the criminal proceedings,” the court declined to say anything since review petitions challenging the settlement were already in court and it “might tend to prejudge this issue one way or the other.”

A 1986 challenge to the Claims Act of 1985 had not been heard before the settlement order was passed. Victims had contested the power of the state to take away their right to litigate. The Supreme Court heard this case in the brooding shadow of the settlement. The judgment of the court in this case, dated December 22, 1989, was categorical that “the criminal liability arising out of the Bhopal Gas Leak Disaster is not the subject matter of this Act and cannot be said to have been in any way affected, abridged or modified by virtue of this Act.” “Clearly, therefore” the judges explained, “this part of the settlement comprises a term which is outside the purview of the Act.” Further, the court records the Attorney-General as having told the court that “these are not the considerations which induced the parties to enter into settlement.”

On October 3, 1991, a five-judge bench pronounced its decision on the review petition filed by the victims and their supporters. Of the five judges who constituted the original bench, Justice Pathak had moved to the International Court of Justice not long after the Bhopal settlement order, and Justice Venkataramiah had taken over as the Chief Justice and retired by the end of the year. But Justices Ranganath Misra, Venkatachaliah and N.D. Ojha were still on the bench, with Justices K.N. Singh and Ahmadi joining them. In the time that had elapsed since the settlement order, the government had changed and, with it, the government's position on the settlement order had undergone revision. It was then left to the three judges from the original bench and Fali Nariman, who was UCC's counsel, to recall what had transpired. But that was not to happen. Instead, memory and record were substituted by conjecture.

First, the court declared that it had the constitutional power, located in Article 142, to do “complete justice,” and no statute could undermine this power of the court. So, if the court in its discretion decided that quashing criminal cases was in the interests of complete justice, it had the power to do just that. Then, acknowledging that “the order terminating the pending criminal proceedings is not supportable” strictly in law, the court drew on Mr. Nariman's submission “that if the Union of India as the dominus litis through its Attorney-General invited the court to quash the criminal proceedings and the court accepting the request quashed them, the power to do so was clearly referable to Article 142(1) read with the principle under Section 321 CrPC which enables the government … to withdraw a prosecution.” And so on.

The concern then was not about the existence of the power — which, the court declared, did exist — but “one of justification for its exercise.” “No specific ground or grounds for withdrawal of the prosecution having been set out at that stage, the quashing of the prosecutions requires to be set aside.”

So, settling criminal liability was not negotiated under the Claims Act. The government says it had nothing to do with the quashing of the criminal proceedings. The Supreme Court claims to have the power to go beyond law but says it had not been given grounds for doing so at that stage. It does not say why, then, it did what it did. It leaves it in the realm of conjecture: if the government had invited the court, the court may be obliged. So, it would appear, the Supreme Court had quashed the criminal proceedings for no statable reason.

This became clearer with the court explaining that the quashing of criminal proceedings was not a ‘consideration' for the settlement. That is, no party to the settlement was making it a condition without which the settlement would not stand.

Mr. Nariman drew a distinction between ‘motive' and ‘consideration', and the court adopted it, although what is ‘motive' is not explained. If the quashing of the criminal cases was not to help negotiate the settlement and get the company to agree to pay $470 million — which was $120 million more than it had agreed to pay — why was it in the order and in the terms of settlement?

The settlement was not negotiated in open court. If, as the court conjectures, the government asked the court to quash the criminal proceedings, the court would know.

It is imperative that individual and institutional memory be called upon to resolve these opaque aspects of the Bhopal gas disaster.

(Usha Ramanathan works on the jurisprudence of law, poverty and rights.)

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GoM on Rajiv and Bhopal: sloppiness or cover-up?

GoM on Rajiv and Bhopal: sloppiness or cover-up?

Special Correspondent

This is how The Hindu of December 8, 1984, covered the drama of Warren Anderson's arrest and release.

As our front page story notes, the Group of Minister's conclusion that “contemporary media reports also indicate that the Prime Minister, Shri Rajiv Gandhi, was briefed on the matter after Mr. Anderson left the country” is factually incorrect.

Assuming that G.K. Reddy's reports in The Hindu (especially his front page story of December 8, 1984) are part of the “contemporary media reports” referred to by the GoM, its conclusion is either a careless misreading of the reports or, more likely, a clumsy attempt at a cover-up.

The irony is that in attempting to provide Rajiv Gandhi with an unnecessary alibi for one of the many sideshows of the gas tragedy — how Union Carbide Corporation chief Warrant Anderson came to be arrested and released so quickly on December 7, 1984 — the GoM will likely ensure the late Congress leader and Prime Minister remains at the centre of political controversy.

The Hindu's editions of December 8 and 9, 1984 indicate that attempts to cover up the truth about the arrest began on the very day he was jailed and then released. G.K. Reddy writes: “After the Central government's intervention, it was stated that Mr. Anderson and others were only taken into protective custody and lodged in the company's guest house to save them from mob violence.”

On December 9, The Hindu carried a Bhopal dateline report from UNI and PTI showing that the cover up had been extended to include Madhya Pradesh Chief Minister Arjun Singh. The report says that in a press conference, Mr. Singh denied the Prime Minister was consulted in connection with the arrest and release of Mr. Anderson, though he was “informed”. “The Central government was not in the picture at all,” he said. The Times of India on December 9 carried a similar report about Mr. Singh making the contradictory claim that the Prime Minister was “informed”, but not “consulted”.

The Hindu's December 8 report also brings into question the GoM claim that “there are no records in the Ministry of External Affairs of his visit or who he met on his visit”. Mr. Reddy's report says that the “Cabinet Secretary called a meeting of senior officials from External Affairs, Home, Petroleum and Chemicals and Law Ministries to examine all these aspects, before some of them met Mr. Anderson later tonight.” It is unlikely that a meeting of this kind devoted to dealing with the UCC chief would have produced no paper work.

A Hindustan Times report of December 10 also throws doubts on the GoM's claim of there being no MEA records. It says that the Ministry actually issued a statement about the cancellation of a press meeting with Mr. Anderson on December 9.

Another curious discrepancy between the Group of Minister's report and the record as established by The Hindu at the time surrounds the provisions of the Indian Penal Code under which Mr. Anderson was arrested. The GoM report notes in paragraph 16 that an FIR was registered at the Hanumanganj police station on December 3, 1984 against Carbide officials which mentioned only Section 304-A (gross negligence) and no other section. But the reports by G.K. Reddy and PTI note that Mr. Anderson and others “were arrested” as soon as they landed in Bhopal from Bombay “under seven different sections of the Indian Penal Code (IPC). The Sections are: 120B (criminal conspiracy), 304 (culpable homicide not amounting to murder), 304A (causing death by negligence), 426 (mischief), 429 (mischief in the killing of livestock), 278 (making atmosphere noxious to health), and 284 (negligent conduct in respect of poisonous substances)”.

In fact the bond which Mr. Anderson signed in Bhopal prior to his release also noted:

“I have been arrested by Hanumanganj Police Station, District Bhopal, Madhya Pradesh, India under Criminal Sections 304 A, 304, 120 B, 278, 429, 426 & 92. I am signing this bond for Rs. 25,000/- and thus undertaking to be present whenever and wherever I am directed to be present by the police or the Court”.

Since Section 304 is a ‘non-bailable offence', i.e. bail can only be granted by a judge and not on the basis of a bond, were legal corners also cut to ensure Mr. Anderson was released immediately? The prior grant of safe passage meant he should never have been arrested in the first place. This is why Reddy writes of the “deplorable lack of coordination” between the Central and State governments. Instead of using its privileged access to official records to clarify these secondary issues once and for all, the GoM's efforts are likely to invite charges of a cover-up.

Corrections and Clarifications

Third paragraph of this report in today's Op-Ed page says Union Carbide Corporation chief Warrant Anderson. Please fix spelling to "Warren" Anderson.

Bhopal Carnage: Bhopal gas leak case: all is not lost

Bhopal Carnage: Bhopal gas leak case: all is not lost: "Bhopal gas leak case: all is not lost Sriram Panchu The government should arrange for a current calculation of compensation requirements, pr..."

Bhopal gas leak case: all is not lost

Bhopal gas leak case: all is not lost

Sriram Panchu

The government should arrange for a current calculation of compensation requirements, provide the balance funds, and ensure speedy disbursement.

The verdict in the Bhopal gas leak criminal case convicted officers of Union Carbide India Ltd (UCIL) for rash and negligent acts causing death, and imposed the maximum penalty of two years. The offence arose from the leakage of methyl isocyanate gas on December 2, 1984 from the company's factory, which caused the death of several thousands of people and maimed several lakhs. Predictably, there is outrage not just at the disproportion between the consequences of the act and the sentence. It is deeper because the victims have got a raw deal on all fronts. A Group of Ministers, now examining action, met on Friday and is to finalise the recommendations shortly.

A revisit of events shows that the Government of India (GoI) bears responsibility in several ways. It allowed the plant to be located in a thickly populated area, with the knowledge that it was handling toxic gas. Its inspectors failed to enforce safety standards. Its culpability increased several fold after the world's worst industrial disaster took place.

The GoI took over the right to litigate, exercising the power of parens patriae, and thus prevented the victims from filing suits through their lawyers. It did not match this power with results or responsibility. It filed a suit in the U.S. court where it laid a claim for $3 billion on behalf of the victims. The last thing the Union Carbide Corporation USA (UCCA), the holding company, wanted was to be a defendant in its home country. It would face American tort lawyers, the most aggressive breed of the legal profession, who commonly secure verdicts or settlements for huge sums. The case would come before judges who are used to managing mass party actions efficiently, and a jury of common people, who could be expected to react to the magnitude of the suffering. The GoI lost on the preliminary issue of jurisdiction; Judge Keenan of the U.S. District Court sent the case to India. Round One to UCCA.

During the 26 long years taken to give the verdict ( the responsibility for which is also laid at the door of the Indian legal system), two major events took place, ensuring that the case was a lost cause even before it went to trial. On February 14, 1989, the GoI agreed to a settlement with UCCA before the Supreme Court. It agreed to accept $470 million, 15 per cent of its claim, in full settlement of all civil and criminal claims arising out of the disaster. (Round 2 to UCCA).

The GoI's justification was the delay in Indian courts, and the immediate necessity of providing relief to the victims. The protective parens patriae did not think it fit to provide such interim relief from its resources, which would have made this settlement unnecessary. The GoI did not give the Bhopal victims prior notice of the settlement. The resulting outcry led to the Supreme Court modifying it two years later; the criminal cases were resuscitated; the monetary settlement and cessation of civil liability stayed undisturbed. However, Justice M.N. Venkatachaliah, writing for the majority, held that if the figure of $470 million was not adequate to compensate the victims, the GoI should make good the deficiency. This arose, he said, from the circumstances of the case and the obligations of a welfare state. A dissent on this aspect was entered by Justice A.M. Ahmadi, who asked why the Indian taxpayer should be burdened with this liability when the government had not agreed to bear this liability and was not guilty of wrongdoing.

In 1996, a two-judge Bench diluted the charge from Section 304 para 2 ( knowledge that the act would cause death ) to Section 304 A (rash and negligent act causing death) of the IPC. The penalty came down from 10 years to 2. (Round 3 to both UCCA and UCIL). The GoI defended the case and lost it. It is settled law that the court does not interfere with the trial of a case unless the complaint or charge sheet, accepted without demur, does not make out the offence. The charge sheet clearly stated that the factory in Bhopal was deficient in many safety aspects, its design and safety measures provided by UCCA were deficient, safety norms were not adhered to, factory officers failed to alert the district administration in time, and that all concerned had knowledge that the release of the gas would cause lethal destruction.

The District Court and the High Court found that a prima facie case had been made out by the prosecution requiring the accused to face trial. It would take the strongest legal reasoning to reverse this stand especially given the facts of the case. Justice Ahmadi's reasoning, contained in one paragraph, fell well below this mark. He startlingly held that “Even assuming that it was a defective plant and it was dealing with a very toxic and hazardous substance like MIC, the mere act of storing such a material by the accused … could not even prima facie suggest that the concerned accused thereby had knowledge that they were likely to cause the death of human beings.” In his view, the charge had to make out that the accused had knowledge that by the very act of operating the plant “on that fateful night,” they were likely to cause death. This would mean that the knowledge and the acts are restricted to that fateful night. Logically, it would follow that only the plant operators on duty that night would be liable; those who designed and operated it with deficient safety systems would not be. The GoI accepted this judgment, failed to ask for its review or for a larger Bench to hear the matter, considering that the court was dealing with a disaster of epic proportions.

The Group of Ministers will doubtless examine the legal options of reviewing the Ahmadi judgment, and securing Warren Anderson's presence (he jumped bail, and UCCA and he were declared absconders after they kept away from the trial in Bhopal.) The GoM may also examine if civil and criminal proceedings can be launched in the U.S. against Union Carbide and Mr. Anderson. Judge Keenan's order would be no defence for them, since he predicated it on their accepting the jurisdiction of the Indian courts. All these are difficult courses given the passage of time, conclusion of the trial and the cap on civil and criminal liability.

One remedial action remains, which is what the victims need foremost, and that is entirely in the hands of the GoI. Justice Venkatachaliah made it clear that the GoI would be liable to make good any shortfall in the compensation amounts. The compensation of $470 million was premised upon the number of about 3000 deaths and 30,000 injured. Over the years, the death and injury toll attributable to the gas leak is far higher than what was then officially recorded, with succeeding generations inheriting the health and environmental disabilities. A recent estimate puts the figure at 5,74,367 victims. The GoI should now arrange for a credible current calculation of compensation requirements (its claim in 1986 was for $3 billion), provide the balance funds itself and ensure speedy disbursement. Public policy and moral and legal considerations demand that it does so.