Chronicle of a verdict foretold
Screaming headlines like 'Bhopal's Second Disaster' or 'Judgment a Mockery of Justice' are indicative of the sense of outrage at the punishment of two years imprisonment and a token fine imposed on Kesub Mahindra and six officers of Union Carbide India Limited (UCIL). Mr. Mahindra headed Union Carbide at the time of the gas leak on the night of 2 December 1984 which killed thousands, maimed lakhs, and left the people of Bhopal with ill health. He is presently Chairman of Mahindra & Mahindra, India's largest SUV maker.
The feat of conviction achieved after a marathon 26 years from the 1984 gas leak incident has itself evoked comments of 'Justice delayed is justice denied' and 'Justice Buried'. However, the path which led to this travesty of justice for the victims and survivors was a script well in advance. Suffice it to say that the punishment of two years imprisonment awarded by the Chief Judicial Magistrate is the maximum sentence imposable under Section 304 A of the Indian Penal Code (IPC) for 'death by rash and negligent act', the offence for which the accused have been convicted. And thereby hangs a tale that needs re-telling, and also warrants a look at the players involved.
The tremendous public outrage and protest soon after the gas leak forced a reluctant government to lodge a First Information Report and initiate criminal proceedings. The prelude to the farce of a well-known individual such as Warren Anderson, head of a multi-national 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 7 December 1984 meant only that he was comfortably ensconced in the company guesthouse and released on a bond of INR 25,000 the same day. Even though charged with the serious offence of 'culpable homicide', punishable with life or ten years imprisonment, the conditions of remaining in the city and depositing the 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 were high. In fact, Mr Anderson, cosseted and well protected from the media glare by the State Government, was flown to New Delhi in an official aircraft.
Cheap deaths, cheaper lives
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 tragedy. In 1989 the Supreme Court of India – 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' – endorsed a settlement between UCC and GOI under which Union Carbide was to pay USD 470 million in settlement of all present and future claims. 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 bulk of the money remained intact, and in 2004, the Supreme Court ordered it to be distributed among victim-survivors, resulting in payment of few hundred dollars each to over five lakh claimants.
An analysis of the basis for quantum of compensation, though interesting, will take us away from the present context of the recent conviction. The attitude of the government and the judiciary towards 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 also 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 to 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 1989 settlement quashing the criminal charges with regard to the Gas Leak Tragedy.
Murder or negligence?
Charges were framed with regard to the Gas Leak Tragedy against the accused in the trial court for the offence of culpable homicide not amounting to murder under Section 304 Part II IPC punishable by ten years imprisonment. On a petition by the accused, the Supreme Court in 1996 directed amendment of the culpable homicide charge to that of 'causing death by rash and negligent act' for which the maximum punishment is two years' imprisonment. The core legal issue which needs examination is whether charges could have been made out for a more serious offence.
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.
In December 1981 two workers were injured and Mohammed Ashraf, a plant operator in the Carbide factory, died from a phosgene gas leak. At the time, Rajkumar Keswani, a journalist 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 the chemical products and household plastics division of 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 workmanship on certain connections, the warping of equipment, the corrosion of several circuits, the absence of automatic sprinklers in the MIC (methyl iso-cynate, the gas that caused most of the deaths) 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 the night of 2 December 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 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 causing death and destruction.
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 incident 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 Leak Tragedy of December 1984 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 two hundred 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 seventy 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.
The death of plant operator Mohammed Ashraf, the series of articles by journalist Keswani warning of the risks, 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 do seem to indicate that a prima facie case that there was sufficient foreknowledge that the running of the plant was likely to cause death. This would result in the offence falling within the ambit of Section 304 Part II IPC, culpable homicide not amounting to murder punishable with ten years' imprisonment.
Unfortunately, the saga of 26 years and 19 judges at the trial stage, does not inspire much confidence in the processing of the case at the appellate stages and justice to victims and survivors. The verdict brings into focus the inadequacy of the Indian legal regime in the areas of investigation, fixing liability, compensation and punishment in case of industrial disasters. The lessons from the Bhopal Gas Tragedy and the aftermath of prolonged suffering, delays, paltry compensation and token punishment need to be heeded in the areas of civil and criminal liability in the current debate on the controversial Civil Nuclear Liability Bill.
Rakesh Shukla practices law at the Supreme Court of India, New Delhi.
To read a response by organisations working with victims of the Bhopal gas tragedy to the verdict on industrialist Keshub Mahindra and six officers of Union Carbide India Limited, go here.