INDIA: Restitution and retribution

On 7 June, 25 years and six months after the Bhopal gas disaster, Chief Judicial Magistrate Mohan P Tiwari sentenced former Union Carbide India Limited (UCIL) chairman Keshub Mahindra and six others to two years in jail, ordered them to pay INR 101,750 each, and slapped a fine of INR 500,000 against UCIL. The outrage provoked by this travesty of justice – for a disaster in which more than 20,000 people have lost their lives, with thousands more continuing to suffer, and future generations inevitably bearing the imprint of the toxic gas – has set off a blame game, with everybody pointing fingers at everybody else for letting the parent company Union Carbide Corporation (UCC) and its then chairman, Warren Anderson, off the hook. Every few years the matter occupies the headlines for some time, only to be forgotten without a meaningful change in the system, either to ensure that the Bhopal victims get adequate financial compensation or to set up a legal regime that incorporates stringent liability norms in case of industrial accidents. With the recent verdict, it looks as though this year will be no different.

None of this is new, nor is Warren Anderson the main issue. The fact is all forces have connived at letting Union Carbide – and Dow Chemicals, which acquired UCC in 1999 – get away with little more than a rap on the knuckles for an act of outrageous criminality. The authorities in New Delhi and Bhopal facilitated Anderson's departure from the country in the first place, and thereafter failed to pursue gas leak-related criminal cases with any seriousness. The Supreme Court of India reduced the charges against the company and its officials, until the only legal provision under which they were charged was the same as is applicable in the case of simple traffic accidents. The court also brokered an agreement whereby Union Carbide paid a relatively paltry sum of USD 470 million to over five lakh claimants as full and final settlement, in return for all charges against it being quashed. Relief and rehabilitation were neglected, even as victims to this day continue to struggle to get the medical treatment required. For its part, the US government has consistently refused to extradite Anderson and cooperate in the investigation. The Indian elites and middle classes seemed to react to the tragedy largely with indifference. Even today, there are voices within the media that declaim that it is time to put a stop to the issue of Bhopal being held hostage by the 'activist industry', that it is time to 'move on'.

The Indian government – led by the Congress party, which was in power both in New Delhi and in Madhya Pradesh at the time of the disaster – is presently engaged in a public-relations exercise. The Planning Commission has sanctioned more INR 9.8 billion to address environmental, health, economic and social issues relating to the tragedy – but without reassessing the earlier categorisation of those affected by the gas, this may not reach the truly needy. The re-activated Group of Ministers (GoM), headed by Home Minister P Chidambaram, has decided to hike compensation to the victims and set aside INR 3 billion towards complete environmental rehabilitation of the gas-leak site, and will pursue reimbursement of the amount from Dow Chemicals. It is also reviving efforts to extradite the 89-year-old Warren Anderson, and the filing of a 'curative' petition to reverse the Supreme Court's 1996 judgment in order to enhance punishment. Of course, this long after the tragedy, it is unlikely that criminal cases can be re-opened and pursued to any meaningful result, and some of the GoM's decisions might even amount to letting Dow Chemicals off the hook. But all this latter-day activity would clearly be a positive step if it means that issues of compensation, relief and rehabilitation are, finally, treated seriously.

Dilution, collusion
Amidst all the hand-wringing, something equally important is in danger of being sidelined – the exponential growth of corporate power in the past two decades, and the need to curb it and strictly fix liability in case of industrial accidents. The most recent example of an environmental and human disaster on a massive scale is the recent British Petroleum -rig blowout in the Gulf of Mexico. US President Barack Obama has forced BP to dedicate a USD 20 billion escrow account for the compensation of victims; but it remains to be seen whether BP will finally be forced to pay 'adequate' damages and to do a proper clean-up. The prognosis is not positive if one looks back at the Exxon Valdez disaster of 1989, for which the US government and courts have been progressively reducing the compensation due to each victim.

In the developing world, there is even more impunity when it comes to negligence by large corporations. Geographically, hazardous industries are almost always situated in a way that the most vulnerable people are at the greatest risk in case of a mishap. Bhopal is obviously a textbook case of this syndrome. With the lives of the poor most at risk, there is little effort to ensure safety and strict liability or rapid restitution and retribution. With domestic laws in the developing countries being what they are – with a low threshold and typically lax on implementation – industries find it more profitable to take the risk of an industrial accident than ensure adequate safety measures. This is exactly what happened in Bhopal.

Unhealthy levels of pro-industry positioning of the Indian government have also been on view with regard to the proposed Civil Nuclear Liability Bill. On this critical legislation, New Delhi has consistently sought to dilute provisions relating to liability, including due to US pressure. In the immediate aftermath of the Bhopal judgement, though, the government has been forced to lie low on the matter, even withdrawing a proposed amendment that sought to delete a section that fixed the liability of foreign suppliers for gross negligence. Whether New Delhi's overall intent is serious, however, remains in doubt. The current dispensation in the Indian capital is even more corporation- and US-friendly than in the years immediately following the Bhopal disaster, when it bent over backwards to protect Union Carbide.

Ultimately, though, the issue is not restricted to the Nuclear Liability Bill alone. Provisions of strict liability must be incorporated into all laws governing industrial operations in each of the Southasian countries, and criminal law must be appropriately amended to put adequate penalties and deterrents in place. The government's specific responsibilities in such matters need to be clearly defined and incorporated into law. It is only such changes that can provide a fitting memorial for the dead victims of Bhopal – and provide hope for the living.