Why the Courts have not been a friend to Bhopal

The courts have not been a friend to Bhopal. Warren Anderson is still living a life of luxury in the Hamptons, and the Sahu v. Union Carbide case is still wending its slow way through the Second Circuit Court at New York. Twenty five years later, the victims still wait, and watch, and hope, driven by a belief in justice and the rule of law that one can only hope will be fulfilled.

Every story on the Bhopal Gas Tragedy begins, 'in the early hours of 3^rd December'... to commemorate the 25^th anniversary of the world's most devastating industrial disaster, Bar & Bench is telling a different story. Our story begins on December 7, 1984 when Warren Anderson, CEO of Union Carbide Corporation (UCC), was arrested along with nine other Union Carbide employees as accused in the Bhopal disaster. Anderson posted bail of Rs. 25,000 and undertook before the court to return for the hearing on the criminal charges brought against him. On the strength of this undertaking, he was granted permission to return to the United States. Warren Anderson has never been seen in India again.

It took the Central Bureau of Investigation three years to file a chargesheet against Anderson and Union Carbide on grounds of culpable homicide. On December 1, 1987, summons was served by the Chief Judicial Magistrate (CJM) on Anderson and the other accused in the matter. After two years of serving summons, the Chief Judicial Magistrate, on February 9, 1989, issued a non-bailable warrant against Warren Anderson. Less than a week later, the Union of India reached a settlement with UCC, a settlement which included the withdrawal of all criminal charges against the accused. Thus, more than three years after the tragedy, the Bhopal victims were not only forced to accept a settlement to which they had not agreed, but were also forced to forfeit the satisfaction of seeing the persons responsible pay for their crimes.

It would be an additional two and a half years before the Supreme Court revoked the settlement and reinstituted criminal proceedings against Anderson. In November 1991, the criminal cases against the accused in the Bhopal disaster were revived, and summons were once more served on Warren Anderson, including an announcement in the Washington Post requiring his presence in court. Anderson persisted in ignoring the summons, and on February 1, 1992, he was declared to be an 'absconder', along with two other entities, UCC (USA) and Union Carbide East (Hong Kong) that were also charged with culpable homicide. In 1992, after attaching the shares and properties of Union Carbide India (UCIL) to ensure its appearance in court, the Magistrate separated the accused in the matter, since three of them, Anderson, UCC and UCE, were absconding. The remaining eight accused, including UCIL's Chairman Keshub Mahindra and the Managing Director V.P. Gokahle were committed to trial. The Sessions Court at Bhopal framed charges against them on several counts, including culpable homicide. The charges were appealed and upheld in the Madhya Pradesh High Court, and eventually went on appeal to the Supreme Court.

In 1994, the Supreme Court, with what appears to be a singular lack of logic, had already allowed UCC to sell its shares in UCIL to fund the Bhopal Hospital Trust, without enquiring why UCC could not procure the funds by other means. This meant that despite UCC's non-appearance in court, there remained no means of forcing compliance, since UCC no longer owned any assets in India.

The 1996 appeal to the Supreme Court by Keshub Mahindra, and the consequent order only weakened Anderson. The Supreme Court, quashing the culpable homicide charges framed by the Sessions Court, directed them to charge the accused under Section 304-A of the Criminal Procedure Code- causing death by negligence. In 2002, the CBI applied to the CJM to dilute the charges against Anderson on a level with the other accused. The application was eventually rejected, a move that filled Bhopal survivors with relief, since otherwise, the Indian government would have be unable to demand Anderson's extradition, as Section 304-A is a non-extraditable offence under the extradition treaties between India and the United States. Mahindra's trial is still pending in the Court of the CJM.

In May 2002, the lackluster extradition proceedings initiated by the Ministry of External Affairs fizzled out altogether when the US government remitted the request and asked the government to re-examine the charges against Anderson. The CJM reaffirmed the charges and issued a fresh warrant of arrest on August 28, 2002 with a strong demand to the government to immediately initiate extradition proceedings.

In July this year, the Chief Judicial Magistrate, M.P. Tiwari reissued an arrest warrant against Anderson, accompanied by a warning to the government. He held that the wilful non-execution of the warrant was a punishable offence under the IPC on the part of the Union government and the public servants concerned. The Court went on to hold Cabinet secretary K.M. Chandrashekhar and Foreign Secretary Shiv Shankar Menon responsible for the execution of the warrant.

And yet, extradition does not appear to be a likely occurrence. Several media reports state that RTI documents from India and the United States suggest that the unconvincing attempts of the Indian government to enforce the warrant arise due to corporate pressure from both countries.

The United States courts have also proven to be unsympathetic to the plight of Bhopal's survivors time and again. Beginning with the very first litigation filed by the Indian government in the New York District Court, which was dismissed on the grounds of UCC's plea of forum non conveniens, the United States courts have shown a distinct unwillingness to involve themselves. UCC, represented by Partner William A. Krohley of Kelley Drye & Warren LLP [who is incidentally still representing Union Carbide in the ongoing Sahu v. Union Carbide case in the Second Circuit Court of Appeals in New York], and Senior Counsel Fali Nariman, managed to arrive at an out-of-court settlement with the Indian government. The Supreme Court, desperate to provide a measure of succour to the victims, approved the settlement, despite the fact that UCC had agreed to pay only about 15 percent of the sum originally demanded. Nariman, who had represented UCC in the Supreme Court through the entire series of Bhopal litigations, including Keshub Mahindra's appeal to the Supreme Court, later expressed his regret at accepting UCC's mandate, saying he had not then realized the human cost of the tragedy.

However, the Bhopal survivors found a loophole when a 1999 Greenpeace survey discovered high levels of contamination in the groundwater in Bhopal due to leakage of toxins from the abandoned UCIL factory. The survivors now had a new ground on which to file a suit, and so two separate cases were filed in the United States Federal Courts. The first litigation, Bano v. Union Carbide, after going through several rounds of appeal, was finally dismissed in 2006. The second litigation, Sahu v. Union Carbide was dismissed twice by Judge Keenan of the District Court of Southern New York, but was finally reinstated by the Second Circuit Court of Appeals, which held that the Plaintiff had not been given enough time to respond to a dismissal motion by Dow Chemicals, the company that took over UCC.

There have been several lawyers who have fought for the rights of the Bhopal victims. Senior Counsels Shanthi Bhushan, Indira Jaisingh and R.K. Garg and counsel Prashant Bhushan all acted for the survivors of the Bhopal and overturned the settlement terms agreed upon by the Indian government.  But the most dedicated of all the legal counsels involved in the Bhopal matter is Himanshu Rajan Sharma, Founder Partner of Sharma & DeYoung LLP, the man who has fought tirelessly through the United States courts since 1996 to ensure that the victims of the tragedy get their due.

The courts have not been a friend to Bhopal. Twenty five years later, the victims still wait, and watch, and hope, driven by a belief in justice and the rule of law that one can only hope will be fulfilled.