How the law dealt with the Union Carbide Gas Slaughter The legal surroundings of the 26 year old anathema Part II

Kartikeya Tanna analyses how the law dealt with the Union Carbide Gas Slaughter in this second part of the two part series on the world’s worst industrial disasters..This article analyses the way in which the Legislature, Executive and Judiciary interfaced in the years following the disaster. The introduction contained in Part I may be revisited in order to understand the line of thought in this Part II..September 13, 1996: Supreme Court reduces the charge, to death by negligence.In Keshub Mahindra vs. State of Madhya Pradesh (1996 ACC 292), the Supreme Court was examining whether a charge of Section 304 (Part II) of the Indian Penal Code, could be sustained in view of the material presented before it by the prosecution. In order for the stricter charge of 304 (Part II) to sustain, the material presented before a court by the prosecution must at least prima facie indicate that the accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death. Translated to the situation of the gas leak, the material must indicate that on that fateful night when the plant was run at Bhopal it was run by the concerned accused with the knowledge that such running of the plant itself was likely to cause deaths of human beings. The important question for the judge to decide in sustaining the criminal charge of Section 304(Part II) is whether the accused had actual knowledge that the act itself i.e. the running of the plant would cause death. A natural response would be to argue that if the accused knew that the defective plant was running with a highly volatile substance in it, then they should be guilty of culpable homicide because they knew that running the defective plant could result in a gas leak which could permeate in the atmosphere around the factory in an amount that may cause death or severe injuries..The way Section 304 (Part II) had been dealt with by courts prior to 1996 did not cover such a situation because the stress was on the word itself. Hypothetically, therefore, if the accused had committed the act of leaking the gas in the air which caused death, he would be guilty of this charge because he committed an act, which by itself, was likely to cause death. The Supreme Court, therefore, lowered the charge to Section 304A (Causing death by negligence). I am aware many legal minds may not agree with this distinction, but this is what the Supreme Court determined based on the material furnished by the prosecution..The function of the judge is to be impartial and pronounce judgment based on the material submitted to it by respective sides and interpreting the law as it stands. In the words of the Mahatma – A wise judge will not give the wrong decision in the face of a hard case. He will allow himself to appear to have hardened his heart, because he knows that truest mercy lies in not making a bad law. If at all there was any incompetence in this “dilution” of charges, it is the prosecution that could not do its homework well enough for the material to support a stricter Section 304 (Part II) charge knowing the limited powers of the Supreme Court in reviewing criminal charges..Much meat is made out of a seemingly callous but truistic utterance by Justice Ahmadi which is as follows: “There is no concept of vicarious liability. If my driver is driving and meets with a fatal accident, I don’t become liable to be prosecuted under Section 304 (Part II).” Opinions made rounds in the media discussions that for Justice Ahmadi, there is no difference between a hit-and-run victim and the residents of Bhopal. That is a gross error. He uttered these words in the context of invoking strict criminal charges against the accused present in India on a misguided principle of ‘transferred justice’ just because the main accused is absconding. Homicide charges under criminal law cannot be applied in any casual manner because the label of a murderer remains with the convicted forever. This is why burden to prove all elements of a criminal charge “beyond doubt” is on the prosecution. This exercise is to be performed for each accused separately from the other. Therefore, if Anderson who could potentially be guilty of Section 304 (Part II) is absconding, his guilt cannot be transferred to the other accused. Justice Ahmadi heads the Bhopal Memorial Trust funded by UCC after his retirement, which is undoubtedly a conflict of interest situation, but to ascribe a soft corner for UCC in his judicial decisions in the past, is unfair..August 4, 1999: Union Carbide and the Dow Chemical Company announce that their boards of directors have approved a Rs. 52,200 crore ($11.6 billion) transaction which would result in Union Carbide becoming a wholly owned subsidiary of the Dow Chemical Company..2001: Dow Chemical Company acquired UCC. Dow declines responsibility for UCIL’s liabilities in India because UCC had already divested its 50.9 percent stake in UCIL in 1994 to McLeod Russell Ltd..The conflict of interest of Dr. Abhishek Singhvi is another issue that deserves attention. Dow Chemicals, of which UCC is a wholly owned subsidiary, is being represented by Dr. Singhvi on the issue whether Dow is the same, for corporate veil purposes, as UCC which would then determine whether Dow is liable to pay clean up costs under the laws concerning successor liability for environmental damages. In the due diligence conducted by Dow Chemical before acquiring UCC, it noted that “the company conducted an exhaustive assessment to ensure that there was absolutely no outstanding liability in relation to Bhopal. There was none; the company that Dow acquired retained absolutely no responsibility for either the tragedy or for the Bhopal site.” Regardless of the legal tenability in this claim, it is an issue before Indian courts. Dr. Singhvi, Dow’s representative, prefers to describe his legal representation as one limited to a very “threshold question”. The most crucial question of who pays clean up costs of the tragedy site depends on this “threshold question”..The crucial question for the purpose of conflict of interest of Dr. Singhvi is as under:.Is a Congress Member of Parliament, the chief spokesperson and an important part of the Congress party in a safe ethical zone in arguing for the legal position that Dow is different from UCC (and therefore it is not liable for follow up costs) when the Congress Government’s role ought to be fighting, however untenable its argument may be, to obtain as much compensation as it can get from the new company, a position unethical to Dr. Singhvi’s brief in the Courts of India? .2002: Court maintains charge of culpable homicide against Anderson and demands his extradition.2003: India sends formal request for Anderson’s extradition.June 2004: US rejects India’s request for Anderson’s extradition.This rejection occurred after the NDA Government sought advice of an American law firm on Anderson’s extradition issue. The then Attorney General Soli Sorabjee gave the opinion that Anderson could be extradited under a Section 304A charge (causing death by negligence) since it was comparable to the offence of “manslaughter” under the law of the United States and is provided for in the Indo-US extradition treaty. It is pertinent to note that Sorabjee also believed that the stricter charge of Section 304 (Part II) could not be sustainable against Anderson. Sorabjee however cautioned the Centre against pursuing Anderson’s extradition because of the lapse on part of the Indian Governments to pursue extradition for 17 years, an objection which might well be the primary reason for denial by the US State Department..Despite this, the Government moved for Anderson’s extradition which was denied by the US in 2004. The request was renewed two years ago by the Ministry of External Affairs, but failed to evoke a positive response. The objections raised by the United States in denying extradition were based not only on the “missing evidentiary link” but upon humanitarian considerations based on Anderson’s age, health and the undue delay on part of the Indian authorities to take up his extradition request. There is no reason to believe why the US Department of State may change its stand in 2010. In my humble view, Bhopal needs a quick dispensation of the compensation for casualties than Anderson’s head..July 2004: Supreme Court of India orders the Government of India to disburse the rest of the compensation which led to several protests. Later that year, the Supreme Court set November 15 as a deadline for disbursement of compensation; shameful that the Judiciary had to order the Executive..July 22, 2009: Bhopal court issues new arrest warrant against Anderson. His trial is separated from others..July 7, 2010: The Bhopal Court declares eight accused guilty of the lighter charge of Section 304A which carries imprisonment term of two years and a fine up to Rs. 5 lakh. They are freed on bail. Three accused – Warren Anderson, UCC and the Union Carbide Eastern (Hong Kong) continue to be “absconders” for non-appearance before the court in the trial..The complaint is that even after it took 26 years to dispense justice, the eight accused are scot free. As I endorse the Supreme Court’s reasoning above, in that a charge of Section 304 (Part II) is not legally sustainable in view of the material presented before the court, Section 304A, as I have noted, carries only a two year prison sentence and is a bailable offense. The Union Law Ministry in the Executive of our country gets recommendations from the Law Commission to initiate a change in the existing laws of the country. One of the recommendations the Law Ministry received was to increase the imprisonment sentence from 2 years to 10 years and make it a non-bailable offense. .The paltry sum of criminal fine, i.e. Rs. 5 lakh (approximately $100,000) is a non-issue. Criminal fines accrue to the State and do not reflect the enormity of the loss/suffering occurred due to the criminal act. In the order of severity of a criminal conviction, a criminal fine comes last after (a) the social labeling of the convicted as a murderer forever and (b) the prison sentence..CONCLUSION.The overall impact of media activism, despite its fallibility in the quest for sensationalism, has brought the tragic aftermath of the Union Carbide Gas Slaughter to the forefront and several demands for (a) review of the Supreme Court Judgments (even though as Fali Nariman has pointed out, the tenability of a review after a decade is questionable); (b) holding Dow responsible for the clean-up costs despite Dr. Singhvi’s attempts; (c) introducing amendments to the Civil Nuclear Supplies Liability Bill; and (d) strengthening the environmental law regime in our country..What is required is a serious change in the way the Executive handles such issues. For example, why detain Warren Anderson on a legally untenable Section 304 (Part II) charge in the first place; and if so, why raise public expectations of this perceived justice only to demolish them a day later and release a person on bail in a non-bailable offense and virtually escort a man, already labeled a criminal in the trial conducted by the public, in safe zones and later, out of the country? When something like that happens, the public’s confidence gets lost when criminal charges have to be dropped in negotiating a settlement amount. Why raise expectations of the vigilant Indian public by filing a humongous Rs. 13,500 crore ($3.3 billion) claim that, perhaps, was not sustainable even under American laws only to later agree to a Rs. 705 crore ($470 million) award citing practical necessities? That too, on a miscalculation of casualties? Why let the quintessential bureaucratic insolence and lethargy get in the way of a quick disbursement of the award when the nation is watching fellow citizens in Bhopal suffer? .These are the critical red-flags the Government will have to be prepared for in similar events. While imparting justice per law, may at times, be a hard-hearted mechanism for the Judiciary, the Executive has the greatest power in (a) changing the laws of the country with the support of the other members of the Legislature if the law is limited; and (b) carefully assuaging public feelings with public speeches and focused approach towards betterment of the disaster’s aftermath. On it hinges the efficacy of the response in place for any disaster. It is about time the Executive revisits, in great detail, its multi-varied roles in the governance of the nation..Kartikeya is a corporate transactional partner at Tanna Associates, a multi-practice law firm in Ahmedabad. He can be contacted at kartikeya@tannaassociates.com.