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

Kartikeya Tanna analyses, how the law dealt with the Union Carbide Gas Slaughter in this first part of the two part series, on the world’s worst industrial disaster..INTRODUCTION.In our Westminster form of Government, the Executive is a subset of the Legislature. In other words, a few lawmakers get the privilege of forming the Government depending on the electoral favour their party obtains in the composition of the Parliament and the choice of the country’s top leader and/or the President of the largest party. The dual role that these few lawmakers play, puts them in a unique position in which they not only get to participate in voting for laws to be passed or changed, but have the onus of leading their respective departments in the governance of the nation. By that virtue, they have to be completely aware of the bounds of laws that have been passed by them or their predecessors and yet, govern the nation within the limitation of the laws. The Judiciary has a limited mandate. It cannot, despite a strongly felt need, make a bad law in assuaging the fears or strong feelings of the nation. The politicians amongst those lawmakers in the Executive, however, have the largest direct responsibility towards the nation because of the proximity they enjoy with the electorate..Law plays a vital role in administering of various functions. Law transcends the bounds of the three wings of the country. The Legislature makes law, the Executive administers the law and the Judiciary imparts justice as per the law. This interface between the Legislature, Executive and the Judiciary, with the fourth wing of the nation – the Media – responsible for highlighting crucial matters of public interest, has been played in the most discernible fashion in the Union Carbide Gas Slaughter. The media choose sensationalism breeding out of such a torrid disaster, over a carefully studied coverage. The rarefied nature of debates on media channels and the manufactured anger emanating out of them led to a regurgitation of the rhetorical shibboleths and jingoistic conclusions to contribute one’s bit towards showing this anger. The discussions on media channels, for example, virtually incriminated Justice Ahmadi almost accusing him of diluting the criminal charges against the accused and thereby, obfuscated the venal role of the criminals-in-chief of the primary grievances held by the nation in this disaster in the initial coverage..The pinnacle of anger was “26 years!” when reasonably informed minds know that the criminal trial resumed only through a Supreme Court directive in 1991 and the trial witnessed intermittent periods in between where the Centre was having a tryst with destiny of hoping to be successful in extraditing Warren Anderson. This process reflected prolonged prevarication or, simply, nonchalance amongst successive Governments of India. Only recently has the Judiciary stepped in to put an end to the willful abuse of the criminal justice system which is an anachronism. Supreme Court Judges and Judges of the lower courts have now taken the bull by its horns in censuring and preventing canny lawyers on both sides that intend to use protraction as a means to deprive justice of any justness. While the nation learns lessons and tries to control its fumes, it is worthwhile exploring, in necessary detail, how law interfaced with the tragedy..CHRONICLED DISSECTION .As I explain critical legal issues surrounding the disaster, I find it worthwhile to revisit parts of the Union Carbide disaster timeline:.Midnight, December 2, 1984: Poisonous gas leaks from the Union Carbide pesticide plant in Bhopal at night, killing ‘a few thousand people’ within days and many more since then. (I remain ambivalent about the number since there have been conflicting reports, but as we shall see, the Indian Government’s gross miscalculation turned out to be the causa materiae of the paltry compensation).December 4, 1984: The Madhya Pradesh police file a case against UCIL (Union Carbide India Limited) and arrest nine including theChairman of Union Carbide Corporation (UCC), Warren Anderson under the charge of Section 304(Part II) of the Indian Penal Code i.e. culpable homicide amounting to murder. (Note, the parent company held 50.99 percent of the stock in UCIL).December 4, 1984: Anderson is released on bail and leaves India .Regardless of the quest for who gave out the flying orders, it must be noted that when Anderson was arrested, the Madhya Pradesh Government could not come up with a cohesive legal explanation for why he was arrested on the Section 304 (Part II) charge. In fact, as reports now indicate, he was “detained” in a posh guest house in Bhopal, some reports suggest the “Research &Development centre of UCIL”, to maintain law and order in Bhopal and for his own protection. In any event, however legally untenable the charge on which Anderson was detained, Section 304(Part II) as shall be known is a non-bailable offense. Assuming the State Government worked some way out to release him on bail; nevertheless, the condition on which an accused is released on bail is in good faith and that good faith means that the accused agrees to reappear in court when required..Anderson was released on an extremely ill-conceived bail on an untenable charge and the absurd condition of the bail, as it now seems, was to leave India in good faith! .February 1985: Indian Government files a $3.3 billion (Rs. 4,950 crore) claim against UCC in a US Court.1986: US District Court transfers all litigation to India.These two events deserve chronicled clubbing. These events pose a circuitous problem for analysts. Firstly, the US court observed a fact which, objectively speaking makes it surprising why Government of India (GOI) chose to pursue claims in American courts in the first place. In re Union Carbide Corporation Gas Plant Disaster at Bhopal, India in December 1984 (809 F.2d 195, 2nd cir), the court noted in paragraph 22 that “India’s interest in determining legal consequences is increased by the fact that it has for years treated UCIL as an Indian national, subjecting it to intensive regulations and governmental supervision of the construction, development and operation of the Bhopal plant, its emissions, water and air pollution, and safety precautions. Numerous Indian government officials have regularly conducted on-site inspections of the plant and approved its machinery and equipment, including its facilities for storage of the lethal methyl isocyanate gas that escaped and caused the disaster giving rise to the claims. Thus India has considered the plant to be an Indian one and the disaster to be an Indian problem.“.It seems the GOI chose to file the $3.3 billion claim (approximately Rs. 4,950 crore) with an eye on the assets of the parent company UCC. There is nothing wrong with that since the GOI was legally entitled to pursue claims for the maximum possible civil fine, but as events show below, the GOI’s follow up creates more perplexity..As it is known, the GOI, through the enactment of Bhopal Gas Leak Disaster (Processing of Claims) Act of 1985, obtained the exclusive right to represent the Bhopal gas victims in India and elsewhere. In transferring all Bhopal related litigation to Indian courts, the US court retained the rights of the chief plaintiff – the GOI – to enforce the money judgment awarded in Indian courts in the United States under the New York law concerning the recognition of foreign country money judgments..Why did the Government of India then step down from a claim of $3.3 billion (Rs. 4,950 crore) to a claim of minimum $500 million (Rs. 750 crore) in proceedings in the Supreme Court, (as we shall see below) while pursuing a settlement with UCC in the Indian courts? The most ostensible reason is that while American laws at that time might have provided an outside chance of obtaining a claim close to $3.3 billion (Rs. 4,950 crore), the Indian laws did not, in aggregate, provide for a claim of more than half of the award eventually received. .The basic legal premise for shifting all litigation to Indian courts is that of forum non conveniens. It was rightly held by the US court that Indian courts are best placed to do justice in an expedient manner considering physical presence of witnesses, many documents in Hindi and the location of victims..However, note an excerpt from an amicus brief filed by 18 Senators of the United States on behalf of the victims in the Court of Appeals petition which states, “There is strong support in Congress (the lower house of the United States Legislature) for holding those responsible for this horrific tragedy accountable for their actions. It is unacceptable to allow an American company not only to exploit international borders and legal jurisdictions but also the ability to evade civil and criminal liability for environmental pollution and abuses committed overseas.” Of course, the internal dynamics of the Legislature and the Executive in America are well-known and the latter was applying pressure on India to be reasonable, as documents have now shown. The relevant inference is that if the Madhya Pradesh Government and the GOI was truly serious about pursuing this as far as they could, at least on the criminal liability front since the issue of compensation was already being determined by both US and Indian courts, they had voluntary support from the United States Legislature which, as history has shown, has proved to be an extremely effective check and balance, even though an irritant at times, against its Executive..February 1989 : UCC agrees to pay compensation in an out of court settlement with the GOI – the Supreme Court zeroes in on the figure of $470 million (Rs. 705 crore) (a middle ground between a maximum of $425 million (Rs. 637.5 crore) offered by UCC and a minimum of $500 million (Rs. 750 crore) demanded by the Union Government). As quid pro quo to the settlement, all other criminal and civil charges against the company and its executives are agreed to be dropped..In retrospect, the media and we all continue to feel that $470 million (Rs. 705 crore) is a paltry sum, but let’s recall certain events..It is noteworthy that before the Supreme Court accepted the $470 million settlement in an appeal by both the Union Government and UCC in Union Carbide Corporation vs. Union of India (AIR 1990 SC 273), the Bhopal District Court had calculated the compensation amount to be Rs 250 crore ($55 million). It is noteworthy that the High Court discarded the general standards as they stood as per Indian law which, if applied, would have limited the aggregate of compensation payable in fatal cases to a sum less than Rs. 20 crore ($4.4 million) in all. This amount of Rs. 250 crore ($55 million then) was computed on the presentation of statistics by the GOI which was restated in the affidavits filed in the Supreme Court. The GOI stated in its legal affidavit that a total number of 2660 persons suffered agonising and excruciating deaths and between 30,000 to 40,000 sustained serious injuries as a result of the disaster. This number – 2660 deaths – continued to be GOI’s official number of deaths even between 1987 and 1989, three to five years after the fateful night. The Supreme Court, in reaching the figure of $470 million, further increased the amount determined by the High Court..The reason for arriving at a quick settlement was pragmatic and in good faith and, in my view, necessary..The view of the then Advocate General Mr. Parasaran as explained to media was that instead of getting embroiled in litigation that would run several years and would require a compensation to be determined by examining the exact conditions of each injured and potential latent injuries, it was thought proper to come to a settlement and have the Supreme Court determine its adequacy. The only other option for the Supreme Court was to hold it inadequate and order computation through this detailed process. The Supreme Court echoed his views and the 1989 judgment bears the following words-.“But, in the present case, the compulsions of the need for immediate relief to tens of thousands of suffering victims could not, in our opinion, wait till these questions, vital though they be, are resolved in the due course of judicial proceedings. The tremendous suffering of thousands of persons compelled us to move into the direction of immediate relief which, we thought, should not be subordinated to the uncertain promises of the law, and when the assessment of fairness of the amount was based on certain factors and assumptions not disputed even by the plaintiff”..Further ….“A settlement has been recorded upon material and in circumstances which persuaded the Court that it was a just settlement. What appears to the Court to be just and reasonable in that particular context and setting need not necessarily appear to others in the same day. Which view is right, in the ultimate analysis, is to be judged by what it does to relieve the undeserved suffering of thousands of innocent citizens of this country. The Court directed the settlement with the earnest hope that it would do them good and bring them immediate relief, for, tomorrow might be too late for many of them.“.To the question of any injustice that still continued to be felt with the judgment, the Supreme Court said,.“But the course of the decisions of courts cannot be reached or altered or determined by agitational pressures. If a decision is wrong, the process of correction must be in a manner recognised by law. If […] serious miscarriage of justice, violating the constitutional and legal rights of the persons affected, has been occasioned, it will be the endeavour of this Court to undo any such injustice. But that, we reiterate, must be by procedures recognised by law. Those who trust this Court will not have cause for despair.“.Note, however, the Supreme Court’s justified criticism of the public response to the tragedy. This criticism found a place in media discussions only a couple of weeks after the June 7 verdict..“It is indeed a matter for national introspection that public response to this great tragedy which affected a large number of poor and helpless persons limited itself to the expression of understandable anger against the industrial enterprise but did not channel itself in any effort to put together a public supported relief fund so that the victims were not left in distress, till the final decision in the litigation. It is well known that during the recent drought in Gujarat, the devoted efforts of public spirited persons mitigated, in great measure, the loss of cattle-wealth in the near famine conditions that prevailed. “.If there is any party which can be accused of dereliction with respect to the issue of compensation, it is the Executive – both at the Central and State level – that seems to have miscalculated the number of dead and injured even after three years of the tragedy. Furthermore, the mechanism used to compute compensation allowed unprecedented standards of calculation way above the ones that existed in various other Indian laws..As a side note, dropping criminal charges in the settlement as a quid pro quo is also not a uniquely despicable act. In cases of industrial disasters around the world, including the U.S., such practices often occur because the governments of the day realize it extremely difficult to gather evidence that can criminally charge the executives of the company even though the company itself is more likely to be convicted. Priority is always accorded to receiving compensation for alleviating the colossal loss that follows in the aftermath of the disaster. In any event, as the time line indicates, criminal charges were reinstated in 1991 owing to remarkable activism which is worthy of applause..Part II will cover the other parts of the analysis and the conclusion..Kartikeya is a corporate transactional partner at Tanna Associates, a multi-practice law firm in Ahmedabad. He can be contacted at kartikeya@tannaassociates.com.