Bhopal Disaster Judiciary's Failure

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COMMENTARY

h o p a l D i s a s t e r Judiciary s F a i l u r e

Satinath Sarangi

The aftermnath f the Bhopal disaster demontstrates he incapability of

the legal and judicial system to provide justice to the victims ofindiustrial isasters antd of the failure qf the system tO act deterrentlyagainst inidustrial/enivironmenital rimes.

THE leakage of 40 tonnes of deadlychemicals from Union Carbide's pesticidefactory n Bhopal, India has brought nto theopen leaks in the modern ndustrial ociety.In the aftermath of the disaster the biasesand priorities of the medical, scientific andlegal (and others) system were laid bare onmany occasions. With over 16,000 people'dead to date and over 2,00,000 exposed

persons suffering from incurable illnessesthe Bhopal Gas Disaster has illustrated hehorrors f peace time casualties of progress.Machinations f the multinationals. ollusionof the Indian government, injustice of thejudiciary, the fickleness of the media, andthe systemic victimisation of the victims allthis and much more, were made eminentlyvisible without the usual verbiage andmystification hat go on in modern society.The legal and judicial 'accidents' thatfollowed the disaster culminated into theinfamous settlement2 between theCorporation nd the Indian government, are

ot particular ignificance.In the continuing at'termath f the judicialdisaster claims of over 3,00.000 affectedpersons have not been registered and lessthan one-tifth of the people whose claimshave been registered have received anycompensation. Compensation sums beingpaid are humiliatingly low and obviouslyinadequate. he average ompensation beingpaid in 5,325 cases related to death claimsis Rs 93,000 (US $ 3,000) and for personalinjuries Rs 24,000 (US $ 800). Theprocedures nvolved in the adjudication ofpersonal damages are so tortuous that the

claimants feel they are being treated asculprits. Meanwhile the real culprits, seniorofficials responsible for the continuingmassacre in Bhopal are scot-free. WarrenAnderson, the ex-chairman of theCorporation, ndNo I accused n the criminalcase on the disaster, is hiding and Interpolsays they cannot find him .3 Despite theissuance of a non-bailable arrest warrantagainst him pending since March 27, 1992,the Indian government s yet to take the firststep owards xtraditing Anderson. The otheraccused officials, charged with manslaughterand other serious offences, are not even

required to present themselves in court asthe criminal proceedings move on ominouslyat the Bhopal district court.

Unfortunately, as we know, Bhopal is apart f ourdaily ives n technological ociety.Every year as many people die in the thirdworld due to involuntary ingestion ofindustrial chemicals as those who died byCarbide's gases. And certainly the number

of persons suffering from routine toxicexposure would be many many times more.As the world makes technological progressthere are more profits in poisons causingmore and more human and environmentaldamage. Bhopal demonstrated theincapability of the legal judicial system toprovide ustice to the victimised people andits failure o act deterrently gainst ndustrial/environmental rimes. However, Bhopal isno exception. Courts all over the world aremore a part of the problem han he solution.

Law was brought into Bhopal by USambulance-chasing awyers who descend:d

in hordes on the city within the first weekof the disaster. Nearly 2,00,000 clients fromamong the traumatised eople were made tosign' on papers hat went on to produce 120separate legal actions. While popularsentiment underlined he need for punishingthe culprits for justice to be done, the USprivate awyers iled suits fordamages worthseveral billion of dollars in US courts. Theinvasion of the US lawyers provided theIndian government with a rationale o passthe Bhopal Gas Leak Disaster Processing fClaims) Act in the parliament in March1985.

Empowered by the act the governmentarrogated o itself sole powers to representthe survivors in the damage litigation.Meanwhile it had set up a directorate toregister damage claims of affected persons.The exercise lasted over three years and atthe end of it, well over 1,00,000 affectedindividuals were left out. Claims of peopleunder 18 were not registered and childrenborn to gas-exposed women shown to bephysically and mentally retarded throughmedical research, were not considered o beentitled to claim damanges. The claimantswere then medically examined (again 45 per

cent of them were left out were medicallyexamined) and each individual was assigneda category of injury. Medical examinationwas carried out in a manner worse than theregistration rocess. The three most-importanttests, viz, pulmonary unction test, exercisetolerance est and ophthalmic ests were notcarried ut on over 80 percent of the claimantswho were medically examined. Injuriescaused o the brain, eproductive nd mmunesystems were not even considered forassessment. The results of the categorisationexercise are ridiculous and in sharpcontradiction to research findings of thegovernment' own medical research gency.Doctors employed by the directorate ofclaims, claim that 42 percent of the claimantshad not been injured at all, 52 per cent haveonly been temporarily njured and less than6 per cent were considered to have sufferedpermanent njuries. While the government's

Indian Council for Medical Research istedover 10,000 'burnt out cases' of people withsevere lung disabilities,' only 40 claimantsin all of Bhopal were kept in the severestcategory of injury. Obviously the damageswere under-assessed to suit the settlementamount. And currently n Bhopal his grosslyfaulty categorisation has become theoverriding criterion for determination ofcompensation. In the recently-held 'LokAdalat' (People's Court) nearly 3,000claimants were awarded ompensation umsin one day. On an average less than twominutes were given to individual claimants

to present their case and claimants were,made to sign on papers saying that theyagreed o whatever compensation was givento them before hecompensation was decided.On an average claimants from the mostseverely affected wards6 who will be sickall their lives, were paid an average sum oflittle over Rs 25,000 (US $ 800), an amountthat falls far short of the even cost ofmedicines for the next five years. There isa system of appeal but it can take more thanthree years till a decision is made on theappeal and no interest s paid on the originalamount) so most claimants are coerced into

taking whatever meagre amount is beinggiven to them. All told it is a macabrejudicial farce that would be funny if it werenot so deadly cruel.

What does all this tell us about what lawand the judiciary does? Particularly withreferen.ce o industrial hazards. In Bhopalthe follpwing legal/judicial steps followeda usual pattern. The first step was to reducethe human damage, the ethical and moralobligations, to payment of money. Once thatwas done damages were arbitrarily ssessed(and given the enormous ack of informationon chemicals and their effect, assessments

Economic and Political Weekly November 18, 1995 2907



will always be arbitrary) and the moneyreduced. Consequently a large number ofaffected persons were denied any money andothers are being given sums that will noteven pay tor their medicines. It is interestingto see what has been the et'fect of all thison the victimised.

The assignments f widely different njurycategories to dit'ferent individuals in anaff'ected amily or community has createddissensions among people within acommunity. There is a lot of anger amongindividuals whose injuries hav e beencategorised as temporary or non-existent.But instead of being directed against theagencies responsible for the situation theanger of such individuals s directed againsttheir neiglhbours r f'amily members whohave becn assigned more severe injurycategories. The arbitrariness n the award ofcompensation sums has thus furthercompounded he tragedy and the comnmunallife of the survivors has been irreparablydamaged. At an individual level the enitire

process of dama,,e estimation to com-pensation award has beetn a humiliatingexperience with considerable oss otfdignity.

Untortunately he re-victimisation of thevictims by the legal and judicial system isnot unique to Bhopal. Particularly withreference o industrial/environmental azardsthis is a sad but ftamiliar tory. As in Bhopal,payment f damages have marginal deterrenteffect, if at all.

Of the money paid as settlement by UJnionCarbide, $ 220 million was paid out by theinsurance ompanies and the rest had earlierbeen set aside in the company accounts right

atter he disaster. The 50 cents per share hatthe disaster cost the company is unlikely toprevent its recurrence. Of course even ifheavy damages were paid in the casesdeterrence would hardly have been achieved.The global empire of hazardous orporationsis sufticiently well organised to survivenormal disasters n their routine operations.As it happens, insurance companies act asa buffer payment of premiums hardly affectthe corporation's rofit margins) and damagelitigation has no way to stop the human andenvironmental damage wrought by thesecorporations.

In sum then what does civil law do inresponse o industrial/environmental azardsituations? It legitimises the payment ofmoney to recompense human and environ-mental damages (often irreparable) hroughan immoral ogic. Thejudiciary then sancti-fies negotiations n which the actual victimshave little say. Compensation amounts arearbitrarily and often adversely) adjudicatedleading to frustrations and divisions withinthe community of victims and humiliationof the suffering individual. What civil lawdoes not do is take a wee little step to stopthe poisoning of the peolple and the planet.

However, there are spaces within civillitigation on industrial/environmentalhazards that require legal and judicialintervention. To start with compensationneeds to be seen not as a waiver againstliabilities but as costs to be paid or reparationand restitution. In the particular case ofBhop-al, hese costs include cost ot medicalcare. economic, social and environmentalrehabilitation. A government olluding withthe offending corporation, lack ofinformation on the chemicals and theinadequacies of available technologies forthe assessment of injuries often comes in theway of the proper estimation of such costs.National and nternational on-governmentalinitiatives could play a crucial role in anindependent assessmetnt tf the human andenvironmental damages and estimating thecosts of repair and restitution. In the caseof Bhopal, the International MedicalCommission on Bhopal composed of 14medical specialists trom II differentcountries was a commendable nitiative in

this direction. Critical interventions n thisarea will also include working out ways oftvictim-triendly payment of the moniesreceived. Ot course all such interventionsand their outcome will be depelndent Lponmohilisation of' public opinion.

The history ot criminal itigation n Bhopalhas tnot been very exemplary either. Acriminal case on the gas disaster wasregistered on December 3, 1984. OnDecember I, 1987, the government's

prosecution agency the Central Bureau ofInvestigation (CBI) pressed charges in theBhopal District Court against Union CarbideCorporation and its Asian and Indiansubsidiaries as well as nine senior officialsincluding the then chairman, WarrenAnderson. The 12 accused were chargedunder ections of the Indian Penal Code thatdeath with culpable homicide, causinggrievous huirt, ausing death and poisoningof animals and other serious offencespunishable by up to life imprisonment andfines. Initially the accused corporation andofficials blamed a tictitious saboteur ('adisgruntled worker') for the disaster andmedia campaigns were managed by public-relation companies to spread this lie.Meanwhile the CBI, with the co-operationof the workers of the factory, had presenteda strong case that inked key managerial ndtechnical decisions made by senior officialsto the disaster. As the proceedings in theBhopal District Court began, Union CarbideCorporation nd ts otfficials efused o come

to the court, with the company spokespersonEric Slack satying hat 'Indian ourts had nojurisdiction ver Anderson or the company .Anderson was served summons throughInterpol and on his repeated refusal to obeythem was proclaimed an absconder onFebruary 9. 1989 by the chief judicialmagistrate in Bhopal and directed to bepresent in court in six weeks time. OnFebruary 14, the US authorities ntimatedtheir approval ot CBI's request to inspect

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2908 Economic and Political Weekly November 18, 1995



the West Virginia actory of Union Carbide,a factory similar to the one at Bhopal butwith much superior satety systems. Theinspection by CBI was crucial to establishdouble standards of' safety followed in thetwo 'sister-factories', a policy commont'ollowed by transnational corporations.

However, as part of its order on settlementon February 14. 1989, the Supreme Courtwent beyond tsjurisdiction as well as awayfrom established procedures of criminaljustice) and quashed hecriminal proceedingsagainst the Corporation and its officials.Indeed had hesettlemenit otbeen challengedby survivors and their sympathisers thatwould have been the end to the criminalprosecutions t'one of histories biggest massmurderers. The revised and final SupremeCourt order of' October 1991 revoked thecriminal immunity granted to the accused,an act the Corporation ermned unf'ortunate'.Following the resumption of' criminalproceedings, a non-bailable arrest warrantwas issued against Warren Anderson and he

shaires ot the Corporation in its Indiansubsidiary were attached. Anderson movedto Laecret address alnd espite the attaclimentorders of the district court the corporationhas been successf'ul n scIline oI'f ts assetsthrough a Supretne Court order on Februarv14, 1994. Three years have piassed ince tilcissuance of warrants against the accusedCorporation nd its officials, yet the Indiangovernment has not taken any step towardsseeking Andersonl's xtradition rom he US.The political will of the governmnent einedecisive in the criminal udicial process andgiven that the government has always

t'ollowed a pro-Carbide policy, the chancesof' the accused being deterrently punishedare indeed marginal. In the pressing ofcharges, conduction ol' investigations andcollection ofevidence, theCBI and he Indiangovernment have been wilfully negligent.Senior Corporation ot'l'icials liable fordisastrous decision-making and governmentofficials responsible ornegligent monitoringand regulation have been left out of' the listof accused. Charges that should have beenpressed against the Corporation or crimessuch as withholding of vital medicalinformation, causing contamination of

groundwater and soil in the vicinity of itsfactory with carcinogenic chemicals, havenot been pressed. The investigations by theprosecuting agency have been marked byinadequate monitoring of death and disease;and the CBI is no longer interested ininspecting the west Virginia plant.

Nearly I I years after, the century's worstindustrial rimes remain underinvestigated,unjudged nd heculprits unpunished. Againthis failure of criminal law is not unique toBhopal. The tiny number of convictions incases of industrial homicide and grievousbodily harm, when posited against the

frequency and toll of these crimes, speak ofthe injustices committed against victims ofsuch crimes worldwide.

Bhopal has clearly hown hat egal/judicialresponse to corporate crimes is criticallydependent upon the government's role inconduction of investigation, collection ofevidence and enforcement of court orders.Though there exist provisions in somenational laws (as in India) for extra-governmental criminal litigation againstcorporations nd heir officials, the resourcesrequired to sustain such a litigation areprohibitively high. On matters involvingtransnational orporations, nforcements ofjudicial orders are entirely dependent on thegovernments of the countries involved andextra-government nitiatives are excluded.Yet another problem s the way criminal awand hejudiciary ook at corporations. Havingno corporeal entity, corporations annot beimprisoned or hanged. Senior officials whopersonally benefit from he consequences ofthe corporate decisions can thus stay behind

the 'corporate veil whenever they wish toescape liability for the njuries and/or deathscaused as a result of their managerialdecisions. Fines extracted from thecorporation and the cases in which this hasactually happened are rare - have littledeterrent tfect on corporate rimes, similarto the situation n civil litigation heelaborateinsurance system annihilates the deterrentettfects ines could have. Reduced omonetaryterms the hazardous consequences ofcorporate decisions are easily managed andthough their human toll are often large,profits of the corporations and dividends

paid to shareholders) are hardly affected asaconsequence of reckless corporate olicies.While the inadequacies and inappro-

priateness fexisting egal/judicial esponsesto corporate crimes require theoreticaland policy level interventions criticalengagements are possible within he existingscenario. In Bhopal, extra-governmentinitiatives such as investigations into thecauses of the disaster by such organisationsas the Delhi Science Forum. Union ResearchGroup, Bombay and the InternationalChemical and Energy Federation havegenerated acts and arguments utlining the

specific crimes of the corporation. Thecomplex nature of hazardous echnologiesmay often require specific expertiseunavailableinthe ocal situation ndependenttechnical/scientific investigations in theestablishment of corporate riminal iabilitycould be one of non-government nternationalinterventions.

However, the major emphasis in dealingwith corporate rimes will have to be, underthe circumstances, n the domain of publicopinion mobilising and creating means toexercise popular control over corporateconduct. An International Court for

Environment could examine cases for anInternational oycott of products of specificcorporations. There are a but few instancesof successful boycott campaigns againstcorporations but enough to suggest that heyare an effective means of regulation ofcorporate behaviour. An aspect oftenoverlooked in the initiation of boycottcampaigns is the effect of such campaignson the workers whose jobs and destinies arelinked with the profits made by thecorporation.

The other possibilities of effectingdeterrence with regard to corporaterecklessness is to hold public trials ofcorporations and their senior officials.Pressure would then have to be broughtupon accused corporations nd heir officialsso that they face popular charges in thisinternational forum and comply with thedecisions. While this may seem to be tooambitious and an unrealistic suggestion, ittakes nto account he vulnerability f mightycorporations vis-a-vis popular opinion. The

specific roles and responsibilities ofindividual officials in the omissions andcommissions of the corporation will have tobe examined and grounds for appropriatepopular ctions aid down by an nternationalforum. Of course such internationalinterventions will have to be simultaneouswith and supplementary o the local/nationalinitiatives through existing and judicialsystems.

Notes

I The actual number of people killed by thedisaster will probably never be known thanksto the government's deliberate neglect inmonitoring and registering deaths. Officialfigures of exposure-related deaths is 5,324 tillDecember 1992, unofficial and more correctestimates are at least three times more.

2 Through the settlement order of February14-15, 1989, Union Carbide Corporation wasabsolved of all past, present and futureliabilities on payment of a sum of $ 470million (one-seventh of the amount claimedby the Indian government on behalf of thevictims), criminal proceedings were quashedand the Indian government agreed to defendUnion Carbide n the event of future disaster-related litigation.

3 According to a pro bono investigation agencyin the US, Anderson s currently iving at 400Beach Road, Vero Beach, Florida, US.

4 The retainers entitled the lawyers to 30-50 percent of the damages as contingency fees. Butmost clients were ignorant of this arrangementas the forms were in English.

5 According to one study by this agency 98.4per cent of the sample population sufferedfrom lung injuries leading to exertionaldyspnoea. 73.4 per cent had recurrentrespiratory infections and 24 per cent hadreactive airways dysfunction syndrome.

6 Of the 5,500 claimants who were called to the'Lok Adalat' only 2,800 chose to acceptcompensation.

Economic and Political Weekly November 18, 1995 2909

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Bhopal Disaster Judiciary's Failure