By Kavita Krishnan
July 2010 -- Liberation -- More than 25 years after the infamous Bhopal gas disaster, the verdict of a trial court in Bhopal is nothing but a cruel mockery of justice. With charges already diluted by the Supreme Court of India, the June 7 trial court verdict could only be a formal burial of justice. Not only does the verdict insult the victims of one of the world’s worst industrial disasters by letting off, either scot-free or with a ridiculously light sentence, the mighty CEOs who were the chief perpetrators, it amounts to an assurance to multinational corporations that they will enjoy total impunity in India even when their negligence and violations of regulations leads to the loss of thousands of Indian lives and injury to several thousand more.
On December 2-3, 1984, 40 tonnes of methyl isocyanate (MIC) leaked out of the Union Carbide Corporation’s pesticide plant in Bhopal, exposing more that 5,000,000 people to the toxic fumes. As many as 25,000 people have died as a result, and hundreds of thousands suffered irreversible damage to their health. The poison in the soil and water continues to affect future generations.
After more than 25 years, the trial court gave its verdict allowing the Union Carbide CEO Warren Anderson (declared an absconder) to go scot-free, while convicting eight representatives of Union Carbide India Limited (UCIL) to a mere two years.
The injustice of the Bhopal verdict is not just a comment on judicial betrayal of justice – it rings a warning bell that every Indian should heed. It warns us as to how the Indian establishment’s policy of pandering to the United States and its corporations (a policy of which the Civilian Nuclear Liability Bill is the latest example) is injurious to the health and safety of India’s people. The US establishment is fully aware of these implications: it has reacted to the Bhopal verdict by “hoping that the verdict will not affect” the growing ties between India and the US and the Nuclear Liability Bill in particular, and instead will provide “closure” for the victims of the tragedy. The US double standards – of seeking "closure" in a case where a US corporation caused thousands of deaths while pursuing criminal charges against corporations responsible for US lives lost – are all too apparent!
Facing flak over revelations of how the Congress party government of Madhya Pradesh state in the wake of the Bhopal gas disaster helped Union Carbide CEO Warren Anderson to flee India and evade justice, the Congress party and the United Progressive Alliance (UPA) national government are now in damage control mode. The UPA government set up a "group of ministers" (GoM) to look into remedies for Bhopal victims and it has come up with a range of recommendations. Meanwhile some sections of the Congress party are seeking to blame Anderson’s escape on Arjun Singh, who was then Madhya Pradesh chief minister. India's finance minister Pranab Mukherjee has sought to defend both Arjun Singh, as well as the then central government headed by Rajiv Gandhi. None of these attempts, however, can conceal Congress’ culpability in the crime of shielding and exonerating Bhopal’s perpetrators.
Nor is Congress’ culpability restricted to spiriting Anderson away from justice. In a bid to protect Union Carbide, the Madhya Pradesh government in 1984-85 even banned treatment of the disaster victims by sodium thiosulphate, for fear that success would establish that the poisonous Methyl Isocyanate had entered the bloodstream and result in heavier damages for Union Carbide. In other words, the Congress-led Madhya Pradesh government was callous enough to withhold the only effective treatment for the victims because protecting Union Carbide was more of a priority than saving lives!
More than 25 years later, nothing much has changed. Even today, the Congress-led UPA government is busy shielding Union Carbide and its successor Dow Chemicals, while shedding crocodile tears for the victims of these companies, who are denied justice as well as clean up and compensation. Moreover, it is further seeking to send suitable signals of submissiveness and sell-out to US multinational corporations by pushing the Nuclear Liability Bill which will institutionalise the impunity that Carbide-Dow have enjoyed in the Bhopal case, by protecting US reactor supplier firms in advance from any responsibilities towards compensation or clean up in the event of any disaster.
In 1984, a CIA document commenting on Bhopal expressed the apprehension that, “Public outcry almost certainly will force the new government to move cautiously in developing future foreign investment and industrial policies and relations with multinational – especially US – firms.” Governments from 1984 until the present have bent over backwards to prove to the US that these apprehensions are misplaced, and that they are willing to ignore or trample upon any public outcry in order to protect multinational corporations, especially US MNCs.
If Anderson remains an "absconder", his successor, Dow CEO Andrew Liveris, is a proud member of the US-India CEO Forum, which continues to play a key role even in the recent Indo-US Strategic Dialogue. Liveris, along with Indian counterparts like Ratan Tata, have for years lobbied to free Dow from responsibility for cleaning up the Union Carbide factory site and other affected areas. Planning Commission deputy chairperson Montek Singh Ahluwalia as well as Congress party leaders and UPA ministers P. Chidambaram and Kamal Nath have since 2006 been actively pushing Dow’s and Tata’s suggestion that a "Site Remediation Trust" be set up, funded by Indian CEOs, that will effectively free Dow of any responsibility to clean up the disaster area. Can it be a coincidence that the very same Chidambaram and Kamal Nath are members of the GoM on Bhopal?
The [far-right] Bharatiya Janata Party (BJP), which is trying to score political points over the Congress over Bhopal, too must be confronted with the fact that it has partnered the Congress party in betraying the people of Bhopal. The Vajpayee government never demanded that the US extradite Anderson. And in December 2009, the BJP Madhya Pradesh state government of joined central government minister Jairam Ramesh in declaring that the factory site was free from contamination and proposing to turn it into a "tourist site"!
People bear the cost
The GoM has come up with recommendations including enhanced compensation for the Bhopal victims; pursuance of extradition of Anderson; a curative petition against the Supreme Court’s 1997 order that diluted charges against Union Carbide Corporation and Union Carbide India Limited from "culpable homicide" to "negligence"; and funds and proposals towards the clean up of the contaminated site. In a nutshell, the GoM’s brief and intent seem to be to exonerate Rajiv Gandhi and the Congress party leadership from charges of colluding with the US in saving Anderson and the Union Carbide Corporation and hushing up the debate by announcing enhanced compensation. In other words, while bailing out the Congress party rulers and corporate criminals, the GoM taxes the Indian people to bear the cost of compensation and clean up.
But even on this score, the GoM uses the dubious figures used in the infamous 1989 sellout brokered by the Supreme Court. For example, the GoM puts the number of the dead at 5300 as against the actual figure of 22,146. Likewise, the figures for the permanently and temporarily injured are also gross underestimations.
And the biggest betrayal is once again on the issue of Dow’s liability. While the state government of Madhya Pradesh and the central government will now argue about who foots the bill and bears the responsibility for clean up of the site, and Indian taxpayers will pay the compensation, there is virtual silence on Dow. The recommendations include no proactive measures to push Dow to pay for compensation and clean up or penalise it for not doing so. Rather, the attempt is to tacitly "settle" the Bhopal issue without bringing Dow to book. It is significant that chairperson and CEO of Dow Chemicals Andrew Liveris will not attend the Indo-US CEO Business Forum meeting scheduled to be held in Washington on June 22, even as a high-level Indian delegation led by finance minister Pranab Mukherjee alongwith commerce minister Anand Sharma, deputy chairperson of the Planning Commission Montek Singh Ahluwalia and prominent corporate leaders from India will be attending.
Dow must pay
The GoM recommendations are also silent on the prevention of future Bhopals: they ignore the protection offered to future corporate offenders by the Nuclear Liability bill.
If justice is to be served, what we need and must demand is an independent and time-bound probe to fix culpability for the escape of Warren Anderson, and for subsequent attempts to absolve Dow Chemicals of responsibility. Dow must be made to pay for cleaning up the polluted sites and for medical care of the victims and must be blacklisted forthwith, the Nuclear Liability Bill must be scrapped, and Bhopal victims must be guaranteed not only comprehensive compensation and clean up, but also justice. Only these measures can ensure that the tragedy of Bhopal and its shameful consequences are never repeated on Indian soil!
When corporations subvert democracy
By Gopal Krishna
July 2010 -- Liberation -- The June 7 verdict by the Bhopal court sets a precedent for the worst of corporate crimes -- and even nuclear disasters too -- to be treated like a traffic accident. Bhopal’s verdict was constrained because of the order of Justice Ahmadi Bench of the Supreme Court dated September 13, 1996, in which the charges against Indian officials of Union Carbide India Limited (the subsidiary majority owned by Union Carbide Corporation) were diluted. Since February 2001, the culpability lies with the Dow Chemical Company, which took over Union Carbide Corporation USA.
All the seven convicted in the Bhopal gas tragedy have been sentenced to two years in jail and a fine of Rs1 lakh (100,000) each and got bail for a surety of Rs 25,000 each. Union Carbide’s subsidiary in India has been found guilty and fined to the order of Rs500,000 for the industrial disaster. All the officials accused in the Bhopal catastrophe, including Keshub Mahindra, the former chair of Union Carbide India Ltd and current chair of Mahindra & Mahindra Company, have been let off lightly for the disaster that happened during his tenure. They were found guilty under Sections 304-A (causing death by negligence), 336, 337 and 338 (gross negligence) of the Indian Penal Code instead of 304-II (culpable homicide not amounting to murder).
What is quite clear from the verdict is that generations to come will view Supreme Court’s act of reducing the charge against Union Carbide Corporation officials in 1996 from manslaughter (which is punishable with imprisonment up to 10 years) to death caused by a rash or negligent act (carrying a maximum penalty of two years) with deep suspicion that belittles its moral stature.
As early as in 1973, Carbide CEO Warren Anderson was aware of the flaws of the Bhopal plant – untested technology, faulty design and its unsafe location and operation. In December 1987, the Central Bureau of Investigation filed criminal charges of culpable homicide against 10 officials, including Union Carbide Company’s president Warren Anderson. Why was this charge diluted? Anderson was the chairperson and CEO of Union Carbide Company when the lethal methyl isocyanate (MIC) leaked from a pesticide plant of the company’s Indian subsidiary on December 2-3, 1984. Anderson was arrested and then released on bail by the Madhya Pradesh police on December 7, 1984, and left for US even as victims continued to suffer because of the industrial disaster. Anderson, who lives in New York, served as Union Carbide CEO until his 1986 retirement.
In 1992, Anderson was declared a fugitive by the Bhopal court for failing to appear for hearings in a case of culpable homicide after his case was separated from the case in which eight people employed by Union Carbide were convicted. In July 2009, an arrest warrant was issued for him. The government of India took some 19 years to move a formal request for his extradition in May 2003 but the US rejected India’s request for the extradition of Anderson in June 2004 saying the request did not “meet requirements of certain provisions” of the bilateral extradition treaty.
US double standards
Feigning forgetfulness about the industrial disaster caused by US corporation Union Carbide in India, on May 27, 2010, US President Barack Obama -- referring to the worst environmental disaster in US caused by British Petroleum, the British global energy company which is the world's third-largest energy company and the fourth-largest company in the world -- said, “As far as I’m concerned, BP is responsible for this horrific disaster, and we will hold them fully accountable on behalf of the United States as well as the people and communities victimised by this tragedy. We will demand that they pay every dime they owe for the damage they’ve done and the painful losses that they’ve caused.” He has accused the British company of "nickel and diming" using a US phrase to describe someone who pays a paltry sum far below what is due.
Isn’t the US corporation Dow Chemicals "nickel and diming" Indian citizens in Bhopal? Why is Obama hypocritically silent about the extradition of Warren Anderson, former chair of Union Carbide Corporation and the liability of Dow Chemicals? The deafening silence of the US President and US legislature to ensure justice for the victims of the mass disaster engineered by a US Corporation constitutes “yet another instance of American imperialism” in the words once used by US Judge Keenan who heard the Bhopal case in the New York district court.
Bhopal GoM stacked With Dow’s defenders
The documents gathered using Right to Information Act (RTI) show manifest collusion between ministers, officials and Dow Chemicals to protect it from the liabilities of the industrial catastrophe of Bhopal. The documents reveal how some of the ministers who have been made part of the "group of ministers" (GoM) on Bhopal by the prime minister have been acting to safeguard the interest of the US corporation resposible for the Bhopal disaster.
The documents reveal how P. Chidambaram and Kamal Nath, as well as deputy planning commission chairperson Montek Singh Ahluwalia have already expressed their support for Dow Chemical’s proposal to save it from Union Carbide Corporation’s liability, which it inherited in 2001 after merger.
Andrew Liveris, CEO of Dow, and the Indo-US CEO Forum of which he is a member, have been pushing hard for freeing of Dow from Union Carbide’s liability for compensation and clean up (‘remediation’) in Bhopal. Ratan Tata (now chairperson of Indo-US CEO Forum from the Indian side) in his role as the chairperson of the three-member Investment Commission, set up in the Ministry of Finance in December 2004 by the government of India, wrote to P. Chidamabram, the then finance minister suggesting setting up a fund for remediation on the site of Bhopal disaster that “would cost approximately Rs 100 crores” [a crore equals 10 million].
Donning another hat, Tata wrote again as the chairperson of Tata Sons Limited to Montek Singh Ahluwalia, deputy chairman of the Planning Commission on October 9, 2006, with regard to resolution of “various legacy issues” of “Dow Chemicals” pursuant to the recommendations of the Indo-US CEO Forum pointing out how the Investment Commission has not had “much success” in this regard. He referred to the interest of Andrew Liveris, CEO of Dow Chemicals, with regard to approaches/solutions to the issue. As chairperson of Tata Sons Limited, Tata wrote again to Montek Singh on November 26, 2006, referring to letter of Andrew Liveris that was sent to Ronen Sen, India’s ambassador to US, wherein a request was made saying that “it is critical for them to have the Ministry of Chemicals and Fertilizers withdraw their application for a financial deposit by Dow against the remediation cost, as that application implies that the Government of India views Dow as ‘liable’ in the Bhopal Gas disaster case”.
In a letter dated November 10, 2006, Chidambaram wrote to the prime minister about his visit to United Sates to review issues with the Indo-US CEO Forum in New York, wherein he submitted a tour report mentioning his comments on a prior note by Ahluwalia regarding Ratan Tata’s letter. In his comments dated December 5, 2006, Chidambaram refers to Ratan Tata’s offer for Indian corporations to take over remediation in order to free Dow from liability, saying, “I think we should accept this offer”. In December 2006, Dr S. Jaishankar, joint secretary of India's ministry of external affairs, in note titled “Issues Emerging from Indo-US CEO’s meeting”, underlines how Dow has “sought a statement from GOI [Government of India] in the Court clarifying that GOI does not regard Dow as legally responsible for liabilities of UCC” and wants to avoid “cloud of legal liability”.
Notably, Liveris had complained to Ronen Sen about how “GOI has taken position adverse to Dow“ in the Madhya Pradesh High Court. The case is still pending. On January 5, 2007, Tata (again as chairperson of Tata Sons Limited) wrote to India's Prime Minister Manmohan Singh, putting on record the meeting of the members of Investment Commission with the PM to discuss “the old Union Carbide tragedy”. The letter from B.V.R. Subramanyam, private secretary of the prime minister dated January 12, 2007, assured Tata that “the matter is being examined” and “the Prime Minister has seen” his letter and “has taken note of its contents”.
In February 2007, Kamal Nath even wrote a letter to Prime Minister Manmohan Singh about the matter, suggesting that it would send “an appropriate signal to Dow Chemicals, which is exploring investing substantially in India and to the American business community” if “a group under the chairmanship of the Cabinet Secretary be formed to look” in the matter of the liability of the Dow Chemicals “in holistic manner in a similar manner as was done in respect to the Enron Corporation with respect to Dabhol Corporation”. The immorality of his suggestion lies in the fact that it ignores the Enron scandal that led to the bankruptcy of the Enron Corporation, a US energy company
The real issue arising out of Bhopal verdict that has necessitated the setting up the GoM is its fallout on the proposed Liability for Nuclear Damage Bill that is pending in the parliament. After all, the Bhopal verdict underlines that any future liability regime must include criminal liability and must not cap the amount of civil liability because the damage from a nuclear or chemical disaster depends on the direction and nature of the wind at the time of the accident. The GoM’s gestures of compensation are nothing but an attempt to shield Dow and deflect attention from the protests against the Nuclear Liability Bill’s proposed protection of US nuclear companies from liability.
Seeds of Bhopal disaster sown during emergency
The Central Bureau of Investigation’s (CBI) most recent affidavit in the court of the Chief Judicial Magistrate, Bhopal, provides information that implies that had a state of emergency been not imposed, Bhopal’s catastrophe caused by the US corporation’s acts of omission and commission would not have happened. There is a compelling logic for an independent probe in the entire issue, ranging from granting of industrial licences, the escape of Warren Anderson, the role of Indo-US CEO Forum to lobbying by industrialists and ministers to absolve Dow Chemicals of liability.
It emerges that industrial license for Union Carbide’s chemical plant was granted during the period when the country was under the state of emergency from June 25, 1975, to March 21, 1977. According to the CBI’s recent affidavit, on January 1, 1970, Union Carbide company had “applied for industrial license for manufacture of 5000 tonnes MIC-based pesticides” required under the Registration and Licensing of Industrial Undertakings Rules, 1952. The application was signed by E.A. Munoz, a general manager in the company. The company did not get the industrial licence for more than five years. There must have been sufficient reason to withhold permission for an industrial licence. After the imposition of the emergency, the company was granted the licence on October 31, 1975.
Officials from the then ministry of industrial development said that the entire department was against granting the licence. The officials knew that obsolete and discarded technology and machinery was being transferred to India for which the licence was granted by bypassing the due process. Clearly, there was political interference in the granting of the industrial licence.
The manufacture of methyl isocyanate (MIC) commenced on February 5, 1980, information regarding which was sent to the Department of Chemicals and Fertilisers via a letter dated February 19, 1980. The company informed the ministry of industrial development on November 12, 1982, about the commencement of production, while requesting for a renewal of the agreement that was to terminate in 1982.
Obsolete technology and unsafe procedures
There is incontrovertible evidence that the Union Carbide Corporation (now a subsidiary of Dow Chemicals) is guilty of knowingly setting up the Bhopal plant with obsolete and discarded technology, without the emergency safety systems available in Union Carbide’s West Virginia plant, and of allowing Bhopal plant operations to continue with full knowledge of its unsafe procedures and cost-cutting measures, risking workers' and public safety. Page 25 of the Bhopal verdict notes, “(z) It is worthwhile to mention here that the Government of India and the Team of Scientists admittedly was never permitted to visit the Plant at Virginia, USA. No brochure, or any other documentary evidence demonstrating the similarity between the two plants at Virginia and Bhopal has been produced before the court by the defence.”
On page 95 of the verdict, it is stated, “Mr. Warren Anderson, UCC USA and UCC Kowloon Hongkong are still absconding and therefore, every part of this case (Criminal File) is kept intact along with the exhibited and unexhibited documents and the property related to this case, in safe custody, till their appearance.” The verdict quotes the expert evidence of Dr. S. Varadarajan, the head of the team of experts who visited the plant site very next day of the incident: evidence that establishes the many defects in design and defaults in the safe treatment of toxic substances like MIC. Although the design fault by the US corporation is established, the criminal liability of the Union Carbide’s case is yet to be settled."
In 1987, after Union Carbide insincerely argued in court that it had given a flawlessly designed plant which was operated negligently, the government of India amended the Factories Act 1948. A new chapter was added with the “provisions relating to hazardous processes”. Section 7 B, sub-section (5) absolved the person (who) designs, manufactures, imports, or supplies” plant and machines from the responsibility for the effect that the plant and machines has on risk and safety, provided the user gives an assurance “to take steps specified in such undertaking to ensure, so far as is reasonably practicable, that the (plant and machinery) will be safe and without risks to the health of workers when properly used, the elimination or minimisation of any risks to the health or safety of the workers to which the design or article may give rise.”
This demonstrates how, even after the Bhopal experience, corporations succeeded in getting a law enacted that provided them with a convenient loophole in case of negligence (i.e they can blame disasters on improper use of machinery!).
To conclude, we must acknowledge that the plight of Bhopal – India’s "Baghdad" – too is a consequence of a considered political act of the US government in defence of the interests of US corporations.
India’s geostrategic and ecological position in relation to the US has been compromised for good under a narrative which misleadingly equates corporate interests, investment needs and national interests to the profound detriment of freedom and democracy.
Ecological disasters caused by corporations in pursuit of profit are acts of genocide – and for such monumental acts of genocide, there is a need for a trial similar to the Nuremburg Tribunal, wherein a few German corporations were held guilty of connivance with genocide.
What the US government owes Bhopal
July 2010 -- The US government and its legislature must make corporations like Dow Chemicals and British Petroleum liable and accountable for their acts of omission and commission. The following steps are required in US towards that end.
1. The US government should accept the submission of the government of India that “the corporation and its subsidiaries are treated as a unit, without regard to the location of responsibility within that unit”.
Consequently, an illegal act by it should be deemed as the act of the corporation, without consideration to its location of responsibility. The customary alibi of corporations like Dow Chemicals is an act in sophistry designed to conceal fact of crime and criminals of the "upperworld". The US government should disclose all the trade secrets of the Union Carbide Corporation and its research and development centre to facilitate a probe as to whether the Bhopal disaster was a consequence of experimenting with war-time chemicals.
2. The US government must take note of the verdict by the Chief Judicial Magistrate, Bhopal, Madhya Pradesh, and in the interest of justice for the Bhopal victims, the US government should expedite the process of extraditing Warren Anderson at the earliest.
3. The Dow Chemicals Company has set aside $2.2 billion to address future asbestos-related liabilities arising out of the Union Carbide acquisition. How is that Dow Chemicals can take the asbestos liability of Union Carbide and not the liability for the industrial catastrophe in Bhopal? The US government should volunteer its assistance in ascertaining the Bhopal disaster’s inherited liability of Dow Chemicals Company.
4. The US government should promote acceptance of the resolution of the UN Sub-Commission on the Promotion and Protection of Human Rights that approved the “UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights” as a step towards ensuring corporate accountability. Article 18, on transnational corporations and other business enterprises to make reparations for damage done through their failure to meet the standards, spells out: “Transnational corporations and other business enterprises shall provide prompt, effective and adequate reparation to those persons, entities and communities that have been adversely affected by failures to comply with these Norms through, inter alia, reparations, restitution, compensation and rehabilitation for any damage done or property taken. In connection with determining damages, in regard to criminal sanctions, and in all other respects, these Norms shall be applied by national courts and/or international tribunals, pursuant to national and international law.”
5. In memory of victims of Bhopal, US and Indian governments should call for a mandatory regime for regulating transnational corporations unlike UN’s voluntary Global Compact and reject the report of the United Nations Secretary-General’s Special Representative for Business and Human Rights wherein it underlined the need for voluntary regulation and self-compliance by the companies saying, “While corporations may be considered `organs of society', they are specialized economic organs, not democratic public interest institutions."
If there is one lesson that democracies across the world have clearly not learnt from industrial disasters, it is to ascertain the nature of all the genocidal acts of corporations and the very legal design of the corporation so as to make it genuinely governable by democratic legislatures. A befitting tribute to victims of Bhopal lies in learning this lesson in order to prevent future industrial warfare that irreparably undermines intergenerational equity.