BY PRAFUL BIDWAI
HE contrast between BP’s response to the outrage over the US oil spill and Union Carbide’s attitude to the uproar over the Bhopal disaster couldn’t have been sharper.
BP has pledged $20 billion in initial remediation and is mobilising $50 billion–although its legal liability is only $75 million. Carbide got away with $470 million, equivalent to its insurance cover plus interest, for the world’s greatest industrial disaster. The spill’s death-toll (11) is tiny beside Bhopal’s, although the environmental impact will be enormous. But President Obama wants to "kick ass". BP’s chairman had to apologise repeatedly for referring to the affected fisherfolk as "small people".
Carbide chairman Warren Anderson was arrested in Bhopal, but released within hours and flown in a state plane to Delhi, where he met India’s president.
In the US, corporations and politicians are trying to align with strong anti-BP public opinion. In India, industry associations have been silent on the June 7 Bhopal judgment which treated the disaster like a traffic accident.
Worse, some business leaders, including Mr Deepak Parekh–one of India’s best-regarded executives–found the verdict harsh. They warned it would scare independent directors away from companies. They ignore the notion of strict or no-fault liability. Negligence which causes public harm can only be deterred if severely punished. Being corporate decision-makers, directors are liable–even if they aren’t personally responsible for every operational hazard.
Their culpability is greater–as in Bhopal–if they know of the hazards. Union Carbide’s directors clearly knew of the Bhopal plant’s potential for fatal accidents. These had occurred before December 1984.
A Flawed System
This doesn’t argue that the US government and legal system are pro-people, only that India’s legal system is institutionally flawed. Its self-appointing higher judiciary is unaccountable. It hasn’t developed instruments for punishing corporate crimes. The Indian establishment is cravenly pro-rich, pro-corporate and pro-American. This includes top judges, lawyers, opinion-shapers and bureaucrats who inherit a people-unfriendly colonial state structure.
Yet, so great was the public outrage over the latest Bhopal judgment that the government reconstituted the Group of Ministers on Bhopal, which has submitted its report.
On its positive side are recommendations for a curative petition on the latest judgment and the 1989 settlement; expediting Anderson’s extradition; and speeding up the case against Carbide’s successor, Dow Chemical, in Madhya Pradesh. On the negative side are its silence on Dow’s liability and its paltry recommendations for relief to the victims.
A curative petition asking the Supreme Court to modify its 1996 order downgrading criminal charges against UCC, Carbide’s fully-owned Hong Kong-based subsidiary Union Carbide Eastern, and Union Carbide India Ltd (UCIL), is welcome. But this shouldn’t stop at restoring the culpable homicide charge.
Section 300 of the Indian Penal Code defines murder. Subsection 4 says: "If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death …."
Carbide indisputably committed such acts by operating a poorly designed, unsafe plant—which, it knew, would cause large-scale fatalities. A 1982 safety audit said the plant had 30 major flaws. Logically, the accused must be re-tried for murder.
Yet, Anderson and UCC and UCE directors weren’t even tried in Bhopal because they absconded. This violates a condition stipulated in Judge Keenan’s order, which sent the case back to India—namely, they would stand trial in India. Not only does this warrant Anderson’s extradition; it allows India to press fresh charges against UCC in the US, including contempt of court. This must be done expeditiously.
The 1989 compensation award was based on the assumption of 3,000 deaths. But today’s estimate is 15,000-plus deaths. The average compensation for death was Rs 1 lakh—a travesty. Compensation even in rail accidents is higher.
In Bhopal, about 2 lakh people were significantly injured, but 5.74 lakhs were given compensation. This reduced the amount paid to the seriously affected. This couldn’t even pay for their medical treatment, leave alone get damages for suffering or disability. Only 3,241 victims (0.7 percent of total) were categorised as severely injured. This makes nonsense of surveys by the Indian Council of Medical Research and other agencies.
The new GoM-proposed enhanced compensation will cover only 42,208 people and exclude 91 percent of those affected. This is grossly unjust.
Dow must be Held Liable
In 2008, the government had agreed to institute a high-level Empowered Commission comprising medical and rehabilitation experts and the victims’ representatives, to organise adequate compensation and medical treatment. But this GoM report doesn’t mention it.
New medical facilities must be urgently established so the victims can live with dignity, and freedom from pain and humiliation. These must be staffed by sensitive professionals who understand the need to rebuild the survivors’ lives in their entirety. The GoM ducks the issue
The GoM doesn’t hold Dow liable for land and water contamination around the Bhopal plant because Dow doesn’t own it. But Carbide created a liability over and above the accident through the contamination. Through site surveys, Carbide knew this and its likely effects.
By natural justice principles, a successor company inherits both the assets and liabilities of the corporation it purchases. Dow is obliged to clean up the Bhopal site and compensate the people who are forced to drink the polluted water. Dow wants to evade this responsibility and has pressed its nefarious case through Prime Minister, Dr Manmohan Singh, Home Minister, Mr P Chidambaram, Mr Ratan Tata, and other bigwigs.
It’s imperative to hold Dow liable. If the government presses charges against Carbide in the US for violating the conditions for trial in India, the liability issue will inevitably arise. That must be settled now. The effort to bury the Bhopal legacy is misguided. Unfortunately, the legacy lives on. Justice demands that it is brought to an honourable, dignified closure in a fair, transparent manner. The GoM fails to do that.
