Bhopal Disaster: Judiciary's Failure Author(s): Satinath Sarangi Reviewed work(s): Source: Economic and Political Weekly, Vol.

30, No. 46 (Nov. 18, 1995), pp. 2907-2909 Published by: Economic and Political Weekly Stable URL: http://www.jstor.org/stable/4403440 . Accessed: 24/05/2012 01:15
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COMMENTARY
Bhopal Disaster: Judiciary's Failure
cent of them were left out were medically examined)andeach individualwas assigned a category of injury. Medical examination was carriedout in a mannerworse than the process.Thethreemost-important registration tests, viz, pulmonaryfunction test, exercise tolerancetest and ophthalmictests were not carried outon over80 percentof theclaimants who were medically examined. Injuries andimmune causedto thebrain,reproductive systems were not even considered for assessment.The resultsof thecategorisation exercise are ridiculous and in sharp contradiction to research findings of the s own medicalresearchagency. government' Doctors employed by the directorate of claims,claim that42 percentof theclaimants had not been injuredat all, 52 per cent have only been temporarilyinjuredand less than 6 per cent were consideredto have suffered injuries.While the government's permanent IndianCouncil for Medical Researchlisted over 10,000 'burntout cases' of people with severe lung disabilities,' only 40 claimants in all of Bhopal were kept in the severest category of injury.Obviously the damages were under-assessed to suit the settlement amount.Andcurrentlyin Bhopalthisgrossly faulty categorisation has become the overriding criterion for determination of compensation. In the recently-held 'Lok Adalat' (People's Court) nearly 3,000 claimantswere awardedcompensationsums in one day. On an average less than two minutes were given to individualclaimants to present their case and claimants were, made to sign on papers saying that they agreedto whatevercompensationwas given wasdecided. to thembeforethecompensation On an average claimants from the most severely affected wards6who will be sick all their lives, were paid an average sum of little over Rs 25,000 (US $ 800), an amount that falls far short of the even cost of medicines for the next five years. There is a system of appealbut it can take more than three years till a decision is made on the appeal(andno interestis paidon the original amount)so most claimantsare coerced into taking whatever meagre amount is being given to them. All told it is a macabre judicial farce that would be funny if it were not so deadly cruel. What does all this tell us about what law and the judiciary does? Particularlywith referen.ceto industrial hazards. In Bhopal the follpwing legal/judicial steps followed a usual pattern.The first step was to reduce the human damage, the ethical and moral obligations,to paymentof money. Once that assessed was done damages were arbitrarily (andgiven the enormouslackof information on chemicals and their effect, assessments

Satinath Sarangi

the incapabilityof The aftermnath of the Bhopal disaster demontstrates the legal and judicial system to providejustice to the victims of indiustrial disasters antdof the failure qf the system tO act deterrently crimes. against inidustrial/enivironmenital
THE leakage of 40 tonnes of deadly chemicals from Union Carbide's pesticide factoryin Bhopal, Indiahas broughtinto the open leaks in the modernindustrialsociety. In the aftermathof the disaster the biases and prioritiesof the medical, scientific and legal (and others) system were laid bare on many occasions. With over 16,000 people' dead to date and over 2,00,000 exposed persons suffering from incurable illnesses the Bhopal Gas Disaster has illustratedthe horrors of peace time casualtiesof progress. Machinations of themultinationals. collusion of the Indian government, injustice of the judiciary, the fickleness of the media, and the systemic victimisationof the victims all this and much more, were made eminently visible without the usual verbiage and mystificationthat go on in modernsociety. The legal and judicial 'accidents' that followed the disaster culminated into the infamous settlement2 between the andthe Indiangovernment,are Corporation ot particularsignificance. Inthe continuingat'termath of thejudicial disaster claims of over 3,00.000 affected persons have not been registered and less than one-tifth of the people whose claims have been registered have received any compensation. Compensation sums being paid are humiliatingly low and obviously The averagecompensation inadequate. being paid in 5,325 cases related to death claims is Rs 93,000 (US $ 3,000) and for personal injuries Rs 24,000 (US $ 800). The proceduresinvolved in the adjudicationof personal damages are so tortuous that the claimants feel they are being treated as culprits.Meanwhilethe real culprits,senior officials responsible for the continuing massacre in Bhopal are scot-free. Warren Anderson, the ex-chairman of the andNo I accusedin thecriminal Corporation, case on the disaster, is hiding and Interpol says "they cannot find him".3Despite the issuance of a non-bailable arrest warrant against him pending since March27, 1992, the Indiangovernmentis yet to take the first Anderson.Theother steptowards extraditing accusedofficials, chargedwithmanslaughter and other serious offences, are not even requiredto present themselves in court as thecriminalproceedingsmoveon ominously at the Bhopal district court. Unfortunately,as we know, Bhopal is a part of ourdailylives in technological society. Every year as many people die in the third world due to involuntary ingestion of industrialchemicals as those who died by Carbide's gases. And certainly the number of persons suffering from routine toxic exposure would be many many times more. As the world makes technological progress there are more profits in poisons causing more and more human and environmental damage. Bhopal demonstrated the incapabilityof the legal judicial system to providejustice to the victimised people and its failureto actdeterrently againstindustrial/ environmentalcrimes. However, Bhopal is no exception. Courtsall over the world are morea partof the problemthanthe solution. Law was brought into Bhopal by US ambulance-chasing lawyerswho descend:d in hordes on the city within the first week of the disaster.Nearly 2,00,000 clients from among the traumatised people were madeto sign' on papersthatwent on to produce 120 separate legal actions. While popular sentimentunderlined the need for punishing the culprits for justice to be done, the US privatelawyersfiled suitsfordamagesworth several billion of dollars in US courts. The invasion of the US lawyers provided the Indiangovernmentwith a rationaleto pass of the BhopalGas Leak Disaster(Processing Claims) Act in the parliament in March 1985. Empowered by the act the government arrogatedto itself sole powers to represent the survivors in the damage litigation. Meanwhile it had set up a directorate to registerdamage claims of affected persons. The exercise lasted over three years and at the end of it, well over 1,00,000 affected individualswere left out. Claims of people under 18 were not registered and children born to gas-exposed women shown to be physically and mentally retardedthrough medical research,were not consideredto be entitled to claim damanges. The claimants were then medicallyexamined(again45 per

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will always be arbitrary)and the money reduced. Consequently a large number of affectedpersonsweredeniedany money and others are being given sums that will not even pay tor theirmedicines. It is interesting to see what has been the et'fect of all this on the victimised. The assignmentsof widely differentinjury categories to dit'ferent individuals in an aff'ectedfamily or community has created dissensions among people within a community.There is a lot of anger among individuals whose injuries have been categorised as temporary or non-existent. But instead of being directed against the agencies responsible for the situation the angerof such individualsis directedagainst their neiglhboursor f'amilymembers who have becn assigned more severe injury in the awardof categories.The arbitrariness compensation sums has thus f urther compoundedthe tragedyand the comnmunal life of the survivors has been irreparably damaged. At an individual level the enitire process of dama,,e estimation to compensation award has beetn a humiliating experiencewithconsiderableloss otfdignity. Untortunatelythe re-victimisationof the victims by the legal and judicial system is not unique to Bhopal. Particularly with hazards reference to industrial/environmental this is a sad but ftamiliar story. As in Bhopal, of damageshave marginal deterrent payment effect, if at all. Of the money paidas settlementby UJnion Carbide,$ 220 million was paid out by the insurance companiesandthe rest hadearlier been set aside in the companyaccountsright atterthe disaster.The 50 cents per sharethat the disastercost the company is unlikely to prevent its recurrence.Of course even if heavy damages were paid in the cases deterrence wouldhardlyhavebeenachieved. Theglobalempireof hazardous corporations is sufticiently well organised to survive normaldisastersin their routineoperations. As it happens, insurancecompanies act as a buffer(paymentof premiumshardlyaffect thecorporation's profitmargins)anddamage litigationhas no way to stop the humanand environmental damage wrought by these corporations. In sum then what does civil law do in hazard responseto industrial/environmental situations? It legitimises the payment of money to recompense humanand environmentaldamages(often irreparable) through an immorallogic. Thejudiciary then sanctifies negotiationsin which the actualvictims have little say. Compensationamounts are (andoften adversely)adjudicated arbitrarily leading to frustrationsand divisions within the community of victims and humiliation of the suffering individual. What civil law does not do is take a wee little step to stop the poisoning of the peolpleand the planet.

However, there are spaces within civil litigation on industrial/environmental hazards that require legal and judicial intervention. To start with compensation needs to be seen not as a waiver against liabilitiesbutas costs to be paidforreparation and restitution. In the particularcase of these costs include cost ot medical Bhop-al, care. economic, social and environmental A governmentcolluding with rehabilitation. the offending corporation, lack of information on the chemicals and the inadequaciesof available technologies for the assessmentof injuriesoften comes in the way of the properestimationof such costs. Nationalandinternational non-governmental initiatives could play a crucial role in an otfthe human and independentassessmetnt environmentaldamages and estimating the costs of repair and restitution. In the case of Bhopal, the International Medical Commission on Bhopal composed of 14 medical specialists trom II different countries was a commendable initiative in this direction. Critical interventionsin this

prosecution agency the Central Bureau of Investigation (CBI) pressed charges in the BhopalDistrictCourtagainstUnionCarbide Corporation and its Asian and Indian subsidiariesas well as nine senior officials including the then chairman, Warren Anderson. The 12 accused were charged undersections of the IndianPenalCode that death with culpable homicide, causing grievous huirt, causing death and poisoning of animals and other serious offences punishableby up to life imprisonmentand fines. Initially the accused corporationand officials blamed a tictitious saboteur ('a disgruntled worker') for the disaster and media campaigns were managedby publicrelation companies to spread this lie. Meanwhile the CBI, with the co-operation of the workersof the factory,had presented and a strongcase thatlinkedkey managerial technicaldecisions made by senior officials to the disaster. As the proceedings in the BhopalDistrictCourtbegan, UnionCarbide Corporation andits otfficialsrefusedto come to the court,with the companyspokesperson courtshad no that 'Indian area will also include working out ways oft Eric Slack satying victim-triendly payment of the monies jurisdiction over Andersonorthecompany". received. Ot course all such interventions Anderson was served summons through and their outcome will be depelndent uLpon Interpoland on his repeatedrefusalto obey of' public opinion. mohilisation them was proclaimed an absconder on The historyot criminallitigation on Bhopal February 9. 1989 by the chief judicial has tnot been very exemplary either. A magistrate in Bhopal and directed to be criminal case on the gas disaster was present in court in six weeks time. On registered on December 3, 1984. On February 14, the US authoritiesintimated their approval ot CBI's request to inspect December I, 1987, the government's

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Economic and Political Weekly

November 18, 1995

the West Virginiafactoryof Union Carbide, a factory similar to the one at Bhopal but with much superior satety systems. The inspection by CBI was crucial to establish double standardsof' safety followed in the two 'sister-factories', a policy common t'ollowed by transnationalcorporations. However,as partof its orderon settlement on February 14. 1989, the Supreme Court wentbeyonditsjurisdiction(as well as away from established procedures of criminal justice)andquashedthecriminalproceedings against the Corporation and its officials. notbeenchallenged Indeedhadthesettlemenit by survivors and their sympathisers that would have been the end to the criminal prosecutions ot'oneof historiesbiggest mass The revised and final Supreme murderers. Court order of' October 1991 revoked the criminal immunity grantedto the accused, an actthe Corporation 'unf'ortunate'. termned Following the resumption of' criminal proceedings, a non-bailable arrest warrant was issuedagainstWarrenAndersonandthe shaires ot the Corporation in its Indian subsidiarywere attached.Anderson moved secretaddressalnd to La despitetheattacliment orders of the district court the corporation has been successf'ulin scIline oI'fits assets througha SupretneCourtorderon Februarv 14, 1994. Three years have piassedsince tilc issuance of warrants against the accused and its officials, yet the Indian Corporation governmenthas not taken any step towards seekingAndersonl's extraditionfromthe US. The political will of the governmnent beine decisive in the criminaljudicial process and given that the government has always t'olloweda pro-Carbide policy, the chances of' the accused being deterrently punished are indeed marginal. In the pressing of charges, conduction ol' investigations and collectionof evidence,theCBIandthe Indian government have been wilfully negligent. Senior Corporation ot'l'icials liable for disastrous decision-makingandgovernment officialsresponsible fornegligentmonitoring and regulationhave been left out of'the list of accused. Charges that should have been pressed against the Corporationfor crimes such as withholding of vital medical information, causing contamination of groundwaterand soil in the vicinity of its factory with carcinogenic chemicals, have not been pressed.The investigationsby the prosecuting agency have been marked by inadequate monitoringof deathanddisease; and the CBI is no longer interested in inspecting the west Virginia plant. Nearly I I years after,the century's worst industrialcrimes remainunderinvestigated, andtheculpritsunpunished.Again unjudged this failure of criminal law is not unique to Bhopal. The tiny numberof convictions in cases of industrial homicide and grievous bodily harm, when posited against the

frequencyand toll of these crimes, speak of the injustices committedagainst victims of such crimes worldwide. Bhopalhasclearlyshownthatlegal/judicial response to corporate crimes is critically dependent upon the government's role in conduction of investigation, collection of evidence and enforcementof court orders. Though there exist provisions in some national laws (as in India) for extragovernmental criminal litigation against andtheirofficials, theresources corporations required to sustain such a litigation are prohibitively high. On matters involving transnational corporations, enforcementsof judicial ordersareentirelydependenton the governmentsof the countries involved and extra-governmentinitiatives are excluded. Yet anotherproblemis the way criminallaw andthejudiciary lookatcorporations. Having no corporealentity, corporationscannot be imprisonedor hanged.Senior officials who personallybenefit fromthe consequencesof the corporatedecisions can thus stay behind the 'corporateveil whenever they wish to escape liabilityfor the injuriesand/ordeaths caused as a result of their managerial decisions. Fines extracted from the - andthe cases in which this has corporation actually happened are rare - have little deterrent etfect on corporatecrimes, similar to thesituationin civil litigationtheelaborate insurance system annihilates the deterrent ettfects finescouldhave.Reducedto monetary terms the hazardous consequences of corporatedecisions are easily managedand though their human toll are often large, profits of the corporations(and dividends paid to shareholders)are hardlyaffected as a consequenceof recklesscorporate policies. While the inadequacies and inapproof existinglegal/judicial priateness responses to corporate crimes require theoretical and policy level interventions critical engagementsarepossiblewithintheexisting scenario. In Bhopal, extra-government initiatives such as investigations into the causes of the disasterby such organisations as the Delhi Science Forum.UnionResearch Group, Bombay and the International Chemical and Energy Federation have generatedfacts and argumentsoutliningthe specific crimes of the corporation. The complex natureof hazardoustechnologies may often require specific expertise unavailableinthelocalsituation independent technical/scientific investigations in the establishmentof corporatecriminalliability couldbeone of non-government international
interventions.

Environment could examine cases for an boycott of productsof specific International corporations.There are a but few instances of successful boycott campaigns against butenough to suggest thatthey corporations are an effective means of regulation of corporate behaviour. An aspect often overlooked in the initiation of boycott campaigns is the effect of such campaigns on the workerswhose jobs anddestinies are linked with the profits made by the corporation. The other possibilities of effecting deterrence with regard to corporate recklessness is to hold public trials of corporations and their senior officials. Pressure would then have to be brought andtheirofficials uponaccusedcorporations so that they face popular charges in this international forum and comply with the decisions. While this may seem to be too ambitious and an unrealistic suggestion, it of mighty takesintoaccountthe vulnerability
corporations vis-a-vis popular opinion. The

specific roles and responsibilities of individual officials in the omissions and will have to commissions of the corporation be examined and grounds for appropriate actionslaiddown by aninternational popular forum. Of course such international interventionswill have to be simultaneous with andsupplementary to the local/national initiatives through existing and judicial systems. Notes
I The actual number of people killed by the disaster will probablynever be known thanks to the government's deliberate neglect in monitoring and registering deaths. Official figures of exposure-relateddeaths is 5,324 till December 1992, unofficial and more correct estimates are at least three times more. 2 Through the settlement order of February 14-15, 1989, Union CarbideCorporationwas absolved of all past, present and future liabilities on payment of a sum of $ 470 million (one-seventh of the amount claimed by the Indian government on behalf of the victims), criminal proceedings were quashed and the Indian government agreed to defend Union Carbidein the event of futuredisasterrelated litigation. 3 According to a pro bono investigation agency in the US, Anderson is currentlyliving at 400 Beach Road, Vero Beach, Florida, US. 4 The retainersentitled the lawyers to 30-50 per cent of the damages as contingency fees. But most clients were ignorantof this arrangement as the forms were in English. 5 According to one study by this agency 98.4 per cent of the sample population suffered from lung injuries leading to exertional dyspnoea. 73.4 per cent had recurrent respiratory infections and 24 per cent had reactive airways dysfunction syndrome. 6 Of the 5,500 claimants who were called to the

However, the majoremphasis in dealing with corporatecrimes will have to be, under the circumstances,in the domain of public opinion mobilising and creating means to exercise popular control over corporate conduct. An International Court for

'Lok Adalat' only 2,800 chose to accept compensation.

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