By C. Raj Kumar and Pratibha Jain
(taken from 12.12.2000)

The 16th Anniversary of the Bhopal Gas leakage tragedy went past us this year and we are still nowhere near to rendering complete justice to the victims of this ghastly industrial holocaust. Successive governments cutting across party lines have demonstrated gross insensitivity to the cause of victims and the Indian legal system and the justice system prevailing in India has inadequately responded to this gross crime against humanity. The purpose of this article is to clear some misconceptions in the mind of many, both in the government and outside as to the settlement of the Bhopal Gas leakage case related claims and to encourage the Government of India to respond to the independent initiatives of the Bhopal victims in approaching the United States Court of Appeal with new grounds for taking cognizance of this matter. Needless to say, the legal and judicial fraternity in India now has a unique opportunity to consider giving its support so that there is some change in the way things are as far as the plight of Bhopal victims are concerned. There is no doubt that the legislative, executive and the judiciary and even the intelligentsia, media and the public opinion in India need to share the burden of this "institutionalized injustice" committed upon the Bhopal victims, given the fact that the victimization that is heaped upon them is believed to continue for three to four generations.

"Carbide Salaam, Hindustan Ghulaam". Those words were scrawled in graffiti on the walls of the Indian Supreme Court over ten years ago when the Court approved a paltry settlement of all civil claims against Union Carbide for its role in perpetrating the worst industrial catastrophe in world history in Bhopal, India. Sadly, it is not difficult to empathize with the sentiment expressed by their anonymous author. During the past sixteen years since December 2-3, 1984, the night when the city of Bhopal was turned into a gas chamber, the Indian government has repeatedly failed to live up to its obligations and duties to its citizens that were victimized by this unprecedented catastrophe. And it continues to do so today.

First, the Supreme Court of India in its review of the 1989 settlement between Union Carbide and Union of India, a settlement of which the Bhopal victims were not so much as informed, ordered that all of the accused including Union Carbide itself and its former chairman Warren Anderson should be prosecuted under the penal laws of India for the offense of culpable homicide with which they had been formally charged in 1987. In its judgment of October 3, 1991, the Hon'ble Supreme Court of India had noted: "It is a matter of importance that offences alleged in the context of a Disaster of such gravity and magnitude should not remain uninvestigated. The shifting stand of the Union of India on the point should not by itself lead to any miscarriage of justice." Nearly a decade has lapsed since this mandate from the highest court in the land, and precisely which the Supreme Court feared has come to pass: the "shifting stand" of the Union of India in terms of pursuing this criminal prosecution has resulted, yet again, in a "miscarriage of justice." Despite the fact that the Centre had every opportunity to pursue this criminal prosecution, it has failed to press for the extradition of either Anderson or Union Carbide, both of whom were declared "proclaimed absconders" by the Bhopal District Court for failing to appear to face those criminal charges in 1992. The Chief Judicial Magistrate ordered the confiscation of all of Carbide's remaining properties in India but the company had already disposed of virtually all significant assets in India. Again, Government of India did nothing.

Carbide has essentially been allowed to scoff at the laws of India for more than a decade, leaving the Bhopal victims with no choice but to seek legal recourse once again to the courts of the United States to seek justice against the company which they call "Killer Carbide". On November 15, 1999, they filed a lawsuit in American federal court bringing claims under international human rights law as well as separate causes of action for the ongoing contamination of the water supply of the neighborhoods surrounding the Carbide facility in Bhopal, which was recently documented in a Greenpeace report after being confirmed by independent laboratories in Boston and the United Kingdom. On November 29, 1999, Greenpeace issued its report entitled "The Bhopal Legacy", which lists the Union Carbide India Limited (UCIL) facility and the area surrounding that facility as one of Greenpeace's global "toxic hot-spots." The report goes on to confirm scientifically that massive environmental contamination, including contamination of the drinking water of residents in the nearby communities, entirely unrelated to the Bhopal Disaster, has taken place at the UCIL site where large amounts of toxic chemicals and by-products from the factory's original manufacturing processes continue to pollute the land and water. It is rather unfortunate to note that the Indian government, for its part, has not only refused to assist in the prosecution of this case, but has not even provided the victims with alternate sources of drinking water and - adding insult to injury - has proposed to turn the site of the Carbide facility which killed so many thousands into an "amusement park". It is truly unfortunate that "insensitivity" is institutionalized by the State and Central governments in India and time has come to give some serious thought to this situation so that things are changed for the better.

Furthermore, the Bhopal victims brought suit seeking the disclosure of medical information and toxicology on the composition of the methyl isocyanate (MIC) gas and other gases which leaked in the Bhopal Disaster that could assist in medical treatment of the victim population which the International Medical Commission on Bhopal estimates will continue to suffer due to chromosomal and genetic defects for the next three to four generations. Union Carbide, to date, has refused to disclose on the spurious ground that this information somehow constitutes a "trade secret." Has the Indian government disclosed the results of the Indian Medical Commission's vast research project on the medical condition of the victims in Bhopal? On the contrary, it has resolutely refused to do so while winding up all ongoing efforts at medical monitoring and/or treatment of the Bhopal victims.

Meanwhile, its only business as usual for Carbide. Praxair, Inc., a company that is a spin-off of Union Carbide Industrial Gases Division and continues to share the same worldwide headquarters as Carbide in Danbury, Connecticut, nevertheless manages to conduct a lucrative business in India (despite the Chief Judicial Magistrate's orders and Carbide's status as an absconder) through its wholly-owned Indian subsidiary, Praxair India Private Ltd. Has the Indian government even sought to indicate to Praxair India that it cannot do business in India unless its former parent company does justice to the Bhopal victims? Plainly, the answer is "No", because Praxair continues to do business in the city of Bangalore without any fear of judicial or official sanction. Dow Chemical, a company that does business in India through at least four subsidiaries, has made an offer to purchase Union Carbide outright, thereby inheriting all of its civil and criminal liabilities under American law. Will the Indian government pressurize Dow to resolve all of Carbide's outstanding liabilities to the Bhopal victims, if it wishes to continue to do business in India? Will the Indian government take steps to substitute Dow Chemical as the accused in the criminal case pending in Bhopal District Court pursuant to the American law, which governs this merger and requires that Dow inherit those criminal liabilities?

The historical track record of the Government of India is certainly not encouraging. No wonder that, in the last year's fifteenth anniversary of the Bhopal disaster, representatives of the Bhopal victims marched through Bhopal carrying a banner which read: "Our Government - Loyal to Union Carbide!!"

The present case at the United States District Court, Southern District of New York, inter alia, argues that Customary international law, which forbids even a single violation of its fundamental rights and/or peremptory norms, such as the right to life, also provides that a separately cognizable violation may be based on an aggregation of such violations. International law prohibits a consistent pattern of gross violations of internationally recognized human rights perpetrated under color of law. Where, as here, the violations in question are repeated and/or severe enough to give rise to numerous claims, the Alien Tort Claims Act (28 U.S.C. ' 1350) provides that the conduct in question may be actionable as a "consistent pattern." According to the Restatement (Third) of Foreign Relations Law, this norm forbids "infringements of recognized human rights that are not violations when committed singly or sporadically." Defendants' conduct, as described herein, amounted to a consistent pattern of gross violations of recognized human rights insofar as Union Carbide operated and maintained a plant in Bhopal, India which continuously posed a grave risk of death and/or serious physical injury to the surrounding population; that each incident manifesting its depraved indifference to the grave risks posed to that population amounted to a violation of recognized human rights to life, health and security of the person; that there were several, repeated incidents of such toxic leakage which injured workers and hundreds of nearby residents; and that Union Carbide on each occasion ignored the grave risk of death and serious physical injury posed by its facility in Bhopal.

In addition, Union Carbide's conduct after the Bhopal gas Disaster demonstrates a consistent pattern of gross violations of recognized human rights because of its failure to provide adequate information about MIC to those treating the victims, including, but not limited to, Union Carbide's failure to disclose any information on the medical consequences, toxicity or ultra-hazardous character of MIC prior to and after the occurrence of the Disaster. Further, Union Carbide's purposeful absconding from the criminal jurisdiction of India's courts also represents a continuous, ongoing violation of the Plaintiffs' right to a remedy at law in violation of customary international law, as embodied in Article 8 of the Universal Declaration of Human Rights which states that "[e]veryone has the right to an effective remedy by the competent national tribunal for acts violating the fundamental rights guaranteed to him by constitution or by law" and Article 2(3) of the International Covenant on Civil and Political Rights.

It may be noted that, on May 12, 1986, the United States District Court for the Southern District of New York dismissed, on grounds of forum non conveniens, actions arising from the Bhopal Disaster to which Defendant Union Carbide was a party. In Re: Union Carbide Corp. Gas Plant Disaster at Bhopal, India in December 1984, 634 F.Supp. 842, at 867 (S.D.N.Y. 1986). The dismissal was conditioned upon Union Carbide's agreement "to submit to the jurisdiction of the courts of India." Further, the dismissal required that "Union Carbide shall agree to satisfy any judgment rendered by an Indian court, and if applicable, upheld by an appellate court in India, where such judgment and affirmance comport with the minimal requirements of due process."

The present complaint argues that the Defendants should be held in contempt for their willful, intentional and flagrant disobedience of the orders of the US Court requiring Union Carbide to submit to jurisdiction in India and to abide by the terms of any judgment rendered by the Indian courts. Union Carbide as a legal condition precedent to dismissal expressly agreed to these orders on forum non conveniens by Judge Keenan. By deliberately failing to obey the directives of the Supreme Court of India's civil judgment in October 1991, Defendants violated these conditions to the extent that Union Carbide did not fully submit itself to the jurisdiction of Indian courts. Defendants should be held liable in civil contempt for failure to obey the Court's order because the order was clear and unambiguous, proof of non-compliance is incontrovertible and convincing and because Union Carbide was not reasonably diligent in attempting to accomplish what was ordered. A civil contempt sanction may be imposed, therefore, for the purposes of coercing future compliance with that order as well as for compensating Plaintiffs and Class members for losses caused by the contemnor's past noncompliance.

After February of 1989, Plaintiffs challenged the terms of the proposed settlement entered into between Union Carbide and the Indian government before the Supreme Court as petitioners. In October of 1991, the Supreme Court of India issued a civil judgment approving the settlement between Union of India and Union Carbide with the express judicial mandate, requested by Plaintiffs, that the criminal charges against it be reinstated and that the prosecution of those charges should be proceeded with in order to avoid a "miscarriage of injustice." In addition, the Supreme Court of India ordered Union Carbide to abide by its earlier offer to construct a hospital in Bhopal for the medical treatment of Disaster victims. Union Carbide, a party to the judgment and directives of the Indian Supreme Court, was and is bound by those orders. However, in flagrant contravention of the conditions imposed on it by U.S. courts as well as by the Supreme Court of India, Union Carbide willfully and intentionally chose not to comply with any of these directives.

Despite repeated summons served upon Union Carbide through the U. S. Department of Justice as a result of letters rogatory issued by the Bhopal District Court, Union Carbide has willfully refused to submit to the lawful jurisdiction of India's criminal courts. Further, the Bhopal District Court has served another summons upon the company's officials through Interpol and published a notice to appear for trial in the Washington Post. In 1994, after repeated failures to appear for trial on the criminal charges pending against it, the Bhopal District Court ordered that Union Carbide be declared a "proclaimed absconder", a term of art in Indian law which is the equivalent of the term "fugitive from justice" in U.S. law. The Court also ordered the forfeiture of all of Union Carbide's properties within India. Defendants made material, false representations to Plaintiffs concerning their amenability to jurisdiction and lawful process in the courts of India including, but not limited to, Union Carbide's agreement to the forum dismissal conditions, as well as Union Carbide's acknowledgment and acceptance of the Supreme Court of India's judicial mandate regarding criminal proceedings.

In an extensive interview to us, a visibly concerned Mr. H. Rajan Sharma, an Attorney at Law with Goodkind, Labaton, Rudoff & Sucharow, who is the Attorney for the Bhopal victims pursuing the federal class action in the United States, says that "the federal class action suit was dismissed by the lower courts on the grounds that the Bhopal Act enables the Indian government to act alongside or on behalf of the victims in any claims made against Carbide in courts outside India." He pointed out that the assistance and support of the Indian government would have made the task of pursuing the American class action against Union Carbide much easier. "Such assistance was actively and consistently sought at the highest levels," he pointed out, "but it was made clear to us that it would not be forthcoming without that ever being said in so many words." Instead, Mr. Sharma will now have to appeal the decision of the lower court dismissing the lawsuit to the U.S. court of appeals, which will issue a final decision on the matter. Once again, he has sought the assistance of the Indian government in pursuing this appeal.

Here, the Government of India has an opportunity, even if it is a little late to make good on its long record of betrayal and compromise of the rights of the Bhopal victims. Mr. Sharma states "we have made a request to the Indian government to provide us with an amicus curiae brief, essentially a statement of opinion on the part of the government that it supports and approves of our case. This would not make the government a party to the litigation in any sense and it would not have to face any legal repercussions whatsoever as a result of this statement of opinion." The failure of the Indian government to assist the victims on this occasion would be particularly galling for that very reason, since it costs the Indian government practically nothing and would aid the Bhopal victims immeasurably in their pursuit of justice against this criminal corporation which has made a mockery of India's criminal laws just as it has profited from destroying the lives and livelihoods of over one lakh of this country's most vulnerable citizens.

"We need some commitment from the Government of India on the amicus brief by December 20th," Mr. Sharma said, "which is the date that the submission of briefs are scheduled and all of the necessary information and materials have been provided to the Consul General of India in New York." Has he heard anything yet? No, let's hope he hears soon. In the mean time, let the message of Bhopal victim's cry for justice reach the corridors of power and due consideration be given to this matter expeditiously, lest this opportunity is also lost.

C. Raj Kumar and Pratibha Jain are Attorneys at the New York City. Raj Kumar completed his LL.B at the University of Delhi, and B.C.L. at University College, Oxford as a Rhodes Scholar. He then went to Harvard Law School as Landon H. Gammon Fellow and James Souverine Gallo Memorial Scholar to complete his LL.M. He has published numerous articles and project reports in the field of Human Rights, and worked for at the National Human Rights Commission in New Delhi. Pratibha Jain did her LL.B at the University of Delhi, and B.C.L. at St. Catherine's College, Oxford. She then moved on to Harvard Law School as Samuel Morse Lane Fellow to complete her LL.M. Her interests are in the field of Gender Justice and Feminist Legal Theory, on which, she has written and published articles.