According to Eveready Industries, the successor to Union Carbide India Limited (UCIL), there was never any danger of a judgement against the company, consequently no need to provide financially for that eventuality. Whence comes this overweening confidence?
“Trial proceedings before the Chief Judicial Magistrate, Bhopal, on the modified charges framed under the directions of the Supreme Court that commenced in September 1997, are yet to be concluded. As per advice of legal counsel, allegations against the Company are without any firm basis and possibilities of proceedings against the Company, succeeding are extremely remote. Since the charges are very likely to fail, no provision is necessary at this stage.”
Will justice be done in Bhopal on June 7, 2010? Read on.
Qu. 1. Will justice be done in Bhopal on June 7?
Justice in Bhopal will be done only if the individuals and corporations responsible for the death of over 25 thousand and toxic exposure and damage to over half a million people are punished in an exemplary manner. The punishment accorded to the individual corporate officials and the corporations must be of such that it deters other corporations and corporate officials from being recklessly indifferent to human life and health.
We think that even if the verdict on June 7 is fully against the nine accused, justice will not be any where near done on the world’s worst corporate massacre.
Firstly, the prime accused in this case are Union Carbide Corporation (UCC), and Warren Anderson and both are absconding from Indian courts since 1992. In the last 18 years, the CBI has not taken the tiniest step to get the authorized representatives of UCC, USA extradited and has made only one unsuccessful attempt in 2003 to get Anderson extradited. The third foreign accused, Union Carbide Eastern Limited, Hong Kong, deregistered itself in 1992 without ever appearing in court and the CBI has not taken any action against this absconding accused. Only a concurrent trial of the foreign accused can adequately address the nature and extent of the crimes committed in the disaster in Bhopal.
Secondly, the charges against the accused are much weaker than they should be. There is ample evidence that individual officials and the corporate boards demonstrated reckless indifference towards the lives and health of the workers in the factory and people in the city. They were manifestly aware that the technology employed in Bhopal was exceptionally hazardous, that cost cutting measures had made it more hazardous still, that 30 major hazards had been identified through a safety audit and that safety and maintenance had been run down to a threadbare basis in advance of an intended sell-off. Yet the Central Bureau of Investigation (CBI) decided to charge Union Carbide and its officials only with criminal negligence.
For their criminal indifference to human life and health, Union Carbide and its officials should have been charged with culpable homicide (Sec. 300 Part IV of Indian Penal Code punishable by life imprisonment) for running the factory knowing that it was so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death.
Thirdly, because of an unjust order of the Supreme Court and the CBI’s inaction, the criminal charges against the Indian corporation and its officials have been further diluted. The order of Justice A M Ahmadi delivered on September 13, 1996 brought down the charge from Sec. 304 Part II of Indian Penal Code (IPC) to Sec. 304 A of the IPC without considering the evidence of the culpability of Union Carbide India Limited and its officials. By reducing the Bhopal disaster to the equivalent of a traffic accident the prison term for the crimes of Bhopal was brought down from 10 years to 2 years. Further, a conviction under Sec. 304 A, does not necessarily lead to imprisonment. It could well be reduced to criminal fines.
Finally, because the CBI has done a shoddy job of prosecuting the Indian corporation and its officials, it is very doubtful that the verdict on June 7 will be fully against the accused.
2. How has the CBI fulfilled its role as a prosecutor?
The CBI has done a shoddy job of prosecuting the Indian and the foreign accused.
a) Despite the fact that the documentary evidence is all available, the CBI has failed to present evidence :
– that demonstrate that UCC, USA and Warren Anderson were well aware in 1973 that the technology for the MIC plant in Bhopal was “untested”
– that show that the design of the Bhopal plant was substantially different and inferior in terms of safety when compared to the MIC plant owned by Union Carbide in Institute, West Virginia, USA.
– that establishes that Keshub Mahindra and other officials knew or should have known about the hazardous design of the plant and the additional hazards due to design modifications.
– that links each of the accused to deliberate acts undermining operational safety such as rewriting of operation manuals, decommissioning the crucial refrigeration unit and eliminating the maintenance supervisor from most work shifts.
– that demonstrate that UCC, UCIL and its senior officials were indifferent to the injuries caused to people in the neighbourhood communities due to routine leaks in the factory prior to the disaster in 1984
b) The CBI has also failed to
– produce the three absconding foreign accused in India court.
– stop accused Union Carbide Eastern Inc., Hong Kong from “disappearing”.
– visit the Institute, West Virginia plant to document the design differences between the two plants that would show that the Bhopal plant was deliberately under designed.
– deliver summons and execute arrest warrants despite being India’s Interpol agency.
– prevent the sale of shares of UCC, USA in UCIL in 1994 thus loosening the grip of the Indian court over the absconding corporation.
– appeal against the order of the Supreme court that diluted criminal charges against Indian accused.
– take action against the sale of Union Carbide’s intellectual property in India while the corporation is absconding from justice.
– make Dow Chemical, USA, current owner of Union Carbide, appear in the Bhopal court despite clear orders.
3. Why did the case against the Indian officials take so long?
The verdict against the Indian accused is now expected 25 years after the disaster in 1984. The CBI filed charges only in 1987. From 1989 to 1991 it was quashed by the Supreme Court’s order on settlement. From 1993 to 1996 the matter was under revision by the State High Court and the Supreme Court which diluted the charges from culpable homicide to death by negligence.
The case involved examination and cross examination of 178 prosecution witnesses and 8 defence witnesses and presenting over 3000 documents before the court. Hearings in the case were usually scheduled once every month but very often there was a gap of two to three months between hearings.
Repeated demands of survivors’ organization to set up a Special Prosecution Cell for effective and quick prosecution was turned down by the government.
4. What needs to be done to bring the absconding accused to trial?
As the Minister in charge, the Prime Minister must:
– create a Special Prosecution Cell in the CBI for effective and timely action on extradition of foreign accused and collection and presentation of evidence against the foreign accused.
– direct CBI to move on extradition of authorized representative of UCC and resend extradition request for Warren Anderson.
– direct CBI to follow the assets of Union Carbide Eastern Inc. to ensure that the representatives of the accused corporation face criminal trial.
– direct CBI to take action on illegal trading of UCC technology in India.
– direct CBI to take legal action so that summons issued against Dow Chemical, USA can be delivered.
Above all, there is need for sea-change in the political will of both the US and Indian administrations for broad assistance and mutual cooperation on the criminal prosecution of the foreign accused.