Bhopal: The Problem

The capacity of the corporation to cause immense and irreparable harm and loss moved from conjecture to experience with the Bhopal gas disaster. Industrial risk, which had found tolerance as an inevitable, even if unfortunate, aspect of enterprise and industrial progress, precipitated into industrial hazard when methylisocyanate (MIC) leaked out of the Union Carbide factory in Bhopal on the night of 2/3 December 1984. The Union Carbide Corporation (UCC) was the majority shareholder in its Indian subsidiary, the Union Carbide India Ltd. UCC brought the plant to India, trained UCIL personnel, made decisions about investing in maintenance of the plant and machinery, monitored the functioning, and profitability, of the plant. UCC had been deliberating whether shifting the plant to Indonesia or Brazil would increase its viability when the disaster intervened, bringing the curtains down on this proposal.

Yet, when UCC was called to the dock to answer for the disaster, it refused to acknowledge its responsibility. In litigation that followed, the Indian government, as statutorily appointed representative of the community of victims, approached the US courts to adjudicate the civil claims for compensation and damages; the US courts declared that they were an inconvenient forum but directed the UCC to appear before the Indian courts; the matter of interim compensation was raised by victims’ groups in the district court which asked UCC to pay Rs 350 crore as interim relief to the victims; the High Court adopted an altered reasoning and awarded Rs 250 crore; and while this matter of interim compensation was being argued in the Supreme Court, a settlement-order was passed by that court bringing all proceedings past, present and future to a close upon payment of $470 million by UCC and UCIL.

Doubts that assailed victims, victims’ groups and court observers have persisted down the years. Why did the Supreme Court endorse a settlement made, avowedly in the interest of immediate relief to the victims when, in fact, the process of identifying the victims was yet to take off? Was it a settlement, or was it complicity between the state and the corporation? Was there a price attached?

The settlement was not merely a final determination of matters connected with the liability of the multinational corporation, it also signalled the departure of the MNC, and its CEO, from the jurisdiction of the Indian courts. UCC and Warren Anderson, who was the CEO at the time of the disaster, are today proclaimed absconders in the criminal trial which was restarted after the ‘settling’ of the criminal cases was set aside by the Supreme Court in a review order in 1991. When the UCC was asked to set up a hospital for the victims, it adopted a front, and a frontman, who operated as the Bhopal Hospital Trust (BHT), and monies that were attached as indemnity in the criminal proceedings were steadily siphoned away in the name of the Trust.

All questions relating to composition of the gas, its antidote, and any other information that may help in the treatment of the survivors remain unanswered by the corporation. The different standards adopted in the Bhopal plant and UCC’s West Virginia plant remain unexplained. And the absconding corporation and the silent corporation have now been joined by the vanishing corporation – UCC has merged with Dow Chemical, and Dow would have it that it is not responsible for the disaster and its consequences. It has taken years of work, and litigation, to wring out an acknowledgment of Dow’s responsibility for cleaning up the toxic waste that UCC had left behind which is even now contaminating the soil and water in and around the plant site – something that Dow continues to disclaim.

The endless ability of the corporation to slip beyond borders, change from one legal entity into another, play the litigation game, deploy money power and the threat of all MNCs backing off from a state that calls an MNC to account, is in plentiful evidence. Developing economies are especially vulnerable. It is this that made a judgment of liability important in Bhopal; a judgment we did not get.

International efforts since have been mild. The Global Compact launched by the UN Secretary General Kofi Annan is an instance. The Norms which are presently being developed under the aegis of the Office of the High Commissioner for Human Rights is an improvement, but need much work before it travels beyond being a voluntary, and therefore weak, code.

It is not only the corporation which stands indicted. The state too is arraigned, accused of giving the corporation an unregulated licence to cause harm, even to kill. In Bhopal, concerns about state complicity in corporate crime were sidelined when the Bhopal Claims Act was enacted in March 1985. With this act the state arrayed itself along with the victims, till the settlement was reached. The policy, and regulatory, role of the state has thus stayed beyond scrutiny and remains among the unresolved issues that are a legacy of the Bhopal litigation.

In December 1985, when oleum gas wafted into the atmosphere from the Shriram Foods and Fertilisers factory in Delhi, the Supreme Court seized upon it to expound principles of absolute liability, enterprise liability, deterrence, personal liability of directors and managers of safety, and workers’ right to participate in safety management. The prescription of relocation of industries was mooted as a facet of safety. In 1987, this resulted in an amendment to the Factories Act 1948, and a chapter IV A was introduced to account for hazardous processes. Disaster preparedness and disaster management were enunciated in a context where it was acknowledged that disasters were likely to affect persons living in the vicinity of a factory, and that they, and the local authority, ought to be alerted to what they need to do in the event of a disaster. This is in the letter of the law; there is little evidence that it has been translated into practice.

In 1991, a law to make it compulsory to insure hazardous industry was brought in. The Public Liability Insurance Act 1991 was amended in 1992 after the insurance companies refused to insure hazardous industry for indefinite amounts. The PLIA 1991 was Parliament’s effort to provide for interim compensation in the event of an accident arising out of the use of hazardous substances. Its use seems to have been minimal. Despite a fair regularity of accidents over the years, and a premium of Rs 56,56 crore collected between 1992 and 2000, the relief claims paid amount to a mere Rs 46.45 lakh. There is a non-use of the provision made by this law which requires to be explained by the agencies of state. In 1995, a National Environment Tribunal Act was enacted to provide a forum for speedy redress in the nature of interim, and final, compensation to those who fall victim to hazardous accidents. The act still remains unenforced, and there has been no public explanation for this inaction.

The post-settlement phase has witnessed a range of proceedings that has resulted in further victimising the victim. Arbitrary categorisation, suo motu reduction of compensation amounts, determination by lok adalats that were set up to clear cases rather than do justice to the victims, the long wait, the miserly sums awarded – most of the injury claims were settled for Rs 25,000, without interest, and the payments made where death occurred averages at around Rs 67,000 – the absence of legal aid in Bhopal, the striking off from the list because of non-appearance, and so on.

The recognition as victim has been a precondition to treatment in the speciality hospitals, doubly victimising a person suffering unrecognised harm. The unwillingness of UCC to give information on the compound that escaped has meant that the treatment is based on inadequate, or no, information, often symptomatically. The closing down of the ICMR studies, and the paucity of research on the effects of the disaster, bear down on the victims as does a burden.

The 'settling' of criminal cases in 1989, their reopening in 1991, the reduction of charges against the Indian accused in 1996, the years that no extradition request was made for bringing Warren Anderson to trial, the refusal of the US government to agree to extradite, have rendered justice through criminal law difficult to achieve.

Amidst all this, the impoverishment and the reduction, even loss, of livelihood options stands in stark relief.

The victims, however, have refused to give up. National, and international, campaigns demanding the particular accountability of UCC and its new owner, Dow, have been gaining strength even as victims become survivors. Workshops and small businesses have been set up to provide livelihood. Alternative medical care has been established. And the judiciary and the executive have been consistently engaged to make them deliver to victims their due.

The persistence of the victims appears to have somewhat turned the tide. In May this year, following a Supreme Court order, the state government was required to provide clean water to the areas affected by the contamination in and around the factory site. In July, the contention over the settlement money that remained with the state was resolved with the Supreme Court recognising that it belonged to the victims, and ordering that it be disbursed among the victims in proportion to the amounts paid to them as compensation; and on 15 November the first cheque was handed over. In August this year, the Supreme Court ordered that an independent medical advisory body and monitoring committee be set up to oversee the medical relief and rehabilitation of the Bhopal victims.

The unfinished agenda presents a long, and severe, list. The experience of disaster, and hazard, calls into question the impunity which shields corporations. Chemical industry, and its free riding on the commons and on the human body is under challenge; but the presumptions of development, and the imperatives introduced by privatization, liberalization and globalization in the ’80s and the ’90s, provide distortions which will have to be righted before reaching a resolution of this knotty issue. Twenty years after Bhopal, and it would seem the first tentative steps towards corporate accountability are yet being taken.