Bhopal: Justice at a Dead End

Bhopal has etched itself in public memory as a term that sums up several themes: criminal negligence, the collapse of supposedly fail-safe technological systems and thousands left dead. To that could be added more unsavoury dimensions: a failure of accountability, the denial of a fair opportunity for the victims and survivors to put their lives back on track and indeed, a collapse of the system of law and justice in a welter of self-serving and mutually contradictory judicial pronouncements. Apart from the wounds, the physical disabilities and the psychological scars which continue to take a heavy toll, Bhopal leaves an enduring legacy of disregard for human life, fallible political institutions, and judicial ineptitude.
Responding to a debate in Parliament during its recent monsoon session, Union Home Minister P. Chidambaram admitted to a “deep sense of guilt” at how the process of justice for Bhopal had run aground, since the executive branch of government and the legislature had failed to exercise the “vigil and the supervision that the situation warranted”. The “elected political class” of India, he said, “had let down the victims of Bhopal” and this abdication had been enabled, indeed facilitated by the intrusive attentions of the judiciary. For years together, said Chidambaram, the executive and the legislature sat back as the judiciary took on virtually the entire onus of righting the wrongs of Bhopal. This was a grievous error, in fact a thorough miscarriage of the process of governance, in Chidambaram’s retrospective assessment.
A Home Minister donning sackcloth and ashes to atone for the sins of successive governments – and indeed of all who have held elected office -- is surely a novel spectacle for India. But the debate in parliament over the two days prior had put on display all the familiar proclivities of the “political class” that Chidambaram chose to bear the collective burden of remorse for: nitpicking, the refusal to take responsibility and an inability to see the larger picture. And nobody epitomised these any more than Arjun Singh, chief minister of Madhya Pradesh at the time of the Bhopal holocaust.
Coming out of the seclusion imposed by ill-health to participate in the debate in Parliament, Arjun Singh seemed less interested in what had gone wrong and how it could be set right, then in entering a self-exculpatory account of his conduct during those fateful days. Eager to claim credit for the entirely symbolic arrest of the chairman of the offending multinational corporation on his arrival in Bhopal, Arjun Singh feigned innocence of how the man cast as principal villain secured bail and left the country. Keen to protect the image of the prime ministerial incumbent at the time, whose family continues to exert preeminent dynastic influence over the ruling party, Arjun Singh unsubtle hints of the culpability of the man who was union home minister at the time. Here clearly, was a man determined not to acknowledge, leave alone learn the lessons of history, indeed, a man completely indifferent to the prevailing public mood.What the country witnessed on June 7 was nothing less than a dam-burst of public outrage, when eight individuals accused of responsibility for the Bhopal holocaust were each handed the derisory sentences of two years in prison. But if ever there was a miscarriage of justice foretold with absolute certainty, it was this. It was not June 7, 2010 when the die was cast, but September 13, 1996. There were several who were outraged then, but their voices were not heard. The matter remained cloaked in complex judicial reasoning, and the media, which on June 7, worked itself up into a lather of moral outrage, had little inclination then to penetrate the fog of obfuscation. Yet, it now has to be asked if the media and the public lost the plot right then, that it only managed to understand the enormity of what was going on, when it was really too late.
It was on September 13, 1996, that the Supreme Court overruled the findings of all lower courts, disregarded the urgent pleadings of counsel for the Indian government, and quashed the charges of “culpable homicide” and “voluntarily causing bodily harm” that had been brought by the prosecution. In place of these, the Supreme Court held, with an abundance of specious argumentation -- well documented recently by Colin Gonsalves -- that no more than a charge of “causing death by negligence” could be laid (See “The Bhopal Catastrophe: Politics, Conspiracy and Betrayal”, Economic and Political Weekly, June 26, 2010, pp 68-75). As Sriram Panchu has pointed out, the court’s ruling was procedurally dubious, since it is only in rare cases -- when there is evident lack of credibility in the nature of the charges brought and a mismatch with the character of the evidence placed – that the higher judiciary can intervene in the framing of charges (See “Bhopal Gas Leak Case: Lost Before the Trial”, Economic and Political Weekly, June 19, 2010, pp 10-1). But once that crucial judicial determination was arrived at, the trial court had no option but to impose the maximum stipulated penalty under the law.
In the wake of this entirely predictable judicial disaster, the central government, which held the sole and exclusive power to litigate on behalf of the Bhopal victims, scrambled in extreme haste to find a way to tackle nationwide indignation. A Group of Ministers (GoM) was empowered to go into the verdict and its numerous ramifications and apply correctives where possible.
Misplaced Commentary
Media commentary, after a few cursory examinations of the grievous and still unhealed wounds of Bhopal, turned its attention to one person: Warren Anderson, chairman of the delinquent company, Union Carbide Corporation (UCC) at the time of the accident, now a nonagenarian living out his years of retirement in remote suburban U.S.A. The angry swirl of public opinion then found a narrow and perhaps rather superfluous question on which to focus: who had permitted Anderson, soon after his arrest in India in the wake of the gas disaster, to leave the country on bail secured on a nominal bond of Rs 20,000? Lost in the entire froth was a simple question: would it have served any purpose at all, if Anderson – like a typical Indian under-trial – been locked away years together, when the judicial process was compromised from its very start and the political will to pursue a complex litigation without sacrificing principle, simply lacking?
Yet that became a consuming media obsession, with everybody with a possible role in that relatively minor episode in the Bhopal saga being ardently sought out for their half-baked and invariably self-serving remembrances. And the current ruling party in its own contribution to the cacophony, showed little more than its usual obsessive concern with sparing Rajiv Gandhi, then in the thick of learning on his newly acquired job as India’s Prime Minister, any part of the blame.
The GoM itself spent much time deliberating this question of blame, finally resolving it on the basis of “contemporary media reports”. If institutional memory is a basic requirement for credible processes of accountability, here is one respect in which Bhopal has shown up a glaring lacuna at the heart of the Indian governance process. All that the GoM has to offer is that Anderson visited on an oral assurance of “safe passage” proffered by an unidentifiable individual, and that the Indian Prime Minister then was briefed on his arrest and subsequent release after the fact.
The GoM records that Anderson was granted bail “on certain conditions” and that the subsequent course of events proves conclusively that his failure to respond to repeated judicial summons amounted to a “wilful” violation of bail conditions. But there is a story behind how this wilful pattern of defiance of the law was in effect, condoned, by weak and inept procedures of cross-border enforcement. It is a story that the GoM seeks only partially to narrate.
As recorded in the minutes of the GoM – classified as “secret” and made available by unnamed individuals – the Bhopal Chief Judicial Magistrate (CJM) first issued summons to Warren Anderson in December 1987. A subsequent warrant issued in November 1988, “could not be executed in the U.S.” . In January 1992, a “proclamation” was published in a U.S. newspaper, “requiring the appearance of Anderson” for criminal proceedings in India. Following this, the CJM issued an order for “attachment” of his property -- again infructuous -- reportedly because there was no “procedure” available in the U.S. for its execution. The CJM then in April 1992 issued a non-bailable warrant for Anderson’s arrest and extradition to India. The Central Bureau of Investigatioin (CBI) which had been entrusted with prosecuting the case, then “initiated extradition proceedings” in September 1993. For reasons yet unclear, this matter “remained in correspondence between the CBI and the Ministry of External Affairs until 2001”. Legal opinion was then received from a U.S. law firm and the Attorney General of India, that the extradition process was unviable in the case of Anderson. On CBI’s insistence otherwise, a request for extradition was made in May 2003, only to be turned down in June the next year. The matter now rests with a letter from the Indian Ambassador in the U.S., informing the CBI “that the U.S. has maintained that since they had received no further material from the Indian side, they could not change this decision”.
Failure of the Higher Judiciary
What is missing in this narration is an account of how the judicial process in Indian continually undermined this quest for extraditing the principal accused for Bhopal. Stepping into a terrain that it was not required to go into, the Supreme Court in February 1989 ordered a full and final settlement of civil suits arising from Bhopal and decreed the abatement of all criminal charges. It then upheld the validity of the civil settlement but reinstated criminal charges in October 1991. And in September 1996, it mitigated all charges against nine of the accused, including the UCC subsidiary, Union Carbide (India) Limited (UCIL) to “negligence” rather than “culpable homicide”. It took pains to underline that the first-accused Anderson, and two others -- UCC as a company and its subsidiary for the Asian region, Union Carbide (Eastern) Ltd (UCE) -- were not party to the petition since they were absconders under the law. The mitigation of the nature of the charges in short, did not apply to them.
Those thus absolved of the crime of “culpable homicide” included Keshub Mahindra, V.P. Gokhale and Kishore Kamdar, who were at the time of the accident, chairman, managing director and vice-president in charge of the pesticides division, of UCIL. The Indian subsidiary itself and five of its functionaries with direct responsibility for the Bhopal plant, including J. Mukund, works manager, were similarly exonerated. When the Indian agencies overcame a decade of hesitation and uncertainty and made the request for Anderson’s extradition in May 2003, the offence specifically mentioned was the greater one of “culpable homicide”. This was in effect, to argue that the chairman of the parent corporation bore a greater liability under the law than those with immediate charge, including those who were concerned with the day-to-day functioning of the Bhopal plant. The U.S. response – which has now belatedly come to light thanks to the public availability of the GoM minutes – was that “there was insufficient evidence of intent on the part of Anderson which was necessary to show probable cause (for extradition) under U.S. law”.
The GoM has now urged that the government make a stronger case by bringing on record the mass of evidence recorded by the CJM since 1997, when the formal criminal proceedings opened – as also the material circumstances that came to light since the request for Anderson’s extradition was first made. At the same time, undoubtedly to provide a firmer underpinning to this request, the government has been advised to file a “curative petition” before the Supreme Court, to ensure the reinstatement of the charge of “culpable homicide” framed by the Sessions Court in Bhopal and upheld by the High Court of Madhya Pradesh at Jabalpur. The Jabalpur High Court will concurrently be requested to set aside the CJM’s verdict of June 7 and commit the case afresh for trial before the Bhopal Sessions Court, which is the appropriate forum for hearing cases under the relevant charge of “culpable homicide”.
These are a number of interlocked procedures which stand or fall together. There are ample opportunities for procedural delays at every point. And it all depends upon the sense of urgency with which the Supreme Court handles the curative petition that was filed before it on August 2. Once before, in March 1997, has the Supreme Court refused to entertain such a plea from groups representing the victims of Bhopal. And without a firm ruling on this petition, the Jabalpur High Court would not have a basis to order the course of judicial correction that the GoM has urged. Neither would the extradition process against Anderson have very much legal substance.
If past is prologue, then this complex sequence of judicial correctives that the GoM has proposed, is likely to founder in quick time, simply because it all hinges on the Supreme Court’s willingness to cast a ruthlessly critical eye over its own questionable conduct. Consider the facts of the GoM report: evidence suggesting liability for “culpable homicide” came to light in 1997, well after the Supreme Court had dismissed that particular charge. In this, the Supreme Court rode roughshod over the respected convention that the higher judiciary will not examine the credibility of evidence at the trial stage. Still more evidence came to light after 2003, when the Indian government made its first formal request under a bilateral treaty for Anderson’s extradition.
In 1991, while partially reversing its infamous “full and final settlement” of February 1989, the Supreme Court had observed that justice for the victims of Bhopal was important, but so too was it vital to ensure that nothing was done that would “affect the dignity of the Court and bring down the serviceability of the institution to the people at large”. Earlier, in upholding the constitutional validity of the law reserving the exclusive right to litigate on behalf of Bhopal’s victims for the union government, it held: “the credibility of the judiciary is as important as the alleviation of the suffering of the victims... we hope these adjudications will restore that credibility”.
Yet the Supreme Court plunged on along a most dubious track. In February 1997, it allowed the sale of UCC assets in India and the transfer of the proceeds to a trust floated by the company, evading the question of the legality of the trust itself. This was at the time that UCC had been proclaimed an absconder from the law by the trial court in Bhopal and the trust floated by it an illegal entity. The CJM had indeed, held that the trust was illegal and ordered the attachment of all assets of UCC in India. The Supreme Court in February 1994 allowed the sale of these shares on the grounds that it was not UCC that was the seller, but the trust that it had floated. It ordered though, that the money realised from the sale should be earmarked in part for a hospital to be set up to treat the gas disaster victims. The larger part of the money realised, though would remain in the custody of the CJM, pending final settlement of all claims.
Over the next three years, the Supreme Court, through a sequence of highly questionable rulings, effectively transferred the entire money realised from the sale of shares to the trust. In the process, it refused to rule on the legality of the trust, and declined to impose the prior condition that UCC should submit itself to criminal proceedings in India. Indeed, it continued to insist with tenacious resistance to reason, that the hospital trust was an entirely different entity, which was free of the taint or suspicion of criminality. Within a year of his retirement, A.M. Ahmadi, who as Chief Justice of India had presided over the court through this entire course of litigation and sat on many of the benches that decided crucial questions, accepted office as chairperson of the trust. It was only in the wake of the judicial disaster of June 7, that Ahmadi in a long delayed act of conscience, stood down from his position as chairman of the trust.
The GoM records that the Bhopal Memorial Hospital and Research Centre (BMHRC) which was set up under the trust, has been thoroughly ineffectual in handling the problems of the survivors and victims. The salaries that it pays medical personnel are lower than for similarly skilled workers elsewhere, several of its posts are vacant and many of its departments non-functional. On March 31, 2009, it had a financial corpus of over Rs 430 crore, though deficits were projected to grow over the next five years. In October 2009, it moved the Supreme Court for liquidation, pleading that the government take over the hospitals and other facilities established under its aegis. With the June judgment bringing about greater public attention on the matter, the trust’s request for liquidation was granted by the Supreme Court.
In most instances related to Bhopal, the subordinate courts did what was right and logical, consistent with the norms of judicial fair-play. The High Court in most cases, went along with the rulings given by the lower courts. It was always at the Supreme Court that the principles of fair-play were stood on their head. Thus it was that even while being a proclaimed absconder under the law, UCC was represented through its advocate on record, J.B. Dadachanji, in all the hearings in the Supreme Court on the transfer and sale of its shares. A Bhopal activist who protested in open court over this undue honour being rendered an absconder corporation, was held to be in contempt and ordered imprisoned for the duration of the proceedings.
In later years, Dadachanji was interrogated by the CBI for possible involvement in the Bofors payoffs scandal, as a money-handler for a prominent political dynasty. He reportedly stuck to the strategy of stout denial and soon enough, the case itself collapsed as a consequence of gross prosecutorial incompetence and insistent political pressure. But it needs to be underlined that if the Supreme Court was the institution that put its stamp of approval on every betrayal of the cause of justice for Bhopal, its role was in most instances, a camouflage for the far greater abdication of responsibility by the political authorities, which usurped the right of the victims to fight their own battles, and suppressed vital information that could have healed. The CJM has now held, without equivocation, that the guilty of Bhopal are UCC and the governments of India and Madhya Pradesh, that indeed, “the tragedy was caused by the synergy of the very worst of American and Indian cultures”. This decisively explodes the pretence that the government’s monopoly on litigation for Bhopal was a rightful one, born in the “doctrine of necessity”, since the victims themselves were not capable of facing the onerous challenge of fighting their own battles. The basic principle of natural justice that no individual or entity can be both plaintiff and defendant in the same case, stands violated. Bhopal has been a gross miscarriage of justice and a gigantic breach of faith by a government that claimed to be acting in its citizens’ best interests. But these perhaps were foretold from the time that the government, acting on a wide – and as it turns out, misplaced -- nationalist consensus, took on the onus of pursuing the Bhopal litigation, effectively extinguishing the victims’ rights to represent themselves.

Moments of Distress Remind Us That There is No Escape from History

India and Pakistan observed their recent anniversaries of independence from colonialism in distinctly sombre mood. Despite the hard times, if there was room for make-believe in India, the unprecedented humanitarian catastrophe that had Pakistan in a vice-like grip, left that country no such luxury.

Life for the estimated tenth or more of Pakistan’s population that has been dislocated by floods in the Indus river basin, will never again be the same. Few expect the corrupt and internally riven Pakistan state apparatus to live upto any norms of accountability in a moment of mass distress. And if nature’s cruelty was not sufficient, Pakistan’s independence day witnessed two lethal militant attacks in the Balochistan province and a U.S. drone missile strike in the northern areas that may have killed a number of civilians.

India faced its own national security anxieties, as mass protests raged in Kashmir and the Maoist insurgency in the country’s forested heartland kept up an insistent pressure on security forces deployed in all their coercive might. Preparations for the pageantry of the Commonwealth Games, primed as the equivalent of a debutante ball marking India’s emergence on the world stage, were meanwhile drawn into a morass of corruption and mutual recrimination.

Pakistan’s flood misery was a zone of silence for the Indian media, though that country’s singular failure to secure pledges of aid to tide through the humanitarian catastrophe, earned a number of mentions. The aid deficit was put down quite categorically to squandered trust, a consequence of the Pakistan state’s unsavoury global image.

When a newspaper in the U.S., ostensibly on the basis of privileged intelligence documents, reported that Pakistan’s security establishment had downgraded India from primary existential threat to a secondary status next to jihadi terrorism, the Indian media saw a stratagem to overcome an international trust deficit. There was yet no willingness to acknowledge Pakistan’s vulnerability to terrorism, since that would have been discordant with an official Indian narrative that the source of all evil cannot be its victim too.

Anxieties about Islamic extremists moving into the humanitarian vacuum caused by the retreat of the Pakistan state earned wide media coverage, as did the occasional outpouring of nationalist paranoia in Pakistan, that held India responsible for the devastating floods.

Yet for all the moral advantage enjoyed over its truculent neighbour at a juncture when both countries look back on shared and separate histories, India suffered its own moments of discomfiture. Kashmir continued to be under siege from within as security forces unaccustomed to democratic scrutiny faced off angry street demonstrations by a generation grown to maturity in a brutally militarised environment.

In an admission of fallibility that would have been unthinkable just months back, the Union Home Minister in Parliament, took the name of an individual associated for decades with the Pakistan constituency in Kashmir and commended him for his call for peace, after street demonstrations had claimed over fifty lives.

Mortifyingly though, the individual concerned rejected the overture and called on the people of Kashmir to celebrate Pakistan’s independence on August 14 and boycott the following day’s observances of Indian freedom.

Yet the stridency of the discourse on India’s supposedly inalienable right to reign over Kashmir and its people, showed little abatement. A statement by U.N. Secretary-General Ban Ki Moon, made in the context of the Kashmir turmoil, about the need to consolidate on the salutary progress made in the “composite dialogue” with Pakistan, stirred up bitter resentment in India, and a flurry of speculation over whether he had actually said what he was purported to have.

India lodged a protest and was told that Moon’s remarks were not really his, but merely a pro forma “guidance” that had been prepared by his staff. The Indian media promptly traced the hand of a Pakistan national in the U.N. secretariat behind the offending statement. When Moon arrived on a humanitarian visit to Pakistan, there were muttered remonstrances that he would be well advised not to put India too on his itinerary.

After years spent chafing at the neglect of the west, India began gaining an advantage over Pakistan when events in Afghanistan began taking a turn that the U.S. had not prepared itself for. But that phase of intimacy with the U.S. proved rather transient. For purely pragmatic reasons, the western alliance against terrorism is now prepared to factor in Pakistan as a nation with legitimate anxieties and concerns, since there is otherwise little chance for the project in Afghanistan to succeed.

India’s absolutist posture that it will not enter into any dialogue until Pakistan ceases the export of terrorism, had traction for a while. So too did India’s argument that reconciliation with the anti-government forces in Afghanistan would be a futile pursuit so long as they remained resistant to all norms of democracy.

But the sources of terrorism are now known to be much more diverse than just the one country that India attributes all its ills to. Indeed, many of the political elements that were most strident in pursuing this theme, are now known to have been eager participants in the cult of terrorism. The opportunistic advantage conferred by the benediction of the U.S. will soon dissipate. India could soon face a rather stark choice: either open negotiations with its neighbour under superpower coercion, with consequences that will be of little advantage to either, or make an honourable peace that is respectful of mutual interests and honours the rights of the people of Kashmir.