A Red Herring

Posted on 1-July-2010

     In an early December night in 1984, people in the Indian city of Bhopal, mostly poor, living in the vicinity of a pesticides plant owned and operated by Union Carbide (India) Limited, the Indian subsidiary of the US company Union Carbide Corporation were awakened to immediate or lingering death or debilitating physical conditions caused by the leakage of thousands of tonnes of methyl isocyanate and other toxic gasses from storage tanks at the plant. In all, some 15000 people died and a few hundred thousand suffered or are still suffering from sundry afflictions and illnesses. Almost by general consent the incident has been dubbed the world's worst industrial disaster.

     The compensation and relief measures adopted by governmental authorities or by Union Carbide never satisfied the victims or those individuals who spoke on their behalf. Yet, with time, the consequences of this industrial disaster slid out of the consciousness of political parties, Indian politicians, newsmen and gurus of spiritual or other kinds. Efforts of a handful of social activists, in groups or alone, to continue their fight for justice for those affected, became increasingly forlorn. Bhopal gas victims' cases became just some among many of those lost causes, except that a Bhopal trial court's verdict given on the 7th of June this year convicting seven former office bearers and senior employees of Union Carbide (India), two of whom are already dead, for causing death by negligence and sentencing them to two years in prison and fines of Rs. 100,000 each caused such shocks and aroused so much anger that it became impossible for people in power in Delhi not to react. The shock was caused not because the trial court had asked any difficult questions but by the lightness of the sentences, leading some to say that the court had treated the whole episode like a traffic accident.

     Initial media reporting suggested that the sentences were light because the Supreme Court of India had in 1989 ordered the investigating agency to charge those guilty with causing death by negligence instead of their earlier charge of culpable homicide not amounting to murder. Since then the managers of the Indian National Congress and the media, particularly the electronic media--which are the only ones with mass, dumb audiences,--have sought to divert attention to just three questions: the circumstances in which Warren Anderson, the CEO of Union Carbide Corporation which owned just over half the stock of Union Carbide (India) at the time of the accident, who visited India one day after the accident and whose arrest had been ordered by a Bhopal magistrate was not only allowed but actually helped by the governmental machinery to leave India, the adequacy of compensation for the victims and their families and the loopholes in the law in India that allowed those responsible in Union Carbide (India) to get away so lightly, if, whenever, that is, the appeals courts uphold the sentences handed down by the trial court.

     The Warren Anderson question which has so dominated television talk shows during the past three weeks turned out to be tricky for the Indian National Congress which ran both the federal government of India and the government of the state of Madhya Pradesh--where Bhopal is located--at the time of the accident. The Prime Minister of India at the time happened to be Rajiv Gandhi whose reputation is the most important political capital for his widow who at this moment holds unquestioned authority over the Indian National Congress, and, indirectly, over all important decisions of the present government of India. For this reason, in all discussions of Warren Anderson's departure from India in December 1984, it becomes imperative to ensure that no suggestion is made that Rajiv Gandhi was personally involved in the decision to let Anderson go. Various minions--including a retired politician and a retired diplomat--have spoken on this single question saying things which range from disingenuousness to sheer stupidity. The sum total of what they have said is that before Anderson came to India an undertaking was given by government of India to the US government that he would be allowed to visit India and leave without let or hindrance. It is another matter that anyone familiar with the functioning of Government of India of the time would know that no one would give such an undertaking without the approval at least of the Minister of External Affairs who happened to be Rajiv Gandhi himself at that time.

     In response to the latest outcry the Prime Minister constituted a group of ministers--a committee by another name, but a committee nonetheless-- which recommended renewed efforts at extradition of Anderson, an additional package of compensation for the victims and an approach to the Supreme Court of India as a recourse against the decision of the trial court in Bhopal. These recommendations have been accepted. India's law minister has already spoken of legislation to strengthen Indian law so that tragedies of the Bhopal kind do not happen again. Evidently these decisions have been announced with such speed in the hope of tamping down public outrage, a kind of firefighting exercise. It was necessary for these reasons to draw a huge red herring called Warren Anderson. First of all it is extremely doubtful if Warren Anderson will ever be extradited to India. There are far too many court decisions in the USA about Anderson's criminal liability as well as about the civil liability of Union Carbide Corporation for the legal tangles to be untangled any time soon. The Indian government's lawyers will know that. Even if Anderson were extradited, it would be very difficult to establish in an Indian court of law his personal culpability on a criminal charge for the simple reason that he was in no way involved in operating the plant in India. The most he could at this stage be indicted for is jumping bail.

     The red herring helps the chatterati divert attention from some more difficult questions. The first of these is about the size of the compensation settlement between Union Carbide and Government of India, US$470 million. Many have argued quite cogently that this was too small, given the extent of the damage caused by the Bhopal accident. Two comparisons show how strong this case is. The Exxon Valdez oil spill off the coast of Alaska in 1989 caused environmental damage but no loss of human life. Yet in the final court settlement, seven US entities including EXXON were asked to pay punitive damages amounting to US$ 5 billion, in addition to several million dollars worth of compensation to various parties. In the case of the latest oil leak in the Gulf of Mexico where other than the nine lives initially lost in the explosion at the well no other lives have been lost or are directly threatened, the US administration has got British Petroleum to place US$ 20 billion into an account to be administered by an independent authority for the purposes of restoring the environment and re-establishing those whose livelihoods may be destroyed as a result of the leak. This is in addition to the money British Petroleum is currently spending on mitigating the damage caused by the leak. The Bhopal settlement with Union Carbide also happened when Rajiv Gandhi was in charge.

     While personal criminal liability of Warren Anderson in the case of the Bhopal gas leak may be difficult to establish the criminal liability of those directly in charge of the pesticide plant and of those managing Union Carbide (India) is patent. Yet it has taken more than a quarter century for a trial court to indict some of those responsible and to hand down such ridiculously light sentences. This more than anything else should be enough to erode faith not only in the laws on the statute book but in the entire judicial system. There has to be something completely putrid in a system that permits such an outcome.

     But it is not only the judicial system that is to be blamed. Accidents of course are by definition unpredictable. But modern technology has designed a large number of safety devices and redundancy measures for different kinds of manufacturing units so as to minimise the risk of accidents. Modern technology has also devised a large number of procedures to follow in case of an accident so that damage is kept to the least possible. All these cost money. Businesses everywhere are greedy, do what they can to maximise their profit and to cut costs and for this they will cut corners when no one is looking. This is where the state comes in. It is the state's business to legislate on safety measures and emergency procedures that manufacturing plants must adopt and to employ agents to ensure that the state's laws are enforced. There are any number of studies that establish that the managers of Union Carbide (India) skimped on safety measures and emergency procedures in violation of the law and that a succession of officials and politicians acquiesced or connived. Even regulations about the location of a plant dealing with dangerous substances in the neighbourhood of an urban concentration were ignored.

     And, more damningly, leading sections of Indian society have been more or less blasé about it all. Once the compensation settlement of US$ 470 million was announced 'mainstream' India lost interest in the aftermath of the Bhopal accident. It remained the concern of just some 'oddball' activists. Now that the decision of the Bhopal court has roused public anger, everyone is talking about it, if not always of the really worrying issues, at least of the red herring drawn by the Indian National Congress. The anger will die down in a few days and not only people but political parties will also lose interest. For the more sensitive the Bhopal accident and the handling of its consequences will remain a permanent indictment of those who have political power, of those who preside over its judiciary and of India's ruling classes in general. The wonder is that they get away so often with the trampling of the rights of the poor and the helpless, pulling wool over their eyes.