People's Democracy

BHOPAL GAS CRIMINAL CASE

25 LONG YEARS OF INJUSTICE

Sadhna Karnik Pradhan & N D Jayaprakash

The details of the verdict that has now come in the Bhopal gas case need no iteration. It is, in any case, clear that the verdict, that came 25 years, 6 months and 5 days after the worst industrial disaster in the world claiming no less than 25,000 lives, has exposed the weaknesses of the Indian legal-judicial system that easily succumbs to the Indian and foreign corporate houses and the imperialist powers. It also shows what fatal consequences may flow from the impotent willingness of premier parties in our country, like the Congress and the BJP, to capitulate before the US imperialists.

Reacting to the verdict, the Madhya Pradesh state committee of the CPI(M) has castigated the dismal and contrived failure of the successive Congress and BJP government even in bringing to book the Union Carbide boss Warren Anderson, the main accused in the Bhopal crime. Saying that the Indian judicial system has strangulated itself in the interest of US corporate capital, the CPI(M) state committee said the government of India could harvest only Headleys by sowing the crop of Andersons.

MORE than 25 years ago, inhabitants of the city of Bhopal became victims of the world’s worst chemical disaster when on the night of December 02-03, 1984 a huge toxic plume engulfed about two-thirds of the city for over two hours before it dissipated. The highly poisonous gases had leaked because of exothermic reactions that took place in an underground storage tank, which contained nearly 41 tonnes of methyl isocyanate (MIC), an extremely volatile and noxious chemical. The said storage tank had been installed at the pesticide plant of Union Carbide India Limited (UCIL), a subsidiary of Union Carbide Corporation (UCC) --- a US multinational company that held 50.9 per cent of shares of UCIL at the time of the disaster. (At the time of installation of the Bhopal plant, UCC had owned about 64 per cent of UCIL’s shares.) The immediate human death toll, according to official figures, was around 2500 while it was again officially acknowledged that residents of 36 of the 56 municipal wards of Bhopal, i.e., approximately about 600,000 of the nearly 900,000 people of the city, had suffered injuries in varying degree. It is estimated that the death toll has since gone above 25,000. The impact of the disaster on flora and fauna in the affected area was equally staggering.

CHRONOLOGY

OF THE CASE

On February 20, 1985, the president of India promulgated the Bhopal Gas Leak Disaster (Processing of Claims) Ordinance 1985 which empowered the Union of India (UOI) to act as the sole legal representative of all gas victims. The ordinance was enacted as an act of parliament on March 29, 1985. On April 8, 1985, legal proceedings for the recovery of compensation for the victims of the disaster were initiated by the UOI against UCC in the New York Southern District Court. Compensation was claimed from UCC on seven counts: a) Multinational Enterprise Liability; b) Absolute Liability; c) Strict Liability; d) Negligence; e) Breach of Warranty; f) Misrepresentation; and g) Punitive Damages. On May 13, 1986, the New York court dismissed UOI’s plea on the ground that courts in the United States were not the appropriate forum to seek justice for the gas victims. On September 5, 1986, the UOI filed a suit (Regular Suit No. 1113/86) for damages in the district court of Bhopal, which replicated, almost wholly, the suit it had filed before the US court. The other sequence of events is as follows:

November 22, 1986: UOI announced that the amount it would claim as damages from UCC exceeded 3000 million US dollars.

November 26, 1986: On the initiative of Sadhna Karnik Pradhan, the Zahreeli Gas Kand Sangharsh Morcha and Jana Swasthya Kendra filed historical first application before the Bhopal district court demanding payment of interim relief from UCC.

December 16, 1986: UCC filed a written statement in reply to the Interveners’ plea in Regular Suit No. 1113/86 contending that they are not liable.

February 2, 1987: In suit No. 1113/86 filed by the UOI on 5/9/1986, district judge of Bhopal, M W Deo, put forward a suo moto proposal regarding payment of interim relief to the Bhopal gas victims.

December 1, 1987: CBI filed charge sheet in the criminal case before the chief judicial magistrate (CJM) of Bhopal, against 12 accused including UCC, UCE, UCIL and the concerned officials of the said companies. (Accused No.1, Warren Anderson, the then executive chairman of UCC, USA; Accused No.2, Keshub Mahindra, the then chairman of UCIL; Accused No.3, V P Gokhale, the then managing director of UCIL; Accused No.4, Kishore Kamdar, the then vice president of UCIL; Accused No.5, J Mukund, the then works manager of UCIL, Bhopal; Accused No.6, R B Roy Chowdhury, the then assistant works manager, UCIL, Bhopal (now deceased); Accused No.7, S P Choudhury, the then production manager of UCIL, Bhopal; Accused No.8, K V Shetty, the then plant superintendent, UCIL, Bhopal; Accused No.9, Shakeel Qureshi, the then production assistant, UCIL, Bhopal; Accused No.10, UCC, USA; Accused No.11, Union Carbide Eastern, Hong Kong; and Accused No.12, UCIL.) 

December 17, 1987: As a consequence of the proposal mooted by the interveners on November 26, 1986 and the suo moto proposal put forward by the court on February 2, 1987, the district court of Bhopal ordered the UCC to pay an interim compensation of Rs 350 crore ($270 million) to the Bhopal gas victims.

January 29, 1988: UOI eventually filed the Amended Plaint in the district court of Bhopal furnishing all material particulars and quantifying the approximate value of the total claims (531,770 till then) at Rs 3,900 crore (3 billion US dollars), excluding punitive damages, interests, and costs of the suit.

February 4, 1988: Hearing in the criminal case (R.T.No.2792/87) began before the CJM, Bhopal. Accused No. 2 to 9 and 12 presented themselves before the court. Accused No. 1, 10 and 11, i.e. Warren Anderson, UCC and UCE, were absent. Fresh notices were issued to summon those who were absent.

April 4, 1988: On UCC’s appeal (revision petition No.26/88), the Madhya Pradesh High Court at Jabalpur modified the order of the Bhopal district court dated December 17, 1987 in Regular Suit No.1113/86 and ordered UCC to pay an interim compensation of Rs 250 crore only.

May 2, 1988: UCC filed review petition (MCC No.172 of 1988) in the High Court against the order of the High Court dated April 4, 1988 in revision petition No.26/88 in suit No.1113/88. (UCC also filed a petition for special leave to appeal (SLP) in the Supreme Court against the same order.)

July 6, 1988: CJM Bhopal issued letter rogatory to the US administration seeking permission for the CBI to inspect the safety systems installed at the MIC Unit of UCC’s parent plant in Institute, West Virginia, USA. This was for comparing the safety standards with those of the safety systems that had been installed at the MIC unit of the Bhopal plant.

July 8, 1988: UOI filed SLP (No.8718 of 1988) in the Supreme Court against the High Court order dated 04/04/1988 in revision petition No.26/88.

September 8, 1988: The Supreme Court admitted both UCC’s and UOI’s SLPs against the High Court order dated 04/4/1988 in revision petition No.26/88 as Civil Appeals No.3187-3188 of 1988.

September 8, 1988: The Bhopal Gas Peedit Mahila Udyog Sanghathan (BGPMUS) filed a petition seeking interim relief for the gas victims before the Supreme Court.

November 15, 1988: The CJM Bhopal issued bailable arrest warrant against Warren Anderson, accused No.1, for his non-appearance in the criminal case. He was ordered to be present in Court on February 9, 1989.

February 9, 1989: When it became clear that Warren Anderson, accused No.1, had been deliberately avoiding to be present in the court, the CJM Bhopal, after accepting the CBI’s application, proclaimed Anderson as an absconder under Section 82(1) Criminal Procedure Code (CrPC), with the expectation that the accused would be present in court on March 31, 1989.

February 14, 1989:  The US administration granted permission to the CBI to inspect the safety systems of the UCC’s pesticide plant at Institute, West Virginia, USA, for purposes of comparison of the safety systems with that of the safety systems installed at the Bhopal plant.

February 14-15, 1989: In the midst of the ongoing hearing in the matter pertaining to payment of interim compensation (C.A. No.3187-88 of 1988) before the Supreme Court, there was a Court assisted settlement of the main suit itself. After withdrawing the original suit pending in the Bhopal Court before it and disposing of the same without adjudicating the issue in question, the Supreme Court directed that there be an overall settlement of the claims in the suit for $470 million (about Rs 713 crore) and termination of all civil and criminal proceedings.

PERTINENT

QUESTIONS

(The quickness with which the settlement was arrived at gave rise to two pertinent questions:

(1) Did the CJM’s decision on February 9, 1989 to issue non-bailable warrant of arrest against UCC’s chairman Warren Anderson and the US administration’s decision on February 14, 1989 to permit the CBI to inspect the safety systems of the MIC unit at UCC’s plant at Institute in West Virginia, USA, have anything to do with the hurried settlement?

(2) Why were gas victims not served notice by way of public pronouncements regarding the terms of the proposed settlement before the UOI decided to agree to the settlement?

What was equally intriguing was the manner in which the magnitude of the disaster was quantified. Although at the time of the settlement the State Govt. had processed only a fraction of the then total 5,97,908 claims that had been filed, the UOI misled the Court into believing that the total number of gas affected was only about 105,000 (including 3000 fatal cases). The fact was that there was absolutely no basis for the UOI to come to the arbitrary conclusion that the total number of gas affected was only about 105,000. On the other hand, the charge sheet filed by the CBI before the CJM Bhopal on 01/12/1987, showed that the number of affected persons was more than 500,000! There is irrefutable evidence that the UOI had, indeed, misled the Court regarding the size of the casualty figures. The fact remains that the Claim Courts have subsequently determined that the total number of victims were actually 574,367. However, the Settlement sum of 470 million US dollars (Rs 713 crore at the 1989 exchange value), which was to be disbursed among 105,000 gas victims, was not enhanced proportionately. Instead, the same was spread thin and disbursed among the said 574,367 gas victims, which effectively meant that the compensation amount that each gas-victim on an average was awarded was less than one-fifth of the amount that he/she should have received as per the terms of the settlement.)

February 19, 1989: Formation of Bhopal Gas Peedit Sangharsh Sahayog Samiti (BGPSSS), a broad coalition consisting of nearly 30 all-India and Delhi-based organisations representing workers, scientists, teachers, lawyers, artists, women, youth, students, along with concerned individuals, who came together to support the struggle of the Bhopal gas victims for justice.

February/March 1989: Public protest against the unjust settlement followed by filing of a number of review and writ petitions against the settlement in the Supreme Court by the Bhopal Gas Peedit Mahila Udyog Sanghathan (BGPMUS), the Bhopal Gas Peedit Sangharsh Sahayog Samiti (BGPSSS) and other concerned groups.

January 12, 1990: As a result of intense lobbying by BGPMUS, BGPSSS and other victim-groups, the new National Front government led by prime minister V P Singh decided to disburse interim relief to all the gas affected people in the 36 gas exposed municipal wards of Bhopal.

February 3, 1990: Three ministers of the union cabinet --- Madhu Dandavate (finance minister),  Gurupada Swami (minister for petroleum and chemicals), and Dinesh Goswami (minister for law and justice) --- met the representatives of BGPMUS, BGPSSS, BGIA and other groups at a joint meeting to work out modalities of paying interim relief to the victims of the gas disaster.

March 05, 1990: The National Front government announced the decision to sanction Rs 360 crore from its own resources as interim relief to the Bhopal gas victims for three years, that is, to pay Rs 200 per person per month as interim relief to all residents (i.e., to over 5,00,000 victims) present in the 36 gas affected wards of Bhopal on the night of the disaster.

October 3, 1991: In response to review and writ petitions filed by BGPMUS, BGPSSS and others, the Supreme Court of India, while upholding the settlement amount, revoked the criminal immunity granted to UCC and all other accused in the Bhopal gas leak disaster case.

November 11, 1991 Criminal cases against all the accused were revived in the CJM’s court at Bhopal and summons were issued to them to be present in the court on December 7, 1991.

December 7, 1991: Accused No. 2 to 9 and 12 responded to the summons and presented themselves before the CJM in R.T. No.2792/87. Accused No. 1, 10 and 11 were absent. The CJM issued proclamations ordering accused No.1, 10, and 11 to be present before the Court on February 1, 1992. 

SECRET MOVE

OF UNION CARBIDE

February 1, 1992: The CJM declared Warren Anderson, UCC (USA) and Union Carbide Eastern (Hong Kong) --- accused No. 1, 10 and 11 respectively --- as absconders for non-appearance in the criminal case (R.T. No.2792/87). The CJM also declared that if the accused did not appear in the Court on March 27, 1992 their properties were liable to be attached.

March 20, 1992: After being proclaimed an absconder on February 1, 1992, UCC (USA) secretly set up the so-called Bhopal Hospital Trust in London (UK) with Ian Percival (a former solicitor general of England and an attorney --- during 1984-92 --- with the US law firm, Sidley & Austin, which was retained by UCC) as its sole trustee.  UCC, which is fully aware that all its properties in India are liable to be attached for non-appearance in the criminal case as per the order of the CJM Bhopal, dated February 1, 1992, endowed those very properties to the trust. Apart from an initial grant of 1000 pounds sterling for administrative expenses of the trust, the only funds endowed to the trust by UCC are its shares in UCIL.

March 27, 1992: The CJM Bhopal issued non-bailable warrant of arrest against accused No.1, Warren Anderson, and ordered the UOI to seek extradition of Anderson from the United States. (Neither this extradition order nor the letter rogatory issued by the CJM on July 6, 1988 have been executed by the UOI till date.)

April 15, 1992: UCC chairman Robert Kennedy announced that UCC had endowed all its shares in UCIL (which were liable to be attached as per the order of the CJM Bhopal dated February 1, 1992) to the so-called Bhopal Hospital Trust set up in London, UK.

April 30, 1992:  In response to the applications filed by the CBI, BGPSSS, Bhopal Group for Information and Action (BGIA), and BGPMUS, the CJM, Bhopal, refused to recognise the transfer of UCC’s shares in UCIL to the so-called Bhopal Hospital Trust and attached the shares and properties of UCC in India for non-appearance in the criminal case (R.T. No.2792/87).

April 8, 1993: The Sessions Court, Bhopal, framed charges against accused No. 2 to 9 & 12 (eight officials of UCIL and the company UCIL) for punishable offences under Sections 304 Part II, 326, 324 and 429 of IPC read with Section 35 of IPC.

SIGNIFICANT

OBSERVATIONS

July 4, 1994: BGPSSS, BGIA and BGPMUS filed applications before the court of the CJM, Bhopal, in Miscellaneous Judicial Case (MJC) No.1991 of 1992 urging the court to direct the CBI to execute the letter rogatory issued by the CJM on July 6, 1988. The applicants also submitted a copy of the video documentary produced by Granada Television titled “The Betrayal of Bhopal,” which was produced in June 1985 and which had details of the adoption of duel safety standards by UCC.

October 7, 1994: In para 4 of the order issued on this date in MJC No.91 of 1992, the CJM Bhopal observed as follows:

“It is clear in this regard after perusal of order dated April 30, 1992 passed by the chief judicial magistrate, Bhopal that the CJM had passed the order giving reasons in detail mentioning the non-appearance of the accused in the court in spite of the proclamation issued by the court under Section 82 CrPC. The order mentions the prayer of Bhopal Gas Peedit Mahila Udyog Saghthan, Bhopal Gas Peedit Sangharsh Sahayog Samiti, and Bhopal Group for Information and Action for attaching the property during pendency of the hearing. Hence it is clear that during the pendency of this case, these organisations by raising different legal issues had participated in the hearing.”

In para 6 of the same order, the CJM ordered as follows:

“In the light of the facts of the above mentioned case, it becomes clear after considering the position of the applicant organisations that they are directly related to the organisations of Bhopal gas tragedy victims and their prior presence has been marked in the court proceedings. Therefore, in my opinion, the applications presented on behalf of these organisations have got sufficient and lawful right of hearing in accordance with law…. Therefore, in my opinion, these applications filed in Miscellaneous Judicial Case are fit to be heard and decided upon. Accordingly, the objections raised on behalf of the Central Bureau of Investigation and UCIL regarding the hearing of these applications are not liable to be accepted.”

Furthermore, the CJM noted the following in para 7(a) of the order:

“The transcript of Granada Television which has been mentioned along with the application can undisputedly be valuable factual evidence.  The comparative study of the safety systems of the plant at (West) Virginia and at Bhopal can be an important fact.”

August 1, 1995: The Jabalpur High Court dismissed the revision petitions (Cr.R. No. 237/93, 238/93, 311/93 and 312/93) filed by accused No. 2 to 9 and 12 on 27/4/1993 against the order of the Sessions Court, Bhopal, dated 08/04/1993 in S.T. No.257/92.

September 13, 1996: In Criminal Appeals No.1672-75 of 1996, filed before the Supreme Court by accused No.2 to 9 and 12 in the Bhopal gas leak disaster case, the court reduced charges against the accused from Section 304-Part-II of IPC to Section 304-A, i.e., from a charge of culpable homicide to a case of negligence. Subsequently, the trial against the accused proceeded before the court of the CJM, Bhopal.

November 30, 1996: BGPSSS filed a petition before the Supreme Court, seeking permission to be impleaded as Party-Respondent in the Criminal Appeals and to permit them to seek review of the Supreme Court judgement that set aside the High Court order.

December 24, 1996:  Vide an order on this date, the CJM granted permission to BGPMUS and BGPSSS to assist the prosecution in the present case, i.e., R.T. No.8460 of 1996.

SUPREME

COURT’S MOVE

March 10, 1997: The Supreme Court summarily dismissed the plea of BGPSSS against reduction of charges against the said accused No. 2 to 9 and 12 from Section 304 Part II to Section 304-A at the preliminary hearing on this day, without going into the merits of the plea and without issuing a reasoned order. 

[At the instance of BGPSSS, BGPMUS and BGIA, four crucial prosecution witnesses (PWs) appeared in the case, namely: Kamal Pareek (former safety officer of UCIL, PW 164); Hattim Jariwala (former workers’ union leader, PW 165); Shahnawaz Khan (a Bhopal based lawyer, PW 169); and Raajkumar Keshwani (the Bhopal based journalist, who had issued the fore-warning regarding the potential threat from the Bhopal plant, PW 172)].

May 8, 2006: BGPSSS & BGPMUS filed an Application for Directions in R.T. No.8460 of 1996 urging the court to direct the accused to provide answers to a set of questions that the applicants had put forward.

July 12, 2006: BGPSSS & BGPMUS filed another Application for Directions in R.T. No.8460 of 1996 urging the court to direct the CBI to carry out further investigations in the US, especially the comparative study of the safety systems that UCC had installed in the MIC units at the Institute (West Virginia, USA) and the Bhopal plants.

August 22, 2006: In response to the application filed by BGPSSS & BGPMUS on July 12, 2006, the CBI admitted that “The LR (letter rogatory issued by the CJM Bhopal on July 6, 1988) is still pending and has not been executed by the authority concerned.”

April 28, 2007: BGPSSS & BGPMUS filed another Application for Directions under Section 39 & Section 221(2) of CrPC 1973 and Sections 15, 63 & 136 of the Indian Evidence Act 1872 urging the court to admit as secondary evidence the video documentary titled “The Betrayal of Bhopal,” which had been submitted to the court as early as July 4, 1994.

July 20, 2009: BGPSSS & BGPMUS filed another Application for Directions under Section 15 of the Evidence Act 1872 & Section 105B of CrPC urging the court to initiate punitive action against the concerned public servants for non-execution of the letter rogatory issued by the CJM on July 6, 1988.

February 22, 2010: Examination of prosecution witnesses and defence witnesses in R.T. No.8460 of 1996 against accused No.2 to 9 and 12 (UCIL and its officials) concluded before the court of the CJM Bhopal.

March 22, 2010: Final hearing in R.T No.8460 of 1996 begins.

April 26, 2010: BGPSSS & BGPMUS filed another Application for Directions under Section 216 CrPC for enhancing the charges against the accused to Section 304 Part II of IPC from Section 304 A IPC on the basis of the evidence already placed before the Court by 178 prosecution witnesses and 8 defence witnesses. The CJM rejected the application on the same date.

May 19, 2010: Final hearing in R.T. No.8460 of 1996 concludes. 

It may be noted that the CBI in para 25 of the charge sheet, which was filed against the accused before the CJM Bhopal on December 1, had noted as follows:

“Due to the complicated nature of the case and certain difficulties that were encountered in the investigation, some further investigation still remains to be done which is proposed to be continued after submission of this charge sheet. While the control exercised by Union Carbide Eastern Inc, Hong Kong, over UCIL has been proved during the investigation by the records of UCIL, this requires to be further confirmed by interrogating the concerned executives of the Hong Kong company and collecting the relevant documents. The same has to be done in respect of UCC, USA also. In particular, the UCC plant at West Virginia in USA has also to be inspected. Some further investigation is also to be done with reference to the records of the government of Madhya Pradesh many of which are still to be made available to the investigating officer.”

Till date the Union of India has not permitted the CBI to carry out the necessary investigations in Hong Kong and USA. Therefore, the present trial has been conducted with crucial primary evidence, which would have gone against the interests of the accused. Secondary evidence in the form of the video documentary titled “The Betrayal of Bhopal,” which BGPSSS and BGPMUS submitted to the Court as early as July 4, 1994 has not been admitted as evidence. Under the circumstances, BGPSSS and BGPMUS have little hope that justice will be rendered to the gas victims.

(Sadhna Karnik Pradhan is the convenor and N D Jayaprakash, the co-convenor of the Bhopal Gas Peedit Sangharsh Sahayog Samiti.)