Some unanswered questions arising out of the Bhopal Tragedy

The present article is my take on Bhopal and where do we go now .

The interesting thing about Bhopal is that it comes back to haunt us . It haunts us as a society, as a country and as a people . It exposes to us and the world of our moral negligence towards our own people . It also speaks volumes of the callousness of the government and the power of big multi national corporations to influence our government in the name of investment . It also speaks to us about how careless the judiciary can be to the felt needs of the people and how it can turn a blind eye to the poor and downtrodden while being lenient on the rich and powerful. It is a cautionary tale also of how foreign multi nationals have a much lower standard of care for Indian production units than those situated in their own country , specially when the present Government is bending over backwards to accommodate foreign suppliers in the Nuclear Liability Bill , in the same fond hope that the multi nationals will bring technology and again by disregarding the safety of the poor and downtrodden in India .

The political story of Bhopal has been repeated enough . It is apparent as to how the Rajiv Gandhi Government allowed Warren Anderson to escape from India , knowing fully well his culpability in the case under foreign pressure . It is clear as day as to how the government conspired to send him away from India , and escorted him out of Bhopal in a special plane .

The story of how Union Carbide came to set up a plant which would not be allowed anywhere else in the world and how it disregarded all the safety norms which were compulsory in the west is common knowledge . It is also common knowledge how the parent company in the US , Union Carbide Corporation ( UCC) , then on one hand refused to make payment for the disaster it had caused as purportedly it had no connection with it’s Indian Unit Union Carbide India Ltd. (UCIL) and on the other hand twisted India’s arm to let go of the foreign executives who were liable for the gross and deliberate negligence which had resulted in the death of thousands .

The story of the actions of the Government of India watering down the multi billion dollar claim by first framing the Bhopal Gas Disaster ( Processing of Claims) Act , 1985 and taking over all the claims in India from all individuals affected by the disaster and then filing an affidavit before the US District Court in which the matters were being tried , deriding the Indian judicial system is a fact which is well known nationally and internationally.

The subsequent facts of how the Government of India , with the then Judiciary went on to settle the matter in the “chambers” of the then judges of the Supreme Court in a tripartite settlement for a meager and paltry sum of US $ 470 million and how the judiciary and the then judges passed subsequent orders back calculating to reach the amount and then putting exact figures on the dead and the grievously injured to justify the agreement , has also been very well documented . The rumours of the then judges benefiting from the said orders by getting post retirement positions is something which though unbelievable , is extremely topical today , when the Opposition is insisting that the Government passes a law barring judges of the higher judiciary from being appointed to extra constitutional posts as it fears that the Government is attempting to influence the judgements of the courts by enticing and threatening judges to comply to their dictates.

What is not documented and what needs to be written about is what happened afterwards in the Courts , and specially in the Supreme Court of India , where it seems that the criminal proceedings against the main and powerful accused were whittled down and then the money set aside for the victims were cornered by unscrupulous people . There are a large series of judgments which witness the continuing callousness of an uncaring state , but the two most prominent lines of cases are (1) treatment of the criminal cases against the people who were responsible for the disaster , and (2) construction of the hospitals which was to treat those who were affected.

In relation to the first , the Government of India had agreed to give immunity from prosecution to all those accused in terms of the tripartite agreement between the parties whereby Union Carbide agreed to pay some money as compensation for the victims to be disbursed by the Government and also agreed to set up two hospitals for the treatment of the victims. That is offcourse the political doublespeak which has been the hallmark of the Government on the matter . What is interesting is the Supreme Court , the guardian of the Constitution actually upholding the immunity .

The Supreme Court while reiterating that it had the power to remove to itself and quash the cases pending against the main accused in the matter , all the while recognizing that the Government of India has the right to grant immunity to anyone for any reason says in Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584 :

At page 635 :

“ 83. It is necessary to set at rest certain misconceptions in the arguments touching the scope of the powers of this Court under Article 142(1) of the Constitution. These issues are matters of serious public importance. The proposition that a provision in any ordinary law irrespective of the importance of the public policy on which it is founded, operates to limit the powers of the apex Court under Article 142(1) is unsound and erroneous. In both Garg18 as well as Antulay cases19 the point was one of violation of constitutional provisions and constitutional rights. The observations as to the effect of inconsistency with statutory provisions were really unnecessary in those cases as the decisions in the ultimate analysis turned on the breach of constitutional rights. We agree with Shri Nariman that the power of the Court under Article 142 insofar as quashing of criminal proceedings are concerned is not exhausted by Section 320 or 321 or 482 CrPC or all of them put together. The power under Article 142 is at an entirely different level and of a different quality. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142. Such prohibitions or limitations in the statutes might embody and reflect the scheme of a particular law, taking into account the nature and status of the authority or the court on which conferment of powers — limited in some appropriate way — is contemplated. The limitations may not necessarily reflect or be based on any fundamental considerations of public policy. Sri Sorabjee, learned Attorney General, referring to Garg case18, said that limitation on the powers under Article 142 arising from “inconsistency with express statutory provisions of substantive law” must really mean and be understood as some express prohibition contained in any substantive statutory law. He suggested that if the expression ‘prohibition’ is read in place of ‘provision’ that would perhaps convey the appropriate idea. But we think that such prohibition should also be shown to be based on some underlying fundamental and general issues of public policy and not merely incidental to a particular statutory scheme or pattern. It will again be wholly incorrect to say that powers under Article 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision. Perhaps, the proper way of expressing the idea is that in exercising powers under Article 142 and in assessing the needs of “complete justice” of a cause or matter, the apex Court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly. The proposition does not relate to the powers of the Court under Article 142, but only to what is or is not ‘complete justice’ of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power. No question of lack of jurisdiction or of nullity can arise.”

And then at page 641 :

102. Indeed, the submissions of learned Attorney General on the theoretical foundations as to the source of immunity as being essentially legislative may be sound. But the question does not strictly arise in that sense in the present case. The direction that future criminal proceedings shall not be instituted or proceeded with must be understood as a concomitant and a logical consequence of the decision to withdraw the pending prosecutions. In that context, the stipulation that no future prosecutions shall be entertained may not amount to conferment of any immunity but only to a reiteration of the consequences of such termination of pending prosecutions. Thus understood any appeal to the principle as to the power to confer criminal immunity becomes inapposite in this case.

Then finally charges against the main accused who were charged of culpable homicide being in high positions of management of the Company on that fateful day of the accident were dropped by the Hon’ble Supreme Court in the famous judgment of Keshub Mahindra v. State of M.P., (1996) 6 SCC 129 where the Court held at page 165 :

27. As a result of the aforesaid discussion it is held that on the material led by the prosecution appropriate charges which are required to be framed against the accused concerned are under Section 304-A IPC so far as Accused 5, 6, 7, 8 and 9 are concerned while so far as Accused 2, 3, 4 and 12 are concerned charges under Section 304-A read with Section 35 IPC will have to be framed. As these offences are triable by the Court of Judicial Magistrate, 1st Class, Bhopal the sessions case shall be transferred to the Court of the Chief Judicial Magistrate, 1st Class, Bhopal who will proceed with the trial in accordance with law and frame appropriate charges under Section 304-A with or without the aid of Section 35, as the case may be, against the accused concerned as indicated hereinabove.

28. In the result the appeals filed by the accused concerned partially succeed to the aforesaid extent. Charges framed against them under Sections 304 Part II, 324, 326 and 429 IPC with or without the aid of Section 35, as the case may be, are quashed and set aside. Instead it is directed that the appropriate trial court shall frame charges against these accused as indicated in the judgment. The appropriate trial court to which the case will stand transferred is also directed to consider the further question whether charges should be framed under Sections 336, 337 and 338 of the IPC with or without taking the aid of Section 35 IPC after hearing the parties concerned.

In relation to the second that is the hospital set out of the funds of the famous trust which was constituted with money contributed nearly to the tune of US $ 80 million by Union Carbide . It is interesting to note how the solicitor of Union Carbide came to be the sole trustee of the entire trust funds and how large sums of money were never accounted for, and how he in turn came to be replaced by a committee headed by a former Chief Justice of India. It is something which is indeed in need of deeper investigation , specially the clear misuse and gross abuse of funds which were even noted by the Supreme Court of India .

In Krishna Mohan Shukla v. Union of India, (2000) 2 SCC 690, at page 693 , the Court noted :

10. The grievance is also made with regard to lack of proper medical research and the non-functioning of the hospitals and generally with regard to the medical facilities. The issues raised in this regard are covered by Writ Petition (Civil) No. 50 of 1998 (Bhopal Gas Peedith Mahila U. Sangat. v. UOI). In our opinion, it will be more appropriate to deal with these aspects of the case, namely, pertaining to the furnishing of the medical facilities in Writ Petition (C) No. 50 of 1998. In that petition, pleadings are complete, affidavits have been filed and some orders passed. The petitioner will be at liberty to assist the learned counsel appearing in Writ Petition (Civil) No. 50 of 1998. If necessary, even though we are disposing of this writ petition, the counsel appearing in Writ Petition (Civil) No. 50 of 1998 will be at liberty to refer to any affidavit or document which may have been filed in this writ petition.

Again in Bhopal Gas Peedith Mahila U. Sangathan v. Union of India, (2000) 9 SCC 281, at page 281 , the Court observed :

1. We have seen the fourth status report regarding medical rehabilitation filed by Shri D.S. Mathur, Principal Secretary in the Department of Health and Family Welfare, who was appointed as Commissioner by this Court.

2. Two hospitals were required to be constructed, namely, Kamla Nehru Hospital and Indira Gandhi Mahila Evam Bal Chikitsalaya. The civil work for both the hospitals has been completed. We are informed that a total sum of Rs 258 crores is stated to have been spent for providing medical facilities to the victims of the Bhopal gas tragedy. It is not necessary to go into the question as to the manner in which such a large amount has been spent which has still resulted in these two hospitals being incomplete and non-functional to their optimum capacity.

3. As always happens, the excuse given is lack of funds. It is indeed unfortunate that where public health is concerned the Government thinks of economising. Fifteen years have elapsed since the gas tragedy took place and the victims do not have the full medical facilities which were required to be made available to them with the construction of these two hospitals.

The lacunaes are obvious and apparent and the collusion between all the players are clear and transparent . The only question is whether the Government of India which is so bothered about the death of a single terrorist by a false encounter is willing or inclined to do anything about the death of thousands and bring the guilty to justice . Last heard was that the Government of India and it’s flunkey agency the Central Bureau of Investigation had indeed filed a recall petition of the order in Keshub Mahindra’s case . However till date there is no attempt to recall the main order agreeing to the settlement between the Government of India and Union Carbide , with active participation of the then Supreme Court of India , which fixed the compensation at a meager US $ 470 million, as the Government cannot decide whether to claim renewed compensation at the present price or the price prevalent in 1989 …. How surprising or how predictable !!! …. In other words what else does one expect of a government whose “operate button” is in the hands of multinationals having their headquarters outside India and whose Prime Minister feels the need to clarify on the floor of the Parliament that the Government is not controlled by puppeteers from outside the country.