JUNE 7, 2010, marks a milestone in disaster litigation in India. On that day a trial court in Bhopal pronounced its verdict in the case relating to the gas leak from the Union Carbide plant in the Madhya Pradesh capital on the night of December 2-3, 1984. The world's worst industrial disaster killed at least 20,000 people and left thousands maimed and helpless. Thousands of victims and activists had gathered in front of the district court building in the city where Chief Judicial Magistrate (CJM) Mohan P. Tiwari read out the nearly 100 pages of his judgment, convicting seven accused, in two hours. He resumed again after lunch to award the sentence and with it bring to a close one of the sordid chapters of the Bhopal gas litigation.
In the past 25 years, excruciating years for the victims, the law had been circumvented and the delivery of justice delayed. When justice came in the end, it had been greatly diluted. The grossly disproportionate punishment of two years' imprisonment that the Judge handed out to the seven convicted persons jolted civil society out of its years of indifference to the victims' plight and forced it to ask uncomfortable questions. Among them were questions on the role of the political leadership and the collusion of institutions in encouraging the impunity of the accused. The CJM's helplessness in awarding appropriate punishment to the accused was obvious to all. He simply obeyed the Supreme Court's direction in 1996 not to bring the charge of culpable homicide not amounting to murder (under Section 304 Part II of the Indian Penal Code) and charge the accused with committing a rash and negligent act causing death (under Section 304A of the IPC). The maximum punishment under Section 304 Part II is 10 years' imprisonment, while it is only two years under the latter section.
The Central Bureau of Investigation (CBI), entrusted with the prosecution of the accused, had charged 12 persons, of whom three were corporate judicial persons. All of them were charged with committing a rash and negligent act resulting in death.
One of the accused, Union Carbide India Limited (UCIL), had a factory at Berasia Road, Bhopal, manufacturing pesticides Sevin and Temic, which involved the use of methyl isocyanate. The plant also manufactured MIC and stored it in underground tanks, identified as tanks no.610, 611 and 619. On the intervening night of December 2-3, 1984, from 12-00 to 12-45 a.m., MIC escaped from tank no.610 in large quantities, causing the death of thousands of human beings and animals and injuring the health of lakhs of human beings.
The manufacture of MIC is known to involve an extremely hazardous process. But there was no information available at the factory site about the precautions to be taken if the gas leaked and spread, and there was no warning given to people residing around the factory.
Later, a team of scientists, led by S. Varadarajan, Director-General of the Council of Scientific and Industrial Research (CSIR), found that MIC was stored in large quantities and that it was the possible entry of water into tank no.610 during washing that caused the disaster.
Two major issuesThe CBI examined 178 witnesses and presented the evidence against the accused to the CJM's court. The trial court framed two major issues for consideration: 1) Whether the Bhopal plant was a defective one run without reasonable care, which resulted in the leakage of poisonous gas from tank no.610 of the agricultural products (A.P.) division of UCIL Bhopal, and whether the accused, sharing the common knowledge of the defects, did not do anything to avoid the escape of the gas; 2) Whether the accused were guilty of not informing the local people about the remedial precautions, which resulted in the leakage of the gas endangering human life and personal safety and causing simple or grievous injuries to the people.
One of the accused, Union Carbide Corporation (UCC), was a company with its headquarters in the United States and having affiliated and subsidiary companies throughout the world. The subsidiaries were supervised by four regional offices. The UCIL was a subsidiary of UCC and had 14 factories in India, including the one in Bhopal. Another accused was Union Carbide Eastern Inc. (UCE), which has its office in Hong Kong and is the regional office of UCC, USA. It controlled UCIL Bhopal, besides others.
UCIL initially imported Sevin from the U.S. in 1960 and marketed it after adding dilutants to it. Subsequently, it decided to manufacture Sevin in the Bhopal plant and accordingly created facilities for its production. The MIC required for the purpose was initially imported in 200-litre-capacity stainless steel drums from UCC. In 1973, the Bhopal plant, with a foreign collaboration agreement with UCC, began to manufacture MIC.
Accused and abscondersAmong the accused, Warren Anderson, chairman, UCC, remained absent throughout the trial and was a proclaimed absconder. UCC and UCE also were proclaimed absconders, having not subjected themselves to trial. These three accused continue to face the charge of culpable homicide not amounting to murder. Their cases were separated from that of the Indian accused during the trial.
The Indian accused included eight officials of UCIL and UCIL itself as a juristic person. The eight officials are: Keshub Mahindra, chairman, UCIL; Vijay Gokhale, managing director, UCIL; Kishore Kamdar, vice-president, incharge, A.P. Division, UCIL; J. Mukund, works manager, A.P. Division, UCIL; Dr R.B. Roy Choudhary, assistant works manager, A.P. Division, UCIL (he died during the trial); S.P. Choudhary, production manager, A.P. Division, UCIL; K.V. Shetty, plant superintendent, A.P. Division, UCIL; and S.I. Qureshi, operator, A.P. Division, UCIL.
Both Keshub Mahindra and Vijay Gokhale argued that they had no connection with the day-to-day affairs of UCIL. The other accused denied that there was any recklessness or negligence on their part and attributed the disaster to design defect.
In law, negligence means failure to use reasonable care. Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do under similar circumstances. As a cause of damage, negligence must directly and in natural and continuous sequence produce such damage that it can reasonably be said that if not for the negligence, the loss, injury or damage would not have occurred.
However, CJM Mohan Tiwari, in his judgment, cites several instances of the accused having sufficient knowledge of the disaster potential of the plant and its operations.
Indeed, the CBI's main contention was that the defect of the plant and its poor maintenance were the direct and proximate causes of the disaster. A document issued by UCC (Exhibit P-576) regarding the properties of MIC reveals the procedure regarding its storage and handling. The CJM, after examining several prosecution witnesses, rejected the contention that the Bhopal plant was similar to the parent plant in the U.S. or to Carbide's other plants worldwide.
Counsel for the accused argued that defects would necessarily have to be with reference to the knowledge of the necessary technology available at the relevant point of time. They suggested that when the plant was set up in Bhopal, there was no online analyser coupled with an alarm system for determining the quality of MIC before it entered the storage tanks. The CJM rejected this argument saying the safety manuals of UCIL revealed that such type of devices had been attached to the equipment concerned in the plant and pointed out that the pressure gauge temperature meter was not responding at the time of the incident.
Design defectsS. Varadarajan of the CSIR, a prosecution witness, stated that there were several defects. He pointed out that MIC was a liquid that evaporated when it came in contact with air and was highly toxic on inhalation as it contained carbon monoxide. Carbon monoxide converted into phosgene is required to be utilised immediately and not stored. Storage of MIC, he said, should have been highly limited only to meet the requirements of conversion into Sevin.
The following major design defects of the Bhopal plant were brought to the notice of the court:
Bulk storing of MIC in large tanks instead of small stainless steel drums. Union Carbide publications acknowledge that the bulk storage of MIC heightens the danger of both leakage and contamination.
Possible corroding material in pipelines and in valves, that is, iron, copper, zinc and tin.
No online analyser or alarm system was provided for continuous monitoring of the quality of the MIC before it was stored in the tanks. Off-grade MIC could mix with previously stored MIC, introducing large-scale contamination and great danger.
The refrigeration system was inadequate and no standby system was available.
The court found that these defects were made worse by the plant's location near a densely populated area, non-existent catastrophe plans and shortcomings in health care and socio-economic rehabilitation.
Tanks storing MIC had to be, for reasons of safety, twice the volume of the MIC to be stored. UCC itself had advised the Bhopal plant that an empty storage tank should also be kept available in standby position all the time for the emergency transfer of MIC. The MIC, it was advised, should be stored under the nitrogen pressure of the order of 1 kg/cm {+2} g, and a specific temperature below 15 {+0}C, preferably 0 {+0}C, was also required to be maintained. However, in tank no.610, the MIC was stored under nearly atmospheric pressure from October 22, 1984; therefore, free passage was available for the entry of back flow of the solution from the vent gas scrubber (VGS) into the tank. About 500 litres of water entered tank no.610 through Relief Valve Vent Header (RVVH)/Process Valve Header (PVH) lines. The thermo well and temperature transmitting lines were out of order for quite some time and therefore no temperature was being recorded.
The CJM mentioned in the judgment that it also found that apart from design defects, the plant was not maintained according to the norms that UCC had itself established. The refrigeration plant had been shut down long before the disaster. The VGS and other alarm systems were out of order. The pipelines were choked and corroded and valves were leaking even on the fateful day.
Counsel for Keshub Mahindra argued that he had no knowledge about any of the circumstances regarding the escape of MIC. The CJM pointed to the fact that he used to preside over the meetings of the board. Therefore, he said, it was difficult to believe that the chairman did not have any knowledge of the technology being imported and the safety measures of UCIL.
The CJM concluded that the directors and engineers of the factory neglected deteriorations reported to them by the visiting team from the U.S. plant and by local employees. The MIC was stored in a huge quantity (42 tonnes) when its requirement for manufacturing of Temik and Sevin was very less (three-four tonnes) and when the plant was shut down for maintenance. This was an omission on the part of the management, and the U.S. team was also silent about some of the above facts, the CJM wrote in his judgment.
Corporate accountabilityThe CJM's judgment is significant for enforcing corporate accountability. Drawing on the Supreme Court's judgment in Standard Chartered Bank vs Directorate of Enforcement (AIR 2005 SC 2622), he said there was no immunity to the companies from prosecution merely because the punishment prescribed was mandatory imprisonment. As the company could not be sentenced to imprisonment, the court could not impose that punishment, but when imprisonment and fine was the prescribed punishment, the court could impose the punishment of fine, which could be enforced against the company. The CJM thus imposed a fine of Rs.5 lakh on UCIL.
The inordinate delay in the conclusion of the trial has drawn attention to flaws in the trial. The accused were never present in court as their presence was never insisted upon by the judge. The High Court had exempted all the accused except plant superintendent K.V. Shetty and operator S.I. Qureshi from appearing at the trial. Section 260 of the Criminal Procedure Code (Cr.PC) provides that where an offence is punishable with imprisonment not exceeding two years, it could be tried summarily. Despite the summary nature of the trial, it dragged on for over 13 years, thus alienating the victims and their families from the judicial system.
ProtestsThe atmosphere on the court premises on June 7 was illustrative of this alienation. Protesting voices filled the air when the police claimed that the CJM had ordered that activists, victims and journalists be kept out of the courtroom. Within minutes, activists and the police clashed and victims who had waited for 25 years to hear the judgment were stopped indiscriminately. The police made it clear that the CJM had ordered that nobody except the accused and prosecution and defence lawyers be allowed.
The proceedings in the courtroom started amid slogans. The police violently resisted the entry of even case interveners N.D. Jayaprakash, convener of the Bhopal Gas Peedith Sangharsh Sahyog Samiti (BGPSSS), and Abdul Jabbar of the Bhopal Gas Peedith Mahila Udyog Sangathan (BGPMUS) and stopped a witness and journalist, Rajkumar Keswani, who had highlighted the design defects and inadequate safety measures inside the factory before the tragedy happened.
Outside the court premises, the government imposed Section 144 of the Cr.PC, which bars people from gathering in groups. However, this was not strictly imposed. This is an infringement of our democratic right to hear the judgment. What does it suggest? Is the court not anti-people as it is not letting the representatives of the victims hear the judgment that we have been dying to have? said Jayaprakash.
Apart from the two-year imprisonment, the CJM also imposed a fine of Rs.1,01,750 on every accused. Following this, the CJM granted the convicts bail on a bond of Rs.25,000.
Outside the courtroom, the air of despair changed to one of rage over what was seen as a travesty of justice. Slogans rent the air demanding Anderson's extradition and criticising the government's role in sheltering the perpetrators of the crime.
Mariam Bee, who lost her husband and daughter, said: If someone kills one person, he gets hanged, but here many families were killed, yet people go unpunished.
Abdul Latif, who was crippled by MIC, said: When the World Trade Centre was destroyed, the U.S. decided to wage war against the whole world, but our government couldn't get us justice even after so many years.
Activists targeted the unjust system and the nexus between the corporates and the government. In particular, they questioned the integrity of the CBI's investigation.
Satinath Sarangi of Sambhavna Trust said: This is definitely not what we were waiting for. Throughout there was no proper examination of witnesses. In 2006, the Prime Minister promised us an empowered commission that would look into the rehabilitation of survivors. Till today the commission has not been formed. What the government has demonstrated over the years is that the lives of ordinary citizens are expendable. The Prime Minister has told us that the Bhopals will happen but the country must progress. In Bhopal, first there was an industrial disaster, then there was medical disaster and now what we are watching is a judicial disaster. It was disgraceful to see gun- and stick-totting policemen push aged men and women around.
Abdul Jabbar said: This is the second betrayal of the gas victims, the first being the 1989 settlement. Robert Blake, U.S. Assistant Secretary of State, has declared that there is no question of a review of the Bhopal disaster case. Is it not hypocritical that the U.S., which claims to be the sole human rights protector and is promising its people that maximum compensation will be extracted from British Petroleum for spilling its oil into the Gulf of Mexico, is doing exactly the opposite when it comes to a Third World country like India? Look at the toll of lives in the oil spill there, and here. It is a difference of hell and heaven.
The campaigners have questioned the judgment of A.M. Ahmadi, the then Chief Justice of India, in which the charges against the accused were diluted. Justice Ahmadi after his retirement in 1997 became the chairman for life of the Bhopal Memorial Hospital Trust set up by UCC in Bhopal. Is there not a conflict of interest? Jabbar asked.
The June 7 judgment made a significant observation. It says, The tragedy was caused by the synergy of the very worst of American and Indian cultures. An American corporation cynically used a Third World country to escape from the increasingly strict safety standards imposed at home. Safety procedures were minimal and neither the American owners nor the local management seemed to regard them as necessary. When disaster struck, there was no disaster plan that could be set into action. Prompt action by the local authorities could have saved many, if not most, of the victims. The immediate response was marred by callous indifference.
