Scope to intervene

HIMANSHU RAJAN SHARMA is the lead counsel in Janki Lal Sahu et al. vs UCC and Warren Anderson et al., a class action suit filed in the U.S. District Court for the Southern District of New York in March 2007 seeking environmental remediation of the Bhopal plant and 16 surrounding residential communities, medical monitoring, and damages for personal injury and property damage arising from groundwater pollution. He is a partner in the New York law firm Sharma & DeYoung LLP, where he practises in the area of complex and international litigation. He has been a long-standing advocate on behalf of Bhopal gas survivors and became involved in their struggle for justice before he graduated from law school in America. With the support of survivors' organisations and the International Campaign for Justice in Bhopal, he selected individual plaintiffs from the victim community to represent the class of those affected by the environmental legacy of Bhopal. Excerpts from the interview via e-mail:

Can you briefly update us on the progress/status of the suit filed by the survivors of the disaster in the U.S. court for environmental remediation and compensation from Union Carbide Corporation [UCC]? What have been the achievements and setbacks so far, and can the survivors still expect justice from the U.S. court?

The federal class action in New York is still proceeding. This case, of course, concerns environmental remediation of the pollution spreading from the Bhopal plant into the drinking water supply of 20 residential communities nearby. (The pollution has spread farther since 1999, so I believe it is now 20 communities affected whereas before it was 16.) It does seek remediation, medical monitoring and compensation. The parties are at present engaging in discovery needed to respond to UCC's motion for summary judgment saying that it cannot be held liable. The court has ordered UCC to produce certain documents and we have asked for additional documents. No depositions have been permitted. We are reviewing the documents that UCC has produced thus far and discussing what the scope of appropriate disclosure needs to be with their lawyers.

The Indian government was at first reluctant to join the plaintiff in this case. Later, owing to public pressure, it told the court that it had no objection if the court were to award compensation and direct UCC to clean up the site. Did this make any difference to the case?

Unfortunately, the previous submission by the Union of India in the New York case had little impact. The U.S. court remains concerned that any order issued with regard to the clean-up of the badly polluted plant site would not necessarily be binding upon the Union of India and is therefore reluctant to consider the issue of plant site remediation without formal intervention by the Union of India. The main achievements of the New York litigation, thus far, are obtaining critical evidence against UCC regarding all aspects of its involvement in the Bhopal plant such as transfer of technology, environmental safety, etc. as well as the fact that we have prevailed on at least three appeals before the U.S. Court of Appeals for the Second Circuit.

We believe that the only way to get a proper environmental clean-up of the badly polluted plant site is for the Indian government to intervene in the New York case. There are two reasons for this. First, the land on which the plant site is located belongs to the State of Madhya Pradesh and was leased to UCC. Thus, the Union of India has the standing to seek remediation. Secondly, UCC has continued to insist that it is not subject to the jurisdiction of India's courts, which means that any judgment rendered by an Indian court in any proceeding in India would have to be taken to the courts of the United States for recognition and enforcement. UCC could challenge any orders from an Indian court directing it to clean up the Bhopal plant site.

The most direct way to hold UCC accountable for the clean-up in Bhopal, therefore, is for the Union of India to directly intervene in the New York litigation and seek such relief from the American courts. That could mean, for example, a clean-up fund for the Bhopal plant site consistent with the well-settled principle of polluter pays under international law. If the Union of India wants to demonstrate its resolve to address Bhopal liabilities, that is one step that it could directly and immediately undertake to hold UCC responsible for the ongoing environmental and health problems in Bhopal.

The U.S. government's official position with regard to the extradition of Warren Anderson was that the documentation submitted by the Indian government was incomplete and that charges were not framed against Anderson in the Indian court. The unofficial reply from India was that charges could not be framed against Anderson in view of his refusal to face trial. Do you think there could have been a legal way out of this maze? Was the decision to separate the Indian accused from the foreign accused flawed?

I cannot speak on the issues concerning Indian law and procedure, but it does seem to me that the bifurcation of the cases against the foreign accused, who include both Union Carbide and Warren Anderson, would mean that the charges against them remain those of culpable homicide which, I am given to understand, is a more serious offence than that of causing death by negligence which is what some of the Indian accused were convicted of in the recent Bhopal district court judgment.

Extradition issues concern Warren Anderson. The criminal charges of culpable homicide remain pending against Union Carbide. Nothing prevents the Union of India from seeking relief from the courts of the United States directing that UCC be made to submit to the criminal charges pending against it in Bhopal. As a corporation, UCC cannot plead insufficiency of evidence against it under any extradition treaty that I am aware of between India and the United States.

On a larger issue, how do you interpret the U.S. government's insensitive response that the trial court's verdict in the case in Bhopal will bring closure to the victims and their families?

Well, UCC has been very successful for the past 25 years in propagating the falsehood that the 1984 gas leak disaster was a failure of its Indian subsidiary, Union Carbide India Limited, aided and abetted in its negligence or incompetence by the Indian government. That is particularly true in many of the more rarified or elite social circles in the United States. There is a tendency on the part of many Americans to instinctively disbelieve that an American company could have caused a horrific catastrophe of the magnitude and nature of Bhopal. Union Carbide plays on that tendency very effectively in both the legal and political contexts, suggesting that it is only being vilified because it is a foreign multinational with deep pockets and an American one to boot.

The U.S. government's statement has to be viewed in the context of decades of misleading agitprop circulated by UCC, its lawyers and PR representatives in the media in the United States, in business schools such as Harvard and even in some law schools. Few in the U.S. have scrutinised the actual evidence, preferring to believe that this was simply a disaster created by incompetent and unprofessional locals in a Third World country under the misguided government policies of the time.

In fact, all the available evidence shows quite the opposite: Indian officials clearly lacked the expertise or knowledge sufficient to evaluate the proprietary technology that UCC transferred to Bhopal and which subsequently was implicated in the disaster. The Indian subsidiary was almost completely dependent on UCC for technical advice, guidance and support.

UCC, on the other hand, was more than knowledgeable about what was happening at Bhopal once the plant started to lose money and was even aware that the plant was being shut down and restarted repeatedly over the course of a production year. The plant fell directly within UCC's Agricultural Products Division and its first-hand managerial control rather than under the auspices of its Indian subsidiary, a company that sold batteries and dry cells in Asia. Interviews by former Union Carbide India personnel, such as Ranjit K. Dutta, who were later promoted to positions within UCC, have confirmed as much.