Revenge of memory

VIKAS YADAV, 11, and Aman Yadav, 9, second-generation victims of the disaster, both born disabled, with their parents Sanjay and Sharda Yadav in Bhopal on June 26. The GoM proposes to distribute compensation on the basis of an outmoded survey of disaster survivors undertaken shortly after the event, which would necessarily exclude many whose symptoms of exposure manifested later and those who were not yet born but now suffer from exposure-related illnesses or birth defects.-A.M. FARUQUI

The GoM report makes a vague promise about pursuing legal accountability for Dow Chemical but contains more to undermine it than to fulfil it.

MILAN KUNDERA wrote memorably that the struggle of man against power is the struggle of memory against forgetting. In India, with few exceptions, the prevailing tendency has been to favour what Ashish Nandy calls principled forgetting. The legacy of Bhopal, the worst industrial catastrophe on peacetime soil, has proved to be a salutary exception to that norm.

The miscarriage of justice in the criminal case against former officials of Union Carbide Corporation's (UCC) Indian affiliate, after decades of glacial adjudication, has recently caused the repressed memory of Bhopal to rise from the depths of the nation's collective unconscious like some horrifying flashback from post-traumatic stress disorder. Faced with this revenge of memory, the country's political class has donned its familiar, well-tried mask of empathy while exploiting every sleight of hand at its disposal to neutralise outrage and undermine any possibility of the justice or redress demanded by the public. Politics may be about the art of the possible, but rajneeti is about the politics of appearance. The important thing is to be seen to be doing something, to act without acting, as the Bhagwat Gita counsels, or if one must act, to act in a manner that really amounts to non-action.

The proposals advanced by the hastily reconvened Group of Ministers on Bhopal and promptly embraced by the Union Cabinet are of a piece with this strategy. More than the proposals themselves, the silences and omissions of the GoM report are telling. At every turn when it comes to addressing the liability of UCC, the company which poisoned so many lives on that December night in 1984 and whose poisons continue to spread through the residential areas near the plant today, the GoM report maintains a cryptic silence about what is to be done. That silence echoes with complicity, however, when examined in the light of the report's actual proposals.

Behind its veneer of pious sentiment and empty words, the GoM report proposes a series of steps that amount to a cynical manoeuvre that will have the effect, if not the intent, of subverting the cause of justice for UCC's victims in Bhopal. To be sure, there are vague noises made about pursuing legal accountability for Dow Chemical Company, which purchased 100 per cent of UCC with full knowledge of its then-pending and unresolved liabilities concerning Bhopal, but there is little to substantiate this uncertain promise and much that could fatally undermine it. For instance, there is the GoM report's silence on the question of how, or more precisely where, the Union of India intends to enforce its promise to hold Dow or UCC accountable for its disaster or pollution liabilities in Bhopal.

As the Ministers well know, Dow continues to maintain that neither it nor UCC, its wholly owned subsidiary, is subject to the jurisdiction of India's courts. Even if a judgment or decree of some kind is ultimately rendered by an Indian court, for example, in the public interest litigation pending in the Madhya Pradesh High Court, that judgment will have to be domesticated in the courts of the United States for purposes of enforcement against Dow or UCC. Pursuant to U.S. law concerning recognition of foreign money judgments, lack of jurisdiction by the foreign court rendering the judgment is grounds for denial of recognition and enforcement.

Survivors' groups have publicly urged the Union of India to intervene in the pending litigation against UCC in New York concerning the pollution caused by the Bhopal plant. This would be the most sensible approach, avoiding all the legal problems caused by jurisdiction over UCC or enforcement of a foreign judgment in U.S. courts. Over the course of many successful appeals since 1999, American courts have acknowledged that UCC's liability for pollution is not subsumed under the prior settlement and the law is equally clear that UCC cannot evade liability as a polluter on the basis of its sale of its shares in its Indian affiliate or surrender of the land to the authorities. The American courts have also held that the claim for plant-site remediation could proceed in the event that the Indian government or the State of Madhya Pradesh seeks to intervene in the action ( Bano vs Union Carbide Corp., 361 F.3d 696, 717 (2d Cir. 2004)). The Union of India has failed to act on this invitation to intervene, as the owner of the land for the site on which the Bhopal plant is located; the GoM report also fails even to mention this despite its general assurances about enforcing unresolved liabilities against Dow or UCC.

The most breathtakingly cynical aspect of the report is a proposal to increase the compensation to disaster survivors, at public expense, and to undertake a half-baked, inadequate clean-up of the Bhopal plant, again at considerable public expense. These proposals mirror the words of Dow spokesman Scott Wheeler, who, while expressing his sympathy towards the survivors of Bhopal, intoned that Dow did not dispute that more needed to be done on their behalf, but that the responsibility lay with the Indian Central and State governments and, by obvious implication, the taxpayer of the country where Dow's subsidiary has caused as many as 15,000 deaths over the past 26 years. These proposals are nothing but a public subsidy to UCC, in effect shifting both the cost of cleaning up the present-day pollution that it has caused as well as the medical, social and economic aftermath of the 1984 disaster onto the shoulders of the Indian taxpayer. That fact alone should be enough to make the GoM's proposal unconscionable, but there is much else besides.

The GoM proposes to distribute compensation on the basis of an outmoded survey of disaster survivors undertaken shortly after the event, which would necessarily exclude many whose symptoms of exposure manifested later and those who were not yet born but now suffer from exposure-related illnesses or birth defects. To their lasting credit, the survivors' groups have had the political courage to reject these proposals in the strongest possible terms. Their stance is amply vindicated by the inescapable legal conclusion that responsibility for compensating Bhopal survivors and paying for remediation of the Bhopal plant, as well as off-site contamination, must rest squarely with UCC and Dow so long as their civil and criminal liabilities remain unresolved as they still do today.

UCC remains an accused in the criminal case arising from the Bhopal disaster, a fact that is conspicuous by its absence from the GoM report despite the promise to make a fresh attempt to extradite its former chairman, the now octogenarian Warren Anderson. The charges against UCC remain those of culpable homicide, undiluted by any prior appeal to the Indian Supreme Court, because UCC was declared an absconder, together with Anderson, in 1992. However, unlike Anderson, UCC cannot claim the benefit of any humanitarian grounds to resist extradition and cannot object on the grounds of insufficiency of evidence against it. The Union of India would not even have to seek extradition of this corporation since federal statute in the U.S. permits a foreign government to commence an action seeking the surrender of an absconder or fugitive in the district court of the District of Columbia. The Indian Penal Code also permits a fine levied on a corporate accused such as UCC to be used for restitution towards its victims.

In sum, India stands a better chance of securing UCC's appearance in the criminal case to face charges of culpable homicide than of extraditing Anderson some 26 years after the event. The absence of any mention of the criminal case against UCC, about which the Ministers should well know from their report's litany of promises about curative petitions and fresh extradition attempts, speaks volumes about their intent. Perhaps the denial of a fresh extradition request for Anderson, without any attempt to secure UCC's submission to the criminal case, would be just the thing that could enable the United Progressive Alliance government to shrug its shoulders and close its files on the criminal case against both absconders.

With regard to the clean-up, the GoM proposal not only puts the cart before the horse but actually constitutes a backward step, an about-face from its previous commitment to enforce the polluter pays principle of liability. In formal submissions in both the New York litigation against UCC and the Madhya Pradesh High Court proceedings concerning remediation, the Union of India and Madhya Pradesh have taken a consistent stand that liability for clean-up and remediation costs must be borne by UCC and Dow on the basis of the polluter pays principle, which is well established in international, Indian and American law.

Clean-up of the Bhopal plant at public expense not only contradicts those prior official submissions but contravenes the very purpose of the polluter pays principle and establishes an ill-conceived precedent for future environmental abusers. Any clean-up effort by Madhya Pradesh or the Government of India, no matter how cursory, will be exploited by UCC in the litigation pending in the federal courts in New York claiming that all necessary environmental remediation is complete, absolving it of any further liability. An adverse determination in the currently pending New York case may well preclude the Union of India from seeking to recover clean-up costs in any subsequent proceeding, either for the Bhopal plant itself or for the off-site pollution of subsurface waters that continues to spread beyond the 20 residential areas affected at present.

The GoM report hints that clean-up may proceed first and then costs may be recovered from UCC or Dow if liability is ultimately established. That is an astonishingly naive assumption. Proper environmental remediation under the U.S. Superfund law can typically cost as much as a billion dollars or more. Even accounting for some cost savings in the Indian context, Bhopal survivors' groups and others can be forgiven for their scepticism that the Union of India would be willing (or able, for that matter) to allocate the kind of resources needed to conduct a proper remediation and that too at taxpayers' expense.

According to the GoM, however, remediation will be conducted in accordance with Indian standards. That illuminates much about the intent of the so-called clean-up since UCC's own documents about the Bhopal plant point out that there are no specific Indian standards or precedents for environmental remediation. Such a botched or merely cosmetic clean-up funded at taxpayers' expense by the Union of India could greatly worsen the off-site pollution spreading from the plant, increasing the ultimate cost of a full or proper remediation. In any subsequent proceeding to recover clean-up costs, the Union of India would, on the one hand, be limited to recovering only those costs actually incurred in its inadequate clean-up of the Bhopal plant and, on the other, may be liable to UCC on a theory of contributory negligence or indemnity for any increased costs of off-site remediation that can be attributed to its inadequate clean-up of the Bhopal plant.

To put not too fine a point on it, the taxpayer-funded clean-up of the Bhopal plant may well end up exonerating UCC from substantial liability even for off-site remediation. For all of those reasons, the GoM's proposal for a publicly subsidised clean-up of the Bhopal plant is the worst possible scenario that could have been chosen from existing alternatives, unless, of course one looks at the issue from UCC's or Dow's perspective.

Like the two nawabs in Munshi Premchand's Shatranj ke Khiladi who quarrelled fatally over a chess game while the East India Company's troops marched into Lucknow, the ruling and opposition parties are engaged in political gamesmanship over Bhopal while UCC and Dow exert themselves to escape their legal liabilities in the courts. The GoM's report is merely another move in that pointless chess game. India has a national interest, not merely a political interest, in resolving the legacy of Bhopal by enforcing liability against UCC in its own home forum in New York if it refuses to submit to jurisdiction in India. The need of the moment is to act, not merely to be seen to act.

H. Rajan Sharma is a partner at the New York law firm of Sharma & DeYoung LLP, where he practises international law and complex litigation. He is at present lead counsel in Sahu et al. vs Union Carbide Corp. et al., a pending New York case against UCC for causing environmental pollution in Bhopal, and has been an advocate for Bhopal survivors since 1999.