A call for justice

Published : Dec 22, 2002 00:00 IST

The Indian government refuses to provide support crucial to the survivors of the Bhopal gas tragedy in their legal battle against Union Carbide in the United States.

AT a time when global attention is focussed on the United States' mission to bring to book the perpetrators of the September 11 terrorist attacks, the struggle by the victims of the 1984 Bhopal gas tragedy to bring to justice those responsible for the worst industrial disaster ever, a U.S.-based multinational corporation and its chairman, has hardly stirred the world's conscience. Seventeen years after the pesticides plant of Union Carbide (India) Ltd. (UCIL) spewed out a deadly plume of methyl isocyanate gas over Bhopal, the legal battle to establish the criminal liability of its parent company, the Union Carbide Corporation (UCC), has been marked by disappointments and infirmities of political will. (The UCC has since been bought over by Dow Chemical.)

Most recently, the November 15 decision of the United States Court of Appeals for the Second Circuit has come as a source of both dismay and hope to the survivors' organisations. Five organisations representing survivors and activists and seven individual victims had appealed against the order of Judge John F. Keenan of the U.S. District Court for the Southern District of New York, dismissing their complaint seeking redress for "crimes against humanity" against the UCC and its former chairman, Warren Anderson.

The Appeals Court held that the District Court had dismissed the plaintiffs' claims properly under the Alien Tort Claims Act (ATCA), but had erred in dismissing their common-law environmental claims. The plaintiffs' complaint, amended in January 2000, asserted 15 claims in three broad categories. The first six claims pertained to the ATCA and sought civil damages for dangers caused by the gas leak and alleged violations of international environmental, criminal and human rights laws. The Appeals Court agreed with the UCC that these claims had been fully litigated and settled in India, leading to the Supreme Court's 1989 order.

The seventh and eighth claims related to civil contempt and fraud in connection with the UCC's alleged failure to honour the conditions under which the New York District Court dismissed the victims' consolidated class action suits in May 1986. Keenan had made the dismissal of the suits contingent upon, among other things, the UCC submitting itself to the jurisdiction of Indian courts. The survivors argued that by fleeing from criminal prosecution in India, UCC had violated this order. However, Keenan ruled that when he made the order he meant only the "civil jurisdiction" of India's courts and not the criminal jurisdiction.

In 1989, the Supreme Court of India sought to bring to a close the civil case by approving a $470-million compensation package and quashing all the criminal charges pending against the UCC. However in 1991, it reinstated the criminal charges. But Anderson and the UCC refused to appear before the Bhopal District Court, where they are facing criminal trial. In 1992 the court declared them absconders and ordered attachment of the UCC's assets in India.

The remaining seven claims in the New York District Court sought monetary and equitable relief under various common-law theories for environmental harm allegedly attributable to the UCIL plant but not related to the gas leak. Keenan had dismissed these claims also, but the Appeals Court returned the case to the District Court to permit him to consider these issues afresh. It held that Keenan gave no indication of the standard by which he dismissed the claims against Anderson or the UCC. It said: "Under New York law, a corporate officer who commits or participates in a tort, even if it is in the course of his duties on behalf of the corporation, may be held individually liable."

The Appeals Court's decision is particularly disappointing because of the reasoning it employed to reject part of the plaintiffs' claims. It said: "There is nothing in it (the 1989 settlement order of the Supreme Court as revised in 1991) or anything else that Union Carbide did or said from which it can be inferred that the company agreed to answer criminal charges in India. In failing to appear, Union Carbide thus did not breach any contractual commitment to which it was bound."

Supreme Court lawyer and counsel for the gas victims, S. Muralidhar, said the option to agree to answer criminal charges in India was not available to the UCC, especially after it took part in the review process before the Supreme Court and invited its judgment. Muralidhar suggested that the Appeals Court may have violated international comity law, by which one court accepted the jurisdiction of another. "Putting a premium on your jurisdiction, and lessening the value of another goes against the comity of jurisdictions," he said.

The survivors' plea was that the government ought to have pursued the criminal charges against the UCC and Anderson as per the Supreme Court's 1991 order. As the Indian government failed to do so, the survivors had no option but to turn to the U.S. court for remedy flowing from the UCC's criminal liability.

Another inconsistency relates to the Appeals Court's consideration of the plaintiffs' environmental claims. While the court held that the ATCA claims were precluded by the 1989 settlement, it did not believe that environment claims were equally extinguished by that agreement. By the same logic, claims flowing from the criminal liability of the UCC ought to be outside the ambit of the 1989 civil settlement, and considered separately on merits.

BUT the Indian government's refusal to assist the survivors came to be seen as a major setback to their cause. As Attorney-General Soli Sorabjee told Frontline, Union Law Minister Arun Jaitley felt that it would be inappropriate for the government to endorse the survivors' plea in view of the Supreme Court's 1991 order, which reinstated the criminal charges. The upshot of this argument is that the Indian Government cannot endorse the seeking of any more compensation on the grounds that the 1989 civil settlement was not final because the UCC and Anderson were avoiding criminal prosecution in India.

But the point that Sorabjee seemed to miss was this: the fact that the criminal charges were severable from the 1989 settlement did not mean the government should abandon its efforts to pursue the charges to their logical conclusion and bring the guilty to book. The least that it could have done was to acknowledge before the U.S. courts its inability to bring the UCC and Anderson to face criminal prosecution in India.

According to Himanshu Rajan Sharma, counsel for the plaintiffs in the U.S., Sorabjee had assured the survivors verbally, even before the lawsuit was filed, that the Government of India would assist them with a letter of opinion stating that the UCC had failed to comply with the terms and conditions of the Supreme Court's 1991 decision giving final approval to the settlement. It was never provided. After the New York District Court dismissed their suit, they sought to obtain an official statement from the Government of India. Sorabjee, according to counsel, opened a dialogue with Jaitley, but later the plaintiffs were told through an intermediary that the Government of India would not be giving an opinion letter.

This perceived lack of assistance from the Indian government was seen as the determining factor in the Appeals Court's decision to affirm dismissal of the claims under international law. As Himanshu Rajan Sharma said, it concluded that "without clearer proof" it could not allow the claims against UCC to go forward. The "clearer proof" was apparently a statement by the Union of India (which was the party that entered into the settlement with the UCC in 1989) to show that the UCC and Anderson were avoiding criminal prosecution in India.

The Appeals Court agreed that courts in India and the Indian government might have a legitimate interest in preventing or responding to the flight of the defendants and others from India and the jurisdiction of its courts. But it took the plea that the defendants, the UCC and Anderson, at most flouted the authority of the courts of India, not the New York District Court. Therefore, it refused to deprive them their full right to appear in and defend themselves before the U.S. Courts. This part of the decision has raised hopes that the Government of India would now be under moral and legal obligation to seek the extradition of Anderson and appearance by the UCC - an action which the government has been most reluctant to take so far.

When the UCC conveyed its assets to the Bhopal Hospital Trust, the Bhopal District Court had held such a transfer as having been done "to avoid criminal prosecution as directed by the Supreme Court" and as unlawful and ordered that the assets be attached. The Bhopal victims then petitioned the Supreme Court that the release of the assets should be made conditional to the UCC coming to India for criminal prosecution. The Supreme Court declined to do so saying that UCC was not represented before it.

Now given the fact that Dow Chemical does business in India, many legal options to hold UCC guilty of civil contempt have become feasible. The role of the Indian government in the pursuance of these options, say observers, will come under close scrutiny.

Sign in to Unlock member-only benefits!
  • Bookmark stories to read later.
  • Comment on stories to start conversations.
  • Subscribe to our newsletters.
  • Get notified about discounts and offers to our products.
Sign in


Comments have to be in English, and in full sentences. They cannot be abusive or personal. Please abide to our community guidelines for posting your comment