A struggle to seek corporate accountability

Interview with the attorney representing Bhopal gas survivors.

Himanshu Rajan Sharma is an attorney specialising in international law and complex litigation in New York. He became involved in the Bhopal gas victims' quest for justice even before he graduated from the Washington College of Law at American University, Washington, in 1996. Since then he has been compiling, with the help of survivors' organisations, evidence for the case against Union Carbide. He lectures on public international law at the Benjamin N. Cardozo School of Law in New York, besides writing on the Bhopal litigation for professional law journals. Excerpts from his responses to questions sent by V. Venkatesan by e-mail.

Would you consider the latest judgment as only a partial victory?

Well, I think it is correct in a sense to say that this is only a partial victory. I believe the blame for this must squarely be placed on the Indian government's persistent refusal to assist the Bhopal victims in pursuing this action.

Indeed, the UCC's law firm, Kelley, Drye and Warren, is being paid for by the money of Indian taxpayers to represent the Union of India at the very same time that the firm is representing Carbide against the Bhopal victims. Yet we continue to try and pursue a dialogue with the Indian government in the hope that it will at least cooperate with our present, minimum demand: criminal prosecution of Dow/Carbide in India, before the Bhopal District Court.

If the Government of India truly wishes to pursue Carbide in American courts, instead of prosecuting it on criminal charges pending in India, I would suggest that it enter an appearance in our case. We would move for reconsideration of the Court of Appeals' decision based on the Union of India's participation in our case.

The Appeals Court seems to suggest strongly that if the government were to take some action against Carbide (perhaps to seek extradition to face criminal charges in the Bhopal District Court or to assist the victims in re-litigating these claims in American courts), then India would potentially receive a sympathetic and favourable response from this court. It is in this rather important sense that the victory is not simply partial: because, the criminal charges against the UCC remain pending in India and now the Appeals Court decision morally vindicates and supports the position of the victims that the UCC is a fugitive and that the Union of India could, if it chose to, extradite Carbide to face those criminal charges.

The judgment speaks of the inapplicability of the Fugitive Disentitlement Doctrine in this case.

In my view, this aspect of the Appeals Court decision is most clearly suspect and legally dubious. At bottom, the Appeals Court appears to be saying: "Look, UCC is a fugitive. But if UCC is a fugitive from India's criminal jurisdiction, why isn't India doing anything about it? Therefore, the lack of any statement of support from the government was critical in terms of undermining the position of the victims before the Appeals Court on this issue. If the court had applied the doctrine in this case, Carbide would have been precluded from offering any legal defence to our claims, although it still could have contested the claims on factual grounds.

The Appeals Court did not consider your charges of violations of international law.

Well, the Appeals Court recognised the settlement as precluding all types of civil claims arising from the 1984 disaster, even claims that are connected to the outstanding criminal liability. It construed such claims as being limited to claims for restitution in the criminal prosecution in India. In other words, the Appeals Court rejected our argument on this issue which was as follows: The Supreme Court has held that "claims or rights arising from criminal liability are outside the scope" of the 1986 Bhopal Act and the 1989 Settlement and therefore the Bhopal victims should be entitled to bring claims for violations of international law because these arise from Carbide's criminal liability. The Appeals Court construed the "claims or rights" language of the Supreme Court more narrowly as referring only to the victims' right to obtain restitution as part of the criminal prosecution in India, not to claims under international law. Thus, it held that all other claims arising from the disaster were covered by the settlement between Carbide and the government.

How do you think the Appeals Court was wrong in saying that the UCC did not breach the settlement agreement through the manner in which it funded the Bhopal Hospital Trust?

The Appeals Court concluded that this was merely a "humanitarian" gesture requested by the Supreme Court from Carbide rather than a binding term of the settlement. We disagree with this conclusion. The Supreme Court, in its decision of October 1991, allowed the civil settlement to stand "undisturbed" but only upon certain conditions. Those conditions were imposed, according to the Supreme Court, under its powers within Article 142(1) of the Constitution which enables the court to issue any order or decree for "accomplishing complete justice in a cause of matter".

Principally, those conditions were as follows: 1. That the criminal prosecution of the accused, including Carbide, must proceed; and 2. That Carbide should 'bear the financial burden' of a 500-bed hospital for the victims. The fact that the Supreme Court imposed these conditions pursuant to its Article 142(1) powers demonstrates that, without fulfilment of these conditions, 'complete justice' between the parties would not be done. Without such "complete justice" as reflected in the October 1991 decision of the Supreme Court, the 1989 settlement could not be left to stand by itself 'undisturbed'.

Union Carbide not only absconded from the criminal prosecution and, when the Bhopal District Court attached its assets in India as a penalty for absconding, used those assets unlawfully to fund the Bhopal Hospital Trust. The Bhopal District Court concluded that Carbide's funding of the trust in this manner was not motivated by any desire to comply with the Supreme Court's directive, but that it constituted a fraudulent conveyance designed principally to avoid criminal prosecution. Importantly, the Appeals Court recognised this, but chose to ignore the obvious implications of such contumacious and deceptive conduct on the UCC's part.

The Appeals Court decision says the amended complaint is vague in describing Anderson's role in creating contamination, on which the additional environmental claims are based. Then it says the plaintiffs submitted evidence to support this allegation. What was this evidence?

The amended complaint is somewhat vague because until now nobody has obtained any meaningful discovery or disclosure from either Anderson or Carbide regarding his precise role in managing and operating the Bhopal plant. Now, thanks to this decision, the victims will have this opportunity to obtain documents and testimony from Carbide and Anderson regarding his role (and the UCC's) in controlling the plant. For that reason, the amended complaint only refers to Carbide's general corporate structure to show that Anderson would have had the requisite involvement in the plant's operations in order to be held liable.

The specific evidence proffered of Anderson's involvement (without the benefit of any disclosure from Carbide in the discovery process) consists mostly of public statements made by Anderson in public interviews and press conferences.

What lies ahead?

Given the context of our struggle, the obstacles faced over the past 17 years and the resistance of the government to fulfilling its legal duty to prosecute Union Carbide, the victims naturally see this as a major victory. For the first time, Carbide will have to answer to the victims in a court of law for its conduct. I don't think the unprecedented nature and significance of this fact for the victims should be underestimated. Further, we will now, for the first time, be able to to obtain some disclosures from Carbide about exactly what kind of control it exercised over the plant, what kind of technology was utilised there, whether there were double standards or not, what kind of policies and practices it implemented in Bhopal and how these differed from its American operations, etc. The victims will also be able to obtain some discovery from Anderson himself as well as disclosures about his role in managing the plant.

We will redouble our efforts to compel the government to make Union Carbide face criminal prosecution before the Bhopal district court. If the government refuses to do so, we will challenge it in various international fora and pursue our legal remedies so that the whole world, as well as the Indian people, can see how unjustly the Indian government has treated the victims of the world's worst industrial disaster.