Culpable leadership

WARREN M. ANDERSON, former chairman and chief executive of Union Carbide Corporation (UCC), passed away on September 29 at a nursing home in Vero Beach, Florida, United States. True to the reclusive life he lived all these years, his death was made public by his family nearly a month later, through a routine obituary note in a local newspaper.

According to a report, Anderson’s light-handed approach was evident from a paperweight on his desk, which quoted his favourite Chinese proverb: “Leader is best when people barely know he exists.”

People in India, however, are likely to interpret Anderson’s proclivity for anonymity, despite being the leader of a large business empire, as a ruse to avoid responsibility for his omissions and commissions as a leader and evade accountability for the humongous failures of the organisation he led.

No wonder, several years after a Bhopal court charged him with culpable homicide for causing the world’s worst industrial disaster—the leakage of the poisonous methyl isocyanate (MIC) gas from UCC’s pesticide factory in the Madhya Pradesh capital in 1984 killing thousands of local residents—he remained a fugitive from law, and evaded extradition to India to answer the charges, until his death.

Humble origins

Anderson, according to reports, had humble origins. Born to Swedish migrants to the U.S., he assisted his father, a carpenter, in installing floors and delivered copies of the local newspaper to supplement the family’s income. He joined UCC as a salesman and rose to become its chairman and chief executive in 1982. But his rags-to-riches story was at odds with his lack of sensitivity in ensuring adequate safety conditions at UCC’s Bhopal plant.

The Central Bureau of Investigation (CBI) filed a charge sheet in the court of the Chief Judicial Magistrate (CJM), Bhopal, against UCC and Anderson on December 1, 1987. Anderson was charged with several offences under the provisions of the Indian Penal Code (IPC), including Section 304 (Part-II). Under this section, whoever commits culpable homicide shall be punished with imprisonment for a term that may extend to 10 years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death but without any intention to cause death. The CJM issued a non-bailable arrest warrant against Anderson on March 27, 1992, so that the Central government could seek his extradition through the CBI and ensure his presence during trial.

The CBI had found substantial evidence to suggest that Anderson, as the chairman of UCC, knew that the poor safety measures at the Bhopal plant could cause a disaster. This “knowledge” of the disaster potential of the plant is the key ingredient that strengthens the charge of culpable homicide, as against a simple charge of criminal negligence.

The CBI charged 12 accused, including Anderson, with culpable homicide before the CJM, Bhopal. Of these, Anderson and the two corporate bodies, UCC and its subsidiary, Union Carbide Eastern Inc. (UCE), Hong Kong, went unrepresented at the trial. The remaining nine accused, all Indian (of whom Union Carbide India Limited, or UCIL, another subsidiary of UCC, is a juristic person), however, obtained relief from the Supreme Court by reducing their charge from culpable homicide to criminal negligence under Section 304A of the IPC. This section holds that causing death by negligence attracts punishment for a term that may extend to two years, or with fine, or with both. The CJM convicted seven of them (as one had died during the trial) and sentenced them to two years’ imprisonment in 2010. All the convicts promptly obtained bail, and their appeal against their conviction and sentence is pending in the Bhopal Sessions Court.

If the CBI was responsible for suppressing the crucial evidence it found against the accused to charge them with culpable homicide, the Supreme Court, too, ignored the key evidence cited by the organisations representing the survivors of the tragedy. In 1996, these organisations sought a review of the court’s judgment in the Keshub Mahindra case, which resulted in the dilution of charges from culpable homicide to criminal negligence.

In particular, they referred to a video film made by Granada Television of the United Kingdom, which examined in detail the inadequacy of the safety precautions in UCC’s Bhopal plant and compared them with the safety systems installed at its MIC plant in West Virginia, U.S.

It could be easily surmised that the foreign accused would have had more knowledge about the disaster potential of the Bhopal plant than their Indian counterparts because of the former’s access to information regarding MIC gas, which UCC had refused to share with others.

The CBI opposed the survivors’ plea to visit the UCC headquarters in the U.S. to compare the safety standards practised in the UCC plants in Bhopal and in the U.S. on the grounds that it would further delay the trial. The UCC nominated its own directors for the board of directors of UCIL and exercised strict financial, administrative and technical control over the company.

According to an agreement UCIL had entered into with the parent company on November 13, 1973, UCC had to provide UCIL the best manufacturing information available then. This necessitated that UCC supply design, know-how and safety measures for the production, storage and use of MIC, which ought to have been an improvement on the factory in the U.S., on the basis of the experience gained there ( Frontline , July 2, 2010).

The case of the absconding foreign accused is still pending before the CJM, Bhopal, under Miscellaneous Judicial Case (MJC) No.91/1992. With Anderson’s death, the CBI has now to secure his death certificate to seek to formally close the case against him. Much has been made out by sections of the Western media about Anderson’s expression of anguish over the disaster in an interview, held in its immediate aftermath, and his visit to Bhopal, unmindful of his impending arrest by the Bhopal police.

What has been glossed over, however, is the assurance of safe passage given to him by the then Union Home Minister, P.V. Narasimha Rao, who also intervened to secure his release and safe return to the U.S. when he came to know that the Madhya Pradesh government had got him arrested oblivious of this assurance. Narasimha Rao apparently intervened with the consent of the then Prime Minister, Rajiv Gandhi. The CJM granted bail to Anderson on December 7, 1984, even though the chances of his return to India to face trial were remote.

The CBI accepted the flawed legal advice that the foreign accused might not evade the Indian legal process if they were treated on a par with the Indian accused. In 1998, the then Attorney General, Soli J. Sorabjee, gave a written opinion to the Legal and Treaties Division, Ministry of External Affairs, on whether a request by the Government of India to the U.S. government for the extradition of Warren Anderson would be consistent with the requirement of the extradition treaty between India and the U.S. Sorabjee wrongly advised the government that the reasoning of the Supreme Court in the Keshub Mahindra case in 1996 would apply to Anderson as well. Sorabjee opined that any extradition request for Anderson would have to be limited to Section 304A of the IPC (causing death by rash and negligent act), under which a maximum sentence of just two years’ imprisonment could be awarded compared with 10 years’ imprisonment for the offence of culpable homicide.

Sorabjee believed that there were missing evidentiary links regarding Anderson’s knowledge about the cause of the gas leak, and without these links the Indian government would not be able to convince a U.S. court about its case for extradition. Sorabjee wrote in his opinion on August 6, 2001, that he was not optimistic that at the end of the day the requisite evidentiary material would be forthcoming. According to him, Anderson’s age of 81 years (in 2001) and the lapse of 17 years since the disaster were weighty and relevant considerations for the U.S. State Department to refuse India’s request for his extradition.

However, in an interview to this correspondent in 2001 ( Frontline , January 18, 2002), Sorabjee not only conceded that the 1996 Supreme Court judgment in the Keshub Mahindra case would not apply to Anderson but regretted that he advised the Government of India not to pursue the extradition of Anderson. He also suggested that his opinion did not bar the government from pursuing the extradition if it wanted to.

On May 24, 2002, the CBI filed an application before the CJM, Bhopal, that the earlier non-bailable warrant issued under Section 304-II of the IPC (culpable homicide) was not relevant and that a fresh non-bailable warrant was required to be issued against Anderson under Section 304-A. The CJM rejected the prayer on August 28, 2002.

It is not surprising that with this demonstrated lack of interest on the part of the CBI in securing Anderson’s extradition, the U.S. government formally declined the Indian government’s request to extradite him in 2004.

Pressure of public opinion, however, forced the CBI and the Central government to forward nonchalantly another request to the U.S. government to extradite Anderson. On April 3, 2013, the CBI said in a status report submitted before the CJM, Bhopal, that the U.S. government had not taken any decision on the second request.

The CJM issued a non-bailable arrest warrant in 1992 against Anderson. As he did not appear in court, the CJM issued another non-bailable warrant in July 2009.

The former Attorney General of India, the late Goolam E. Vahanvati, told the government in October 2010 that there was enough material evidence to show the involvement of Anderson in the gas disaster case. He asked the government to strongly pursue the request for Anderson’s extradition.

In his legal opinion, Vahanvati observed that though Anderson was old, a “message must be sent that justice, though belated, could still be done to these hapless and helpless victims” in the light of the fact that the Bhopal gas leak tragedy was the worst industrial disaster in human history, in which thousands of lives had been affected.

In his 13-page opinion, Vahanvati also asked the government to prepare a detailed dossier of evidence showing the complicity of Anderson, “succinctly” pointing out that he had the necessary knowledge of the operational defects in the Bhopal plant and that the omission to take any rectification action despite such knowledge would clearly constitute an offence under Section 304 II. The dossier, the opinion said, should also indicate that Anderson’s action, or the lack of it, translated into the offence of manslaughter. He also asked the government to take the services of a competent U.S. attorney to assess the material from the perspective of U.S. law. The then United Progressive Alliance government was, however, cold to Vahanvati’s advice, as the U.S. government had once refused to extradite Anderson on the plea that the request in this regard from the Indian government did not meet the requirements of the Indo-U.S. Extradition Treaty signed on September 14, 1999.

Vahanvati was categorical that Anderson could not claim the benefit of the Supreme Court judgment in the Keshub Mahindra caseas he was not a party to the case.

Survivors’ reaction

The news of Anderson’s death was received with contempt by the survivors of the tragedy, who lost their family members to the disaster. They gathered outside the UCC’s abandoned factory in Bhopal to spit on an enlarged photograph of Anderson. They alleged that owing to the protection offered by the U.S. government and the deliberate negligence on the part of the Indian government in bringing him to justice, the world’s worst corporate criminal died unshackled. They averred that the civil and environmental liabilities of UCC and now Dow Chemicals, which purchased UCC in 2001, for the disaster remained unchanged even with Anderson’s death.

Anderson’s passing appears to be an insignificant event in the series of injustices perpetrated against the survivors of the Bhopal disaster, as his prolonged natural life could only have served as a continued reminder of India’s inability to bring him to justice and, therefore, embarrassed the nation’s collective conscience. His death probably mocks India’s unlikely success in bringing to justice the remaining two foreign accused-cum-fugitives UCC and UCE—and their legal successors who will inherit their assets and liabilities.