The government should arrange for a current calculation of compensation requirements, provide the balance funds, and ensure speedy disbursement.

The verdict in the Bhopal gas leak criminal case convicted officers of Union Carbide India Ltd (UCIL) for rash and negligent acts causing death, and imposed the maximum penalty of two years. The offence arose from the leakage of methyl isocyanate gas on December 2, 1984 from the company's factory, which caused the death of several thousands of people and maimed several lakhs. Predictably, there is outrage not just at the disproportion between the consequences of the act and the sentence. It is deeper because the victims have got a raw deal on all fronts. A Group of Ministers, now examining action, met on Friday and is to finalise the recommendations shortly.

A revisit of events shows that the Government of India (GoI) bears responsibility in several ways. It allowed the plant to be located in a thickly populated area, with the knowledge that it was handling toxic gas. Its inspectors failed to enforce safety standards. Its culpability increased several fold after the world's worst industrial disaster took place.

The GoI took over the right to litigate, exercising the power of parens patriae, and thus prevented the victims from filing suits through their lawyers. It did not match this power with results or responsibility. It filed a suit in the U.S. court where it laid a claim for $3 billion on behalf of the victims. The last thing the Union Carbide Corporation USA (UCCA), the holding company, wanted was to be a defendant in its home country. It would face American tort lawyers, the most aggressive breed of the legal profession, who commonly secure verdicts or settlements for huge sums. The case would come before judges who are used to managing mass party actions efficiently, and a jury of common people, who could be expected to react to the magnitude of the suffering. The GoI lost on the preliminary issue of jurisdiction; Judge Keenan of the U.S. District Court sent the case to India. Round One to UCCA.

During the 26 long years taken to give the verdict ( the responsibility for which is also laid at the door of the Indian legal system), two major events took place, ensuring that the case was a lost cause even before it went to trial. On February 14, 1989, the GoI agreed to a settlement with UCCA before the Supreme Court. It agreed to accept $470 million, 15 per cent of its claim, in full settlement of all civil and criminal claims arising out of the disaster. (Round 2 to UCCA).

The GoI's justification was the delay in Indian courts, and the immediate necessity of providing relief to the victims. The protective parens patriae did not think it fit to provide such interim relief from its resources, which would have made this settlement unnecessary. The GoI did not give the Bhopal victims prior notice of the settlement. The resulting outcry led to the Supreme Court modifying it two years later; the criminal cases were resuscitated; the monetary settlement and cessation of civil liability stayed undisturbed. However, Justice M.N. Venkatachaliah, writing for the majority, held that if the figure of $470 million was not adequate to compensate the victims, the GoI should make good the deficiency. This arose, he said, from the circumstances of the case and the obligations of a welfare state. A dissent on this aspect was entered by Justice A.M. Ahmadi, who asked why the Indian taxpayer should be burdened with this liability when the government had not agreed to bear this liability and was not guilty of wrongdoing.

In 1996, a two-judge Bench diluted the charge from Section 304 para 2 ( knowledge that the act would cause death ) to Section 304 A (rash and negligent act causing death) of the IPC. The penalty came down from 10 years to 2. (Round 3 to both UCCA and UCIL). The GoI defended the case and lost it. It is settled law that the court does not interfere with the trial of a case unless the complaint or charge sheet, accepted without demur, does not make out the offence. The charge sheet clearly stated that the factory in Bhopal was deficient in many safety aspects, its design and safety measures provided by UCCA were deficient, safety norms were not adhered to, factory officers failed to alert the district administration in time, and that all concerned had knowledge that the release of the gas would cause lethal destruction.

The District Court and the High Court found that a prima facie case had been made out by the prosecution requiring the accused to face trial. It would take the strongest legal reasoning to reverse this stand especially given the facts of the case. Justice Ahmadi's reasoning, contained in one paragraph, fell well below this mark. He startlingly held that “Even assuming that it was a defective plant and it was dealing with a very toxic and hazardous substance like MIC, the mere act of storing such a material by the accused … could not even prima facie suggest that the concerned accused thereby had knowledge that they were likely to cause the death of human beings.” In his view, the charge had to make out that the accused had knowledge that by the very act of operating the plant “on that fateful night,” they were likely to cause death. This would mean that the knowledge and the acts are restricted to that fateful night. Logically, it would follow that only the plant operators on duty that night would be liable; those who designed and operated it with deficient safety systems would not be. The GoI accepted this judgment, failed to ask for its review or for a larger Bench to hear the matter, considering that the court was dealing with a disaster of epic proportions.

The Group of Ministers will doubtless examine the legal options of reviewing the Ahmadi judgment, and securing Warren Anderson's presence (he jumped bail, and UCCA and he were declared absconders after they kept away from the trial in Bhopal.) The GoM may also examine if civil and criminal proceedings can be launched in the U.S. against Union Carbide and Mr. Anderson. Judge Keenan's order would be no defence for them, since he predicated it on their accepting the jurisdiction of the Indian courts. All these are difficult courses given the passage of time, conclusion of the trial and the cap on civil and criminal liability.

One remedial action remains, which is what the victims need foremost, and that is entirely in the hands of the GoI. Justice Venkatachaliah made it clear that the GoI would be liable to make good any shortfall in the compensation amounts. The compensation of $470 million was premised upon the number of about 3000 deaths and 30,000 injured. Over the years, the death and injury toll attributable to the gas leak is far higher than what was then officially recorded, with succeeding generations inheriting the health and environmental disabilities. A recent estimate puts the figure at 5,74,367 victims. The GoI should now arrange for a credible current calculation of compensation requirements (its claim in 1986 was for $3 billion), provide the balance funds itself and ensure speedy disbursement. Public policy and moral and legal considerations demand that it does so.

(The writer is Senior Advocate. srirampanchu5@gmail.com)

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