Bhopal -- a wasted opportunity

Twenty-five years after the Bhopal gas tragedy, the world is no wiser about the safe management of hazardous technologies.

It has taken more than a quarter of a century to bring the perpetrators of the worst industrial accident in history to justice. On June 7, a Bhopal court convicted eight former members of Union Carbide India's senior management over the horrific gas leak and sentenced them to two years in jail. They will also pay a fine of Rp100,000 ($2,100).

The sentences are modest and provide little comfort to the thousands of victims who lost their lives or suffered grievous injuries when toxic gas spilled from a chemical plant owned by Union Carbide in Bhopal in central India in December 1984. The enormity of the tragedy should have prompted a swifter and more humane response.

No doubt the Bhopal case was technically and legally complex, involving as it did a US multinational, its Indian subsidiary, half a million claimants represented under statute by the government of India, criminal prosecutions and a class action suit for damages.

But the case against Union Carbide Corp (UCC), the US-based owner of the plant, never gained traction, nor were the victims of the accident adequately cared for or compensated. The two issues gradually became enmeshed and ultimately forced a compromise that ill-served the ends of justice or the best interests of the victims.

I reported the Bhopal gas disaster for Business India magazine in the days immediately after the accident and through the twists and turns of legal proceedings against UCC in the US and in India. Our investigations established that as part of a cost-cutting drive, the plant had undergone major design modifications and was operating in breach of safety precautions in the full knowledge of UCC management.

Both measures had a direct bearing on the events of December 1984. The death of a worker in the plant and a major leak of the killer gas into the surrounding community two years before the catastrophic accident were in fact investigated by teams from UCC. The company disregarded their findings.

The government's lawyers built a powerful case against UCC, arguing that its 50.9% holding in Union Carbide India Limited (UCIL) gave the parent extensive control over the subsidiary's business, ranging from the design and construction of the pesticide plant in Bhopal to its maintenance, safety and operation.

The limited pre-trial discovery proceedings in the US produced substantial evidence to support the claim that while the accident took place in Bhopal in India, the chain of decisions that led to the catastrophe could be traced back to UCC headquarters at Danbury, Connecticut. Accordingly, the Union of India sued UCC for $3.3 billion in damages in a US court.

UCC responded by saying that despite its majority shareholding it had always maintained an arm's length relationship with its Indian subsidiary, it exercised no day-to-day control over the latter and the Bhopal plant was operated by local employees. Thus it bore no liability whatsoever for the accident. Moreover, the company argued, as the dead and injured were all Indian citizens (as was UCIL) it would be most convenient to try the case in an Indian court.

It took two years before the district court in Manhattan decided that the case should be adjudicated in India and that UCC would be subject to the jurisdiction of Indian courts. The case was transferred to Bhopal and proceedings recommenced. But by now, allegations of neglect of the Bhopal victims by the local government, the rising death toll and growing health crisis in the affected populace put tremendous pressure on the government to find a quick way out.

In 1989, the government and UCC agreed to settle the case out of court for $470 million. They sought the Supreme Court's permission to club and terminate all proceedings, both criminal and civil, against the company and its officials under the deal. It took strenuous opposition by victims' groups to persuade the highest court in the land that paying "blood money" is alien to Indian (and Anglo-Saxon) jurisprudence and that, under Indian law, a criminal case cannot be withdrawn unless the state is unable to prove its case.

The recent conviction of senior UCIL executives for criminal negligence and endangering human life (although not the graver offence of culpable homicide that they had earlier been charged with) has vindicated their stand. But that offers little consolation. For nobody has gained from the battle of the past 25 years. Although UCC escaped trial, the company was broken up and sold piecemeal. Yet, its shareholders didn't lose out like the victims, who have received little or no compensation for death, disability and lifetimes of suffering.

The case against Union Carbide represented a tremendous opportunity for a court to investigate a particularly egregious instance of the sort of reckless corporate conduct that leads to such disasters. The Indian government had the means to support and care for the victims till justice was done. But it chose not to pursue it.

Companies that operate dangerous plants and technologies are likely to continue to disregard the lives of their workers and communities they put at risk because, as Bhopal shows, there are rarely serious consequences for behaving as they do.

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