Wednesday, April 27, 2011

Bhopal gas disaster - government makes amends

The Central Bureau of Investigation (CBI) the other day admitted in the Supreme Court that it made a "mistake" in approaching the latter late for restoring stringent charges in the Bhopal gas tragedy case against the accused who escaped with lighter punishments. When questioned for the reasons for the delay, the agency, parrying the query, said that it was not an "ordinary case" in which delay in filing the curative petition should come in the way of providing justice to the victims of the disaster.

The agency has filed a curative petition to, evidently, set right the injustice meted out by the apex court in September 1996 when a two-judge bench, presided over by the then Chief Justice of India (CJI) AM Ahmedi, diluted the charges against the accused from that of “culpable homicide not amounting to murder” punishable with 10 years’ imprisonment to “causing death due to negligence” that fetches a punishment of mere two years in prison. The contention of the then CJI was that he could not support such a charge (that of culpable homicide) unless it was indicated, prima facie, that the plant was run on that fateful night by the accused with the knowledge that it was likely to cause deaths of human beings. The CBI, in its wisdom, did not approach the court for a review.

However, it has had to file a curative petition now because of the public outburst after the June 7, 2010 verdict of the Chief Judicial Magistrate (CJM), Bhopal, that handed out 2 years’ imprisonment with some fines for the accused officials of the Union Carbide India, Ltd (UCIL) under the provisions of the Indian Penal Code that deal with death(s) caused by criminal negligence. The ultra-mild verdict caused outrage amongst the victims and their relatives. The verdict had come 26 years after filing of the case relating to the leak of the lethal methyl isocynate from the Bhopal-based UCIL factory in the early hours of 3rd December 1984. Officially, 15000 men, women and children were killed, the unofficial count being in the region of 25000 to 30000. Thousands of others died later or were maimed for life and are still suffering from the after-effects.

Making assertions before a Constitution Bench of the Supreme Court the Attorney General (AG) Gulam Vahanvati justified the filing of the curative petition as the UCIL was entirely responsible for the world’s worst industrial disaster. The Corporation attracted the total responsibility as it operated the pesticide plant with “structural and operational defects” and flouted “all other” safety norms. The AG added, “The UCIL was sitting on a powder keg and as such the disaster was waiting to happen” He further said that the plant had been “limping” along since 1981 – good three years before the fatal accident – due to the illegal omissions and commissions on the part of the management that resulted in a “dismal state of affairs”. The accident was the cumulative result of a series of criminal violations by the factory which, he contended, was not due to negligence as determined by the Supreme Court in 1996. “Once this knowledge was attributed to the respondent/accused persons, the fact that no action was taken to set right and cure the defects in the plant would by itself attract the provisions” of the relevant section of the IPC that treats such offences as culpable homicide not amounting to murder. He felt that the Supreme Court had erred in 1996 in giving a verdict that was “oppressive to judicial conscience”. He added that it has caused manifest “irremediable injustices”. The two-year jail-term capable of being imposed under the section of IPC applied by the court to the culprits was “grossly disproportionate” to the “horrendous crime” that was committed by them.

The assertions of the AG must have surprised and shocked many who are acquainted with the developments of the entire case against the Union Carbide Corporation (UCC) and its Indian subsidiary the UCIL. Although privy to all the facts that are now being placed before the apex court, these were never mustered to book the culprits earlier when apex court diluted the charges. Perhaps, CBI’s hands were tied owing to the directions given by the then ruling party. In fact, all these years there had been a well-considered attempt by the governments at the Centre and the state of Madhya Pradesh (MP), both ruled by the Congress at the time of the tragedy and for many years thereafter, to protect the interests of the UCC and its Indian subsidiary, UCIL.

A recapitulation, in brief, of the basic facts of the case should prove to be helpful for a better appreciation of what has been said above. That the plant was of obsolete design was known to the Centre’s Department of Industrial Development where the proposal of the UCC remained on ice for around five years until, suddenly during the Emergency, it was fished out of cold storage and approved reasons that were dubious. The then Chief Minister (CM) of MP was grateful to the UCC that it agreed to set up the factory in Bhopal. Soon thereafter, in the early 1980s, a local reputed journalist cried hoarse about the very facts that the AG has pleaded now – that the plant at Bhopal was sitting on a powder keg. But the then CM, the late Arjun Singh, would not lend his ear to them – beholden as he was to the UCIL. After the tragedy, not only did he try to palm off a depressed figure of casualties, he also had Warren Anderson, CEO of the UCC, most inappropriately smuggled out of Bhopal after his arrest. Later, the Centre saw to it that he was safely flown back home. Anderson was personally responsible for the tragedy as the defects and deficiencies of the plant had been communicated to him by the local plant authorities from time to time before the gas-leak.

At Delhi the Centre played its own games to the detriment of the victims and survivors of the tragedy. Not only did it agree to a paltry sum of $470 million as compensation negotiated in camera by the then Chief Justice of India, RS Pathak, with the representatives of the UCC, (another curative petition for which has now been filed) the government had a law enacted that took away the rights of the victims to sue the UCC for compensation or to file criminal cases against it and its officials. Further, the government has so far steadfastly refused to pursue the ongoing Bhopal Gas Victim’s case in the US even though it knows full well that its participation will strengthen it and that any order of an Indian court will not be enforceable in the US – regardless of a positive outcome of its fresh curative petition.

All this apart, the MP government, under the Congress rule, stopped remediation by Eveready, the successor of UCIL, of the contamination of the factory-site, which the UCIL had been contaminating from even before the gas-leak tragedy. Having done that, the government accepted the site back from the Corporation with all its hazardous wastes without insisting on its return in the condition it was handed over to it in accordance with the provisions of the lease deed. A few thousand crores may now have to be spent for the removal and disposal of the hazardous chemicals and other contaminants from the site.

Clearly, both, the Central and the state governments, after such a grievous tragedy, short-changed the country and its people, as it now seems, for the interests of the Congress party that happened to be running both the governments. They took decisions that, from all evidences, were in favour of the UCC, apparently, for reasons of the payments the UCC made to the Congress Party, as very plausibly alleged by the eminent lawyer, Ram Jethmalani. His allegations have not been denied so far.

The public outrage after the June 2010 judgement left the Congress-led United Progressive Alliance government with no alternative but to take the initiatives it has taken now. Nothing may, however, come off them as the actions that are being taken now are excessively delayed. The government is, apparently, going through the motions only to assuage the feelings of the victims of the disaster.
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