The June 7 verdict by the Bhopal court sets a precedent for the worst of corporate crimes and even nuclear disasters too to be treated like a traffic accident. Bhopal’s verdict was constrained because of the order of Justice A.M. Ahmadi Bench of the Supreme Court dated 13 September 1996 in which the charges against Indian officials of Union Carbide India Limited (subsidiary majority owned by Union Carbide Corporation) were diluted. Since February 2001, the culpability lies with the Dow Chemical Company which took over Union Carbide Corporation-USA.

All the seven convicts in the Bhopal gas tragedy have been sentenced to two years in jail and a fine of Rs 1 lakh each and, got bail for a surety of Rs 25000 each. Union Carbide's subsidiary in India has been found guilty and is fined to the order of Rs 5 lakh for the industrial disaster. All the officials who were accused in the Bhopal catastrophe including Keshub Mahindra, the former chairman of the Union Carbide India Ltd, a unit of US based Union Carbide Corporation and current chairman of Mahindra & Mahindra Company too has been let off lightly for the industrial disaster that happened during his tenure. The convicts have been held guilty under Sections 304-A (causing death by negligence) besides 336, 337 and 338 (gross negligence) of the Indian Penal Code instead of 304-II (culpable homicide not amounting to murder).

What is quite clear from the verdict is that generations to come will view Supreme Court’s act of reducing the charge against Union Carbide Corporation officials in 1996 from manslaughter (which is punishable with imprisonment up to 10 years) to death caused by a rash or negligent act (carrying a maximum penalty of two years) with deep suspicion that belittles its moral stature.

As early as in 1973, Carbide CEO Warren Anderson was aware of the flaws of the Bhopal plant – untested technology, faulty design and its unsafe location besides its unsafe operation. In December 1987 Central Bureau of Investigation filed criminal charges of culpable homicide against 10 officials including Union Carbide Company’s President Warren Anderson. Why was this charge diluted? Warren Anderson who was the Chairman and CEO of Union Carbide Company when the lethal methyl isocyanate (MIC) leaked from a pesticide plant of the company's Indian subsidiary on the night of December 2-3, 1984. Anderson was arrested and then released on bail by the Madhya Pradesh Police on December 7, 1984 and left for US even as victims continued to suffer because of the industrial disaster. Anderson who lives in New York served as Union Carbide CEO till 1986 till his retirement.

In 1992, Anderson was declared a fugitive by the Bhopal court for failing to appear for hearings in a case of culpable homicide after that his case was separated from the case in which eight people employed by Union Carbide were convicted. In July 2009, an arrest warrant was issued for him. Government of India took some 19 years to move a formal request for his extradition in May 2003 but the US rejected India's request for the extradition of Anderson in June 2004 saying the request did not "meet requirements of certain provisions" of the bilateral extradition treaty.

US Double Standards

Feigning forgetfulness about the industrial disaster caused by a US Corporation in India, referring to the worst environmental disaster in US caused by British Petroleum, a British global energy company which is the third largest energy company and the fourth largest company in the world, on May 27, 2010, US President Barack Obama said, “As far as I’m concerned, BP (British Petroleum) is responsible for this horrific disaster, and we will hold them fully accountable on behalf of the United States as well as the people and communities victimized by this tragedy. We will demand that they pay every dime they owe for the damage they’ve done and the painful losses that they’ve caused.” He has accused the British company of 'nickel and diming' using an American phrase to describe someone who pays a paltry sum far below what is due.

The question is: Isn’t the US corporation Dow Chemicals 'nickel and diming' Indian citizens in Bhopal? Why is Obama hypocritically silent about the extradition of Warren Anderson, former chairman of Union Carbide Company and the liability of Dow Chemicals? The deafening silence of US President and US legislature to ensure justice to the victims of the mass disaster engineered by a US Corporation constitutes “yet another instance of American imperialism” in the words once used by US Judge Keenan who heard the Bhopal case in New York district court.

Bhopal GoM Stacked With Dow’s Defenders

The 55 page PMO documents gathered using Right to Information Act (RTI) shows manifest collusion between ministers, officials and Dow Chemicals to protect it from the liabilities of Industrial catastrophe of Bhopal. The documents reveal how some of the ministers who have been made part of Group of Ministers (GoM) on Bhopal by the Prime Minister have been acting to safeguard the interest of the US corporation in question, which is liable for Bhopal disaster.

The documents gathered using RTI reveal how Chidambaram and Kamal Nath, as well as Deputy Planning Commission Chairperson Montek Singh Ahluwalia have already expressed their support for Dow Chemical Company's proposal to save it from Union Carbide Corporation's liability which it inherited in 2001 after merger.

Andrew Liveris, CEO of Dow, and the Indo-US CEO Forum of which he is a member, have been pushing hard for freeing of Dow from UCC’s liability for compensation and clean up (‘remediation’) in Bhopal. Ratan Tata (now Chairperson of Indo-US CEO Forum from the Indian side) in his role as the Chairman of the three-member Investment Commission, set up in the Ministry of Finance in December 2004 by the Government of India wrote to P Chidamabram, the then Finance Minister suggesting setting up a Fund for remediation on the site of Bhopal disaster that “would cost approximately Rs 100 crores.”

Donning another hat Tata wrote again as the Chairman, Tata Sons Limited to Montek Singh Ahluwalia, Deputy Chairman, Planning Commission, Government of India on October 9, 2006 with regard to resolution of “various legacy issues” of “Dow Chemicals” pursuant to the recommendations of the Indo-US CEO Forum pointing out how the Investment Commission has not had “much success” in this regard. He referred to the interest of Andrew Liveris, CEO of Dow Chemicals with regard to approaches/solutions to the issue. As Chairman, Tata Sons Limited, Tata wrote again to Montek Singh on November 26, 2006 referring to letter of Andrew Liveris that was sent to Ronen Sen, India’s Ambassador to US wherein a request was made saying that “it is critical for them to have the Ministry of Chemicals and Fertilizers withdraw their application for a financial deposit by Dow against the remediation cost, as that application implies that the Government of India views Dow as ‘liable’ in the Bhopal Gas disaster case.”

In a letter dated November 10, 2006, Chidambaram wrote to the Prime Minister about his visit to United Sates to review issues with the Indo-US CEO Forum in New York wherein he submitted a tour report mentioning his comments on a prior note by Ahluwalia regarding Ratan Tata’s letter. In his comments dated 5th December, 2006 Chidambaram refers to Ratan Tata’s offer for Indian corporations to take over remediation in order to free Dow from liability, saying, “I think we should accept this offer”. In December 2006, Dr S Jaishankar, Joint Secretary, Ministry of External Affairs in note titled “Issues Emerging from Indo-US CEO’s meeting” underlies how Dow has “sought a statement from GOI (Government of India) in the Court clarifying that GOI does not regard Dow as legally responsible for liabilities of UCC” and wants to avoid “cloud of legal liability”.

Notably, Liveris had complained to Ronen Sen about how “GOI (Government of India) has taken position adverse to Dow“, in the Madhya Pradesh High Court. The case is still pending. On 5 January 2007, Tata (as Chairman, Tata Sons Limited) wrote to Prime Minister Manmohan Singh, putting on record the meeting of the members of Investment Commission with the PM to discuss “the old Union Carbide tragedy”. The PMO’s letter from B V R Subramanyam, Private Secretary of the Prime Minister dated January 12, 2007 assured Tata that “the matter is being examined” and “the Prime Minister has seen” his letter and “ has taken note of its contents”.

In February 2007, Kamal Nath even wrote a letter to Prime Minister Manmohan Singh about the matter suggesting that it would send “an appropriate signal to Dow Chemicals, which is exploring investing substantially in India and to the American business community” if “a group under the chairmanship of the Cabinet Secretary be formed to look” in the matter of the liability of the Dow Chemicals “in holistic manner in a similar manner as was done in respect to the Enron Corporation with respect to Dabhol Corporation”. The immorality of his suggestion lies in the fact that it ignores the Enron scandal that led to the bankruptcy of the Enron Corporation, a US energy company.

The real issue arising out of Bhopal verdict that has necessitated the setting up GoM is its fallout on the proposed Liability for Nuclear Damage Bill that is pending in the parliament. After all, the Bhopal verdict underlines that any future liability regime must include criminal liability and must not cap the amount of civil liability because the damage from a nuclear or chemical disaster depends on the direction and nature of the wind at the time of the accident. The GoM’s gestures of compensation etc are nothing but an attempt to shield Dow and deflect attention from the protests against the Nuclear Liability Bill’s proposed protection of US nuclear companies from liability.

Seeds of Bhopal Disaster Sown during Emergency

The affidavit from Central Bureau of Investigation’s most recent affidavit in the Court of Chief Judicial Magistrate, Bhopal provides information that implies that had Emergency been not imposed, Bhopal’s catastrophe caused by the US Corporation’s acts of omission and commission would not have happened. There is a compelling logic for an independent probe in the entire issue ranging from granting of industrial license, escape of Warren Anderson, role of Indo-US CEO Forum to lobbying by industrialists and ministers to absolve Dow Chemicals of liability.

It emerges that industrial license to the US Corporation’s chemicals plant was granted during the period when the country was under the Emergency from 25th June 1975 to 21st March 1977 during 21-month regime. According to the CBI’s recent affidavit, on 1st January 1970, Union Carbide Company had “applied for industrial license for manufacture of 5000 tonnes MIC- based pesticides” required under The Registration and Licensing of Industrial Undertakings Rules, 1952. The application was signed by E. A. Munoz, a General Manager in the company. The company did not get industrial license for more than 5 years. There must have been sufficient reason to withhold permission for industrial license. After the imposition of Emergency, the company was granted the license on till 31st October, 1975.

Officials from the then Ministry of Industrial Development have informed that the entire department was against granting of the industrial license. The officials in the Ministry knew that obsolete and discarded technology and machinery was being transferred to India for which the license was granted by bypassing the due process. Clearly, there was political interference in the granting of the industrial license.

The manufacture of Methyl Isocyanate (MIC) commenced on 5 February, 1980, information regarding which was sent to the Department of Chemicals and Fertilizers vide letter dated 19th February, 1980. The company informed the Ministry of Industrial Development on 12 November, 1982 about the commencement of production in 1980, while requesting for renewal of agreement that was to terminate in 1982.

Obsolete Technology and Unsafe Procedures

There is incontrovertible evidence that Union Carbide Corporation (now a subsidiary of Dow Chemicals) is guilty of knowingly setting up the Bhopal plant with obsolete and discarded technology and absence of emergency safety systems available in Union Carbide’s West Virginia plant, and of allowing Bhopal plant operations to continue in the full knowledge of unsafe procedures and cost-cutting measures risking workers and public safety. Page 25 of the Bhopal verdict notes, “(z) It is worthwhile to mention here that the Government of India and the Team of Scientists admittedly was never permitted to visit the Plant at Virginia, USA. No brochure, or any other documentary evidence demonstrating the similarity between the two plants at Virginia and Bhopal has been produced before the court by the defence.”

On page 95 of the verdict, it is stated, “Mr. Warren Anderson, UCC USA and UCC Kowloon Hongkong are still absconding and therefore, every part of this case (Criminal File) is kept intact along with the exhibited and unexhibited documents and the property related to this case, in safe custody, till their appearance.” The verdict quotes the expert evidence of Dr. S. Varadarajan, the Head of the team of experts who visited the Plant Site very next day of the incident: evidence that establishes the many defects in design and defaults in the safe treatment of toxic substances like MIC. Although the design fault by the US corporation is established, the criminal liability of the Union Carbide’s case is yet to be settled.

In 1987, after Union Carbide insincerely argued in the court that it had given a flawlessly designed plant which was operated negligently, the Government of India amended the Factories Act 1948. A new chapter IV A was added with the “provisions relating to hazardous processes” In Section 7 B, sub-section (5) absolved the person (who) designs, manufactures, imports, or supplies” plant and machines from the responsibility for the effect that the plant and machines has on risk and safety, provided the user gives an assurance “to take steps specified in such undertaking to ensure, so far as is reasonably practicable, that the (plant and machinery) will be safe and without risks to the health of workers when properly used, the elimination or minimisation of any risks to the health or safety of the workers to which the design or article may give rise.” (emphasis author’s) This demonstrates how, even after the Bhopal experience, corporations succeeded in getting a law enacted that provided them with a convenient loophole in case of negligence (i.e they can blame disasters on improper use of machinery!)

To conclude, we must acknowledge that the plight of Bhopal - India’s ‘Baghdad’ - too is a consequence of a considered political act of the US Government in defence of the interests of US corporations.

India’s geo-strategic and ecological position in relation to the US has been compromised for good under a narrative which misleadingly equates corporate interests, investment needs and national interests to the profound detriment of freedom and democracy.

Ecological disasters caused by corporations in pursuit of profit are acts of genocide – and for such monumental acts of genocide, there is a need for a trial similar to the Nuremburg Tribunal, wherein a few German corporations were held guilty of connivance with genocide.

BOXES

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The Truth behind US Posturing on the BP Spill

“Just between you and me, shouldn't the World Bank be encouraging MORE migration of the dirty industries to the LDCs [Least Developed Countries]? …. I think the economic logic behind dumping a load of toxic waste in the lowest wage country is impeccable and we should face up to that…. I've always thought that under-populated countries in Africa are vastly UNDER-polluted, their air quality is probably vastly inefficiently low compared to Los Angeles or Mexico City… The concern over an agent that causes a one in a million change in the odds of prostate cancer is obviously going to be much higher in a country where people survive to get prostate cancer than in a country where under 5 mortality is 200 per thousand…”

- from an internal memo sent by Lawrence Summers in 1991, then the Chief Economist of the World Bank, now Chief Economic Advisor to Barack Obama

Barack Obama, with an eye towards the polls to be held in the US in November, is berating British Petroleum for the oil spill in the Gulf of Mexico. But his righteous indignation and muscle-flexing against BP needs to be taken with a pinch of salt. Obama, in one of his first appointments on becoming US President, made Lawrence Summers his Chief Economic Advisor – the same Summers who in the above infamous memo advocated exporting polluting industries to LDCs on the ground that life was cheaper in those countries. The fact that Summers’ philosophy informs US policy is demonstrated by the US establishment’s attitude towards Carbide-Dow and Bhopal and systematic pollution by oil companies in the LDCs.

Take the case of Nigeria. In 1995, just a few years after Summers aired his appalling ‘suggestions’, Nigerian environmental activist Ken Saro-Wiwa was executed by the US-backed Nigerian military dictatorship for leading a brave and sustained protest against massive pollution caused by more than four decades of oil drilling by the Shell Corporation. According to official figures released by the Nigerian government, there have been more than 9000 spills between 1970 and 2000 in Nigeria alone (which works out to 300 oil spills each year), thanks in the main to US and British oil companies operating in the country. Nigeria is the fifth largest exporter of oil to the United States and the largest producer in Africa. All attempts of affected communities in Nigeria and elsewhere in the world to claim compensation have predictably been stone-walled by these powerful corporations who are openly backed by both the US and British governments.

Can Obama tell us: whose ass did the US kick after Exxon Valdez’s oil spill in 1989? That was after all the largest recorded oil spill till the recent disaster in the Gulf of Mexico took its place.

In 1953, the CIA sponsored a coup in Iran, toppling the elected Government that sought to nationalize oil and installing a puppet in its place – all to protect the interests of the Anglo-Iranian Oil Company that was then renamed British Petroleum! The shadow boxing between the US and Britain over the BP oil spill issue is nothing but eyewash. Behind it is the naked truth that the US and Britain have historically collaborated to protect the interests of big oil companies, BP included, waging wars and sponsoring coups to do so.

Radhika Krishnan

BOX

What the US Government Owes to Bhopal

The US government and its legislature must make corporations like Dow Chemicals and British Petroleum liable and accountable for their acts of omission and commission. The following steps are required in US towards that end:

1. The US government should accept the submission of the Government of India that “the corporation and its subsidiaries are treated as a unit, without regard to the location of responsibility within that unit”. Consequently, an illegal act by it should be deemed as the act of the corporation, without consideration to its location of responsibility. The customary alibi of corporations like Dow Chemicals is an act in sophistry designed to conceal fact of crime and criminals of the ‘upperworld’. The US government should disclose all the trade secrets of the Union Carbide Corporation and its Research and Development (R&D) Centre to facilitate a probe as to whether the Bhopal disaster was a consequence of experimenting with war time chemicals is yet to be probed.

2. The US government must take note of the verdict by the Chief Judicial Magistrate, Bhopal, Madhya Pradesh, and in the interest of justice for the Bhopal victims, the US government should expedite the process of extraditing Anderson at the earliest.

3. The Dow Chemicals Company has set aside $2.2 billion to address future asbestos-related liabilities arising out of the Union Carbide acquisition. How is that Dow Chemicals can take the asbestos liability of Union Carbide and not the liability for the industrial catastrophe in Bhopal? The US government should volunteer its assistance in ascertaining the Bhopal disaster’s inherited liability of Dow Chemicals Company.

4. The US government should promote acceptance of the resolution of the UN Sub-Commission on the Promotion and Protection of Human Rights that approved the “UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights” as a step towards ensuring corporate accountability. Article 18 of the Norms called on transnational corporations and other business enterprises to make reparations for damage done through their failure to meet the standards spells out: "Transnational corporations and other business enterprises shall provide prompt, effective and adequate reparation to those persons, entities and communities that have been adversely affected by failures to comply with these Norms through, inter alia, reparations, restitution, compensation and rehabilitation for any damage done or property taken. In connection with determining damages, in regard to criminal sanctions, and in all other respects, these Norms shall be applied by national courts and/or international tribunals, pursuant to national and international law."

5. In memory of victims of Bhopal, US and Indian governments should call for a mandatory regime for regulating transnational corporations unlike UN’s voluntary Global Compact and reject the report of the United Nations Secretary-General's Special Representative for Business and Human Rights wherein it underlined the need for voluntary regulation and self compliance by the companies saying, “While corporations may be considered “organs of society,” they are specialized economic organs, not democratic public interest institutions.

If there is one lesson that democracies across the world have clearly not learnt from industrial disasters, it is to ascertain the nature of all the genocidal acts of corporations and the very legal design of the corporation so as to make it genuinely governable by democratic legislatures. A befitting tribute to victims of Bhopal lies in learning this lesson in order to prevent future industrial warfare that irreparably undermines intergenerational equity.

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Was the Disaster a Result of Experiment with Chemical Warfare?

It is puzzling why no inquiry on the dubious operations of US Corporation’s Research and Development (R&D) Centre has been undertaken so far. Volume 5, Hazard Assessment of Chemicals, published by Hemisphere Publishing Corporation, Washington, page no. 236, refers to the suspicion that in addition to the chemical pesticide plant, the Research and Development (R&D) Centre that Union Carbide which operated in Bhopal since 1976 was experimenting with wartime use of chemicals. The R&D Centre remains shrouded in mystery although it was reputed to be among the best in the world, having 3 green houses, 5 insect rearing laboratories and an experimental farm of 2 hectares. The processing of new chemicals at the R&D Centre had increased from 50 in 1980 to 500 in 1982 and the Centre was projected to test 5000 chemicals in 1985 because many chemicals could not be tested in USA because of stricter environmental regulations. This R&D centre too came up during Emergency. The Bhopal industrial disaster has aptly been called the Nagasaki and Hiroshima of peace time but the suspicion regarding it being a consequence of experimenting with wartime chemicals is yet to be probed.

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Indian ‘Foreign’ Service

G. Parthasarathy, joint secretary and spokesperson in Rajiv Gandhi's PMO said that after the accident Union Carbide offered to send a senior official (Anderson) to India “to assess the situation and to see what the company could do to help out technically and otherwise,” provided he was assured “safe passage.” The Ministry of External Affairs, he said, in consultation with the PMO, agreed to permit the official from the parent company of Union Carbide India Ltd (UCIL), which was running the plant in Bhopal, to carry out an assessment as without that it would find it difficult to respond to any claim made. The offer came from Union Carbide, Mr. Parthasarathy stressed, and Mr. Anderson would not have flown into India without the assurance of “safe passage.”

Parthasarathy's revelations came on a day when TV channels played visuals from that period in which Mr. Anderson is seen saying, “House arrest or no arrest, bail or no bail, I am free to go home...There is a law of the United States ... India, bye, bye, thank you.”

Attempts to shield the Rajiv-led Central Government’s role by blaming Anderson’s exit on Arjun Singh alone hold no water. A CIA Document dated 8 December 1984, a day after Anderson fled India, observed: “The Central Govt’s quick release of the Union Carbide Chairman from house arrest yesterday, however, suggests that New Delhi believes state officials were overly eager to score political points against the company.” Anderson was even given an audience with the then President of India before leaving India!

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