The Statesman 11 Dec 2014
Armin Rosencranz

Union Carbide, both the former American company, and its 49 per cent stake-owned Indian subsidiary, bear prime responsibility for the worst industrial accident in history. They hired entry-level people and failed to train and supervise them. In the middle of the night 30 years ago, one of these unskilled maintenance people poured water on a smoking chemical vat, catalyzing a gas leak, which in turn, borne by the winds, harmed and killed thousands in Bhopal, Madhya Pradesh. The plant site is still toxic and genetic damage will very likely be seen in future generations. Dow Chemical Company, which now owns Carbide, has consistently refused to assume any responsibility, and has refused to clean up the abandoned but still highly toxic plant site. The United States has not interfered with the activities of American-based multinational corporations for at least 60 years, and probably much longer.  When President Jimmy Carter, in the final weeks of his presidency in January 1981, sought by executive order (EO) to prohibit the export of the hazardous pesticide DDT, whose use in the US had been prohibited since 1974, the first EO of his successor, Ronald Reagan, was to repudiate the Carter EO.

Elsewhere I have pointed out that many Indian officials share the tragedy’s responsibility with Carbide.  The Supreme Court of India is responsible for brokering a very modest settlement for Bhopal’s victims, and for never raising the issue of possible genetic damage. The Indian Parliament was responsible for enacting the Bhopal Act in 1985, ostensibly to (unsuccessfully) pressure American courts to take up the victims’ cases, since the Indian government itself became the plaintiff acting in its citizens’ behalf. The victims’ advocates were responsible for keeping the forlorn hopes of the victims futilely alive for 30 years. The State of Madhya Pradesh is responsible for allowing an ultra-hazardous methyl-isocyanate – a cyanide derivative – fertilizer plant to be sited near a populous city. The Bhopal and Madhya Pradesh authorities were egregiously responsible for failing to inspect the plant regularly and for failing to ensure that adequate safety and training standards were observed in operating and maintaining the plant.  As if this were not enough, Bhopal hospital administrators, a day after the gas leak, found themselves confronted by a German doctor holding 50,000 sodium thiosulfate antidotes to cyanide poisoning.  They immediately sent him back to Germany, fearing that panic would ensue if it became known that the plant’s main product was a cyanide derivative. When the $470 million in settlement money finally came to be distributed in 1994, Bhopal district judge Quereshi proudly announced to me that he spent no more than 60 seconds distributing the settlement funds to each victim, not even thinking to set aside any amount for institutional facilities or genetic damage.  Sir Ian Percival, a former U.K. Solicitor General, was sole trustee of a London charitable trust to provide medical relief in Bhopal. Before Sir Ian died in 1998, he spent Rs.10 crore of trust funds to refurbish his London office, pay himself large trustee fees and support his travel and office expenses.

In my view, the people mainly responsible for the victims’ relief, and who failed them grievously, were the members of the Indian Supreme Court who brokered the $470 million settlement in 1989. Except for a small fraction of victims who have been promised modest monetary relief by the Madhya Pradesh state government, the Supreme Court’s 1989 settlement of $470 million is all the relief that the victims or their progeny will ever get.

Because of this limited and woefully insufficient court-brokered relief, it may be worth a moment to look at the pressures that the Supreme Court was under. Carbide had hired India’s ablest lawyers, who seemed able to run rings around the government’s lawyers and to prolong the trials of Bhopal damage claims indefinitely. More than a year had been lost when Bhopal District Judge M.W. Deo came up with the theory of awarding interim damages to the victims. Carbide immediately appealed. Justice S. K. Sheth of the appellate court upheld the interim damages theory, though he lowered the amount of the award so that Carbide’s insurance policy could cover it. Interim damages had no basis in law.  Carbide’s lawyers argued that it amounted to holding Carbide guilty before a trial had taken place.  Moreover, if any Indian damage award were submitted for vindication against Carbide’s assets in the US, it would have to pass a due process test.  Interim damages had no hope of surviving such a test.

The Supreme Court judges, observing the skill and tenacity of Carbide’s Indian lawyers, and the inadequacy of government relief efforts, must have concluded that this case could wind its way through Indian courts indefinitely, depriving the victims of any relief. Most victims could not meet their medical bills, could not work, and in many cases were unable to get enough to eat. The desire for speedy compensation caused all other issues to pale in comparison.

The Union government, through its Attorney General, had said it regarded $500 million as an acceptable figure. Fali Nariman, representing Carbide and its lawyers, said Carbide was prepared to offer $426 million. The Supreme Court offered $470 million as a midway figure. Supreme Court employees worked out that each victim would get $14, 600, which contrasted nicely with India’s then average per capita annual income of $311. The number of victims was grossly underreported, and no one thought ahead to the need for all sorts of institutional facilities and support. Not a word was ever mentioned about damage to future generations.

Of course $470 million was inadequate.  But even this modest figure did not begin to be distributed until 1994, nearly ten years after the tragedy. And notwithstanding the continued urgings and complaints of victims’ advocacy groups to this day, it seems likely that a tiny fraction of $470 million is all that most Bhopal victims will ever see – thanks to the Supreme Court of India’s brokered settlement.

(The writer is a professor of law and public policy at Jindal Global University and co-author of Environmental Law and Policy in India)