Dishonesty, fraud, breach of Trust

Posted on August 15, 2010

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S Gurumurthy

Now the almost-forgotten Bhopal gas tragedy is back in the headlines. For most readers, it is history recalled. But, for the Bhopal survivors, it is tragedy relived. A brief recount of the killer gas explosion first. The tragedy struck at the sleeping city past midnight on December 2-3, 1984. A valve defect had diverted a ton of water into a storage tank of the factory that contained some 42 tons of poisonous gas known as Mythl IsoCynate (MIC). This resulted in a huge chemical implosion raising the heat to 200 Celsius. That instantly opened the tank, and emptied the 42 tons of toxic gas that exploded into the atmosphere. MIC is a deadly poison. If the MIC particles exceed 21 out of a billion in the atmosphere, that can injure, even choke, the lungs and cause death. Imagine some 42,000 kilograms of this poison are let into the air in one shot. The MIC-concentrated area will turn into a mass graveyard. This is precisely what happened in Bhopal.

Some 3,800 people, mostly dwellers in nearby slums, instantly choked to death after inhaling the poison; the toll rose to 10,000 in the next few days; some 15,000-20,000, who had inhaled less intense poison, died miserable deaths on the next two decades; and, some 5,00,000 people, almost half the population of Bhopal then, who inhaled the toxic gas, are living an impaired life of different grades (See ‘Bhopal Disaster and its aftermath: a review’ by Edward Broughton of Columbia University, Environmental Health issue dated May 10, 2005). Many of those living are just breathing dead bodies. On December 3, the dead bodies of humans and animals in thousands were seen strewn on the streets. But what followed the untold tragedy was an unmitigated disaster to the victims.

‘Sole trustee’ hoax

Union Carbide India Limited (UCIL), a subsidiary of Union Carbide Corporation US (UCC), was operating the Bhopal factory. But, UCC disowned its subsidiary once the tragedy occurred, contending that the Bhopal works was that of UCIL, an Indian company; it also ‘fabricated scenarios’ of ‘sabotage’ by ‘unknown Sikh extremist groups’ and ‘disgruntled employees’. In the process ‘the ethical implications of the tragedy and its effect on the Bhopal people were largely ignored’ in the litigations (Broughton). In March 1985 the Indian government, by law, declared itself as the sole trustee of the victims in legal proceedings anywhere. Eventually the US courts, where cases had been first filed, pointed the litigants to the Indian courts — ‘to the detriment’ of the victims (Broughton).

As the sole trustee representing toxic gas victims, the government had first made a claim of $3.3 billion on UCC. The UCC counter-offered about a tenth of it, $350 millions. Suddenly, on UCC owning ‘moral responsibility’ for the tragedy, the sole trustee-government shockingly agreed to an unbelievable, measly compensation of $470 million against its claim of $3.3 billion. The Supreme Court of India mediated this claim, a pittance. Not just a sixth of government’s claim, it was less than five per cent of what UCC itself paid to similar victims in US. The day the settlement was sealed by the Supreme Court, Ram Jethmalani, veteran jurist, said that there was large-scale corruption in the deal. He charged that the government, which forcibly became the sole trustee for the victims, was guilty of criminal breach of trust against the victims. This breach of trust is the worst crime in the continuing story of betrayal of the poor victims from the word go.

Victims shortchanged

The settlement was based on false data that understated the tragedy, as if ‘only 3,000 people died and 1,02,000 suffered permanent disabilities’. But, the actual casualties were five times more — 5,54,895 survivors and relatives of 15,310 dead had actually collected the meagre compensation by 2003. That the shares of UCC rose by seven per cent on the very day the Supreme Court sealed the deal testified to how much the UCC gained by this fraud on the Bhopal victims. A grateful UCC thanked the Supreme Court for braving all opposition and approving the deal. In 1993, Jackson Browning, a high UCC officer wrote, ‘Exercising great political courage in the face of (that) opposition, the court directed a settlement of $470 million and nullified criminal charges’.

But what is the maximum that the Bhopal victims could have claimed in an honest deal? Some $10 billion-plus, according to Broughton, applying the rates at which the victims of asbestosis (respiratory injury caused by inhaling asbestos fibres) were paid in the US, including UCC. That means that the Bhopal victims would have claimed more than Rs 21 lakh per head, that is, 21 times that what they actually got! But, without benchmarking the asbestosis victims that could make a $10 billion-plus claim possible for Bhopal victims, the court agreed to the paltry amount and yet acclaimed it as ‘just, equitable, and agreeable’! But could UCC have been forced to cough up more? Yes, but if, and only if, strong criminal charges had been made and used as a strategic weapon. And this is precisely what the apex court order disabled the CBI from doing.

The issue about the tragedy in criminal law was this: first, was the mass death caused by negligence of UCC officials? Second, or was it with their knowledge that, ‘by such act’, they were ‘likely to cause’ the deaths? The first is like death caused by rash driving, punishable with two-year jail term (Section 304A of the IPC). The second is ‘culpable homicide’ (without intent to murder) punishable with jail life extending to 10 years (Section 304 of the IPC). The CBI had pressed for culpable homicide, based on evidence that showed that UCC knew (and it was even forewarned publicly) that its acts were likely to cause deaths. The UCC manual itself says that MIC is ‘a poison by inhalation’, ‘an oral and contact poison’. By stocking the poison that could leak and choke to death the thickly populated neighbourhood, UCC must have known that mass deaths were likely to happen.

Hint of cyanide

The UCC was publicly forewarned about it two years ahead of the tragedy. In the year 1982 itself, Rajkumar Keswani, a local journalist, wrote a series of articles in Hindi titled ‘Bhopal on the edge of a volcano’, predicting that the disaster was waiting to happen. He later got the prestigious B D Goenka Award for Excellence in Journalism for his investigative work on UCIL. So UCC could never say that it did not know that its arsenic stocks were not likely to cause the Bhopal disaster. Broughton sees deadly cyanide mix in Bhopal gas leak. Remember the cyanide pill of LTTE intended for instant death? The conduct of UCC, a critical clue to one’s guilt or innocence, clearly points to its guilt. Broughton says: ‘at every turn’, UCC ‘attempted to manipulate, obfuscate and withhold scientific data of the disaster’; even to this date it has not disclosed ‘what was’ in the killer toxic cloud; there was ‘clear evidence’ of the presence of ‘deadly hydrogen cyanide’ in the gas leak; the ‘cherry-red colour of blood and viscera’ of victims was characteristic of ‘cyanide poisoning’; many victims had responded to anti-cyanide therapy; the UCC itself had recommended anti-cyanide therapy first, but withdrew it on afterthought, to cover-up evidence of cyanide in the leak. Is any further proof needed to show that UCC knew, in fact was forewarned, that by its acts, it was likely to cause the deaths?

Yet, in the Supreme Court, Justice A H Ahmadi’s legalism helped the UCC to get away by handing petty sums to the tragedy victims. In 1996 Ahmadi reduced the charge against UCC to causing death by negligence, dropping the charge of culpable homicide. Ahmadi ruled that vicarious criminal liability was unknown to criminal law; meaning, legally, UCC was not liable for the acts of its subsidiary, UCIL. But is that view correct? In civil law, acts of the agents automatically make the principal liable. In criminal law, it is not so. The principal is liable, but only if he abets in the acts of the agent. So, if it had abetted in the acts of UCIL, UCC would be criminally liable. But whether UCC (or its then chairman Warren Anderson) had abetted in the offence, was an issue of fact that needed probe and trial. But, Ahmadi’s view effectively prevented such probe and trial and thus removed the most potent weapon of charge of homicide from the armoury of CBI. As a result, the CBI could not press the charge of culpable homicide against UCC and Anderson. It had to stop with charging them for traffic offences. This dilution was precisely what the UCC had desperately wanted. But this gift was given in return for the measly settlement at five per cent of the compensation that UCC would have forked out in US. Granting that the US government was keen to protect Anderson, this dilution could have been traded off for getting, if not the US-rated compensation for the victims, at least the $3.3 billion claim of the government of India. The Congress government committed a criminal breach of trust on the poor victims. And the Supreme Court lapsed in its vigil, when it put its seal on the deal.

Anderson, the state guest

In February 2001, a US multinational, Dow Chemical Company, acquired UCC for $11.6 billion, and made UCC a subsidiary. The annual revenue of Dow (2007) was $54 billion, with profit after taxes of $3billion. When asked about possible Bhopal claims, Jon Musser, Dow PR, said, “It won’t ever happen.” How confident. Another Dow PR official, Kathy Hunt, said, “$500 (compensation) is plenty for an Indian.” How arrogant. Dow has on hand a huge liability for cleaning the Bhopal factory, which has been lying in an ‘as-was-where-was’ state since the tragedy. The remaining toxic stocks continue to leak and seep into subsoil. These ‘have found their way into’ local water sources. The ‘dangerously contaminated water’ is now ‘part of the legacy’ of UCC for the people of Bhopal. Yet, two members of the newly re-constituted Group of Ministers dealing with the Bhopal tragedy, belonging to the Congress, had earlier written to the prime minister that forcing Dow to clean the factory and restore the water sources would adversely affect foreign investment in India. Why, after all, will the Dow officials not be confident and arrogant?

Finally, media reports have cited the declassified records of CIA, which disclosed that the then Prime Minister Rajiv Gandhi had instructed the then Madhya Pradesh Chief Minister Arjun Singh to free Anderson after he was arrested on December 7, 1984. The media also says that Anderson was treated as a state guest, sent back in the state plane to Delhi. It does not need a seer to say that the Congress government at the highest level had sided — or colluded? — with the UCC, against the Bhopal victims. Is that why Anderson, who was arrested, was released on bail; is that why he was saluted as he left Bhopal? Is that why the government forcibly became the sole trustee of the victims? Is that why it had settled for a paltry compensation for the victims? Is that why the charge of culpable homicide was not slapped on him to ensure that he was not extradited to India? Even a strategic threat of investigation and trial of Anderson would have coerced UCC to cough out a higher, if not the full, compensation. Finally, the victims have lost both ways. They neither got the full compensation nor saw Anderson in jail. But the verdict of the sessions judge in Bhopal is being lampooned. Could he have overruled Justice Ahmadi and held that Anderson was guilty of culpable homicide? Why blame him then?

QED: Abhishek Singhvi says that being a Congress party spokesman and pleading as legal counsel for Dow (the new owner of UCC), is not a conflict of interest. Why, for the Congress party itself there is no conflict of interest in being the sole trustee of the gas victims and not acting for them against their killers!

Article: Swaminathan Gurumurthy (http://www.gurumurthy.net)

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Posted in: Indian Politics