Nearly twenty six years after the World’s worst industrial disaster, the media, civil society, and the political establishment, appear to have to have been simply possessed with the ‘witch hunt’ syndrome, to identify the real villains in this entire episode.
Quite understandably, this frenzy has been prompted by the judgement of the Chief Judicial Magistrate of Bhopal, sentencing the seven accused to two years of imprisonment under section 304A ( death due to negligence), which being a bailable offense, meant that they could be out on bail within no time. Hence, for all practical purposes, this sentence as of now exists only on paper.
Terming the verdict as disappointing, the Government of Madhya Pradesh has decided to move the Hon’ble High Court to seek enhancement of the sentence. The Hon’ble Chief Minister, Shivraj Singh Chauhan has been quoted, “ A separate case for each death can be filed u/s 304A of the IPC and 71 of CrPC. At that rate, with two years of imprisonment for every death, sentence spanning 50 – 100 years can be pronounced for each accused. “
While the end result of this intention of the Government of Madhya Pradesh, would only be known in the years ahead, yet some key issues which seem to have received nil or relatively scant attention in the ongoing debate in the media are as follows:
1. The startling revelation of the then Police Chief of Bhopal Mr. Swaraj Puri, that Ashraf, an employee of UCIL, died a year before the disaster because of small leak of MIC gas from the plant.
If this is true, then it automatically follows that any death due to accident or due to any unnatural cause, necessitates an inquiry by the Police, registration of an FIR, followed by a post mortem on the deceased to identify the cause behind the death. Now,
• Was an FIR registered against the management of UCIL, and was a post mortem conducted on Ashraf’s corpse ? and
• If yes, then what was the eventual outcome?
Perhaps, no other individual other than the former Police Chief himself would be able shed light on the same.
Without intending to jump the gun at this stage itself, the circumstantial evidence as clearly brought out by the devastating tragedy and its aftermath, speaks volumes of the kind of disappointment which one is likely to face, while seeking answers to these two questions.
If that be so, then isn’t the then brass of Bhopal Police, also to be held equally guilty for such a disaster ?
2. The release of Mr. Warren Anderson has dominated much of the prime time in the leading news channels, besides featuring in the headlines of almost all the leading dailies in the past few days. There is an equal measure of action in the political circles as well, with the opposition parties cashing in on the opportunity to take on the ruling party for letting Anderson ‘off the hook’, and enabling his safe passage back home. Within the ruling party itself there appears to be a diverse opinion regarding the exit of Mr. Anderson, with one opinion pointing towards a possible pressure from the US, and another pointing towards the possible law and order problem due to the prevailing mood in Bhopal at that time.
While the former Chief Minister Arjun Singh is having to face the flak for ordering Mr. Anderson’s exit from Bhopal, which eventually led to his exit from the country, it is highly unlikely that he could have taken a unilateral decision in this regard.
In all likelihood, Mr. Anderson’s release could have been the outcome of a complex set of circumstances, including the sentiment prevailing in Bhopal in the aftermath of the disaster, to the overall dynamcs of the Indo US relations prevailing at that time, notwithstanding the fact that the cold war was still at its peak, and the erstwhile USSR was one of the two superpowers.
Now, even if the then political leadership at the Centre and State, had taken on a firm stand to hold Mr. Anderson hostage to the overall settlement of the Bhopal tragedy, then was it difficult for a person like him , to get his exit from the country endorsed by our judiciary, by engaging some of best legal talents in the country to bail him out ?
Why do we overlook the fact that the then Bhopal Police Chief, Mr. Swaraj Puri had arrested Mr. Anderson on 7th December, 1984, and produced him before a magistrate, who let him off on bail for a paltry sum of Rs. 25000, and a promise that he would appear before the Court on being summoned ?
It is another matter that he never kept his promise made to the Court, and none of the Governments of the day ever since decided to pursue his extradition with the successive US Administrations aggressively.
3. Taking the Bhopal gas tragedy verdict and the paltry compensation for the victims as a huge lesson, the Hon’ble Law Minister Mr. Veerappa Moily has proposed a radical law that would bind the corporate bodies with vicarious liability , both under criminal and civil laws, and allow class action suit to be brought against them. “Our courts are very conservative in awarding damages to victims in situations like Bhopal gas disaster. How can one apply accident claim criteria in such situations ? We do not want charity from the courts and so want to empower the victims to bring in class action suits to claim adequate damages against corporate bodies held responsible for such catastrophes.”
This is certainly welcome.
But after the Hon’ble Supreme Court had watered down the charges against the seven accused in 1996, from Section 304 – Part 2( culpable homicide not amounting to murder) of the IPC, to Section 304A ( death due to negligence) of the IPC, this judgement by the Hon’ble CJM of Bhopal was a forgone conclusion. How come none in the judicial fraternity, or political establishment, or the media, or in the civil rights group etc, saw it coming sooner or later ?
All the Union Law Ministers since 1996 onwards did not have to wait so long to realize the same.
4. Coming to the controversial judgement delivered in 1996 by the then Chief Justice of India, Justice Ahmadi, it is worth noting that the ambit of Sec 304 Part 2 (culpable homicide not amounting to murder) was settled beyond doubt at that time.
According to an article which appeared recently in a leading daily, the Hon’ble Supreme Court in its judgements on two cases – Dalip Singh Vs State of Haryana (AIR 1993-SC 2302) and in S. Mohanachandran Vs. State of Kerala ( AIR 1994 – SC- 565), while upholding the conviction u/s 304 Part 2, applied the principle as enunciated in this section:
“That mere knowledge that the act will lead to the death of the victim was enough and it is not necessary to establish the intention to kill. And once, it is clear that the accused was aware that an act would cause the death of the victim and irrespective of whether he intended to kill, the accused was liable to be convicted for imprisonment upto a period of ten years and a fine.”
If for some reason, Justice Ahmadi had indeed erred in overlooking this fact, then how come none in the political establishment either in the Centre or the State of Madhya Pradesh, cared to realize this vital flaw and file a revision petition in the apex court ? Certainly, the various Union Law Ministers, Solicitor and Attorney Generals since 1996 owe us an explanation.
Furthermore, since quite some time now, there has been a crying need to amend the provisions u/s 304A ( death due to negligence) by making them more stringent and punitive, as so many innocent lives have been lost and are being lost on our roads, due to drunk and reckless drivers, who have then merrily walked away from the courts after securing bail. So far, no serious attempt has been made in the corridors of power to address the same.
5. And finally, the compensation. This tragedy caused 3800 deaths in a single night, and the rest over the years to about 20,000, with many more have been condemned to live lives full of suffering and untold misery.
The tragedy occurred in Dec 1984, and in 1985 the Government of India filed a claim for $ 3.3 billion from Union Carbide in an American Court. Then, in 1989 the Government of India and the Union Carbide strike an out of Court settlement for a measly $ 470 million. Writ petitions were filed in the Hon’ble Supreme Court against this settlement but apparently nothing came out of it.
In 1992, part of the $ 470 million was disbursed among the victims, and in the year 2004 the Hon’ble Supreme Court ordered the Government of India to payout the rest of the $470 million compensation to the victims.
One wonders:
a) What were the compelling circumstances for the Government of India to agree to this yawning gap between 3.3 billion and $ 470 million, and
b) Was the compensation amount of $470 million even worth it, when it translated into a measly sum of $500 per victim, and worse still, it took eight years for our authorities to disburse part of it among the victims and above all, had to be directed by the Hon’ble Supreme Court in 2004 , that is, twenty years after the disaster to pay out the rest of the $470 million ?
Where were all the wise men and women from our civil society, political establishment , media, human rights groups, socially conscious corporates, and above all the ever opportunistic opposition leaders then ?
Now, to blame the US for practicing double standards by comparing the stand taken by the US Administration on the oil leak caused by British Petroleum in the Gulf of Mexico, to the overall settlement in the Bhopal disaster, would be nothing short of fooling ourselves and indulging in an ostrich like behaviour.
Thus, the real tragedy of Bhopal , is not simply the leak of the deadly MIC gas, but of the collective and avoidable failure of the Indian state as a whole, encompassing all its key constituents to prevent, and then to minimize the sufferings of the victims, besides ensuring a speedy closure to the litigation and bringing the culprits to justice.
Going ahead, the key earnings from this horrific incident and its aftermaths, should not be confined merely to making the appropriate changes to the pending Nuclear Liability Bill, but to apply the learnings to effect the necessary reforms in our legal provisions and processes, besides providing the much needed orientation to the political-bureaucratic apparatus on the ‘Art of Proactive Management.’
The media, honorable parliamentarians, and the civil society at large would certainly be doing the nation a great service by keeping a watch on any such symptoms which could possibly wreck havoc of unimaginable magnitude later on, and highlight it through various channels through a sustained campaign till appropriate action is taken, and those guilty of negligence are severely dealt with.
Certainly, the soul of Ashraf would have possibly found that eternal peace, had his tragic death been able to avert the worst industrial disaster in Bhopal.
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