Re-visiting the Bhopal Gas Tragedy

My blogger friend Anand (who blogs here - http://musingsofanand.blogspot.in/p/ibl.html) has savaged the Indian judiciary in a recent post of his. I not being a lawyer, would leave the task of defending itself to the Judiciary – for although I sympathise with his angst, I find many of the points he has raised to be too simplistic an argument without understanding the issues in depth. I especially find the part where he disses the Judiciary for its failure in the Bhopal case as misplaced anger and would like to set right the record, even though I don’t have an in-depth knowledge of the Bhopal case, let me share my laypersons views.

There are two aspects to the Bhopal case…one was the civil suit and the other the criminal proceeding. As regards the Civil suit it’s not about punishing the guilty but helping the victims first. The victims of the gas leakage tragedy- numbering at 250 in the first spread and growing onto around 2500 people by now, were left helpless and penniless in refugee camps after fleeing their homes. 

The first order of business for the courts was to help them get some monetary compensation from the offending company as damages- to help re-start their interrupted lives. This was done by the district court in Bhopal, which when the case was filed before it, Immediately and I repeat immediately- gave an interim (temporary) compensation of Rs350 crores to the victims, without worrying about the guilt of the parties or the merits of the case or anything legalistic. Unfortunately, the accused company, Union Carbide Corporation complained to the High Court of Madhya Pradesh with an appeal petition alleging that the had been unfairly accused and sentenced for compensation before the case got over. The high court while going over the arguments accepted that both sides had a point but UCC had to pay compensation to the victims immediately and reduced the compensation to Rs250 crores.

And then the Indian Government did something extremely stupid...Of course they did a lot of stupid criminal things in this case..But this one takes the cake. They went an filed a case in New York, the Federal court in new York , home of Union Carbide and saying they were Parens Patriea (Legal guardian) of the victims and demanded a hugely obscene amount as compensation acting on the premise that American Judges give more compensation than Indian judges do in mass tort cases. The presiding judge in the NY federal court, Justice Keenan simply threw out the case citing “Forum Inconveniens” that is..The accident happened in India, the victims, the witnesses and the documents are all in India, the Company has an Indian subsidiary headquartered in Bhopal and then why the hell do you file the case here? Besides he asked the govt a very shameful question...Does the Indian govt which has a long and distinguished judicial system in India..”Lack trust in the Indian judiciary?” To do justice to the victims? This was like pouring ink on the face of the Indian judiciary..

After this humiliating reverse, the Indian Government with its tail tucked between its leg came back to the Indian judiciary asking for justice. The Supreme Court of India, decided the cases and gave a very important judgement with the following points- They gave a new “Polluter pays/No-fault liability theory”...that is even if there is no fault on anyone’s side- but a pure industrial accident- the polluting company has to pay the compensation and in this case the compensation was for RS.2,700 crores (criminal cases extra- to be conducted by CBI)..This is the first time in the world anyone had given a judgement like this- against MNC’s which pollute. The Supreme Court also asked the govt to start a compulsory insurance scheme for all factories in future and also asked the Company Union Carbide to build a Multi-speciality hospital in Bhopal for the gas victims.

So Blaming the Court for the faults of the Govt is misleading. Madhya Pradesh CM Digvijay Singh has confessed to escorting the CEO of UCC- Warren Anderson to his plane. Successive Central governments have not tried to enforce the extradition treaty with America to get back the UCC officials. And we end up blaming the courts for the delay of the CBI too- which is a part of the central govt. Remember as per our constitution – our courts cannot make laws, laws are made by parliament, courts only enforce them. So to blame them for this is like blaming the arrow instead of the bow.

And in case you are wondering why I am so passionate about defending the judiciary. Well, I can’t help it. When other kids my age were hearing about the stories of Rama and Krishna, I grew up hearing stories about Justice Bhagwati, Justice Krishna Iyer, Justice Ramanujam and Justice Ratnavel Pandian. I heard the stories about how these honest judges fought on a daily basis for the common man despite all the hardships they faced. And if you think a judge’s life is easy think again. My dad was one (till recently) and I remember that not a day a passed without getting either a threatening phone call or a threat letter- threatening to either kill him/kill me/bomb our house/kidnap and kill me (to influence him..as if)..If he gave a judgment against one or the other party. So I know what I am talking about. 

So there, it’s all off my chest now. Over to you Anand.