June 27, 2010

Remembering Bhopal – II Responsibility Then and Now

As stated earlier, the three actors on whom the responsibility lies for the accident are Union Carbide, the Central Government and the M. P. State Government.

Union Carbide

By far the greatest responsibility for the disaster that took place in Bhopal lies on the shoulders of Union Carbide, first the US principals and next the Indian subsidiary. Voluminous information has been collected ever since the accident occurred that proves culpable criminal negligence on the part of the company. All along not only was the company aware of the highly dangerous nature of the operations but also the sordid state of the safety aspects of the plant which had been documented by responsible officials of the US headquarters and which were also within the knowledge of the highest levels in the company including Warren Anderson, the Chairman. There were enough warnings, may be not pinpointing the precise manner in which disaster would strike but fairly serious.

The plant was not operating at the time of the accident with a highly dangerous large quantity (40 tons) of methyl isocyanate which caused the accident, in tank E-610 which did not have refrigeration to keep it cool, a prescribed requirement. The refrigeration unit was shut for 5 months prior to the accident. Other instruments and facilities like Temperature Indicator Alarm, Pressure Indicator Control, scrubber system, flare tower etc. were either faulty or inoperative. "In addition, the safety siren, intended to alert the community should an incident occur at the plant, had been turned off." (Greenpeace) Workers were inadequately trained. The plant was designed by UCC which was also responsible for inspecting and approving all major equipment. The plant was under designed. An official from UCC stationed in UCIL had told UCC in the initial stages that only small quantities of MIC were needed to be stored for economic and safety reasons which was ignored and large bulk tanks were imposed by UCC.

It was noted: “The evidence condemning Union Carbide is persuasive. The structure of Union Carbide's relations with its subsidiaries indicates strict authority and control by the parent company. Union Carbide owns more than half of UCIIL shares. UCIL is listed on Union Carbide's consolidated balance sheet. Union Carbide had direct representation on the board of UCIL. More important is the evidence indicating direct Union Carbide involvement in the design and operation of the Bhopal plant.” UCC had financial and technical control over UCIL which was regularly exercised. According to a former official, “UCC had its finger on the pulse of the Bhopal plant all the time”. In May 1982, a UCC report by a team of American experts released by Anderson pointed out major safety concerns, warning that the plant presented “serious potential for sizeable releases of toxic materials.” A memo three months prior to the accident, in respect of the US plant of UCC which was based on similar features as the Indian plant, had cautioned that “a real potential for serious incident exists” at the US plant and even warned of a “catastrophe”. The evidence of UCC’s cavalier behavior was determined from documents available even without court-ordered discovery process. Ironically, just three days before the accident, UCC had taken a decision to dismantle and ship the plant to Brazil or Indonesia, largely because the Indian operation was running into losses and the demand projections were not met.

The Indian subsidiary of Union Carbide did little to inform workers about the highly toxic methyl isocyanate (MIC) the plant was producing and the potential health threat to neighboring regions. When the accident occurred, the subsidiary’s management team reportedly resisted the parent company’s instructions to apply first aid to victims for fear of generating widespread panic within the corporation and the region. Even after the accident, while treating the affected persons, the UCC personnel did not allow a known antidote to be used for fear that it would disclose the identity of the substance that had affected the victims. Union Carbide had kept secret much of the information on the types and amount of chemicals that had been released.

After the event, UCC worked out strategies (“Judgment proofing”) to avoid liability for itself, including objection to trying the cases in USA (which succeeded), collusive class action settlement for low amounts and finally, preparing for bankruptcy by financial restructuring. Various subterfuges were resorted to by UCC at different times and at one stage even its shareholders had filed suits against Anderson and others for negligence in Bhopal. In order to avoid criminal liabilities, the company even floated a theory of deliberate sabotage by a disgruntled worker which it later did not pursue.

As early as 11th Dec.1984, hours after he returned to US, Anderson said at a press conference that he was confident that the victims will be “fairly and equitably compensated without any material adverse effect” on the balance sheet.

Central Government

Although the industrial licensing policy particularly the policy for foreign investments which was followed by the Government in the years prior to the accident might have appeared logical at the time, ironically, the seeds for a defense to be taken by UCC denying responsibility for the accident, lay in the conditions on which the company was allowed to set up the plant. UCC cited some of the conditions of the Letter of Intent and License to show that it was mandated to make a plant run fully by Indian employees as an Indian operation.

The major failure of the Government had been not to give sufficient attention to the possibility of such serious accidents taking place and effectively regulating such units as also failure to develop an appropriate body of laws to deal with mass tort cases.

Anderson Affair

Men in Focus - Rajiv Gandhi & Arjun Singh

The failure of Central Government which has been most criticized, however, is its decision to direct the release of Warren Anderson within hours after he was arrested by the State Government. It is now clear, based on all accounts of contemporary media and persons involved that the decision to allow Anderson to leave was that of Rajiv Gandhi, the PM at the time. When such a catastrophe had occurred and within days thousands were dead, no other person in authority could have taken a decision to allow Anderson to leave. When all the accounts from the people concerned like P.C.Alexander, M.K. Rasgotra, US Charge d’Affairs Streeb and others are linked, they point to the fact that such was the case. Also important is the reported remark by Andersons’ wife in the US before a reporter that “everything has been settled”. In fact, it can also be accepted that the arrival of Anderson to India in the first place was as a result of “safe passage” assured by the Government before hand. Considering the recent statement of Arjun Singh, the MP Chief Minister that he had no locus standi in the matter also points to the decision having been taken at the highest level at the Centre, bearing in mind that Anderson was also privileged to have tea with the President before he flew out. What appears to have happened is that Arjun Singh took the step of arresting Anderson first and upon the US Embassy getting involved and talking to the MEA about the safe passage assurance, Singh was asked by Rajiv Gandhi directly or through someone to let him leave.

While the Congress party has been strenuously trying to hide the obvious, it appears to be unnecessary as the decision could well have had some justification based on the conditions of that time.

It is a fact that the country had been having a tough time industrializing itself considering the myopic economic policies pursued by Nehru and Indira Gandhi, grandfather and mother respectively of Rajiv Gandhi. Apart from the immediate past of the assassination of his mother and its aftermath, Rajiv was also perhaps desperate to undo the effects of the disastrous policies pursued over the years by his party’s governments and ensure foreign investments in the country. Also at that time, American MNCs were held in awe (as even now) and UCC was a huge MNC of the time. This coupled with the pressure from the US Government might have persuaded him to adopt this course. It is, however, rather strange that Anderson was allowed to meet the President, ostensibly to express his sympathies.

At a practical level too, it may not have been possible to hold Anderson for any major length of time. In the first place, had it not been for an assurance of safe passage, he would not have come to India at all, much less visit Bhopal. Although it is not highlighted, he was arrested probably based on the original FIR filed by the local police which had registered the same initially under Sec. 304A, a bailable offence. CBI registered the case on 6th Dec. 1984 but the arrest was made by the local SP and DM. If he was indeed arrested under non-bailable provisions which were presumably cited in the FIR of CBI, then the theory that sounds plausible is that a magistrate was taken to the Guest House and Anderson granted bail there by him. Even then, it defies explanation as to how the local police could have made the arrest on an FIR registered by CBI without approval or direction of the CBI, a central agency. Indeed, even the opinion of the Attorney General of India given on 31.7.1998 in relation to an extradition request speaks only of the offence under Sec. 304A.

Subsequent events including the financial settlement for a much smaller than original amount sought must have been influenced by the immense pressure to save UCC and fear of loss of investment from US put into Rajiv Gandhi. The fear of damaging the investment climate was at best a red herring as is the case even now. As one expert said “I am not sure that the world multinational community really cares if Union Carbide has to pay the price for its errors in India”.

The fact that Rajiv Government had accepted even the dropping of criminal charges for the settlement indicates how the Government was keen to save those whose culpability was not in doubt.

It cannot be presumed that the actions were taken for personal gains. But in passing it has to be said at the very least that during Rajiv's visit to the US soon afterwards, a family friend Adil Shahryar (son of Mohammed Younus) serving 35 years in a US prison for federal offences was granted clemency by the US President as a goodwill gesture.

State Government

That the State Government of the time did not show adequate seriousness and concern for safety of the people was clear even before the actual accident happened. Not only did the plant have a prior history of accidents but the facts were known to Government. A fire had occurred in the alpha naphtol unit in 1982 but the fact was suppressed. After the death of a worker earlier in 1975 and then another in 1981 due to leakage of Phosgene gas, a worker had died, questions were raised in the State Assembly and the facts acknowledged by the Government. The Minister concerned had said that he had personally inspected the plant and found that it had adequate arrangements for meeting any exigencies. Later on, even Chief Minister was supposed to have said the same. “All is well”. According to Dan Kurzman, author of a book “A Killing Wind: Inside Union Carbide and the Bhopal Catastrophe” numerous Indian officials had close ties with UCIL, helping the company escape regulatory crackdowns. He further writes that a local Congress-I party leader was UCIL's legal adviser. Several relatives of ranking government officials were on the UCIL payroll, including the manager of the Bhopal plant, who was the son-in-law of Rajiv Gandhi's minister of human resources. Conflicts of interests existed.

The culpability for gross negligence by the State Government in case of a plant that was inherently based on hazardous technology with highly dangerous and toxic chemicals becomes all the more greater considering that Rajkumar Keswani, a journalist had been reporting on the plant from 1981 and after the first article in Sept. 1982, continuously wrote reports right up to 1984 when the accident happened about the dangers even going to the extent of saying that Bhopal was sitting on a volcano. The State Government chose to believe the company and took no notice of these warnings. Even after the accident, it has been claimed that the medical authorities did not allow, supposedly at the instance of Union Carbide, treatment of the victims with sodium thiosulphate, a known anti-dote for cyanide poisoning. The criminal culpability of the State Government officials, whether for ignoring prior warnings to medical treatment after the accident has never been investigated, as it would show that those who were supposed to look after the interests of the victims looked after interests of the guilty.

Some credit, of course, needs to be given to Arjun Singh at least for having arrested Anderson and few other top executives in the first instance. He even said in his press briefing that on the basis of facts already available, each of the arrested executives had constructive and criminal liability for the accident. It is equally a fact that he later succumbed to the pressure from the Central Government.

Incidentally, the greed of the police officer Swaraj Puri, who made the arrests on 7th Dec. 1984 came to the fore when he claimed that certain references in a book written by noted author Dominique Lapierre were defamatory and demanded $ 20 m. between 2002 and 2005. Having failed to get it, he filed a case for defamation in the High Court.

Congress in denial

Protect mine
Sonia Gandhi

The Congress party of today is probably doing more harm to their credibility and to the quest for truth and for justice than the then Congress Governments at the Centre and State. No sooner than information started to surface about Rajiv Gandhi’s possible role in the release of Anderson than the Congress party went in panic and apparently at the behest of Sonia Gandhi, pulled out all the stops to prevent even a hint of Rajiv Gandhi’s link with the event. Sonia Gandhi herself met Arjun Singh on 9th June 2010 when probably an "understanding" was reached on when and what Arjun Singh may say. Embarrassed and unsettled by the allegations, it pressed into service all those who could either convince the people that he had no role to play or who could divert attention to others. R K Dhawan, Ambika Soni, Moily and of course, the permanent defense team of Abhishek, Jayanthi and Manish Tewari went full throttle with half lies or diversions to obfuscate the matter. They blamed Arjun Singh, they blamed Narasimha Rao, amongst others. An excuse that Arjun Singh decided to release him (and also to send him out of country?) due to potential law and order problems was floated. Moily was bold enough to blame a CBI officer, the CJM of Bhopal and even the Chief Justice of India. He also blamed P. C. Alexander by imputing motives to his bringing out certain facts which would indirectly place the finger on Rajiv Gandhi. Some friendly members of the media lent a helping hand to play down the matter.

Vainly trying to prove that their party’s King could do no wrong, they persisted in dogged denial with infantile and convoluted statements going beyond the borders of ludicrousness.

In a party with a structure like Congress which inherently depends on the High Command for everything, only a few weeks after the assassination of Smt. Indira Gandhi, an inexperienced Rajiv anointed as PM, elections round the corner and the matter having international implications, it is simply unthinkable that he was in the dark about the events related to a catastrophic accident. It is almost a certainty that Rajiv Gandhi was at every stage fully informed, consulted and involved. Only the very gullible can believe otherwise.

The depths at which the party went to divert the country’s attention can be imagined when one of the spokesmen likened any questions being put about Rajiv’s involvement to unpatriotic behaviour. Two senior TV anchors, who were persisting with queries on involvement of Rajiv, mysteriously went off for a couple of days at the height of the controversy. Finally, when nothing seemed to work, the spin merchants of the party came with a fantastically laughable statement that “there is no convincing proof” that Rajiv was in the know of Anderson’s release. Well, if we believe that Anderson should be hanged on the basis of known facts, it must also be believed that Rajiv Gandhi was fully involved in the decision to release him unless there is convincing proof to show otherwise.

Moily - Trying to bury the Truth? But why?

Moily had said that justice was buried but it is truth that is sought to be buried by Congress. The party has also termed allowing Anderson to go as a systemic failure which does not appear to have been so. The real systemic failure was when democracy was suspended in the country in 1975, systemic failure is when massive corruption is allowed to continue at the highest levels, when internal security is given a complete go by for over four years, when an unsatisfactory nuke liability bill is sought to be pushed through to the detriment of the people, - the list is endless.

And the biggest systemic failure is that of our democracy where we, the people, keep on electing rotten politicians time after time and suffer our justly deserved fate.

What needs to be done?

By appointing an EGoM on the Bhopal issue, the Government is simply trying to find a way to somehow bring a closure to the 26 year old matter.

There should be no doubt that the harm and whatever injustice was done cannot be undone now nor can the clock be turned back. If the Government pursues any actions which will not see the light of day for a long time from now, it would be merely continuing with dishonesty and fooling the people even after such a long time.

Criminal Cases:
Those who are aware of legal processes will know that to continue with further actions, even if theoretically possible, would be an exercise in futility, wasteful expenditure and torment and more disappointment for those who still hope for more punishment to the guilty. In the criminal case just decided, the guilty will surely file an appeal. The State Government intends to file an appeal too. Considering the normal legal recourse available to both sides, possibility of the guilty ever suffering the punishment is negligible. Likewise, the country would only be further damaging its credibility by once again asking for extradition of Anderson at this stage 7 years after its request was rejected. The US has no reason to change its position from the one that the US Dept. of State took in its opinion dated July 24, 2003 recommending rejection. If by a stroke of good diplomacy it is ever achieved, there is no chance of the trial reaching the final judgment stage during Anderson’s life time.

And if everyone of the accused is punished by some miracle, those in Government who were responsible or negligent in doing their duty would still go free because they still do not have any accountability.

There is no way to once again revive any legal process to make any higher claims on the company. The judgment dated 14th/15thFeb. 1989 as confirmed by judgment dated 3rd Oct. 1991 is final and cannot be challenged.

If at all the Government, after reviewing the details of compensation received by all the claimants is fully convinced that they need to be given more in the special situation, the only option is for the same to be paid by the Government. And if now the Indian tax payer has to bear the burden, it is a price that must be paid for the characteristic indifference of the Government as well as the people.

Distribution of Compensation:
It is imperative that the Government presents a detailed and transparent status paper to the public giving a true and complete account of the amounts received by it including interest every year after the settlement amount was deposited, the disbursements made each year and reasons for delays in disbursement. The status paper must also disclose the amounts still available and the manner in which the same will be disbursed in a time bound manner.

Relief & Rehabilitation
The State Government must also similarly present a status paper on R & R including a time bound plan for further work proposed to be done. A time bound action plan also needs to be presented for long term medical relief.

Clean up and Remediation
This is one of the most critical issues which have been completely neglected by the Governments at the Centre as well as the State, partly because of the legal issues involved as the responsibility is being placed on Dow Chemicals, the successors to UCC. The actual work cannot be further delayed and a time bound program needs to be prepared for this as well.

Dow Chemicals
Dow Chemicals, faced with legacy legal issues as successor to UCC has consistently denied any legal liability in any matter related to the clean up and remediation. Although the matter may be pursued legally, the least that the Government must do is to stop giving it the red carpet treatment for investing in India. It is high time that the Government realized the country’s strength and stop being in awe of the multinationals.

Legal Framework
The delay in having an appropriate legal and administrative framework to deal with such destructive events in future has been inexcusable and instead of blaming the judiciary or others, the Law Minister should finally focus on his own responsibilities. It is worth mentioning that learning from the Bhopal experience and as a consequence of the accident, the US promptly introduced a new law Emergency Planning and Community-Right-to-Know Act (EPCRA or SARA III) within two years of the accident, requiring each State to establish emergency response commissions charged with developing integrated plans for responding to chemical emergencies and making chemical information available to the public. We have yet to learn.

Although those interested in getting the Nuclear Liability Bill passed are srtenuously arguing that it has no relation to Bhopal disaster, the underlying principle, that of liability of suppliers of such hazardous technology or equipment from accidents due to their negligence remains relevant and it would not be prudent to ignore the lessons from Bhopal now, in 2010 when we ought to be wiser than we were at that time.

The people must now realize that the Government failed in doing justice to the sufferers and its plans to now pursue the criminal cases are designed only to give false hopes to placate the sufferers. We also need to finally accept that there is no better way of clearing the mess than focusing on the practical and feasible measures for R & R, medical support and land clean up that will give at least some succor and a semblance of justice to the people.

Bhopal is and shall remain a catastrophe and a historic injustice made worse by mishandling and negligence before and after the event. The injustice should not be compounded any more by giving false hopes to the people.

सारे जहाँ से अच्छा, हिंदोस्ताँ हमारा


nasir kalyani said...

how crooked the congress party led by sonia gandhi is behaving.

it has touched new lows never seen even in time of devegowda.

konda said...

i am just amazed that ppl are still voting for such parties.

dont we have enough sense to realise how they have been fooling ever since independence.

kick-da-scoundrels said...

thorough analysis and incisive views.

please keep it up. we need such objectivity.

so many years after the event, while all along the people were sleeping, now there is no use crying and showing fake concern just because media is now having greater reach.

write it off to expereince.

sangeeta naik, bangalore said...

it is clear that there has been a lot of wrong information from vested interests or ppl with half knowledge.

this article clears most of the issues at one place.


Anonymous said...

good reserach!

keepcool said...

after the LS debate today it is clear that your assumption about Anderson being granted bail as he was booked under Sec. 304A based on the original FIR, which is bailable is correct.

compliments for a good analysis.