The Verdict in Bhopal

The June 7 verdict in the criminal trial over Union Carbide's catastrophic gas leak in Bhopal, India over 25 years ago was a travesty of justice. Widely condemned by Bhopal survivors and their supporters, it has provoked new scrutiny into the role of the Indian and U.S. governments in aiding U.S. multinationals to evade prosecution and liability for what remains the worst ever industrial disaster on record.

Often cited as the "Hiroshima of the chemical industry," the disaster killed over 20,000 people from exposure to hazardous gases that leaked from Carbide's pesticide plant in Bhopal, beginning around midnight on December 2, 1984 and continuing for the next several hours. Over 500,000 people were exposed to a heavier-than-air poison cloud that formed over much of the city and today 100,000 people are suffering from chronic debilitating conditions, many unable to work because of health problems. Sicknesses have included cancers, blindness and other eye disorders, respiratory difficulties, and immune and neurological disorders. A third generation of victims includes babies born with growth retardation, missing limbs, and other deformities.

The enormity of the crime stands in scandalous contrast to the piddling verdict handed down in June in the Bhopal District Court to eight Indian managers of Carbide's subsidiary, Union Carbide of India, Ltd (UCIL). In a trial that dragged on for over 19 years, they were convicted on watered-down charges of criminal negligence—the equivalent of causing death in a traffic accident—sentenced to 2-year jail terms, and fined $2,100. UCIL was only fined about $10,000.

The corporate criminals most responsible for the disaster have yet to appear in court. Criminal charges that include "homicide not resulting in murder" have long been outstanding against the Union Carbide Corporation (UCC) and Warren Anderson, Carbide's CEO at the time of the gas leak. Arrest warrants were issued for Anderson and UCC in 1992 when both were officially deemed fugitives from justice for failing to answer the charges in court. Anderson, now retired, has long enjoyed the protection of both Union Carbide's parent company, Dow Chemical, which has shielded him from the reach of Indian courts, and the U.S. State Department, which rejected a formal request for his extradition in 2003.

On the Brink of A Disaster

Bhopal was a disaster waiting to happen. Two years before the gas leak, a series of news articles appeared locally about the plant and the risks it posed to workers and the community. Written by investigative journalist Rajkumar Keswani, they followed up the death of Ashraf Khan, a plant worker killed in 1981 due to a leak of phosgene gas. Exposure to a leak of chemicals from a faulty valve hospitalized 25 workers the following year. The chemicals included methyl isocyanate (MIC), the ultra hazardous, highly reactive chemical that leaked massively from the plant on the night of the disaster. The Bhopal plant workers' union had protested the hazardous conditions and posted signs throughout surrounding communities that read, "Lives of thousands of workers and citizens in danger because of poisonous gas." Keswani's final article, "Bhopal: On the Brink of a Disaster," was published five months before the 1984 catastrophe.

The rusting remains of the Union Carbide pesticide factory in Bhopal—photo by Luca Fredian, wikimedia commons

Internal documents revealed that in 1982 Union Carbide (USA) had conducted a safety audit of its Bhopal plant that uncovered 30 major hazards, 11 of which were in the dangerous MIC/phosgene units. The audit warned of the "potential for release of toxic materials." All hazards cited in the report were later identified as factors that contributed to the gas leak disaster. Documents also showed that Carbide was preparing to sell its Bhopal subsidiary, which was no longer profitable, and had implemented a series of cost-cutting measures. These included reducing the MIC plant crew from 12 to 6 workers and safety training from 6 months to 15 days. On the night of the gas leak, the plant did not have an operational safety system and a plant siren that could have alerted people of the disaster when it happened had been turned off.

Cost-cutting measures had also included revising safety manuals to allow the refrigeration units that cooled the highly reactive methyl isocyanate gas to be switched off in order to save about $50 a day on freon gas. Had the refrigeration unit been working on the night of the disaster, the runaway reaction in the MIC tank could have been delayed or even prevented.

Following the June verdict, Satinath Sarangi, a leading Bhopal activist and founding member of the Bhopal Group for Information and Action, condemned the verdict and said it sent a welcoming message to multinational corporations that recklessly traffic in hazardous technology. "By handling those guilty of the world's worst industrial disaster so leniently, our courts and government are telling dangerous industries and corporate CEOs that they stand to lose nothing even if they put entire populations and the government at risk," Sarangi said in a statement released by the International Campaign for Justice in Bhopal (ICJB).

The weak verdict in the trial was determined by a ruling of the Supreme Court of India in 1996. The eight convicted ex-Carbide employees (one of whom died during the often-delayed trial) had originally been charged with "culpable homicide not amounting to murder," which carried a sentence of up to 10 years in jail. The court's 1996 ruling downgraded the charge to criminal negligence, with a two year term. The CBI did not challenge the ruling at the time, but it was challenged in a petition filed by the Bhopal Gas Peedith Sangharsh Sahayog Samiti, a Bhopal activist group. The petition was denied in March 1997.

With the Indian government in damage control mode following widely reported anger over the verdict, the Cabinet first sought and then approved a plan of recommendations from an appointed Group of Ministers (GoM) intended to address outstanding legal, compensation, and remediation issues. Under the plan, the government stated it would file a "curative petition" with the Supreme Court seeking stiffer sentences for those convicted in the criminal trial. The plan also called for the government to pursue Anderson's extradition and included "enhanced compensation" for the Bhopal victims.

Activists branded the plan a smokescreen to protect Union Carbide, and its parent owner Dow Chemical. Seven activist groups said in a joint statement on June 22: "The Group of Ministers pretends to offer relief and rehabilitation, but the details reveal that issues of compensation, rehabilitation and corporate liability are totally ignored."

The "enhanced compensation" offered some additional compensation to the 46,000 people who lost relatives or suffered certain types of injury. It gave nothing to over 520,000 victims who are suffering from lifelong injuries and have only received a meager $2,000 payment from the out-of-court settlement brokered by the Indian Supreme Court in 1989 between Union Carbide and the government. Union Carbide paid a paltry $470 million and, in return, was absolved of all criminal and civil liabilities. The settlement was based on manipulated statistics that set the number of deaths and injuries at levels far lower than actually existed. It was challenged in court and, though criminal liability was reinstated, the settlement stuck.

The Indian government had sought $3.3 billion from Union Carbide in 1985 in a suit filed in the U.S. District Court (Southern District of New York), but under a subsequent court decision that favored Carbide, the Bhopal litigation was transferred to India. In "The Bhopal Catastrophe: Politics, Conspiracy and Betrayal" (Economic & Political Weekly, 6/25/10), Colin Gonsalves, senior advocate of the Supreme Court of India and executive director of the Human Rights Law Network, New Delhi, claimed that collusion between the Indian government and Carbide ensured that victims would not get the compensation awarded in similar mass tort actions in the U.S. He stated, the "Supreme Court let down the people of Bhopal by clearing a settlement that was patently paltry and by letting the litigation in the Trial Court drag on for 25 years."

"It was clear to me the court was going to drag this trial out as long as possible," said Brian Mooney, a professor of cultural anthropology at New York University. He has written about the Bhopal activists and attended the trial in 2008. On one day, he waited an hour and a half for the testimony to begin. "And after that time, the judge sent the bailiff out to tell us there wasn't going to be any testimony that day. After so many years of trial proceedings, I was surprised there was a verdict at all," he said. "Why didn't the judges speed up the trial? You had to wonder about how serious the government was in pursuing this."

Child pumps toxic water from a contaminated pump in Bhopal—photo from bhopal.net

India suffers a lack of political will in going after the corporate criminals responsible. The new plan of recommendations doesn't change that. Though it calls for the government to pursue Anderson's extradition, the focus on Anderson is seen as a red herring to divert attention from the government's failure to go after Dow Chemical. In public statements, Dow denies any responsibilities related to Bhopal, saying it acquired Union Carbide after UCC had settled its liabilities with Indian government in the 1989 agreement.

Behind the scenes, Dow has lobbied Indian government officials to withdraw legal actions seeking compensation for cleanup and remediation of Carbide's abandoned plant site. An estimated 30,000 people living in communities near the site have become victims of an ongoing "second Bhopal" due to contamination of their drinking water from tons of chemical waste generated by the plant.

In June, the ICJB and the Association for India's Development (AID) released copies of letters obtained through India's Right to Information Act from Andrew Liveris, Chair, CEO, and President of Dow Chemical, to former Indian Ambassador Ronen Sen that followed meetings both attended as members of the U.S.-India CEO Forum. In one letter, Liveris states resolution of "the Bhopal matter" is a needed step "to facilitate the Indian-U.S. strategic partnership and to help chart a path forward." His proposed course of action called for the Government of India (GoI) to "implement a consistent, government-wide position that does not promote continued GoI litigation efforts against non-Indian companies over the Bhopal tragedy."

The Obama administration has sent word to India through Michael Froman, Deputy National Security Advisor and one of President Obama's closest aides, to go soft on Dow. Emails between Froman and a top Indian government official, Montek Singh Ahluwalia, deputy chair of the Planning Commission, were published by the Mumbai-based Times Now news channel ("America linked Bhopal to Aid," 8/18/10). In response to Ahluwalia's request for U.S. help as India faced a sharp restriction in lending from the World Bank, Froman replied: "We are aware of this issue and we will look into it. We are hearing a lot of noise about the Dow Chemical issue. I trust that you are monitoring it carefully. I am not familiar with all the details, but I think we want to avoid developments that put a chilling effect on our investment relationship."

Meanwhile, a civil suit filed by Bhopal residents against Anderson and Union Carbide is pending in the Southern District federal court in New York. Originally filed in 1999, the suit has survived four appeals to the U.S. Court of Appeals for the Second Circuit in New York and seeks compensation, medical monitoring, and environmental cleanup of pollution caused by the Bhopal plant in the drinking water supply of at least 16 residential communities.

"UCC keeps repeating how it has settled all Bhopal-related liabilities in 1989 but the fact is that even UCC does not challenge in its legal papers that present-day environmental pollution is a separate liability from the 1989 disaster because U.S. courts have clearly determined that it is distinct," said H. Rajan Sharma, the lead counsel in the litigation and a partner at the law firm of Sharma & DeYoung LLP in New York.

An Historic Struggle

Protest against Dow for ongoing contamination—photo from butchicon's photostream at flickr

In late July this year, the ICJB joined with other Bhopal activists and organized massive actions in Delhi to pressure the government to create an Empowered Commission on Bhopal to deal with the social, economic, environmental, and legal issues. "The prime minister agreed to this commission in 2008, but has failed to set it up. Bhopalis are returning to Delhi in mass for another indefinite dharna (sit-in) to ensure that it is set up," said Shana Ortman, U.S. Coordinator for ICJB, based in San Francisco.

"The people of Bhopal have waged and are continuing to wage an historic struggle in which the overriding issue is the immense concentration of power in corporate hands," said Ward Morehouse, the founder of the International Campaign for Justice in Bhopal and a co-editor of The Bhopal Reader (Apex Press, 2005). Morehouse has also helped to organize speaking tours about Bhopal in the U.S., the UK, and Europe. "How did we get into a situation where such huge risks could be taken with impunity?" he asks. "This accumulation of corporate power is so vast it transcends capacity of government to handle it and any long term effort to cope with the reality here is going to require new methods of organizing."

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John Raymond is a writer and a consultant to the New York Committee for Occupational Safety and Health where he served as director of Public Affairs. He produces an email digest of worker-related health and safety news, published by NYCOSH, and is a former reporter and labor editor.