COMMENTARY

With a Parent Like This

Bhopal Disaster and Union of India
C Sathyamala

The story of Bhopal of the

30 years of disaster is not that of
corporate crime alone but also
that of the nexus between
national governments and
transnational corporations;
of state and capital. And,
irrespective of the government
in power, the nature of the state
has not changed.

his December marks the 30th anniversary of the Bhopal gas leak
disaster, infamously known as the
biggest chemical disaster in the world, in
which more than 40 tonnes of a mixture
of poisonous gases spewed out of the
pesticide plant of Union Carbide India
Limited (UCIL), the Indian subsidiary of
the US transnational Union Carbide
Corporation (UCC) in Bhopal on the
night of 2-3 December 1984. This year is
also significant in that Warren Anderson,
the chairman of UCC at the time of the
disaster, died on 29 September, with a
permanent epithet that of an absconder
and a fugitive from Indian justice. On
7 December, four days after the disaster,
when Warren Anderson had arrived in
Bhopal, he was arrested by the local
police (the charges were culpable homicide not amounting to murder, grievous
assault, and the killing and poisoning of
human beings and animals), put under
house arrest for a few hours in the
UCIL guest house atop the Shamla Hills,
Bhopal, granted bail by the local court
against a personal bond of Rs 25,000,
and transported the same day by a state
aircraft to New Delhi and then off to the
US, never to return to stand trial as per
his bond commitment.
The Face of Corporate Crime

C Sathyamala (csathyamala@gmail.com), an
epidemiologist, is a member of the Supreme
Court Advisory Committee on Medical
Research in Bhopal. She was the first convenor
of the Delhi-based Bhopal Gas Peedith
Sangharsh Sahyog Samiti, a coalition of over
30 organisations founded in 1989 in the
aftermath of the settlement. As a medical
expert, she was also an intervener in the
review petition challenging the settlement.

10

On 1 December 1987, initial charges were

filed against Anderson, and, when, even
after repeated summons, he did not
appear in the Bhopal court, he was declared an absconder and a non-bailable
arrest warrant was issued in February
1989 by the chief judicial magistrate
(CJM) for repeatedly ignoring summons.
In February 1992 he was declared a fugitive and in August 2002 an order for
extradition to stand trial was passed.1
Though the American authorities stated
that they were unable to locate him, he
december 27, 2014

was found in his luxurious home

in Hampton by Greenpeace activists.2, 3
The extradition order was rejected by
the US authorities in June 2004.
Warren Anderson, who drew the
collective wrath of the gas victims, and
whose effigy was burnt during every
anniversary of the disaster (and whenever the occasion demanded) and whose
death by hanging was one of the popular
slogans of the survivors organisations,
came to signify the face of corporate crime
of UCC. His continued state of freedom4
seemed to make a mockery of the victims
struggle for justice and for finding a
meaning to their sufferings brought on
by criminal negligence in pursuit of profit (the various cost-cutting measures in
the Bhopal plant, for instance) by a corporation under his stewardship.5
State Complicity
However, the story of Bhopal, of the
30 years of disaster, is not that of corporate crime alone but that of the nexus
between national governments and
transnational corporations, of state and
capital, a complicity that can be traced
from the time UCC applied for an industrial licence for the manufacture of
methyl isocyanate (MIC)-based pesticide
at their Bhopal facility. Although UCC
had applied for an industrial licence as
early as January 1971, it was only five
years later, on 31 October 1975, in the
early months of Emergency that a licence
was granted. The approval was said to
have overridden opposition from officials
in the Ministry of Industrial Development and later officials were aware of
the obsolete, discarded technology and
faulty machinery being transferred to
India (Krishna 2010a). Post-disaster
investigations would show the flouting
and circumvention of several regulations
by the Indian government, including the
Foreign Exchange Regulation Act and
safety norms that had set the stage for
the disaster (Delhi Science Forum Report
1985). The critical episode of the arrest
and release of Warren Anderson initiated
the next chapter in the complicity of the
Union of India (UoI) in the acts of UCC.
As per partially declassified Central
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COMMENTARY

Intelligence Agency (CIA) documents, it

has now been revealed that it was Rajiv
Gandhi who had ordered the release
of Anderson and provided for his safe
transit (Krishna 2014a).6, 7
The main act, one could say, began
with the passing of the Bhopal Gas Leak
Disaster (Processing of Claims) Act
1985, which gave exclusive rights to the
Indian government to litigate on behalf
of the victims. This was under the doctrine of parens patriae (parents of the nation) and was passed on the consideration of protecting the victims who were
mostly poor and non-literate from the
ambulance-chasing American lawyers
who had flown down to take the thumb
impressions (sometimes by paying a
price) from the victims authorising them
to represent the signatory in the US
courts. Under this Act, the Indian government had the legal right to do whatever it wished to on behalf of the victims. It could put up a good defence, or
settle the case, or could have opted not
to file the suit and instead could have directly negotiated to settle the case.
Thus, while the Indian government
filed a suit in the Southern District of
New York in 1985, negotiation had begun
on settling the dispute well before anyone had had an opportunity to estimate
the nature and extent of injury, the
number of dead and injured and the
long-term consequences of the disaster
(Jaising and Sathyamala 1992: 106). A
proposal by the American lawyers to
settle the case for $350 million was opposed by the Indian government who
filed for a compensation of $3.3 billion.
Ironically, it was the Indian constitutional
expert, the late Nani Palkhivala who
successfully argued on behalf of the UCC
in the US courts and demolished the
Indian case for the suit to be heard in the
American courts (Mohanty 2010). While
throwing out the Indian suit, judge
Keenan stated:
In the courts view to retain the litigation in
this [American] forum would be yet another example of imperialism, another situation in which an established sovereign inflicted its rules, its standards and values on a
developing nationTo deprive the Indian
judiciary of this opportunity to stand tall before the world and to pass judgment on behalf of its own people would be to revive a
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december 27, 2014

history of subservience and subjugation

from which India has emerged (the presiding judge, as quoted in Elkin 1986).

Faced with this pious postcolonial discourse, the Indian government had but
only one option to accept Keenans decision. The rest, as they say, is history.
Settling of the Case
In February 1989, the Supreme Court of
India settled the case and the UCC and
UOI agreed to an amount of $470 million
in settlement of all claims past, present
and future and to quash all criminal
charges against UCC. This time the UCC
was represented by another Indian
constitutional luminary, Fali Nariman.
Justice R S Pathak who facilitated the
settlement was awarded with a posting
in the International Court of Justice in
The Hague.8 Till today, the reason(s) for
the scaling down of the compensation
amount from a demand of $3.3 billion to
$470 million has not been made public.
The outcry this settlement created,
nationally and internationally, forced
the Supreme Court to come out with a
clarificatory order in May 1989 which was
based on mythical figures of the number
of dead and injured since not even 10% of
the 6,00,000 claimants had been evaluated for personal injury and even those
who had been were evaluated on an
arbitrary and faulty process of injury assessment deigned to underestimate the
quantum and nature of injuries (Sathyamala et al 1989). The appropriation of
the citizens legal rights to litigate meant
the appropriation of medical information as well which had consequences for
both research on the health impact of the
toxic gases and treatment measures.9
Although in 1989, the Supreme Court
upheld the constitutional validity of the
Act in the hearings challenging the
states exclusive rights to defend the
victims, the Court conceded that victims
should have been given notice prior to
the settlement and that the quashing of
criminal proceedings was beyond the
purview of the Act. Buoyed by this ruling
and the change in the government, the
victim groups filed review petitions
against the settlement. The challenge to
the settlement rested on three major
grounds. First, the amount settled for
vol xlIX no 52

was inadequate as both the nature and

number of injured was unknown at the
time of the settlement. Second, there
was no provision for compensating injuries that may develop in future. The
third pertained to the illegal quashing of
criminal liability. However, the UOI
which was legally the sole representative
of the victims refused to file a review
petition on its own. Moreover, when the
Court asked if the government would be
prepared to return the compensation
money were the settlement to be dissolved, there was an awkward silence.
For no apparent reason, during the
review, the Court refused to go into the
question of the number of victims or the
nature of injury due to the toxic gases.
As a result, the governments own estimate based on faulty criteria was accepted
without question (Jaising and Sathyamala
1992). In October 1991, the Supreme
Court held that the settlement was
beyond challenge and that in the event
of a shortfall, the Government of India
was liable to make good the shortfall.
One reason stated for upholding the settlement was that no new evidence had
been produced in front of the Court. This
was despite the fact that victim groups
had shown using data from independent
studies and the data gathered by the
Indian Council of Medical Research
(ICMR) that there were grounds to
challenge the Personal Injury Evaluation
of the Directorate of Claims. Further, the
ICMR data was being placed for the first
time in the Court as it had until then been
held under the Official Secrets Act.10
Onset of Criminal Proceedings
The situation became more curious with
the onset of criminal proceedings.
The government [said] it had nothing to do
with the quashing of the criminal proceedings. The Supreme Court claim[ed] to have
the power to go beyond law but [said] it had
not been given grounds for doing so at that
stage. It [the Supreme Court] does not say why,
[and] then, it did what it did. It leaves it in the
realm of conjecture: if the government had
invited the court, the court may be obliged.
So, it would appear, the Supreme Court had
quashed the criminal proceedings for no
statable [sic] reason. This became clearer with
the court explaining that the quashing of
criminal proceedings was not a consideration
for the settlement. That is, no party to the

11

COMMENTARY
settlement was making it a condition without which the settlement would not stand.
Mr Nariman drew a distinction between motive and consideration, and the court adopted it, although what is motive [was] not explained. If the quashing of the criminal cases
was not to help negotiate the settlement and
get the company to agree to pay $470 million
which was $120 million more than it had
agreed to pay why was it in the order and
in the terms of settlement? (Ramanathan
2010; emphasis as in the original).

In 1996, the Supreme Court diluted

the charges of culpable homicide not
amounting to murder (which would attract 10 years of imprisonment) framed
against the nine accused by the lower
courts to direct result of rash and negligent act carrying a maximum penalty
of two years only. According to the
learned judges, even if the management
had acknowledged that they were running a defective plant or that they were
storing toxic materials in contravention
of regulations, this knowledge could not
be considered sufficient grounds to prove
that the management had knowledge
that such acts could cause death and suffering (Sathyamala 1996). Justice Ahmadi
who presided over this judgment and who
later dismissed a review petition filed
against his order, a fortnight before he
retired, was appointed as the Chairman
of the Bhopal Memorial Hospital Trust
set up by UCC after his retirement. Today,
with litigations continuing in various
courts, the complete arbitrary nature of
the settlement pertaining to compensation has become clear.
The settlement wasbased on the assumption that only 3,000 victims had died and
another 1,02,000 had suffered injuries in
varying degree. These were merely imaginary figures of dead and injured since the
6,00,000 claims that had been filed until
then had neither been processed nor categorised. Fifteen years later, in 2004, after adjudicating all the claims (including another
4,00,000 claims that were filed between
1989 and 1996), the Claim Courts concluded
that the dead and injured gas-victims numbered nearly 5,73,000, i e, a figure that was
five times greater than the one that formed
the basis of the settlement! Thus, all that the
gas victims (including next of kin of the
dead) got was a pittance from the Settlement
Fund on an average, just about $820 each!
The Claim Courts too had underestimated
the total number of dead (which actually is
well over 20,000) and seriously injured in the
absence of health records (Jayaprakash 2014).

12

This does not include the new generations of victims (children born to the
gas exposed) or the manifestation of
newer injuries such as cancer whose
prevalence rate has risen in Bhopal
(ICMR undated).
UCC and UOI vs the Gas Victims
More often than not, while attending the
daily hearings on the review petitions
against the settlement in the Supreme
Court in 1990, it was not clear whether
the case being heard was UCC vs UoI or
UCC and UOI vs the gas victims. Subsequently, although the courts have granted several reliefs to the victims, even
simple actions such as the computerisation of patient records and the non-issuance of health booklets (patient retained health records) despite repeated
orders (Jayaprakash and Sathyamala
2014) are not complied with. This goes
to show that irrespective of whichever
government is in power, the nature of
the state has not changed.
Notes
1 Bhopal Gas Tragedy: How Warren Anderson
Got Away from Our Grasp, India Today, 1 November 2014, accessed on 18 December 2014,
http://indiatoday.intoday.in/story/bhopal-gastrag edy-warren-anderson-union-carbide-dowchemicals-rajiv-gandhi-congress-arjun-singh/1/
398605.html
Warren Andersons Extradition Plea Pending
with US: CBI, Rediff.com, 3 April 2013, accessed
on 18 December 2014, http://www.rediff.com/
news/report/ warren-andersons-extraditionplea -pending-with-us-says-cbi/20130402.htm
Bhopal Gas Tragedy: A Chronology of Events,
The Hindu (2010), accessed on 19 December
2014,
http://www.thehindu.com/news/national/bh opal-gas-tragedy-a-chronology-ofevents/article448771.ece
2 Anderson and His Wife Lillian Own a Luxurious
Home in the Hamptons, accessed on 18 December 2014, http://news.rediff.com/slide-show/
2010/jun/07/slide-show-1-Warren-Andersonsnine-hundred-thousand-dollar-luxury-homein-new-york.htm
3 In 2010, Soli Sorabjee who was the attorney
general during the time of the review petitions
which argued against the quashing of the
criminal case gave the opinion that it would be
futile to seek for the extradition of Anderson.
See CNN-IBN Focus on Relief, Not Extradition:
Sorabjee, accessed on 18 December 2014,
http://ibnlive.in.com/news/focus-on-relief-nownot-extradition-sorabjee/123870-37-64.html
4 Anderson retired in 1986 at the age of 65 and
in Later Years He Gardened and Fished with
his Wifeand Baked Swedish Bread, following
an Old Family Recipe. See D Martin, Warren
Anderson, 92, Dies; Faced India Plant Disaster,
The New York Times, 30 October 2014, accessed
on 18 December 2014, http: //www.nytimes.
com/2014/10/31/business/vw-m-anderson92-dies-led-union-carbide-in-80s-.html?_r=0
december 27, 2014

5 Anderson was said to have increased the productivity and sales of UCC after he took over as
the Chairman and CEO in 1982 and acquired
several companies. At the time of the Bhopal
disaster, UCC had 700 plants in 38 countries
with over 1,00,000 employees. See The Telegraph,
3 November 2014, accessed on 18 December 2014,
http://www.telegraph.co.uk/news/obituaries/
11205397/ Warren-Anderson-obituary.html
6 The facsimile of the document states that
Anderson was released on orders from the
Central Government and also states that
while the disaster was unlikely to have a major
effect on the elections that were to follow in
two weeks time the new government was likely
to move cautiously in developing future foreign
investment and industrial policies and relations with multinationals specially US firms.
See S Haider, Rajiv Govt Freed Anderson: CIA
Papers, 11 June 2010, accessed on 18 December 2014, http://ibnlive.in.com/news/rajivgovt-freed-warren-anderson-cia-papers/
123873-37-64.html
7 It has been conjectured that Andersons release
was in exchange for the release of Adil Shahryar,
son of the Late Yunus Mohammad, as a swap
deal between Rajiv Gandhi and the US government (Krishna 2010b).
8 Justice R S Pathak had become the Chief Justice
of India in December 1986 and relinquished
office in June 1989 after delivering the judgment on the Bhopal settlement to take up the
post in The Hague.
9 For a detailed discussion on the consequences
of medical appropriation, see Sathyamala and
Jayaprakash (2012).
10 In fact, as interveners in the Supreme Court Case,
we were told by the then attorney general in
categorical terms not to raise the issue of the
categorisation of injuries in the Court. However,
we went ahead with our argument on the process
of injury evaluation. (Writ Petition No 11708 of
1985 filed on 1 August 1985 by Dr Nishith Vohra
and two gas victims. C Sathyamala became a
co-petitioner in 1989 and the case was argued
by Senior Counsel Indira Jaising).

References
Delhi Science Forum Report (1985): Bhopal Gas
Tragedy, Social Scientist, 13(1), pp 32-53.
Elkin, L (1986): Judge: Indian Courts Should Handle
Bhopal Lawsuits, accessed on 19 December 2014,
http://www.apnewsarchive.com/1986/JudgeIndian-Courts-Should-Handle-Bhopal-Lawsuits/id-b41883cb0193d7ee39baae251c485 354
ICMR (undated): Health Effects of the Toxic Gas
Leak from the Union Carbide Methyl Isocyanate
Plant in Bhopal. Technical Report on Population
Based Long-term Clinical Studies (1985-94) (New
Delhi: Indian Council of Medical Research), accessed on 5 November 2012, http://www.icmr.
nic.in/final/tech_rep_clinical.pdf.
Jaising, I and C Sathyamala (1992): Legal Rights
and Wrongs: Internationalising Bhopal,
Dev Dialogue, 1-2, pp 103-15.
Jayaprakash, N D (2014): The Path to Sustainable
Development: Lessons from the Bhopal Disaster,
paper presented at the Right to Development
Anniversary Event organised by the Office of the
High Commissioner for Human Rights, United
Nations Organisation, Geneva, on 2 December
2014, on the eve of the 30th anniversary of the
Bhopal disaster.
Jayaprakash, N D and C Sathyamala (2014): Victims
of Apathy: Bhopal Disasters Unenviable Legacy,
Medico Friend Circle Bulletin, 361-62, pp 1-7.
Krishna, G (2010a): The Emergency and Bhopal,
Outlook http://www. outlookindia.com/article/
The-Emergency-And-Bhopal/265858, accessed
on 18 December 2014.
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(2010b): Adil Shahryar, Anderson Swap
Deal?, accessed on 18 December 2014, http://
www.toxicswatch.org/2010/07/adil-shahryaranderson-swap-deal.html
(2014): Endless Quest for Indias Baghdad
Continues, Medico Friend Circle Bulletin, 361-62,
pp 21-22.
Mohanty, P (2010): Bhopals Hall of Shame: The
Power People Who Gassed the Victims,
accessed on 19 December 2014, http://www.

governancenow.com/news/regular-story/bhopals -hall-shame
Ramanathan, U (2010): Bhopal: An Unsettling
Settlement, The Hindu, accessed 19 December
2014, http://www. thehindu.com/opinion/oped/bhopal-an-unsettling-settlement/article
525466.ece
Sathyamala, C (1996): A Requiem for Bhopal, Medico
Friend Circle Bulletin, November-December,
No 236-37.

Uniting to Reclaim Traditional

Land and Livelihoods
Swapna Majumdar

In the decade since the 2004

tsunami, the affected fishing
communities have battled
dislocation, sea erosion and a fast
depleting marine life. However,
as one example from a fishing
hamlet in Thiruvallur district of
Tamil Nadu shows, collective
efforts can lead to finding
solutions. The fishing community
of NTO Kuppam has withstood the
governments efforts to relocate
them far from the source of their
livelihood the sea in the name
of rehabilitation.

Swapna Majumdar (swapnamajumdar25@

yahoo.com) is an independent journalist
writing on development and gender.
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ust across Nalla Thaneer Odai

(NTO) Kuppam, a fishing hamlet in
the Thiruvallur district of Tamil
Nadu, is the sea. It has slowly edged closer to the village over the last decade. But
it is not the sea erosion but the spectre of
eviction that has haunted the fishing
community here for the past 10 years
ever since the tsunami struck in 2004.
The state government wants to construct tenements under its tsunami
housing scheme along this stretch and
NTO Kuppam lies in the way. The governments offer of houses in a relocation
site to compensate them for moving out
was found to be several kilometres away
from their present location and they refused to give up their traditional rights.
Even today, the fishing hamlet continues
to resist the relocation moves of the government. However, very few fishermen
thought they would be able to stand up
to the government for so long since
many families accepted the offer and relocated. For the majority that remained
and resisted, it was largely the efforts
of the Coastal Community Protection
Movement (CCPM), comprising tsunami
affected men and women and the Forum
for Securing Land and Livelihood Rights
of the Coastal Communities (FLLRC),
a network of four non-governmental
organisations (NGOs) that helped.
In fact, the FLLRC was formed to help
communities claim their rights after
ActionAid, one of the first voluntary
organisations to start tsunami relief, found
that the governments rehabilitation programme was pushing the marginalised
vol xlIX no 52

Sathyamala, C and N D Jayaprakash (2012):

The Bhopal Disaster and Medical Research,
Economic & Political Weekly, Vol XLVII, No 49,
pp 37-40.
Sathyamala, C, N Vohra and K Satish (1989):
Against All Odds: Continuing Effects of the
Toxic Gases on the Health Status of the Surviving Population in Bhopal: Preliminary Report
of a Medical Survey Carried Out Five Years
after the Disaster, mimeo, New Delhi.

community out of their traditional

lands. Since these NGOs Arunodhaya
Centre for Street and Working Children,
Udavi, Community Development Organization Trust (C-DOT) and National Alliance of Womens Organisations (NAWO)
were also working in the tsunami affected districts, they were able to reach
out to the communities. Udavis Johnson
Kennedy pointed out that with the
demand for land along the coast in the
urban and semi-urban areas for largescale infrastructure or tourism projects,
the livelihoods of the traditional fishing
communities in Chennai and Thiruvallur
districts were further jeopardised.
Community Smart Solution
In NTO Kuppam, it is Desingu, the
47-year-old community leader, who is in
the forefront of the movement against
eviction. The villagers learnt how to
map their village resources and then decide whether or not moving out would
be beneficial. The next step was to visit
the alternative houses proposed for
them. Not only were these tenements
small with inadequate space to keep
their boats and nets, it also lacked basic
amenities. More importantly, the tenement location was very far from NTO
Kuppam and the sea. This was enough
for the community to turn down the
government offer. I can gauge the
quantity and variety of fish by the colour
of the sea and the movement of the
waves. I go into the sea accordingly,
even if it is at odd hours. But if my house
is far away from the sea, how can I see
the water? If I cannot see the water, how
can I fish and how will I survive? asked
Desingu. The community knew that NTO
Kuppam was facing sea erosion and that
they needed to find a solution. They also
realised that they would have to move
out before it became life threatening. At
the same time, they did not want to
13