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A traffic accident in Bhopal by Karuna Nundy

The Bhopal judgment suggests that were a nuclear disaster to be caused by an operator's negligence, they might be held criminally liable for little more than a traffic accident.

The world was watching a trial court in Bhopal on Monday, as the Chief Judicial Magistrate ruled on the criminal responsibility for the gas leak at the Union Carbide factory in 1984. Twenty six years after the event, 178 prosecution witnesses and 3,000 documents later, there was a verdict.

There was some confusion when the verdict was delivered. It was a guilty verdict; eight people were found responsible for negligence that led to the death of countless Bhopalis. But the sentence, they then discovered, is for a maximum of two years in prison and/ or a fine. All of those convicted had already been released on bail for Rs. 25,000 each.

The charges against those that were found guilty were framed under Section 304A of the Penal Code—the provision used most frequently for traffic accidents.

The Bhopal gas leak is acknowledged to be the worst industrial disaster ever — with far more serious human impact than Three Mile island or Chernobyl. Company officials had prior warning of the dangers involved. On December 25, 1981, a phosgene leak killed one worker, Ashraf Khan, at the plant and severely injured two others. On January 9, 1982, 25 workers were hospitalised as a result of another leak. According to the CBI's submissions, on the night of December 2, 1984 none of the plant's safety systems — six in all — was operational, and the plant siren had been turned off. Company officials were aware that the technology employed in the Bhopal plant was hazardous. In fact, 30 major hazards had been identified through a safety audit, operation manuals were rewritten, crucial refrigeration units decommissioned, and the maintenance supervisor was eliminated from most work shifts as a cost cutting measure, because the plant was making losses.

Why then, after what is acknowledged to be the most tragic example of industrial negligence in history, has it resulted in convictions similar to those for a traffic accident?

The initial settlement between the Central Government and Union Carbide, for $ 470 million, included quashing criminal charges against the officials responsible for the leak. The Supreme Court of India itself quashed charges in 1989, but reviewed its own order and reinstated the case in 1991. But on September 13, 1996 the Court reduced charges from Sec. 304 Part II of the IPC to Sec. 304 A. “Even assuming that it was a defective plant,” the court ruled, “and it was dealing with a very toxic and hazardous substance like MIC the mere act of storing such a material by the accused in No. 610 could not even prima facie suggest that the concerned accused thereby had knowledge that they were likely to cause death of human beings….”

The CBI did not seek review of this judgment. By reducing the Bhopal disaster to the equivalent of a traffic accident, the prison term for the crimes of Bhopal was brought down from 10 years to two years. In fact, a conviction under Sec. 304 A, does not necessarily lead to imprisonment. It could well be reduced to a fine on appeal.

Strategy paid off

So far Union Carbide's strategy has quite paid off. It has sold off large parts of the holding company and the subsidiary to Dow Chemicals and others, creating various corporate veils to avoid liability. The financial settlement of $ 470 million was made on the basis of a fifth of people dead, disabled, and diseased by the methyl isocyanate leak — the average gas victim has received less than Rs. 15,000 in total. There was no verdict against the Union Carbide Corporation, USA, nor against Warren Anderson, its CEO at the time, nor against Union Carbide (Eastern) Hong Kong — all are absconding. The CBI made a desultory effort to extradite Warren Anderson in 2004, and then gave up (although activists have located him without much difficulty in a plush mansion in the suburbs of New York City).

The toxic chemicals Union Carbide left in the ground water and at the factory site are being consumed by approximately 20,000 people every day, most of whom drink the water they know to be toxic because they can't afford clean drinking water and the State government is not providing it. The web of companies created after the disaster are currently fighting hard in the Madhya Pradesh High Court to avoid paying for the site to be cleaned of their pollutants; at the same time, they are asking for cheap disposal of the hazardous toxic waste in case they are made to pay later .

Those in the corporate world looking to cut costs regardless of human and environmental impact are watching this case closely. The words “Bhopal gas tragedy” evoke instant recognition. They carry such emotional and moral significance that a mistrial was declared in a U.S. case because an analogy was made to the Bhopal gas case. If such an event can result in minimal criminal punishment and a limited financial settlement, then other companies are left with little incentive to put adequate safety measures in place.

The Civil Liability for Nuclear Damage Bill is currently before a Standing Committee in Parliament. The Bill limits operator liability for a similar industrial disaster to Rs. 500 crore per incident, which skews an operator's incentives so that an operator need not pay for insurance against the death, illness, and environmental damage that could be caused by such an accident. The Bhopal judgment does suggest that were a nuclear disaster to be caused by an operator's negligence, they might be held criminally liable for little more than a traffic accident.

(Karuna Nundy represents Bhopal gas survivor groups, other NGOs and corporations before the Supreme Court of India.)