PRAGOTI

[ Editor's note:  This is the second article in an in-depth 3 part series (Part 1, Part 3) on the Bhopal Gas Leak Disaster by the noted activist N.D. Jayaprakash. The author is the Joint Secretary of the Delhi Science Forum and Co-Convenor of the Bhopal Gas Peedith Sangharsh Sahyog Samiti. ]

Response of the State
 
1. The decisions of the GOI and the MP Government to institute a number of inquiries and studies to comprehensively grasp the impact of the disaster were welcome steps. However, as time passed, the high hopes held out by such wide-ranging initiatives were almost completely belied. Apart from the Varadarajan Committee, which was allowed to come out with its Report on 20.12.1985 and which pinpointed the design faults and the operational deficiencies at the plant that led to the disaster, the other considered tasks were eventually abandoned or were left incomplete by the authorities. The MP Government abruptly wound up the Justice N.K.Singh Commission on 17.12.1985 before it could complete the inquiry or even prepare a preliminary report regarding the causes of the disaster and assess the magnitude of its effects. Similarly, the MP Government forcibly wound up the detailed house-to-house survey, which was being carried out systematically by the Tata Institute of Social Sciences (TISS) with the help of nearly 500 student and teacher volunteers from different states after the teams had collated data from around 25,000 households out of the nearly 100,000 households in the affected area. What was equally worse was that TISS, which had coordinated the survey, did not get an opportunity to analyze the data since all the 25,000-odd forms, which were painstakingly filled by the student-volunteers, were practically confiscated by the MP Government. Thus, the State Government literally sabotaged the selfless attempt by the disinterested volunteers to identify and list all the inhabitants of Bhopal who had suffered injuries, lost family-members or had suffered property losses due to the disaster.
 
2. As far as the Krishna Murti Commission was concerned, the Central Government did not extend the Commission’s mandate beyond its initial two-year tenure. This was despite the fact that the Commission had pointed out in its preliminary Report that: “Many more years of observation and analysis may have to be spent in fulfilling this objective”i of assessing the gravity and long term impact of the disaster. Moreover, contrary to the recommendations of the Krishna Murti Commission, the ICMR arbitrarily wound up its Bhopal Centre in 1994 and stopped all further medical research relating to and arising from the Bhopal disaster. [The only saving grace was that the epidemiological survey with a cohort of 80,000 gas-victims, which ICMR had started in 1985, was allowed to continue its six-monthly surveys under the aegis of the Centre for Rehabilitation Studies (CRS). Although CRS was technically established under the State Government’s Gas Relief Department, for all practical purposes, a dedicated team of doctors and researchers managed it.] Thus, the truth is that even 25 years after the disaster, neither the State nor the Central Government has made any sustained attempt to undertake a comprehensive assessment of the ramifications of the disaster, which explains the pathetic state of affairs as far as remedial measures are concerned. As a result justice continues to elude the gas victims. In fact, it would appear that the Central and State governments were intent on underplaying the enormity and intensity of the problem and to pretend that the problem was not as grievous as it has turned out to be.
 
3. Initially, it did appear that the GOI was totally committed to the cause of the Bhopal gas victims when at its initiative the Indian Parliament passed an act titled “The Bhopal Gas Leak Disaster (Processing of Claims) Act 1985” on 29.03.1985. The Bhopal Act was enacted purportedly “for the purpose of insuring that claims…arising out of and caused by the BHOPAL GAS LEAK DISASTER…are dealt with speedily, effectively and equitably.”ii The GOI’s commitment to the cause of the gas victims still appeared to be in place when it decided to file its complaint against UCC before the New York Southern District Court on 08.04.1985 with the following submission:
 

1. “Because of the massive unprecedented magnitude of the BHOPAL DISASTER…, the Union of India brings this action as parens patriae by virtue of its interest and duty to secure the health and well-being, both physical and economic, of all victims of the disaster (including future generations of victims), almost all of whom are physically and/or financially or otherwise incapable of individually litigating their claims against the Defendant, a monolithic, multinational corporation. The Union of India further acts as parens patriae by virtue of its interest and duty to protect, preserve and restore the earth, air, waters and economy of the Republic. The Union of India further acts as parens patriae in exercise of its rights and duties under the Act.”

2. “The Union of India brings this action as parens patriae for all persons to recover for them damages for any and all claims, present and future, arising from the BHOPAL DISASTER.”

3. “The Union of India further brings this action to recover damages for expenditures incurred and to be incurred by it for emergency aid and relief arising from and caused by the BHOPAL DISASTER, but not limited to, ex gratia payments for deaths, and injuries together with medical treatment, rehabilitation and food for the injured.”iii

 
4. The GOI claimed compensation from UCC on seven counts: a) Multinational Enterprise Liability; b) Absolute Liability; c) Strict Liability; d) Negligence; e) Breach of Warranty; f) Misrepresentation; and g) Punitive Damages. However, not everyone was prepared to believe that the GOI had taken the initiative in enacting the Bhopal Act for altruistic purposes. Therefore, some individual victims along with a few concerned legal experts did challenge the constitutional validity of the Bhopal Act before the Supreme Court of India in 1985 and early 1986.iv
 
5. On 12.05.1986, Judge Keenan of the New York Southern District Court dismissed GOI’s plea on the grounds of forum non conveniencs, i.e., that the courts in USA were not the appropriate forums for seeking justice for the Bhopal gas victims. However, Judge Keenan directed UCC to submit to the jurisdiction of the Indian courts. On 05.09.1986, the GOI filed a suit (No.1113/86) for damages in the District Court of Bhopal, which replicated, almost wholly, the suit it had filed before the U.S. Court. Since UCC had little intention of facing trial in India, it attempted to sell off its assets as a way of evading liability. However, on 17.11.1986, after the GOI came up with an application supported by photo-copies of newspaper reports which showed that the defendant UCC was proceeding to dispose of substantial part of its properties, the Bhopal District Court issued a temporary injunction barring UCC from selling assets, paying dividends, or buying back debts. Subsequently, on 30.11.1986, the injunction was lifted after the Bhopal District Court passed an order that UCC “will maintain… unencumbered assets of a fair market value of 3 billion [U.S.] dollars to meet the decree if any that may be passed by this Court.”v
 
6. Meanwhile, on 22.11.1986, the GOI had announced that the amount it would claim as damages from UCC would exceed 3000 million U.S. dollars. Immediately thereafter, on 26.11.1986vi, the Zahreeli Gas Kand Sangharsh Morcha and Jana Swasthya Kendra, intervener-organizations supporting the cause of the gas-victims, filed a joint application before the Bhopal District Court demanding payment of interim relief from UCC. As a consequence of the proposal mooted by the intervener-organisations on 26.11.1986 (and on 12.12.1987vii) and the suo moto proposal put forward by the District Court on 02.04.1987viii, the District Court of Bhopal on 17.12.1987 ordered UCC to pay an interim compensation of Rs.350 crores ($270 million) to the Bhopal gas victims.ix This interim order that was issued by the then District Judge, Mr.M.W. Deo (who was the same judge who had put forward the suo moto proposal on 02.04.1987), was a unique order of its kind since for the first time a court had ordered a defendant company to pay such a substantial amount as interim relief. However, UCC opposed the decision.
 
7. On 04.04.1988, in response to UCC’s appeal, the MP High Court modified the order of the Bhopal District Court dated 17.12.1987 and ordered UCC to pay an interim compensation of Rs.250 crores only.x After both UCC and GOI opposed the decision, the Supreme Court of India on 08.09.1988, admitted both UCC’s and UOI’s Special Leave Petitions (SLPs) against the MP High Court’s order of 04.04.1988. The same day, the Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS), which was formed in 1986, also filed a petition before the Supreme Court seeking interim relief for the gas victims. Meanwhile, on 29.01.1988, GOI had filed the Amended Plaint in the District Court of Bhopal furnishing all material particulars and quantifying the approximate value of the total claims (531,770 until then) at Rs.3,900 crores (3 billion U.S. dollars), excluding punitive damages, interests, and costs of the suit.xi
 
Criminal Case
8. On 01.12.1987, the CBI finally filed its charge sheet against 12 accused (including Kishore Kamdar, Vice President, Agricultural Production Division, UCIL, as accused no.4; UCC, USA, as accused No.10; Union Carbide Eastern (UCE), Hong Kong, as accused No.11; and UCIL as accused No.12) before the CJM, Bhopal.xii As a result, hearing in the criminal case began before the CJM on 04.02.1988. While accused Nos.2 to 9 and 12 were present; accused Nos.1, 10 and 11 were absent (and continued to remain absent at subsequent hearings). Since the CBI’s charge sheet also stated that further investigations were to be carried out in USA, the CJM issued a Letter Rogatory dated 06.07.1988 addressed to the U.S. Government for that purpose. The said letter of request was issued to enable the CBI to inspect the safety-systems installed at the MIC unit of UCC’s Institute plant for comparing the safety-standards with those installed at the Bhopal plant. The CBI had also to collect necessary documents pertaining to the case both from the U.S. and from Hong Kong. Subsequently, a CBI team led by DIG K.Madhavan and a senior scientist, Dr.M.Sriram, did visit the U.S. in November 1988 for the said purpose. However, the CBI team was forced to return without fulfilling its tasks since the U.S. Administration informed the CBI that it would have to wait until the State of West Virginia granted the necessary permission for the same.
 

9. Nevertheless, proceedings in the criminal case before the CJM, Bhopal, continued as scheduled. Due to his repeated non-appearance in the criminal case, on 15.11.1988, the CJM issued bailable arrest warrant against the absconding accused No.1, Warren Anderson, and ordered him to be present in Court on 09.02.1989. On the scheduled date, when it became clear that Anderson had been deliberately avoiding being present in the court, the CJM, after accepting the CBI’s application, proclaimed Anderson as an absconder under section 82(1) of the Criminal Procedure Code (Cr.PC) and directed the CBI to produce the accused before the Court on 31.03.1989. Shortly thereafter, on 14.02.1989, the U.S. Administration informed the Indian Embassy in Washington, DC, that permission had been granted to the CBI to carry out investigations as per the Letter Rogatory issued by the CJM, Bhopal on 06.07.1988.

 
The Unjust Settlement
10. Strange as it may seem, the granting of permission to the CBI to carry out investigations in the U.S. to verify whether UCC had adopted dual safety standards, i.e. whether UCC had installed inferior safety systems at Bhopal as compared to those it had installed at Institute (USA), had a boomerang effect.xiii All of a sudden, in the midst of the ongoing hearing in the matter pertaining to payment of interim compensation (C.A. No.3187-88 of 1988) before the Supreme Court, there was a Court assisted settlement of the main suit itself. After withdrawing the original suit pending in the Bhopal Court before it and disposing of the same without adjudicating the issue in question, the Supreme Court directed that there be an overall settlement of the claims in the suit for $470 million (about Rs.713 crores) and termination of all civil and criminal proceedings. The quickness with which the settlement was arrived at on 14/15.02.1989 gave rise to two pertinent questions:
 

1. Did the CJM’s decision on 09.02.1989 to issue non-bailable warrant of arrest against UCC’s Chairman, Warren Anderson, and the U.S. Administration’s decision on 14.02.1989 to permit the CBI to inspect the safety systems of the MIC unit at UCC’s plant at Institute in West Virginia, USA, and for collecting the relevant documents have anything to do with the hurried settlement? And

2. Why were gas-victims not served notice by way of public pronouncements regarding the terms of the proposed settlement in accordance with Bhopal Act of 1985 before the GOI decided to agree to the settlement?xiv

 
11. What was equally intriguing was the manner in which the magnitude of the disaster was quantified. Although at the time of the settlement, the Directorate of Claims had processed only a fraction of the then total 5,97,908 claims that had been filed, the GOI misled the Court into believing that the total number of gas-affected was only about 105,000 (including 3000 fatal cases). The fact was that there was absolutely no basis for the GOI to come to the arbitrary conclusion that the total number of gas-affected, who deserved to be awarded compensation, was only about 105,000. On the other hand, the preliminary estimates made by the ICMR had revealed that an estimated 5.6 lakhs peoplexv in 36-gas affected wards of Bhopal may have suffered injuries in varying degree. Out of this exposed population “nearly 1.6 lac people present within a radious of 3.km from the factory were exposed presumably to a higher concentration of Gas and also perhaps for longer period of time.”xvi As the said ICMR Report has pointed out: “It is also a safe assumption that higher the concentration of the Toxic Gases inhaled, the more severe would be the mortality and greater the morbidity.”xvii The charge sheet filed by the CBI before the CJM, Bhopal, on 01.12.1987, had also showed that the number of affected persons was more than 500,000!xviii Therefore, there is irrefutable evidence that the GOI had, indeed, misled the Court regarding the magnitude of the casualty figures.xix
 
12. There were widespread protests across the country against the unjust settlement both against the paltry sum and against quashing of all present and future criminal cases against UCC, UCIL and the concerned officials. This led to the formation in Delhi of the Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS), a broad coalition consisting of over 30 all-India and Delhi-based organizations representing workers, scientists, doctors, teachers, lawyers, journalists, artists, women, youth, students, along with concerned individuals, who came together to support the struggle of the Bhopal gas victims for justice.xx The public protests were followed by filing of a number of review and writ petitions against the settlement in the Supreme Court of India by the Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS), the Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS) and other concerned groups.
 
13. The change of government at the centre in December 1989 and the emergence of the National Front Government with Shri V.P.Singh as Prime Minister did make some difference as far as the interests of the Bhopal gas victims were concerned. Because of intense lobbying by BGPMUS, BGPSSS and other victim-groups, the National Front Government on 12.01.1990 decided to disburse interim relief to all the gas affected people in the 36 gas exposed municipal wards of Bhopal. Subsequently on 05.03.1990, the National Front Government announced the decision to sanction Rs.360 crores from its own resources as interim relief to the Bhopal gas victims for three years. It decided to pay Rs.200 per person per month as interim relief to all residents (i.e., to over 5,00,000 needy victims) present in the 36 gas affected wards of Bhopal on the night of the disaster. The victims had demanded immediate interim relief since not a paisa from the settlement fund could be disbursed because the process of adjudication of claims did not even begin until 1992. Some of the victims were paid interim relief for a period of six years since adjudication of claims was a long drawn-out process and stretched from 1992 to 2006.xxi Therefore the fact remains that the settlement did not provide any immediate succour to the gas-victims despite the claim of the Court to the contrary.xxii
 
14. The Claim Courts have subsequently determined that the total number of victims were actually 574,375. Nevertheless, the Settlement sum of 470 million U.S. dollars (Rs.713 Crores at the 1989 exchange value), which was to be disbursed among 105,000 gas-victims, was not enhanced proportionately. Instead, the same settlement amount was spread thin and disbursed among the said 574,375 gas-victims, which effectively meant that the compensation amount that each gas-victim on an average was awarded was less than one-fifth of the amount that he/she should have received even as per the terms of the paltry Settlement sum. While the settlement sum of Rs.713 crores was purportedly to be disbursed among 105,000 gas victims (which worked out to an average of about Rs.67,905/- each), in reality, each gas-victim on an average was awarded about Rs.12,413/- only at the 1989 value of the rupee vis-à-vis the dollar (i.e., Rs.713 crores divided among 574,375 gas-victims).
 
Revival of Criminal Cases
 
15. In response to review and writ petitions filed by BGPMUS, BGPSSS and others, the Supreme Court on 03.10.1991, while upholding the settlement amount, revoked the criminal immunity granted to UCC and all other accused in vide order dated 14/15.02.1989. In addition, UCC was ordered to pay an additional sum of Rs.50 crores for setting up a “full-fledged” 500-bedded hospital “with the best of equipment for treatment”.xxiii Subsequently, on 11.11.1991, criminal cases against all the accused were revived in the CJM’s Court at Bhopal and summons were issued to them to be present in the Court on 07.12.1991. While, accused Nos.2 to 9 and 12 responded to the summons and presented themselves before the Court on the appointed date, accused Nos.1, 10 and 11 continued to be absent. Therefore, the CJM issued proclamations, which were published in newspapers, ordering accused Nos.1, 10, and 11 to be present before the Court on 01.02.1992.
 
16. UCC, which was fully aware that all its properties in India were liable to be attached for non-appearance in the criminal case as per the order of the CJM dated 01.02.1992, endowed those very properties to a Trust, which it secretly set up in London, UK, on 20.3.1992. The trust was named as the Bhopal Hospital Trust (BHT) and UCC appointed Ian Percival (a former Solicitor General of England and an attorney – during 1984-92 – with the U.S. law firm, Sidley & Austin, which was retained by UCC) as its sole trustee. Apart from an initial grant of 1000 pounds sterling for administrative expenses of the Trust, the only funds endowed to the Trust by UCC were its shares in UCIL. However, these facts became public only much later.
 
17. On 27.03.1992, the CJM, Bhopal, issued non-bailable warrant of arrest against Anderson, and ordered the GOI to seek extradition of Anderson from the U.S. [Neither this extradition order nor the Letter Rogatory issued by the CJM on 06.07.1988 have been executed by the GOI till date.] Subsequently, on 15.04.1992, UCC announced that it had endowed all its shares in UCIL to the so-called Bhopal Hospital Trust (BHT). Gas-victims and their supporters, who were outraged by the audacity of UCC in setting up the so-called trust in London as a way of evading attachment of its properties in India, immediately appealed to members of the Indian Parliament to foil UCC’s plans. BGPSSS, BGPMUS and the Bhopal Group for Information and Action (BGIA), along with the CBI, also filed necessary applications before the CJM, Bhopal, in this regard. In response to the said applications, the CJM refused to recognize the transfer of UCC’s shares in UCIL to the so-called BHT in London and attached the shares and properties of UCC in India for non-appearance in the criminal case.
 
Bhopal Hospital Trust
 
18. Although the Supreme Court of India in its Order dated 03.10.1991 had directed UCC to contribute another Rs.50 crores for building an exclusive 500-bedded hospital in Bhopal for the gas-victims, till date UCC has not contributed a paisa for the purpose. The GOI brought this matter of non-payment to the attention of the Supreme Court through an application that was taken up by the Court on 10.12.1993. Subsequently, vide order dated 14.02.1994, the Supreme Court allowed UCC to sell off its properties in India, which the CJM, Bhopal, had attached on 30.4.1992 at the instance of the CBI, BGPSSS, BGPMUS and BGIA.
 
19. What was strange about the Supreme Court order was that, while UCC was a proclaimed absconder whose properties were attached for non-appearance in the criminal case, UCC was permitted to appear before the Supreme Court in the civil case through a proxy. The proxy was Ian Percival, the so-called trustee of the Bhopal Hospital Trust (BHT), which UCC had set up in London, UK, and to which UCC had tried to endow all its properties in India, a surreptitious move which was foiled in time by the timely intervention of the CBI, BGPSSS, BGPMUS and BGIA as noted earlier. [Which law of the land permits a proxy of an accused, who is absconding from a lower court in a criminal case, to appear before the Apex court in a civil case? This question has never been answered!] The GOI did not protest against this transgression of the law by the Apex Court.
 
20. Not only did the Supreme Court allow an absconding accused’s proxy to be present in Court but also allowed the absconding accused to sell off its attached properties to raise funds in lieu of the contribution, which the absconding accused had to make towards construction of a hospital for treatment of gas-victims as per the Court’s order dated 03.10.1991. In effect, the Apex Court practically nullified an order of attachment passed by the CJM, Bhopal, in a criminal case to suit the convenience of an absconding accused, who had defaulted payment in a civil case that was pending before the Apex Court! While Rs.60 crores from the sales proceeds was to be set aside for the construction of the proposed hospital at Bhopal, the Court surprisingly ordered transfer of Rs.5 crores (one million pounds sterling) from India to the U.K. as administrative expense of the Bhopal Hospital Trust (BHT), which the proclaimed absconder, UCC, had set up in London, UK. [Which law of the land permits a court to order transfer of funds from India to a foreign country to meet the administrative expenses of a trust set up abroad by a proclaimed absconder?]
 
21. Exasperated by the Court’s above mentioned decisions, BGPSSS and BGIA filed an application before the Supreme Court on 13.4.1994 protesting against the granting of recognition to the BHT, which was set up by a proclaimed absconder and against the granting of administrative expenses to such an illegal trust from public funds. Vide order dated 20.10.1994, a Supreme Court bench, headed by the then Chief Justice, Mr.Justice M.N.Venkatachalaiah (who had earlier passed the 14.02.1994 order), tried to clarify that it had not recognized the Trust. The Court instead said that the matter of legality of the Trust would have to be decided first by the MP High Court, where a revision petition filed by UCIL against the CJM’s order of attachment dated 30.4.1992 was pending.xxiv
 
22. The Supreme Court also clarified that no funds from the proceeds of the sale of UCC’s shares in UCIL would go towards any administrative expenses of the Trust and directed that all administrative expenses of the Trust should be borne by UCC from other sources. [While the Court’s clarification was reassuring, the Court did not actually seek from BHT the return of the one million pounds sterling that was transferred from India to the UK, although it did direct the BHT to submit regular accounts for the same.] In reality, the BHT chose to completely ignore the Court’s directive; it not only spent the said one million pounds sterling for its administrative expenses but also, as explained below, Ian Percival, the Sole Trustee of BHT admittedly transferred another Rs.6.7 crores from India to London without the permission of the Court or the GOI.
 
23. That was not all. While about Rs.290 crores was realized from the sale of the attached properties of UCC in India, Rs.60 crores from that amount was set aside for the construction of the proposed hospital at Bhopal and Rs.5 crores was transferred to BHT’s account in London, UK. Moreover, Ian Percival, the so-called Sole Trustee of BHT (which was an illegal entity and had no locus on Indian soil) was not only allowed to become a member of the Empowered Committee that was to undertake construction of the said hospital but also he was allowed to operate its account. As a result Percival became the most powerful member of the Empowered Committee. The remaining amount of Rs.225 crores, which was deposited in the State Bank of India, Delhi, remained attached in the name of UCC and the Trust, with the CJM, Bhopal retaining jurisdiction over the attached funds.
 
24. Incidentally, on or about 28.8.1995, UCIL withdrew its revision petition from the M.P.High Court, which it had filed on 11.8.1992 against the order of the CJM, Bhopal, dated 30.4.1992. The said order of the CJM, which had attached the properties of UCC in India, thereby, attained finality. It was, thus, established beyond doubt that the Bhopal Hospital Trust (BHT) was an illegal entity and had no legal status in India. However, the Supreme Court continued to practically accorded locus to the BHT despite vehement protests by the groups that were supporting the cause of the gas-victims. The Supreme Court gave no heed to the repeated complaints filed by BGPSSS and BGIA against the mindless administrative expenses, which the Sole Trustee of BHT, Ian Percival, was incurring – a fact that was amply evident from the accounts that Ian Percival was later forced to submit to the Court.xxv Overruling all protests, the Court allowed the Sole Trustee to control additional funds.
 
25. While disposing off an application filed on 20.9.1995 by the BHT, a Supreme Court bench headed by the then Chief Justice, Mr. Justice A,M.Ahmadi, vide order dated 03.4.1996 released an additional sum of Rs.187 crores for the expansion of the hospital from the attached funds of UCC. [Thereby, the order of attachment by the CJM, Bhopal, of UCC’s properties in India for non-appearance in the criminal case was rendered practically meaningless.] What was disquieting was that subsequently vide order dated 14.02.1997, Justice Ahmadi also allowed Ian Percival, the trustee of BHT that had no locus in India, to take sole control of the entire funds earmarked for the construction of the hospital. Soon even the GOI became highly embarrassed by the reckless usurpation of funds by Ian Percival and was forced to file a number of applications and affidavits against Ian Percival before the Supreme Court. However, several legal luminaries, including Harish Salve, Ashok Desai and Abhishek Singhvi, came to the defense of Ian Percival, despite knowing fully well that their client was none other the Sole Trustee of a trust set up by the proclaimed absconder UCC and which was an illegal entity in India.
 
26. It is inexplicable as to why Ian Percival, as the Sole Trustee of BHT, was allowed to be associated with the construction of the said hospital in Bhopal. Neither the BHT nor its mentor, the UCC, contributed a paisa for the construction of the hospital; no expertise for the same was provided by the BHT or the UCC; no medical equipment was donated by the BHT or the UCC to the said hospital. On the contrary, by associating Ian Percival with the construction of the hospital, the hospital was deprived of no less than Rs.11.7 crores, which was transferred from India to the UK and mostly pocketed by Ian Percival. He may have transferred more funds from India to the UK during 1998 (until the time of his sudden death on 04 April 1998) about which there is no specific information. After his death, about Rs.3 crores was transferred back to India.
 
27. It would appear that the sole reason for associating Ian Percival with the construction of the hospital for the gas-victims was an attempt to portray UCC as a benefactor and in a favorable light before the Indian people. Moreover, it is a matter of record that the desperate pleas of BGPSSS and BGIA before the Supreme Court to disassociate Ian Percival from the construction of the said hospital went unheeded. Despite repeatedly pointing out to the Court that the gas-victims could ill-afford to maintain an expensive “benefactor” like Ian Percival, he was allowed to retain his position. In the process, the fact that UCC, which was directed by the Supreme Court vide order dated 03.10.1991 to contribute Rs.50 crores towards the construction of the hospital, has till date not paid that amount has been practically erased from the Court records. Instead, the funds realized from the sale of the attached properties of UCC have been passed off as the contribution of UCC in fulfillment of its obligations as per the said Court order of 03.10.1991 although, as per the law, proceeds from sale of attached properties of an absconding accused belonged entirely to the State. How and why an absconding accused was allowed to lay claim over proceeds from the sale of its attached properties when the said accused continued to abscond from the court that had attached the said properties is a matter that needs to be investigated.
 
28. After the demise of Ian Percival, a new trust called the Bhopal Memorial Hospital Trust (BMHT) was set up through a trust deed that was signed on 11.8.1998 with the consent of the Supreme Court and the GOI. The former Chief Justice of India, Justice A.M Ahmadi, who was in office from 25.10.1994 to 24.3.1997, was appointed as Chairperson of the 11-member Trust. Through the BMHT, the Bhopal Memorial Hospital and Research Centre (BMHRC) became operational in the year 2000. Although it was headed by a former Chief Justice, the BMHRC was not devoid of controversies. Gas-victims repeatedly complained about improper treatment being meted out to them and about priority being given to treatment of paying-patients. There have been complaints about shortage of doctors, especially specialists, in many departments. The BMHRC was run so autonomously that it assumed that it was not accountable to anyone. This was primarily because neither the state nor central government bothered to monitor its functioning although their representatives were among the trustees. Moreover, the BMHT, although it was set up under the Madhya Pradesh Public Trusts Act, did not submit annual accounts for the first seven years of its existence. It was further noticed that the accounts it was forced to submit was not audited properly. Furthermore, in January 2010, it came to the notice of the Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS) that secret drug trials were conducted at least until August 2008 in four departments of BMHRC and these trials apparently had begun four years earlier. Under the circumstances, the formal decision of the GOI on 19.07.2010xxvi to takeover the BMHT was a welcome step. However, a thorough inquiry into the functioning of BMHT and BMHRC for the last 12 years is necessary, including re-auditing of its accounts and its manner of treating gas-victims.
 
Other Shocking Incidents
 
29. There were a few other shocking incidents too, which need to be taken note of. In 2001, after lapping up legal advise from private U.S. attorneys, the then Attorney General of India, Mr.Soli Sorabjee, instead of defending the interests of the Bhopal gas victims, was holding brief for accused No.1 in the Bhopal disaster criminal case. Mr. Sorabjee wrote to the GOI on 06.08.2001 as follows: “All things considered, in my opinion proceedings in the USA for the extradition of Mr. Warren Anderson are not likely succeeded and, therefore, the same may not be pursued.”xxvii In January 2002, the GOI recommended the name of Keshub Mahindra, accused No.2 in the same case, for being conferred the “Padma Bhushan”, one of the prestigious national awards. Timely protests by BGPSSS, BGPMUS and others, who also managed to persuade Justice V.R Krishna Iyer to raise the matter with President K.R.Narayanan, resulted in Keshub Mahindra “turning down” the award.xxviii Likewise, on 24.5.2002, the CBI went to the extent of filing an application before the Court of the CJM, Bhopal, seeking recall of the non-bailable warrant of arrest issued by the Court on 27.3.1992 against Warren Anderson. Apparently, the CBI was forced to file the said application after the Ministry of External Affairs vide letter dated 20.3.2002 had directed the CBI to reframe charges against Anderson under Section 304-A of IPC, which was a non-extraditable offence. However, in response to the counter filed on 17.7.2002 by BGPSSS, BGPMUS and BGIA, who vehemently opposed the said plea of the CBI, the CJM, vide Order dated 28.8.2002 rejected the CBI’s application.
 
The Trial
30. On 08.4.1993, the Sessions Court, Bhopal, framed charges against accused Nos. 2 to 9 & 12 (eight Indian officials and UCIL) for punishable offenses under sections 304 Part-II, 326, 324 and 429 of IPC read with section 35 of IPC. The said accused filed revision petitions against the same, which the MP High Court dismissed on 01.8.1995. However, in response to criminal appeals filed by accused Nos.2 to 9 and 12, a two-member bench of the Supreme Court headed by the then Chief Justice, Justice A.M. Ahmadi, vide order dated 13.9.1996 reduced charges against the accused from Section 304-Part-II of IPC to Section 304-A, i.e., from a charge of culpable homicide to one of negligence.
 
31. On 30.11.1996, BGPSSS, BGPMUS and BGIA filed a review petition before the Supreme Court seeking review of its judgment of 13.9.1996. However, Justice A.M. Ahmadi summarily dismissed the plea on 10.3.1997 at the preliminary hearing itself without going into the merits of the plea and without issuing a reasoned order. Subsequently, the trial against the accused proceeded before the Court of the CJM, Bhopal. The trial was a long drawn-out process which stretched from 1996 to 2010. During the trial, BGPSSS and BGPMUS repeatedly drew the attention of the Court to the fact that the Letter Rogatory issued by the CJM on 06.07.1988 had not been executed by the CBI and, thereby, certain vital evidence regarding the case had not been placed before the Court.
 
32. Yet from the wealth of evidence presented before the Court by the 178 prosecution witnesses, 8 defense witnesses and from some 3000 documents, it was very clear that it was a fit case for prosecuting the accused under Section 304 Part-II and other appropriate sections of the IPC. There was absolutely no doubt that the accused persons had prior knowledge that improper storage and usage of highly toxic chemicals like MIC would have catastrophic consequences. Despite such prior knowledge, they resorted to cost-cutting measures in gross violation of the prescribed safety norms, which led to the disaster. Accordingly, BGPSSS and BGPMUS filed an application on 26.4.2010 under Section 216 of CrPC before the Court of the CJM, Bhopal, with a plea to enhance the charges against the accused on the basis of the evidence presented before the Court. Since the CBI did not support the plea, the CJM chose to summarily dismiss the application without going into the merits of the plea. Despite the fact that under Section 216 of CrPC, the CJM was well within his powers to alter the charges on the basis of evidence before him, the CJM, Mr.Mohan Tiwari, chose not to do so.
 
33. As a result, vide order dated 07.06.2010, the CJM found accused No.2 to 9xxix and 12 guilty of punishable offences under Sections 304-A, 336, 337, and 338 read with Section 35 of IPC. Accordingly, the said accused were sentenced as follows: (a) to 2 years imprisonment and a fine of Rs.1,00,000/- each under Section 304-A r/w Section 35 of IPC; (b) to 3 months imprisonment and a fine of Rs.250/- each under Section 336 of IPC; (c) to 6 months imprisonment and Rs.500/- each under Section 337; and to one year imprisonment and a fine of Rs.1000/- each under Section 338 of IPC; and (d) Accused No.12, UCIL, was ordered to pay a total fine of Rs.5,01,750/- under the said sections of the IPC. Furthermore, while order dated 02.07.1999, issued by one of the preceding CJMs, had decreed that the accused would have to face consecutive sentences for the various offences committed by them, the incumbent CJM, Mr.Mohan Tiwari, decreed that the sentences shall run concurrently.
 
34. Considering that the accused got away very lightly as compared to the enormity of the crime, which resulted in the gruesome death of an estimated 20,000 people or more and which inflicted grievous injuries in varying decree to over 5,50,000 others, concerned people across the country expressed outrage at the light sentences. Moreover, the lenient sentence, which was pronounced 25 years after the tragedy, appeared to rub salt into the wounds of the victims, who were earlier awarded paltry sums of Rs.12,413/- on an average as full and final compensation (at the 1989 value of the rupee vis-à-vis the U.S. dollar). The very decision to prosecute the accused under Sections 336, 337 and 338 of IPC and to impose a total combined fine of just Rs.14,000/- (Rupees fourteen thousand only) on them was a cruel joke and a travesty of justice considering that the acts of omission and commission by the accused had wreaked havoc on the city of Bhopal. Overall, CJM Mr.Mohan Tiwari’s verdict was a testimony on the appalling state of the criminal justice system in the country especially when it comes to rendering justice to the poor and the hapless.
 
Conclusions
35. Sensing the deeply indignant mood of the people and in a bid to empathize with the cause of the gas-victims, the GOI on 10.06.2010 reconstituted the Group of Ministers (GOM) to re-examine all aspects arising from and related to the Bhopal gas disaster. The recommendations, which the GOM made to the Cabinet and which the Cabinet approved on 23.06.2010, include the following:
 
(a) To seek extradition of Anderson;
(b) To file curative petitions against the settlement order of
14/15.02.1989 and against the order of 13.09.1996 that
reduced criminal charges against the accused;
(c) To file appeal before Sessions Court, Bhopal, seeking consecutive sentences against the accused instead of concurrent ones;
(d) To file revision application before the High Court seeking trial
under Section 304 Part-II;

5. To pursue the case pending before the MP High Court

regarding liability of the Dow Chemical Company;

5. To take over the Bhopal Memorial Hospital Trust;
6. To reopen the ICMR centre at Bhopal;
7. To invite global tenders for carrying out remedial work at the contaminated site in and around the UCIL plant; and
8. To enhance compensation in death and seriously injured cases with an additional allocation of Rs.700 crores.

 
36. While most of the recommendations of the GOM may appear to be welcome steps, it is very evident that the GOI is continuing to grossly underplay the magnitude of the casualty figures of gas-victims in terms of the number of dead and seriously injured. Moreover, the amount the GOM has offered as additional compensation is a pittance in terms of the actual needs of the gas-victims. Similarly, the haphazard manner it proposes to carry out remediation of the contaminated site is highly questionable in the absence of a detailed and proper study of the extent and gravity of the problem. There is also the danger that the curative petition in the criminal case may actually turn out to be counter-productive. Under the circumstances, it is vital that an all-party committee be constituted to thoroughly examine the recommendations of the GOM after verifying all the facts of the case in consultation with representatives of organizations that have been championing the cause of the gas-victims.
 
37. It is important to note that the GOM has remained completely silent regarding non-execution of the Letter Rogatory, which was issued by the CJM, Bhopal, on 06.07.1988. As per this Letter Rogatory, the CBI was to carryout a comparative study of the safety systems of the Bhopal and Institute plants of UCC, which would establish whether UCC had adopted double safety standards – a crucial aspect that is central to the entire case. After the revival of the criminal cases on 03.10.1991, the CBI had again reminded the concerned official at the Indian Embassy in Washington, DC, regarding execution of the said Letter Rogatory. According to the CBI:
 
“On receipt of the above Orders dated October 03, 1991 of the Supreme Court of Indiaxxx, the Counsellor (Pers), Embassy of India, Washington (USA) was requested vide D.O. letter dated December 24, 1991 to renew CBI’s request to US authorities for taking up the matter relating to Letter Rogatory dated July 06, 1988.”xxxi
 
38. It is, indeed, a big mystery as to why the GOI did not take any further steps to pursue the matter with the U.S. Government regarding execution of the said Letter Rogatory. The fact is that the said UCC’s plant at Institute in West Virginia, USA, is currently owned and operated by the West German chemical company Bayer and it is continuing to produce MIC based pesticides. Therefore, the CBI can still visit the U.S. and carry out the necessary comparative study if the GOI takes necessary steps to facilitate the CBI’s visit. Under the circumstances, the first task is to persuade the Government to fulfill its obligations in this regard.
 
39. The crime of Union Carbide in causing the disaster has been compounded by the fact that the design and working of the Bhopal plant had led to dumping of toxic wastes and effluents from the factory from beginning of its operations there in 1977 until the closing down of the plant following the disaster in 1984. It has resulted in the poisoning of soil and ground water in and around the UCIL factory. The several thousands of residents in the nearby areas, who were almost entirely dependent on hand-pumps for their daily domestic needs of water have become victims of slow poisoning by unwittingly consuming the contaminated water.  It is becoming increasingly clear that the consequences of such consumption of contaminated water could be very devastating to the health and wellbeing of such victims of environmental degradation.
 
40. Under the circumstances, merely pursuing the criminal case relating to the release of toxic gases on 02/03.12.1984 is not enough. Criminal cases must also be instituted against UCC and the concerned officials of UCC, UCE and UCIL for wanton destruction of the environment through unfettered dumping of toxins and for inflicting grievous injuries on unsuspecting citizens of Bhopal. The Government of India and the Government of Madhya Pradesh must also be taken to task for their gross negligence in failing to carryout periodic safety inspections and monitor the design, maintenance and operation of the pesticide factory that was producing and storing highly hazardous chemicals and polluting the environment.

i
REFERENCES:
 
 Scientific Commission for Continuing Studies on Effects of Bhopal Gas Leakage on Life Systems, 'The Bhopal Gas Disaster: Effects on Life Systems' (The Krishna Murti Commission Report), Executive Summary, Cabinet Secretariat, Government of India, Sardar Patel Bhavan, Sansad Marg, New Delhi, July 1987, p.3
 

ii Para 5, Union of India’s Complaint against UCC that was filed on 08.04.1985 before the New York Southern District Court. See: “Mass Disasters and Multinational Liability: The Bhopal Case”, edited by Upendra Baxi and Thomas Paul, The Indian Law Institute, Delhi, 1986, p.2.
 

iii Ibid., paras 6, 7 & 8
 

iv It was nearly four years later on 22.12.1989 that the Supreme Court (1990 1 SCC 613) upheld the constitutional validity of the Bhopal Act but not before making certain critical observations against the GOI for violating the provisions of the Act while arriving at the Settlement in February 1989.
 

v See Upendra Baxi and Amita Danda “Valiant Victims and Lethal Litigation: The Bhopal Case”, Indian Law Institute, Delhi, 1990, p.31
 

vi See Baxi & Dhanda, op cit., p.235
 

vii See Baxi & Dhanda, op cit., p.261
 

viii See Baxi & Dhanda, op cit., p.240
 

ix See Baxi & Dhanda, op cit., p.283
 

x See Baxi & Dhanda, op cit., p.338
 

xi See Baxi & Dhanda, op cit., p.193
 

xii See: Baxi & Dhanda, op cit., p.639
 

xiii The fact that the U.S. Administration had granted such permission to the CBI became public knowledge only much later during the hearing on the review and writ petitions against the settlement.

xiv

xv “Health Effects of the Toxic Gas Leak from the Union Carbide Methyl Isocyanate Plant in Bhopal: Technical Report on Population Based Long Term Epidemiological Studies (1985-1994)”, Indian Council of Medical Research, New Delhi, 2007, p.22
 

xvi Ibid, p.49
 

xvii Ibid, p.43
 

xviii See Baxi & Dhanda, op cit., p.645, para 23
 

xix For a detailed critique of the Supreme Court orders dated 14/15.021989 and 04.05.1989 in Civil Appeals Nos.3187-88 of 1988 based on the then available information see article titled “Perilous Litigation: The Bhopal Gas Leak Disaster Case”, Economic and Political Weekly, 22.12.1990, p.2761, at: http:/www.jstor.org/pss/4397119
 

xx Among the founding members of BGPSSS and those currently associated with it include: Action India, All India Central Council of Trade Unions (AICCTU), All India Democratic Women’s Association (AIDWA), All India Federation of Trade Unions (AIFTU), All India Lawyers Union (AILU), All India People’s Science Network (AIPSN), All India Progressive Women’s Association (AIPWA), All India Students’ Association (AISA), All India Students Federation (AISF), All India Trade Union Congress (AITUC), All India Youth Federation (AIYF), Centre of Indian Trade Unions (CITU), Delhi Forum, Delhi Science Forum (DSF), Delhi Teachers Front (DTF), Delhi Union of Journalists (DUJ), Democratic Youth Federation of India (DYFI), Hazards Centre, Hind Mazdoor Sabha (HMS), Indian Association of Lawyers, Indian Federation of Trade Unions (IFTU), Indian Social Action Forum (INSAF), Jagori, Jan Natya Manch (JANAM), Lokayan, Mahila Dakshata Samiti, National Federation of Indian Women (NFIW), Nishant Natya Manch, Peoples Union for Civil Liberties (PUCL), Peoples Union for Democratic Rights (PUDR), Safdar Hashmi Memorial Trust (SAHMAT), Saheli, Students Federation of India (SFI), The Other Media, and several other voluntary organisations and concerned individuals.
 

xxi Whatever was paid as interim relief was of course adjusted with the final amount that was awarded as compensation.
 

xxii In this context, it may be noted that according to the Supreme Court order dated 04.05.1989: “The basic consideration motivating the conclusion of the settlement was the compelling need for urgent relief.” See: Baxi & Dhanda, op cit., p.540.
 

xxiii Paras 203 & 204, (1991) 4 SCC, pp.683-684
 

xxiv Indeed, if the Supreme Court had not accorded recognition to the BHT, why did the Court not insist that it would hear the BHT only after the MP High Court disposed off the case that was pending there? Instead, the BHT, which was an illegal entity, was allowed to continue to take part in the proceedings before the Supreme Court.
 

xxv Bhopal Hospital Trust, London, Annual Report and Accounts, 31 December 1996, which was submitted to the Supreme Court of India on 02.6.1997in I.A. Nos.36-37 in C.A. Nos.3187-88 of 1988
 

xxvi See: Supreme Court Order dated 19.07.2010 in I.A. Nos.58-59 in C.A. Nos.3187-88 of 1988
 

xxvii See: http://www.flonnet.com/fl1901/19011020.htm
 

xxviii See: http://www.hindu.com/2002/03/08/stories/2002030802181300.htm

xxix
 Accused No.6, R.B.Roy Chaudhary, former Asst. Works Manager, UCIL, Bhopal, died during the trial and his name was struck off the list of accused.
 

xxx This order had revived the criminal cases against all the accused after the same had been quashed as per the terms of the Bhopal Settlement of 14/15.02.1989.
 

xxxi Twelfth Report (Extradition of Former Chairman, UCC), Committee on Government Assurances (2003-2004), Thirteenth Lok Sabha, Lok Sabha Secretariat, New Delhi. Presented to the Lok Sabha on February 27, 2003, para 3.8, p.14.