Last chance to render justice to Bhopal victims

By C. Raj Kumar and Pratibha Jain

Though it has been 16 years since Bhopal gas tragedy took place, we are nowhere near rendering complete justice to the victims. Successive Governments have demonstrated a gross insensitivity to the cause of the victims and the Indian legal system has inadequately responded to this crime against humanity.

``Carbide Salaam, Hindustan Ghulaam.'' Those words were scrawled in graffiti on the walls of the Supreme Court over 10 years ago when it approved a paltry settlement of all civil claims against the Union Carbide for its role in perpetrating the worst industrial catastrophe in world history in Bhopal. During the past 16 years since December 2-3, 1984, the night when the city was turned into a gas chamber, the Indian Government has repeatedly failed to live up to its obligations and duties to those of its citizens who were victimised by this unprecedented catastrophe. And it continues to do so today.

First, the Supreme Court in its review of the 1989 settlement between the Union Carbide and the Union of India, a settlement of which the victims were not so much as informed, ordered that all of the accused including the Union Carbide itself and its former chairman Warren Anderson be prosecuted under the penal laws of India for culpable homicide with which they had been formally charged in 1987. In its judgment of October 3, 1991, the Supreme Court noted: ``It is a matter of importance that offences alleged in the context of a disaster of such gravity and magnitude should not remain uninvestigated. The shifting stand of the Union of India on the point should not by itself lead to any miscarriage of justice.'' Nearly a decade has lapsed since this mandate and precisely which the Supreme Court feared has come to pass: the ``shifting stand'' of the Union of India in terms of pursuing this criminal prosecution has resulted, yet again, in a ``miscarriage of justice.'' Despite the fact that the Centre had every opportunity to pursue this criminal prosecution, it has faled to press for extradition of either Anderson or Union Carbide, both of whom were declared ``proclaimed absconders'' by the Bhopal District Court for failing to appear to face those criminal charges in 1992. The Chief Judicial Magistrate ordered the confiscation of all of Carbide's remaining properties in India but the company had already disposed of virtually all significant assets in India. Again, the Indian Government did nothing.

The Union Carbide has essentially been allowed to scoff at the laws of India for more than a decade, leaving the Bhopal victims with no choice but to seek legal recourse once again to the courts of the United States to seek justice against the company which they call ``killer carbide.'' On November 15, 1999, they filed a lawsuit in American federal court bringing claims under international human rights law as well as separate causes of action for the ongoing contamination of water supply of the neighbourhoods surrounding the Union Carbide facility in Bhopal, which was recently documented in a Greenpeace report after it was confirmed by independent laboratories in Boston and the United Kingdom.

It is unfortunate that the Indian Government has not only refused to assist in the prosecution of this case, but has not even provided the victims with alternative sources of drinking water and - adding insult to injury - has proposed to turn the site of the Union Carbide facility which killed so many thousands into an ``amusement park''.

The Bhopal victims also brought suit seeking the disclosure of medical information and toxicology on the composition of methyl isocyanate (MIC) and other gases which leaked in Bhopal that could assist in treatment of the victim population, which the international Medical Commission on Bhopal estimates will continue to suffer due to chromosomal and genetic defects for the next 3 to 4 generations. The Union Carbide, to date, has refused to disclose on the spurious ground that this information somehow constitutes a ``trade secret''. Has the Indian Government disclosed the results of the Indian Medical Commission's vast research project on the medical condition of the victims ? On the contrary, it has resolutely refused to do so while winding up all ongoing efforts at medical monitoring and/ or treatment of the victims.

Meanwhile, it is business as usual for the Union Carbide. Praxair, Inc., a company that is a spin-off of the Union Carbide Industrial Gases Division, continues to share the same worldwide headquarters as Carbide in Danbury, Connecticut, and manages to conduct a lucrative business in India (despite the Chief Judicial Magistrate's orders and Carbide's status as an absconder) through its wholly-owned Indian subsidiary, Praxiar India Private Ltd. Has the Indian Government even sought to indicate to Praxair India that it cannot do business in India unless its former parent company does justice to the Bhopal victims? Plainly, the answer is ``No''.

The present case in the United States District Court, Southern District of New York, argues that customary international law, which forbids even a single violation of its fundamental rights and/or peremptory norms, such as the right to life, also provides that a separately cognizable violation may be based on an aggregation of such violations. International law prohibits a consistent pattern of gross violations of internationally- recognised human rights perpetrated under colour of law. Whereas here, the violations in question are repeated and/ or severe enough to give rise to numerous claims, the Alein Tort Claims Act (28 U.S.C. $1350) provides that the conduct in question may be actionable as a ``consistent pattern.'' According to the Restatement (Third) of Foreign Relations Law, this norm forbids ``infringements of recognised human rights that are not violations when committed singly or sporadically''. Defendants conduct, as described herein, amounted to a consistent pattern of gross violations of recognised human rights insofar as the Union Carbide operated and maintained a plant in Bhopal, which continuously posed a grave risk of death and/or serious physical injury to the surrounding population, that each incident manifesting its depraved indifference to the grave risks posed to that population amounted to a violation of recognised human rights to life, health and security of the person; that there were several, repeated incidents of such toxic leakage which injured workers and hundreds of nearby residents; and that the Union Carbide on each occasion ignored the grave risk of death and serious physical injury posed by its facility in Bhopal.

In addition, the Union Carbide's conduct after the Bhopal gas disaster demonstrates a consistent pattern of gross violations of recognised human rights because of its failure to provide adequate information about MIC to those treating the victims, including, but not limited to the Union Carbide's failure to disclose any information on the medical consequences, toxicity or ultrahazardous character of MIC prior to and after the occurrence of the disaster. Further, the Union Carbide purposefuliy absconding from the criminal jurisdiction of India's courts represents a continuous, ongoing violation of the Plaintiff's right to a remedy at law in violation of customary international law, as embodied in Article 8 of the Universal Declaration of Human Rights.

On May 12, 1986, the United States District Court for the Southern District of New York dismissed, on grounds of forum non conveniens, actions arising from the Bhopal Disaster to which defendant Union Carbide was a party. In Re-Union Carbide Corp. Gas Plant Disaster at Bhopal, India in December 1984, 634 F.Supp. 842, at 867 (S.D.N.Y. 1986). The dismissal was conditioned upon the Union Carbide's agreement ``to submit to the jurisdiction of the courts of India''. Further, the dismissal required that the ``Union Carbide agree to satisfy any judgment rendered by an Indian court, and if applicable, upheld by an appellate court in India, where such judgment and affirmance comport with the minimal requirements of due process.''

The present complaint argues that the defendants should be held in contempt for their wilful, intentional and flagrant disobedience of the orders of this U.S. Court requiring the Union Carbide to submit to jurisdiction in India and to abide by the terms of any judgment rendered by the Indian courts. These orders were expressly agreed to by the Union Carbide as a legal condition precedent to dismissal on forum non conveniens by Judge Keenan. By deliberately failing to obey the directives of the Supreme Court of India's civil judgment in October 1991, Defendants violated these conditions to the extent that the Union Carbide did not fully submit itself to the jurisdiction of Indian courts. Defendants should be held liable in civil contempt for failure to obey the court's order because the order was clear and unambiguous, proof of non-compliance is incontrovertible and convincing and because the Union Carbide was not reasonably diligent in attempting to accomplish what was ordered. A civil contempt sanction may be imposed, therefore, for of coercing future compliance with that order as well as for compensating plaintiffs and class members for losses caused by the contemnor's past non-compliance.

After February 1989, plaintiffs challenged the terms of the proposed settlement entered into between the Union Carbide and the Indian Government before the Supreme Court as petitioners. In October 1991, the Supreme Court issued a civil judgment approving the settlement with the express judicial mandate, requested by Plaintiffs, that the criminal charges against it be reinstated and that the prosecution of those charges should be proceeded with in order to avoid a ``miscarriage of injustice''. However, in flagrant contravention of the conditions imposed on it by U.S. courts as well as by the Supreme Court of India, the Union Carbide wilfully and intentionally chose not to comply with any of these directives.

Despite repeated summons served through the U.S. Department of Justice as a result of letters rogatory issued by the Bhopal District Court, the Union Carbide has wilfully refused to submit to the lawful jurisdiction of India's criminal courts.

In an interview, a concerned Mr. H. Rajan Sharma, Attorney at Law with Goodkind, Labaton, Rudoff & Sucharow, who is the Attorney for the Bhopal victims pursuing the federal class action in the United States, says ``the federal class action suit was dismissed by the lower courts on the grounds that the Bhopal Act enables the Indian Government to act alongside or on behalf of the victims in any claims made against the Union Carbide in courts outside India.'' He pointed out that the assistance and support of the Indian Government would have made the task of pursuing the American class action against the Union Carbide much easier. ``Such assistance was actively and consistently sought at the highest levels,'' he pointed out, ``but it was made clear to us that it would not be forthcoming without that ever being said in so many words.'' Instead, Mr. Sharma will now have to appeal the decision of the lower court dismissing the lawsuit to the U.S. court of appeals, which will issue a final decision. Once again, he has sought the assistance of the Indian Government in pursuing this appeal.

Here, the Indian Government has an opportunity, even if it is a little late to make good on its long record of betrayal and compromise of the rights of the Bhopal victims. Mr. Sharma states ``we have made a request to the Government to provide us with an amicus curiae brief, essentially a statement of opinion on the part of the Government that it supports and approves of our case. This would not make the Government a party to the litigation in any sense and it would not have to face any legal repercussions whatsoever as a result of this statement of opinion.''

``We need some commitment from the Indian Government on the amicus brief by December 20,'' Mr. Sharma said, ``which is the date that the submission of briefs is scheduled and all of the necessary information and materials have been provided to the Consul-General of India in New York.'' Has he heard anything yet? No, let's hope he hears soon. In the mean time, let the message of the Bhopal victims' cry for justice reach the corridors of power and due consideration be given to this matter expeditiously, lest this opportunity is also lost.

(The writers are attorneys in New York.)

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