C.N. Subramanian
The year 2010 saw the delivery of two seminal judgements of great import in two cases which may appear rather unconnected but which have deeper connections in their implication for the Indian state. The two cases of dispute are rather old – the older one relates to a complaint of 1948 over the surreptitious planting of some idols in what was widely accepted as a mosque in Ayodhya and consequent dispute over the status of the property. The second relates to widespread death and long term damages caused to the people of Bhopal due to leakage of toxic gases in November 1984 from a pesticide factory owned and operated by Union Carbide India Limited (UCIL) a subsidiary of Union Carbide Corporation (UCC) incorporated in the USA. Both cases combine in themselves aspects of criminal liability and also civil dispute relating to property or claims for compensation due to damage or injury. However the judgement relating to Bhopal only covers the criminal liability aspect while the Ayodhya judgement covers only the property dispute. It may also be noted that the Bhopal judgement was delivered by the judicial magistrate of Bhopal while the Ayodhya judgement was delivered by a High Court – of Lucknow.
While both the cases have highly complex legal and historical dimensions the larger political meanings need careful consideration. A modern bourgeois state bases its justification and legitimation on the principle of Rule of Law. That its laws are democratically arrived at in the larger interests of the citizens and are implemented effectively and that they apply equally to all irrespective of their status or station. The Bhopal Gas Tragedy involves an American Multinational Corporation (MNC) and its responsibility for causing widespread death and long term health and environmental hazards for those living in and around Bhopal. To what extent is the law capable of fixing the immediate and ultimate responsibilities for a disaster of the order of Bhopal and punish the guilty? To what extent is the law capable of ensuring adequate compensation for those who suffered the damage? Can the law bring to book those responsible for the largest industrial disaster in such a manner that no other multinational takes its responsibility lightly or casually in future? Will the judgement create precedents that allow succour to a large number of people across the world who silently suffer from health, genetic and environmental damage being caused by powerful industrial complexes? These questions have great implications in this era of globalisation – an era in which governments of nation states compete with each other to attract investment of multinational finance capital in their territories, to restructure their legal regimes to accommodate the demands of the international capital; in which powerful states like the USA are actively backing the MNCs in their pursuit of profit. In their reckless pursuit of quick superprofits and quick exit the MNCs are not likely to care for the ‘collateral damages’ they create in the localities of their operation or where their products reach. Can the ‘post-colonial’ nation states create legal regimes which pin down the MNCs or will they call upon the citizens to fend for themselves. Will different nation states come together to ensure responsible behaviour of the MNCs or will they kowtow before the powerful states promoting the MNCs? It should be remembered that within the metropolitan countries powerful working class and consumer movements have created a strict legal regime which fixes such responsibilities. Yet these very states willingly allow their MNCs to function ignoring these norms in other countries. Thus once again the judgement relating to the Bhopal case brings to fore the meaning of countries like India emerging as new ‘powers’ – will they act as powers in defence of their citizens or will they act as powers that will only ensure super profits to the fleeting transnational investors? Will they bridge the gap between the legal regimes of the metropolitan countries and the countries emerging from the yoke of colonialism or widen it?
The essential question therefore relates to the ability of the modern bourgeois state to deliver its promise of rule of law.
The Ayodhya case too poses questions of fundamental importance but of a slightly different nature. The Modern bourgeois state rests on certain premises – that even though property may have been created in the distant past through force, mere force cannot be allowed to alter the state of property under the state; evidence based reasoning shall be the foundation of law and legal processes; being politically powerless or being in numerical minority will not affect the legal position. In short the Rule of Law does not submit to power or numbers or force or to extra rational considerations.
Way back in 1520s a mosque was built in Ayodhya by a general of the Mughal Emperor who had just conquered the Lodi empire. While some of the evidence may be used to argue that it was built after the destruction of a temple on the site, there is no undisputable evidence in support of this view. At best one may take it as a distant possibility. Nor was this a mosque a highly favoured one by the Muslim community and may not have been in regular use. However from the 18th century onwards as certain Hindu sects grew powerful in the region, a belief came to be shared widely that this was one of the likely sites of the birth of Rama – a prince of Ayodhya and considered an incarnation of god Vishnu. A belief also gained currency that the mosque was built in the place of a temple commemorating the birthplace of Rama. However it appears that despite frequent bloody conflicts over the mosque and properties around it, a platform called Ram Chabutra in the complex was used by certain Hindu sects to worship Rama as his birthplace while the Muslims of Sunni sect continued to offer prayers in the mosque.
One particular night in 1949 some miscreant elements stole into the mosque during the night and surreptiously placed some idols there. It was subsequently claimed by some Hindu sects that these idols appeared miraculously by an act of God. The Mosque authorities filed a First Information Report with the local police regarding the criminal tresspass. As time passed several Hindu sectarian leaders filed independent civil suits in the courts claiming custody and ownership of the mosque complex. The Sunni Wakf Board which maintains mosques etc on behalf of the Sunni Muslim community too filed a petition. The premises remained locked up under government care till 1989 when entrance was allowed to Hindus by a court order tacitly supported by the then Congress government.
It was around this time that the extreme right wing semi-fascist organisation, Rashtriya Swayamsevak Sangh (RSS) and its various front organisations like the Vishwa Hindu Parishad (VHP), Bharatiya Janata Party (BJP) and Bajrang Dal and other like minded political outfits like the Shiv Sena took up the issue of Ramjanmabhoomi or Rama’s birthplace as a major platform for mass mobilisation. It was now claimed with certitude of Faith that Rama was born at the site of the mosque, that a great temple existed there to commemorate the birth of Rama and that it was destroyed on Babar’s orders and a mosque was built in its place. This was held out as the symbol of the historic wrongs meted out to the Hindu community by external invaders. The RSS-VHP combine basically demanded that the entire complex of the Babri Masjid be handed over to them to build a temple. It was claimed that the matter was one of faith – which cannot be decided by law or scientific proof. The destruction of the mosque and appropriating the space for a temple thus became a major enterprise of nation building – building a nation based on a religious identity. It may be noted that there is no essential core doctrine or pantheon or ritual which characterises Hinduism. It varies according to caste, region, sect etc. Indeed devotion to Ram or pilgrimage to Ayodhya was at best a sectarian belief rather than something that pervaded the entire Hindu spectrum. The RSS combine hoped to use the purported wrong committed by medieval Muslim rulers against the Ram temple in Ayodhya to unite all sects of Hindus and all castes under its banner to target minority religious communities like the Muslims and Christians. This project of creating monolithic religious communities led by respective reactionary orthodoxies and basing a neo-nationalism on bashing defenceless minority communities should be seen in a larger background of the march of a new wave of globalisation.
This movement generated by the RSS and its front organisations coincided with the implementation of World Bank and IMF’s structural adjustment programme for India. While it had a number of facets including the opening of the Indian economy after breaking down its tariff walls, one of its main objectives was to curtail the role of the ‘post colonial’ Indian state in the economy and open up areas controlled by it for international capital. This also meant large-scale closing down of state owned enterprises and old style mills and factories and zero employment growth. This also meant increasing pressure on the agricultural sector leading to rapid impoverishment and pauperisation of the peasants. This thus unleashed large-scale discontent among the masses. This discontent got channelised into the Ramjanmabhoomi movement. The BJP rode on the crest of this movement and manoeuvered itself into various state offices including the government of Uttar Pradesh where Ayodhya was situated. The Congress Party though claiming to be secular couldn’t ignore the right wing mood of the mobilised masses.
The result was the shameful destruction of the Babri Masjid by the crowds mobilised by the RSS-VHP-BJP combine in 1992.
We need not go into the painful consequences of this event. Suffice it to say that the RSS-BJP claim that such direct action would enable a speedy solution to the issue of building a grand Ram temple in Ayodhya was belied and it became clear that the matter can only be settled in a court of law.
Will the court play a sage counsellor who brings the two disputing parties to come to an agreement over the property dispute given the fact that certain sects of both Muslims and Hindus were offering worship there? If that were to fail will the court stick to secular norms for settlement of civil disputes between two religious groups or invoke religious sanctions? What position will the court take in a dispute in which a majority and minority communities are ostensibly pitted against each other? Will it succumb to the majoritarian project or uphold secular juridical principles?
These questions once again are of special importance to the future of Indian state as a new alignment of social forces is being formed within the state system. The present Indian state established through a process of the ‘National Movement’ led by the Congress in negotiation with British Imperialism was based on the relative strength of the class forces of the 1950s. It may be recalled that the landlords, the industrial capitalists, mercantile capitalists, the peasants, the landless labourers, the industrial working class, the tribal people, the different castes including the most depressed castes and also religiously aligned communities had reached a particular point of their political evolution and were able to assert and achieve a particular place in the new order. Given the balance of forces the landlord and capitalist interests which were very closely tied to the interests of imperialism remained in a dominant position within the new state system.
Sixty years of social evolution and especially the rapidly changing social balances since the 1990s has been pushing the Indian state into a new social alignment. This new era is being entered by the labouring people with gross disadvantages – complete decimation of organisations that upheld their class interests even in a limited sense like the kisan sabhas or trade unions. The peasantry led into full fledged capitalism through the dream of the ‘Green Revolution’ is today more than ever subjected to the control of finance and industrial capital more inimical to peasant production than usury capital which plagued it in the 1950s. Unlike usury capital which had an inherent interest in sustaining peasant production – its golden goose – finance and industrial capital requires the dispossession of the peasant. Similarly the industrial working class which was organised under powerful trade unions till the 1970s has been rendered powerless by the process of dismantling large factories and the unprecedented expansion of the so called ‘informal sector’. The working class is yet to come to terms with the new forms of organisation of industrial production and dispersion of production and the tremendous expansion of the reserve army of proletariat due to depeasantisation. Similarly the de facto control which the tribal people exercised over the forests despite the controls being established by the forest department and traders, has substantially dwindled as newer and newer modes of dispossession of the tribal people have been developed, from unprecedented trade in forest produce, to establishment of tiger and wild life reserves and building of dams and mining projects on forest lands. The state has intruded as never before to disarm the tribal people.
The unprecedented strengthening of the state in the name of fighting terrorism and the bogey of external threat from Pakistan or China has also led to steady erosion of democratic values and democratic spaces.
Given these contexts a radical realignment of social forces is underway. One has been to incorporate the dispossessed within the project of religious community building – to integrate all of them into the grand new category of Hindus and channelise their anger against the minority communities and in this manner assist the neo-liberal agenda.
The stance that the courts take thus becomes very significant in this context. Will the breakup of the old class formations lead to the formation of a religio-ethnic nationalism or to modern classes recognising their class interests and working towards their larger class and social goals? Needless to say the court will not determine this process but contribute substantially to this process given its place in the democratic system.
The Union Carbide plant in Bhopal was producing a pesticide called Sevin which used a critical ingredient called Methale Isocynate (MIC) stored in the form of gas. This highly volatile gas had the quality of reacting very fast and disintegrating. This is what made Sevin an ideal pesticide which killed the pests and became defunct unlike other pesticides like DDT which continued to poison the food chain and water and soil. However, not enough is known about this compound and its impact on human health and the process of its disintegration. Likewise little is known about the other ingredients of Sevin. It also now suspected that Union Carbide may have been manufacturing things other than the pesticide. The extreme secrecy involved in the matter and the alacrity with which the Government of India intervened to take charge of the plant and the refusal of permission to independent scientific groups to even visit the site has even led some to suspect that ingredients for chemical weapons were being processed in this plant. The nature of the damage suffered by the people of Bhopal who were exposed to the gas deviates substantially from what was predicted for MIC. Thus there may be some substance in the allegations mentioned above. This discussion is of vital importance to the case as we shall see presently.
The plant which used the MIC was designed and installed by Union Carbide Corporation of US (UCC) while the factory itself was owned and operated by its Indian subsidiary Union Carbide India Limited (UCIL). The UCC was then headed by Warren Anderson while the UCIL had on its management eminent industrialists of India like Keshub Mahindra.
While rules and norms for setting up factories using hazardous chemicals require them to be set up far away from any human habitation, this particular plant was built in the middle of a crowded settlement which was an extension of old Bhopal. Several journalists had raised this issue – notable among them being Rajkumar Keswani – who published several articles in the local press urging the state government to look into the matter and get the plant shifted elsewhere and also ensure adherence to safety norms. International standards require such plants to be ‘fool proof’ and things should not go wrong even if operated by a novice. Keswani had pointed out that the plant in Bhopal was inviting a serious disaster in the way it was being run. This is a clear proof of the culpability of not only the UCC and UCIL officials but also the government of India and Madhya Pradesh.
We will not go into the details of the events of 30th Nov - 1st Dec 1984. Suffice it to say that thousands of unsuspecting people of Bhopal most of them from poor labouring background were killed due to what has been called pulmonary edema or to put it simply as they breathed in the poisonous gas, it interacted with the lung fluid and destroyed the membranes leading to flooding of the lungs and immediate death. The more fortunate were left blinded as the gas reacted to fluid on the eyes. This was only a beginning. As time went long term damages to eyes, respiratory system, digestive, nervous and reproductive systems came into the fore. Twenty-five years down the line it has become evident that the number of children being born with congenital problems is abnormally high in Bhopal gas affected areas. Much of these are not consistent with the known harm caused by MIC. This means that either the research on MIC was of poor quality or that the gas that leaked in Bhopal had other toxic substances than MIC. UCC and the government of India consistently tried to give the impression that the impact of the gas would be restricted to the eyes and the respiratory systems and no long term damage was likely on the survivors. This stand not only prevented any systematic treatment of the gas victims but also seriously prejudiced the compensation claims of the gas victims.
Right from the beginning the government and Union Carbide seemed to be working hand in hand to cover up the extent of the damage and to put a lid on all relevant information. As a result to this date we only have speculative estimates of the number of deaths and persons affected by the gas. The estimates range from 3,000 to 20,000 persons dead either on the days immediately following the disaster or due to causes traceable directly to it. We still do not have scientific study of the impact of the chemicals stored in the Union Carbide plant on the ground water and soils of Bhopal. The Official Secrets Act was used extensively by the government to suppress any information relating to the chemical or medical studies conducted in Bhopal. Anyone who sought this information was dubbed as CIA agents and arrested or otherwise intimidated.
The government of India took over the premises of Union Carbide plant and deputed a high level team to neutralise the remaining toxic substances in the plant. This was done with much fanfare, but under cover of extreme secrecy. At the end of the process the government declared the place to be free of any toxic substance and perfectly safe. However no information relating to the toxic substances found in the plant was ever shared with the public or the scientific community. Twenty five years down the line we know that these claims of the government were ill founded. The toxic chemicals stored in the plant, but never disposed off continue to pollute the ground water of Bhopal causing innumerable health hazards to the people there.
Even as the dead were being buried or cremated hordes of ‘ambulance chasing’ legal firms from the US landed up in Bhopal offering the victims hefty compensation in dollars in return for their thumb impressions on papers they could not read. These firms promised to fight UCC in the US courts on their behalf with the exclusive right to represent them. It was some months before the government of India woke up to this and passed in February 1985 an act of Parliament which gave exclusive powers to the central government of India to represent all the gas victims to claim damages or any such claims. It also empowered the central government to set up a commission to register and process all claims and receive on their behalf all amounts and distribute them among the claimants. It also gave the central government powers to determine the extent of damage and decide upon the amount and mode of compensation to each claimant.
On the face of it this was a progressive legislation as in the case of a disaster of this order individuals could not be left to fend for themselves. However in giving sweeping powers to the government whose complicity in the case was quite evident it in actual fact compromised the interests of the victims. There was no provision for independent advisory or public monitoring or social audit of the work of the government. As we shall see the government of India used this provision to let UCC off the hook with a pittance for compensation.
Union Carbide was liable to three kinds of legal action: criminal liability for causing death and permanent damage to lakhs of people and animals; civil liability to compensate the victims and punitive liability for withholding essential information from its employees and people residing in the neighbourhood. Further it continued to withhold information about the nature of gas and scientific information about its impact on human body. We shall shortly see how the government of India deliberately mismanaged each of these three aspects.
The Government of India filed a suit in a New York District Court seeking $3.3 Billion in damages from UCC. The government of India maintained that Indian courts were not prepared to handle cases of mass tort yet and the case was best handled under US laws and court procedures. UCC on the other hand argued that Indian courts were capable of handling the cases and also promised that UCC officials would extend full cooperation in the event of the case being handled in India. Based on this argument Justice Keenan ordered in 1986 that the case be handled in Indian courts. This was a major relief to UCC as indeed US laws are stringent on such matters, tort lawyers have a widespread reputation for getting maximum damages for their clients and the trial in US courts would have been by a jury of common people who were susceptible to moral pressures from the victims. In passing on jurisdiction to Indian courts Justice Keenan may have given an important opportunity to Indian courts to establish norms in such cases, but in effect this had the effect of enabling UCC to escape with minimum damage and in fact with establishment of very favourable precedents in such cases for future. As a consequence of Justice Keenan’s decision a case was filed in the district court of Bhopal. In view of the expected delay a suit for interim compensation was also filed in the Jabalpur High Court.
Following the uproar over the matter and in view of the abject neglect of the gas victims, the Supreme Court was moved and it set up an expert committee to report on the treatment of the gas victims. The committee was to go into the issues of detoxification of the gas victims, epidemiological studies relating to them, course of treatment, assessing the extent of damage to determine the quantum of compensation etc. This was in the context of the a priori case made by non government agencies working with the gas affected people, that contrary to the claims of UCC that MIC is a short lived compound, toxins continued to be present in the internal organs of the victims for years and continued to damage their body systems, causing among other things genetic disorders harming future generations. Prima facie evidence had been collected for this. It was suggested that therefore instead of symptomatic treatment assuming short term impact of the gas, a long term detoxification had to be undertaken and proper study conducted of the nature of the toxins and their impact and possible course of treatment worked out. The majority members of the committee (from the Indian Council of Medical Research) submitted a report expressing satisfaction over the course taken by the government of MP while two others submitted a minority report challenging these claims in 1997-8. The Supreme Court chose to ignore the minority report.
On 14 February 1989 a bench of the Supreme Court headed by the then Chief Justice and several other judges who went on to become Chief Justices passed an unprecedented order:
(1) The Union Carbide Corporation shall pay a sum of U.S. Dollars 470 millions (Four hundred and seventy millions) to the Union of India in full settlement of all claims, rights and liabilities related to and arising out of the Bhopal Gas disaster.
…
(3) To enable the effectuation of the settlement, all civil proceedings related to and arising out of the Bhopal Gas disaster shall hereby stand transferred to this Court and shall stand concluded in terms of the settlement, and all criminal proceedings related to and arising out of the disaster shall stand quashed wherever these may be pending.
….
The Union of India and the State of Madhya Pradesh shall take all steps which may in future become necessary in order to implement and give effect to this order, including but not limited to ensuring, that any suits, claims or civil or criminal complaints which may be filed in future against any Corporation, Company or person referred to in the Settlement are defended by them and disposed of in terms of this order.
This judgement was ostensibly passed to facilitate early compensation to the victims. In return for $470 million the killing of thousands of persons (over 3800 persons) and causing lifelong suffering to over three lakh victims was being forgiven. Not only did the order accept a paltry settlement but more important it quashed all civil and criminal proceedings against UCC or any individual for all times to come. It further made the government of India responsible for fighting on behalf of UCC all cases that may be filed in future by the victims.
The Government of India had demanded in the Bhopal court a compensation of $3,300 million besides punitive compensation. How and why did it scale down its demand so drastically to 470 million has confounded most observers. It should be remembered that this was substantially the amount UCC had offered in the first place (if one were to add interest for the intervening years). It should be noted that the Supreme Court had not been asked to make a final settlement. In fact it was considering an appeal against the Jabalpur High Court order on interim compensation. The court has been saying that this was prompted by the desire to ensure that the compensation reached the victims at the earliest in view of their suffering. However it has not bothered to answer as to why an interim compensation was not enforced and as to why the government of India which had taken on the responsibility of fighting the case on behalf of the victims was asked to take care of the interim needs of the victims.
In the absence of any hard evidence we are left to make some connections between some obvious facts. The Indian economy at that time was facing acute foreign exchange crises. The Rupee was being continually devalued against the US dollar. The Indian Government was under extreme pressure from the IMF and the World Bank to adopt its structural adjustment programme. The Bhopal settlement falls in the middle of this period and it would appear that the government of India desperate for foreign exchange succumbed to the pressures of US corporate interests.
The settlement was widely welcomed in US corporate circles and the shares of UCC began to sell at a higher premium. However, it was widely condemned in India as a sell out and kowtowing before US corporate pressures. First it short circuited the process of establishment of procedures for handling such cases of mass tort where the culprit is a multinational corporate house. The opportunity for establishment of proper process for assessment of damages, principles of assessment of compensation, punitive damages etc and criminal jurisdictions was thus lost. Secondly it compromised the claims of future generations of Bhopal victims in case it turned out that the damages were intergenerational. It also compromised the possibility of claiming damages from UCC for effects that may become manifest in the future. It also absolved the UCC of any responsibility to clear the toxic debris or residue in Bhopal. Thirdly, it absolved the UCC of any criminal proceedings against it to fix criminal liability and punishment for causing such extensive human suffering and death either deliberately or through negligence. In fact it was widely held that the Supreme Court had no jurisdiction to quash criminal proceedings against UCC.
Considering the widespread protests a review petition was filed before the Supreme Court. It appeared that many of the judges had become sheepish and apologetic about the decision. In 1991 in its decision on the review petition which came in the court upheld the main points of the settlement and defended its action on the grounds that if the court had not intervened to settle the matter, it would have taken decades to ensure that the victims received any compensation. A rather sad acceptance of the irrelevance of the judiciary for redressal of the wrongs done to the poor by the rich and powerful! However the Supreme Court bench (strangely consisting of many of the judges who had given the initial decision in 1989) held that the quashing of criminal proceedings was contrary to law. This opened the way for initiating criminal proceedings.
A long drawn out case was fought in the District Court of Bhopal. UCC and its chairman Warren Anderson repeatedly failed to appear before the court and were declared absconders in 1991-92. Such wilful absence was at odds with their commitment before the New York District Court that they would be amenable and subject to the courts in India. The case had to be fought under conditions of absolute non cooperation from UCC. Besides this constraint the court was also shackled by an earlier Supreme Court ruling regarding the sections of Indian Penal Court (IPC) under which UCC/UCIL could be charged.
As originally filed, the principal charge of the criminal case was culpable homicide not amounting to murder under Section 304 of the IPC, specifically para 2 which deals with the accused having knowledge that the act would cause death. This carried a maximum penalty of 10 years. On a plea by UCIL, a two-judge bench of the Supreme Court held in 1996 that the offence under Section 304 was not made out, and the accused could only be charged under Section 304A, the offence of causing death by rash or negligent act, carrying a maximum punishment of two years. This was a strange interference of a higher court in the working of lower courts not warranted by settled legal practices. As we shall see, the proceedings of Bhopal Court clearly established the responsibility of UCC and UCIL to be even more serious than ‘culpable homicide’ the district court was forced to entertain only the much weaker charge of negligence.
Given these constraints the court did manage to indict both UCC and the UCIL and its employees and management in clear terms.
The judgement repeatedly states that even though it was claimed that the design of Union Carbide plant in Bhopal was identical to the design of its Virginia plant, no evidence was produced for this and the team of Indian scientists were not allowed to inspect the Virginia plant. The court was able to arrive at a number of defects in the very design of the plant and pointed out that given the highly hazardous nature of the chemicals being used, such defects were tantamount to criminal negligence. It also appears prima facie that the safety design of the Bhopal and Virginia were not of the same standards.
The following extracts from the judgement will help to clarify some of the points.
"The following major design defects brought to the notice of the Court:
The use of hazardous chemicals (MIC) instead of less dangerous ones. MIC can be manufactured without using the dangerous Phosgene (COCl2) and Chlorine (Cl2)
• Bulk Storing of MIC in large tanks instead of small stainless steel drums or processing the MIC as it was produced without storage. Union Carbide Publications acknowledge that the bulk storage of MIC heightens the danger of both leakage and contamination.
• Possible corroding material in pipelines and in valves i.e. Iron, Copper, Zinc, and tin
• No on line analyzer or alarm system was provided to continuous monitoring of the quality of the MIC before it was stored in the tanks. Off grade MIC can mix with previously stored MIC, introducing large scale contamination and great danger.
• The refrigeration system was inadequate and no standby system was available.
• The VGS was not designed to the emergency situation
The problem was made worse by the plant’s location near a densely populated area, nonexistent catastrophe plans and shortcomings in health care and socio-economic rehabilitation.
….
Therefore, the reason are very much clear that apart from the design defects the Plant was not maintained according to the norms established by UCC itself. The Refrigeration Plant was shut down long before the incident VGS and other alarming systems were out of order and the accused persons were negligent toward this aspect. The Pipelines were choked and corroded, Valves were leaking and nobody was hardly caring about and because of this on the intervening night of 2nd 3rd December, 1984 the hazard of this Methyl Isocyanate had happened.
Consequently,
the evidence adduced by the prosecution is sufficient to prove beyond reasonable doubt that the accused persons viz. Sri Keshub Mahindra, Chairman, Union Carbide Corporation, Bhopal, Sri Vijay Prabhaker Gokhle, Managing Director, Union Carbide Corp., Sri Kishore Kamdaar,Vice President i/c AP Division Union Carbide Corp., Sri J. Mukund former Works Manager AP Division Union Carbide Corp, Sri S.P. Choudhary, Production Manager AP Division Union Carbide Corporation, Sri K.V. Shetty, Plant Superintendent Works Manager AP Division Union Carbide Corporation, Bhopal and Sri S.I. Qureshi, former Production Manager AP Division Union Carbide Corporation, Bhopal, the company UCIL itself, were negligent. The negligent conduct of all the accused persons, who at the relevant point of time could have confronted such incident by proper care and caution. Knowing all the things, they omitted to do what they were entrusted to do.
Therefore, the company and officers of the company responsible for the acts to be done by themselves personally, liable for the acts, thereby the toxious MIC escaped from the tank no. E610, a huge quantity, caused the immediate death of thousands of human beings and caused simple and grievous injuries to a number of people. Some of them became permanently disabled and thereafter a number of persons effected. Thousands of animals and other creatures had also been affected.
The following major contributors to the disaster:
1. Gradual but sustained erosion of good maintenance practices.
2. Declining quality of technical training of plant personnel, especially its supervisory staff.
3. Depleting inventories of vital spares.
4. MIC is a highly dangerous and toxic poison, even then storage of huge quantity in large tanks was undesirable. The capacity and actual production in the Sevin Plant is not required such a huge quantity to be stored.
5. The VGS and refrigeration plant were not adequate to the need of hour and more so they were out of order at the relevant point of time.
6. The nitrogen pressure was not adequate for long before the incident, so it was not maintained and hardly cared about.
7. The Public Information System failed, neither the State Government. nor the UCC or UCIL took any steps to appraise the local public.
8. Other alarming systems also failed.
Together these factors combined to cause the multiple failures that underlay the calamitous incident, causing a vast destruction of life.
An American corporation cynically used a third world country to escape from the increasingly strict safety standards imposed at home. Safety procedures were minimal and neither the American owners nor the local management seemed to regard them as necessary. When the disaster struck there was no disaster plan that could be set into action. Prompt action by the local authorities could have saved many, if not most, of the victims. The immediate response was marred by callous indifference.
Union Carbide should have had the self realisation to exercise the greatest care and take the precautions, when it was dealing with such lethal chemicals. It was the burden of local government also to play its supervisory and regulatory role with the utmost sincerity. However, both, UCIL and Government, utterly fail in doing so. Thousands of people are still suffering. If the accused persons are dealt with sympathy, the sacrifice of the victims of Bhopal Tragedy will have been in vain.
Therefore, in the circumstances of the present case, the accused persons cannot be extended on probation.
Therefore, the accused persons namely under section 304A read with Section 35 IPC (1) Sri Keshub Mahindra, (2) Sri Vijay Prabhaker Gokhle, (3) Sri Kishore Kamdaar, (4) Sri J. Mukund, (5) Sri S.P. Choudhary, (6) Sri KV Shetty, (7) Sri SI Qureshi, holding guilty for the offence punishable under sections 304A/ 35 of Indian Penal Code, 1860 for an imprisonment of 2 years and fine of Rs. 100,000.00 each, and under section 336 Indian Penal Code, 1860 an imprisonment of 3 months and fine of Rs. 250.00 each, and under section 337/35 Indian Penal Code, 1860 an imprisonment of 6 months and fine of Rs. 500.00 each, under section 338/35 Indian Penal Code, 1860 an imprisonment of 1 years and fine of Rs. 1000.00 each. In default of fine each of the accused person shall undergo 6 months of imprisonment in addition. All the sentences shall run concurrently.”
The district judge further added that in view of the fact that UCC’s then President Warren Anderson and other senior officials of UCC were absconding, every aspect of the case will be kept open till their appearance. This in fact is a serious indictment of the Government of India – its failure to bring to book one of the most sought after criminals in the history of India who was responsible for the killing of over 3800 people and lifelong impairment of lakhs. It also is an indictment of the USA which has been protecting such a fugitive from Indian law.
Given the fact that the Supreme Court had already curtailed the scope of the district court to decide upon the gravity and nature of the charges and the fact that the government of India had failed in its duty to produce the prime accused this is the best that the district court could have done. The net result is a shameful situation in which individuals and corporations which in their pursuit of profit chose to ignore the safety of lakhs of citizens and wilfully caused the death of thousands and impairing for life of lakhs were let off the hook with a mere two years imprisonment and a fine of one lakh rupees. Even though the case against the UCC and its then President is still kept open it is fairly clear that there is no political will to bring them to book.
As we turn over the facts it becomes more and more clear that the government of India showed greater interest in putting a lid over the case and enabling UCC to escape any serious punishment. In this way it prevented the establishment of any credible legal precedent to handle such actions by corporate houses and multinationals in the future.
The democratic movement in India had been divided over the issue of Bhopal struggle. On the one hand the CPI and CPM have been of the view that the principal target of mass struggles should be the Union Carbide and not the Government of India or MP. On the other hand mass organisations representing the gas victims had held the government of India and MP equally responsible and in fact more responsible for both the tragedy and the subsequent cover up and shameful settlement. Needless to say once again the Supreme Court as in the case of the Sardar Sarovar Dam case has played into the hands of the corporate interests after initially expressing concern for the plight of the people affected. This clearly points to the limit of the autonomy of the judicial institutions in the contemporary world. They have once again demonstrated the fact that they are integral to the state which is controlled by corporate interests and Multinationals.
III
Ayodhya Judgement
We will examine the details of the Ayodhya case and the judgement of the High Court in the subsequent issues of this journal. In the present article we will focus on some important aspects of the judgement only.
We discussed the subversion of the process of establishing good legal procedure to determine compensation for victims of industrial disasters and determining criminal responsibilities for the same and the nature and intensity of the crime in the case of Bhopal gas disaster. We shall see a similar process of subversion of established judicial processes and norms with a similar ‘eagerness’ to settle a dispute albeit in the interests of the powers that be.
It is now a fairly well established fact that the present Indian state despite the secular provisions of the constitution and the mandate to separate religion from state processes and institutions has constantly used various religious devices to strengthen itself. The class forces that dominate it do not have the strength to ensure that the mass of the people acquiesce to the state power on a purely secular agenda. Playing a religious card in a highly plural society with complex forms of stratification is rather difficult. Nevertheless the Indian state has sought to promote a variety of Brahmanism and consolidate its authority over an amorphous group of people classed as Hindu, i.e. those who are not members of other recognised religions. At the same time it has pandered to orthodoxies of various religious groups and repeatedly compromised the cause of progressive struggles in each of these religious groups.
Often the veneer of pandering to different religious orthodoxies has obfuscated the essential leaning towards Brahmanic Hindu majoritarianism. In the army, police, the educational institutions – one can quite clearly see the impact of Brahmanic Hinduism in each of these supposedly secular institutions. This state policy should be seen not as a deviation by this or that leader or political party but as an organic necessity of the Indian ruling class which otherwise does not have the strength or the inclination to build a secular state and needs to take recourse to religious mobilisation of the masses to gain legitimacy and support for itself. It may be noted that this remains an important aspect of most contemporary ‘post colonial’ state formations whether in South Asia or elsewhere. This seems to have become more important as the present phase of globalisation is taking roots in all these regions. The objective seems to be to target a minority group and mobilise the majority around this issue to become a bulwark of the state.
As the crises of the 1980s deepened and seriously undermined the legitimacy of the Indian state all political parties including the Congress party embarked upon a programme of mobilising the masses on the plea of building a new state order with a strong majoritarian religious culture. This often had an overt fascist character whether in the anti-Sikh pogrom organised by the Congress in 1984 or the Ayodhya and Godra massacres organised by the RSS-BJP combine.
We need to look at the Ayodhya ‘movement’ and the present decision of the Lucknow bench of the Allahabad High Court. Before we look into the judgement we may only draw the attention of the readers to the reputation of this court. Recently the Supreme Court of India was constrained to say that ‘there is something rotten in Allahabad High Court’ with reference to widespread connivance between judges and the lawyers who often are closely related to each other. This is significant in the context of the method adopted by this court to dismiss the arguments of several secular historians and archaeologists on the ground that they had connections with Muslims through marriage or otherwise.
All the three judges of the High Court were unanimous in their opinion that the disputed site was indeed the birthplace of Rama.
Says one judge – himself an orthodox Brahmin:
'The disputed site is the birth place of Lord Ram. Place of birth is a juristic person and is a deity. It is personified as the spirit of divine worshipped as birth place of Lord Rama as a child.'
The second judge says thus:
‘It is declared that the area covered by the central dome of the three domed structure, i.e., the disputed structure being the deity of Bhagwan Ram Janamsthan and place of birth of Lord Rama as per faith and belief of the Hindus..’
The third judge, a Muslim is more guarded:
‘For a very long time till the construction of the mosque it was treated/believed by Hindus that some where in a very large area of which premises in dispute is a very small part birth place of Lord Ram was situated.’
A very large number of historians and also archaeologists (even those supporting the cause of Ramjanmabhoomi) have made it clear that there was no significant occupation of Ayodhya prior to 5th Century BCE, that is the early historic period of Indian history whose rulers and dynasties are clearly identified through literary and epigraphic sources. Rama if at all he was a historical person should have long predated this period both according to mythological belief and going by cultural studies of the early core of Ramayana. In declaring unequivocally that this was the birth place of Rama merely on the basis of ‘faith and belief of the Hindus’ even if it goes back to a few hundred years the judges were grossly negating all scientific and rational approach to determining historical truth. One of the judges even goes to the extent of pinpointing the exact spot of birth – to be under the central dome of a mosque constructed in the 16th century CE.
Having done this they introduce a judicial innovation to reinforce this position: they deify the supposed place of birth into a deity and a juridical person. Traditional Brahmanic or Vaishnavite sectarian texts never considered a place of birth or death or cremation of even divine beings as themselves being divine objects of worship (the Buddhists came nearest to it in that they commemorated with a pillar the place of birth of the Buddha a few hundred years after his death – at the time of Asoka). The Allahabad High Court happily added a new divinity to the so called Hindu pantheon already very thickly populated with 33 crores of gods and more.
Further two of the judges claimed that the mosque was built after demolishing a ‘massive temple’ and cite the Archaeological Survey of India in support.
The disputed structure was constructed on the site of old structure after demolition of the same. The Archaeological Survey of India has proved that the structure was a massive Hindu religious structure.
Another declares:
'The building in dispute was constructed after demolition of Non-Islamic religious structure, i.e., a Hindu temple.'
It is rather strange that while the judges did not care to check on the ASI findings to see if Rama was indeed born at the spot they chose to rely on ASI for this bit of history. To begin with there is no literary source to confirm this claim that Babar or his general Mir Baqi who built the mosque had destroyed any pre existing structure.
The fact that the ASI conducted these studies under extremely charged conditions after the demolition of the mosque and that the evidences produced by the ASI were subject of much debate and criticism among archaeologists and historians has been dismissed. It has been equally vehemently argued that the mosque had been built over a previous mosque or at best a debris of a previous occupation site. Whether it was a ‘Hindu temple’ or not remains a matter of interpretation of the information.
One needs to comment at this stage on repeated use of the term ‘Hindu’ to designate a religious community. It should be remembered as mentioned above that Rama was venerated by a few sects with Vaishnavite leanings and not by others even if they may have considered him a divine being (avatar) or as a ‘paigambar’ as some Indo-Persian historians have called him in medieval times. Quite simply not all people designated as ‘Hindus’ venerated Rama or considered pilgrimage to the city of his birth an essential part of their religious duties. The court constantly creates and reinforces this category of ‘Hindus’ and thus directly plays into the agenda of RSS-VHP combine. It should be remembered that the parties involved in the property dispute were not ‘Hindus’ or ‘Muslims’ but specific sectarian organisations like Nirmohi Akhara, Sunni Wakf Board and some individuals.
Having made these two assumptions – that this indeed was the exact spot where Rama was born and that the Babari Mosque was built after destroying a temple on the basis of faith and questionable archaeological information the judges go on to award ownership of the entire space to Hindus, Muslims and Nirmohi Akhara. The three judges agree that the central domed part of the land should be given over to the ‘Hindus’.
One decision says:
‘it is further declared that the portion below the central dome where at present the idol is kept in makeshift temple will be allotted to Hindus in final decree.
It is further directed that Nirmohi Akhara will be allotted share including that part which is shown by the words Ram Chabutra and Sita Rasoi in the said map.’
Historically it was clear even to this judge that till 1949 the central dome area was used for offering Namaz by sunni Muslims and it was the Ram Chabutra and Sita Rasoi area which were worshipped by the so called Hindus. Yet the judge decided that both these areas should be handed over to ‘Hindus and Nirmohi Akhara’.
The third judge refuses to accept that the structure was a mosque: ‘the disputed structure cannot be treated as a mosque as it came into existence against the tenets of Islam.’ While the faith of ‘Hindus’ was sufficient to declare the site to be the birth place of Rama, the faith of ‘Muslims’ who indisputably offered namaz in the structure was of no avail in deciding if it was a mosque. Instead the court takes it on itself to interpret the ‘tenets of Islam’.
The second judge who wrote the principal decision while accepting the fact that Muslims had been offering namaz in the shrine till 1949 gave the following orders:
"(i) It is declared that the area covered by the central dome of the three domed structure, i.e., the disputed structure being the deity of Bhagwan Ram Janamsthan and place of birth of Lord Rama as per faith and belief of the Hindus, belong to plaintiffs ….
(ii) The area within the inner courtyard denoted by letters B C D L K J H G belong to members of both the communities, i.e., Hindus and Muslims since it was being used by both since decades and centuries.
(iii) The area covered by the structures, namely, Ram Chabutra, Sita Rasoi and Bhandar in the outer courtyard is declared in the share of Nirmohi Akhara and they shall be entitled to possession thereof in the absence of any person with better title.
(iv) The open area within the outer courtyard shall be shared by Nirmohi Akhara and plaintiffs (Other Hindus) since it has been generally used by the Hindu people for worship at both places.
(iv-a) It is however made clear that the share of muslim parties shall not be less than one third (1/3) of the total area of the premises and if necessary it may be given some area of outer courtyard."
Quite clearly the judges were departing from the status quo as it obtained in 1949 and allocating the main shrine to ‘Hindus’ and displacing the ‘muslims’ to an undefined peripheral area of the complex and at the same time allowing Nirmohi Akhara to retain what was originally worshipped as the place of birth of Rama.
The judgement basically places a stamp of approval over a Hindu majoritarian claim to the priority of its beliefs in a civil case.
IV
A Common Thread?
Do we see a common thread between the two judgements made in New Delhi/Bhopal and Lucknow even though the issues are very different? I would like to argue that the two judgements have much in common in that both try to sidestep processes of secular law and scientific enquiry to base themselves on what they consider speedy justice or faith. In one case it goes to reinforce the position of the multinationals and in the other it goes to reinforce the majoritarian Hindu communal mobilisation.
Both undermine the claims of a secular nation state to defend the rights of its citizens and ensure justice to all without favour for the powerful.
In effect both emphasise the social character of Indian judiciary as being ultimately tools of state policy.
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