Monday, December 1, 2014

Upendra Baxi - Thirty Years after Bhopal: Valiant Victims, Lethal Litigation

Suffering knows no anniversary but since Indian public memory is both short and shortened, and political power is increasingly synonymous with reorganising public memory, the thirtieth anniversary of the Bhopal catastrophe assumes a poignant significance. On that late night/morning of 2/3 December 1984, 40 tonnes of deadly methyl isocyanate (MIC) gas was released into the air where India’s poorest of the poor lived. The gas plant was owned by an American corporation ~ Union Carbide Corporation (UCC) ~ which failed to exercise due diligence owed to the people. 

What happened at Bhopal was no gas leak or disaster; it was truly a catastrophe. What happened at Bhopal was no passive victimage; valiant victims have heroically waged a lethal ligation in resistance to injustice. Writing about Bhopal begins, not ends, when it tells stories about impunity of multinational corporate conduct; for it must also have serious regard for the active agency of the survivors and enscript a complex movement toward emancipatory politics. From the effigy-burning of Warren Anderson at the first anniversary till today, the victims have haunted both American and Indian courts in search of the ‘uncertain promise of justice’. 


They have engaged with lawmaking by Parliament: the Bhopal Claims Act in 1985 (in which the government and the state of India assumed  ‘parental’ powers in the compensation courts, and which invited the ire of the victims); the law of  ‘public liability insurance’ in 1991/1992 (that allows catastrophic victims interim compensation); and revisiting the Factories Act in 1987 to include an understanding that hazardous processes may cause disasters in, as well as way beyond, the premises of factories, are some examples.


Despite their re-victimisation by the state and the multinationals, the survivors have continued their struggle. This movement began early and had worldwide support of the Fourth World of the dispossessed, disadvantaged, and disenfranchised peoples everywhere, who saw a noxious continuity between chemicalisation of soil and agriculture brought about by the first Green Revolution. After all, UCC came to India for MIC based SEVIN, a pesticide that was to overcome resistance to high breed plant varieties. Even if such nobility of intent was presumed to exist, why did UCC need to store 40 tonnes of MIC as against the wisdom practised in UCC’s plant in West Virginia that storing more than 10 tonnes was a prescription for potential disaster? Why would it abstain from state-of-art safety systems which it provided there? Did it need to close off the refrigeration systems at the plant which allowed the MIC to escape undetected till too late?


When ordered to pay an interim compensation of $250 million by the Madhya Pradesh High Court in 1987, UCC contested it before the Supreme Court, finally obtaining a judicial settlement of $470 million and complete immunity for itself. Why the court passed this settlement-order instead of giving a proper judgement will forever remain a mystery; perhaps, the judges yielded  to surmises about how eventually a New York garnishee court would set aside its ultimate award on some grounds of failure of due process


The settlement orders were also wrong as they were made behind the backs of the victims who were a legitimate party before the court - the error denying natural justice went to the root of jurisdiction. As natural justice was gainsaid later in a review, when the court quoted Merchant of Venice to the victims: ‘To do a great right, do a little wrong’. A little Shakespeare is a dangerous thing for justice! Not merely did the court undercompensate fatalities, it also adjusted the settlement amount within judicially invented categories of ‘serious’ and ‘minor’ ones.  


This has haunted two generations of victims. The claims settlement process has also been haunted by the spectre of ‘bogus claims'; the violated were ultimately dispensed small amounts, when the needs of health care and rehabilitation were vast. Although the settlement was supposedly dictated by the ‘urgency’ of justice to the Bhopal-violated, the court displayed no expedition in the decades that followed in dispensing proper relief and rehabilitation to victims. 


The setbacks have continued in American courts which unconscionably treated the ‘settlement’ as a full and final response to all claims. They refused to treat UCC as a ‘fugitive felon’, debarred from availing any judicial process - a doctrine developed by the American Supreme Court itself! Astonishingly, the court of Judge Keenan has found that there may not exist any claims against the UCC outside the settlement, even such claims as those regarding contaminated water, soil, or air contamination, which were not specifically urged before the court in its settlement-order, and which is beyond the disaster. It seems the settlement orders covered even claims which arose subsequently! 


The violated peoples suffered a further re-victimization when their efforts to extradite the CEO of Union Carbide fell on American and Indian Presidential deaf ears; and, again, when the Supreme Court affirmed the lesser charge of two years for 'rashness' and 'negligence' instead of considering a sentence of life imprisonment or capital punishment for the criminally negligent actors of UCIL. 
All this has happened in the face of a 2010 curative petition (which is yet to be heard) where the Union of India claims against UCC that the settlement was based on certain 'assumptions of truth' which no longer prevail; the Union now places the  highest level of compensation at  US$ 1241.38 million.  

What matters for the future is the continuous struggle against injustice. The Bhopal-violated have been asking UCC to release information concerning toxic and epidemiological properties of MIC; that information, only possessed by UCC, will go a long way still in treating generations of victims. The successor company, Dow Chemicals, is asked to own legal and moral liability for the acts of UCC whose assets alone Dow Chemicals claims it has acquired, to the exclusion of its liabilities, and which it contends vigorously, even to the point of evicting peaceful campaigners. 


Most recently, Abdul Jabbar, convenor of Bhopal Gas Peedit Mahila Udyog Sangathan drew attention to the missing samples of dead childbirth victims which affects the quality of forensic evidence. The director of the Bhopal Medico-Legal Institute has said that there was 'not a single sample in our institute which we can say for sure belongs to the gas victims'. He also says that though there is 'enough medical data which shows genetic mutation in MIC victims, the state government did not maintain any data of the MIC affected peoples beyond 1992'! What did the Supreme Court know about genetic and long term effects of MIC when it settled the matter? Was it even an informed guesstimate?


On 16 November 2014, a five day 'nil-by-mouth' hunger strike by five women victims, supported by about over 300 activists and survivors, ended with an assurance from the Union Minister of Chemicals and Fertilizers that the figures the government was using in the compensation claim would be revised on the basis of scientific data that exists but has been ignored thus far. He also agreed to ensure that the data would be re-presented to the Supreme Court in the case that was being made for acknowledgment, and remedying, the extent of damage that the disaster has continued to cause to victims and survivors.
The Bhopal saga is not unique because of the impunity that multinationals claim for acts even of radical evil, but for their struggle for (in philosopher Hannah Arendt's terms) the 'right to have rights'. 


Even when we mourn the tragedy of Bhopal, we must celebrate the determination for justice shown by the heroic violated. 

http://www.thestatesman.net/news/90694-thirty-years-after-bhopal-valiant-victims-lethal-litigation.html