What do we do when the three pillars of governance conspire against us?

Governancenow.com, June 9, 2010

We must answer that to prevent the tragedy of the Bhopal verdict

Former chief justice of India A H Ahmadi made an interesting observation while defending his decision to dilute charges against Union Carbide executives in the Bhopal gas tragedy case. He said: “There is no concept of vicarious liability. If my driver is driving and meets with a fatal accident, I don’t become liable to be prosecuted under 304-II (of IPC)”. That’s highly debatable but that makes Warren Anderson (the then chairman of Union Carbide Corporation of the US, the parent company of the Bhopal-based pesticide plant) the owner of the car and the eight who were tried and sentenced to a mere two years of imprisonment by a Bhopal trial court the actual drivers! They were the ones running the pesticide plant in Bhopal—its chairman, director, vice-president, works manager, assistant works manager, production manager, plant superintendent and production assistant. They were directly liable for the disaster by Justice Ahmadi’s logic! But he diluted the charges against all of them making them liable only for negligence that would entail jail of only two years. So Justice Ahmadi is defeated by his own usound logic.

The former CJI was bold enough to make two other comments to PTI in the same interview (June 8, 2010) worthy of notice. He said “(more) compensation could have been granted” and that “it was unfortunate that Anderson was allowed to go in the first place because he was the principal offender and unless the principal offender is there the subsidiary offender might say that if he can go scot-free, why do you want to punish us?”

Note the contradiction in Justice Ahmadi’s description of Anderson, ruling out his “vicarious liability” at one point and then holding him “the principal offender” at another in the same interview. But that is not our point. The point is who let Anderson go? All that is known so far is that the then chief minister of Madhya Pradesh, Arjun Singh, received a call and ordered that Anderson, who was in police custody in Bhopal, be freed and flown to New Delhi on his way to the US. Who ordered him to free Anderson?

Arjun Singh has refused to speak and so we would probably not know. As for the compensation, we know that the Supreme Court brokered a settlement with the Union Carbide and accepted $470 million that the company was offering as against $3.3 billion that the government of India, representing the Bhopal victims, had demanded. This meant a paltry Rs 12,410 for each of the victims. We don’t know why the agreement was arrived at the lowest end of the bargain.

The Indian government had also gone to a US district court to determine the parent company’s liability in the case but it was dismissed after our legal legend, late Nani Palkhivala, argued convincingly on behalf of Union Carbide that the Indian judicial system was capable of handling the Bhopal case. Now we know better.

We also know that the district administration and other government officials who were responsible for giving the clearance to set up the pesticide plant which was using highly toxic methyl-isocyanate (MIC) gas and those who failed to monitor and ensure that all safety measures were in place, especially after the earlier incidents of toxic gas leakages, were not booked or prosecuted.

So, effectively, nobody is really held responsible or made accountable, at least not by any substantive way for the world’s biggest industrial disaster that claimed about 15,000 lives and grievously injured several lakh others. Now our law minister M Veerappa Moily says lessons have been learnt and a new law will be made to deal with such disasters.

The real issue, however, is not that our government has woken up to the fact that we need a legal framework to tackle disasters of the Bhopal kind. That could have been done very easily at any point in all these 26 years by simply adding a section to the Indian Penal Code to distinguish the Bhopal disaster from a road accident that it eventually became and prescribing a stiffer punishment. That’s all.

The real issue here is how do you deal with a situation where all the three pillars of our governance—the executive, the legislature and the judiciary—fail or conspire against the citizen? That is the question we need to ask. The founders of the constitution created the three pillars to counter-balance each other. Not to stand against the citizen.