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Needed Justice for the Victims of the Bhopal Gas Disaster!

Conspiracy, politics and betrayal

by Colin Gonsalves, 15 June 2010

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(From: Deccan Herald, 14 June 2010)

“The victims should approach the Supreme Court directly for review of the 1996 order.”

The paltry payments made to the victims, the escape of Anderson on a government plane, the neglect of the babies born subsequently with terrible deformities and ailments, the inability of the state to clean the contaminated soil, the petty sentences rendered and the 26 long years in the trial court, all seems separate instances which though regrettable are treated as issues of governance and not one of politics, conspiracy and betrayal. Let’s not look at the past, we are advised, let’s look to the future to ensure that such an incident does not take place again. But unless we understand the treachery of the past it is impossible to change things for the future.

Rajiv’s American connect

Indira Gandhi’s death and the appointment of Rajiv Gandhi as Prime Minister of India marked the end of the era of the Indian version of social democracy started by Jawahar Lal Nehru and the beginning of American style globalisation. Rajiv Gandhi started off well with Ronald Reagan, the then President of United States. It is said that the understanding between these two leaders ultimately led to the pitiable settlement being agreed to by India, the quashing of all criminal liability and the removal of Anderson from Indian soil. Arjun Singh, naturally, will be made the scapegoat as if decisions of this magnitude could be taken without the Prime Minister’s approval.

In the power play of globalised politics, all this is understandable though it may make us angry. But the inability of the Supreme Court of India to stand firm and side with the people of India against UCC and the government of the United States of America left many Indians confused and frustrated. The long line of decisions starting from 1989 ultimately left them bitter.

American system better

It was in the interests of the victims to have the cases tried in America where substantial damage would have been awarded. In the Exxon Valdez oil spill case where no one died, $507 million was awarded. In the Vioxx drug case where 47,000 consumers suffered heart attacks, strokes or death, $ 4.85 billion was paid on an average of $103,000 per plaintiff. In asbestos litigation, jury verdicts range anywhere from $ one million to $20 million in compensation per person. In the Lockerbie bombing case Libya paid $ 2.7 billion or $ 10 million per family.

Legal luminaries flocking to represent Dow Chemicals was understandable. Nani Palkhiwala made a strenuous attempt by filing affidavits in the American courts to have the litigation brought to India. The then Attorney General, Soli Sorabjee, argued against giving the victims a hearing and justified the quashing of criminal proceedings. What was inexplicable was the attitude of the judiciary.

In February 1989, in a cryptic three-page order containing no reasons, the Supreme Court accepted the settlement of $ 470 million as "just, equitable and reasonable" and quashed all criminal proceedings. In May, reasons were given after an afterthought. Chief Justice R S Pathak then resigned on being nominated by India to the World Court at The Hague.

After indignant protests in the country, in 1991, the Supreme Court reinstated the criminal proceedings. In 1996, the Supreme Court quashed the charges of culpable homicide not amounting to murder and voluntarily causing grievous hurt and introduced the death due to criminal negligence charge carrying a maximum sentence of two years. The hands of the trial court were tied. It is now up to the Chief Justice of India to right this historic wrong.

SC must reopen

The Supreme Court must reopen the 1996 decision diluting the criminal charges and reinstate the culpable homicide charge and the charge of voluntarily causing grievous hurt. If this is done the accused can be sentenced up to 10 years in prison.

(The writer is a senior advocate of the Supreme Court.)