Tale of two tragedies

-Priyalina Basu

Iconic images of a dead child after the poisonous gas leak in Bhopal in 1984 (Above) and of a pelican struggling in the water polluted by the BP oil spill in the Gulf of Mexico this year (Below)

Recently two compensations have made headlines- British Petroleum (BP) oil spill in the Gulf of Mexico and the Bhopal gas tragedy (1984). BP has settled a compensation of USD 20 billion with a sincere apology within 56 days of the oil catastrophe, considered as the largest offshore oil spill in the US.

In an interview with Politico, President Obama said, “In the same way that our view of our vulnerabilities and our foreign policy was shaped profoundly by 9/11, I think this disaster is going to shape how we think about the environment and energy for many years to come.”

The Union Carbide India Limited (UCIL) Gas leak disaster at Bhopal provides a stark contrasting picture. The court fined the seven convicted UCIL officials USD 2715 apiece and UCIL INR 5 lakh for causing the death of some 15,000 people and affecting nearly five lakh people over the years with several defects and diseases.

In India, instead of strongly criticising the Court’s soft judgement on the offenders, the former Chief Justice of India, A. M. Ahemedi said, “The hue and cry is happening because people want to raise the issue.”

This leads to a serious question: Are our laws more lenient for foreign companies unlike in the US? The answer unfortunately is YES. The entire procedure of compensation and regulation of a foreign/domestic company depends on how stringent the law of the land is and how determined are its enforcers to carry out their responsibilities.

Laws and implementation:

The US was able to extract a hefty compensation along with USD 75 million for cleaning the oil with the collaboration between federal and state authorities and BP by a legal process known as the Natural Resource Damage Assessment (NRDA) established under the 1990 Oil Pollution Act.

However, in India, we do not have such strict laws that the MNCs are bound to observe. Even now, as the Pollution Control Board’s report states, the cyclone prone industrial zones of the country like Haldia are disaster-prone due to the lack of constant monitoring system and disaster resistant infrastructural mechanisms.

If we take the Nuclear Liability Bill for instance, we can see that certain clauses indirectly allow a way out for the manufacturers and the builders of the nuclear reactors from any financial and legal liability. The maximum financial liability in case a nuclear accident occurs in nuclear reactors would be USD 458 million- a similar law in US has set the financial liability for such accident at USD 10.5 billion.

Moreover, the operator will have to pay INR 500 crore and the remaining amount will be paid by the Indian government. The victims will not be able to sue anyone. So foreign companies will not pay an individual’s compensation once they have paid the total of INR 500 crore.

Corporate law:

There are very few laws in the world that give immunity to the corporates. However, in India, we do not have an effective corporate liability law for either Indian or foreign companies especially in cases of ' mass disaster’ where the killing could have been anticipated but profits were counted.

 Corporate offences relating to hazardous activity like in Bhopal have already been treated as cases under civil law. In criminal law, they are not counted as cases of strict liability with the accused (including corporations) having to show a lack of fault.

 There is no law to charge MNCs who control, are in charge of or are involved in the activity or its beneficiaries.

What Union Carbide did, was to find the loopholes and evade the responsibility. Therefore, the extradition of Warren Anderson, the CEO of Union Carbide during disaster, would not help much to get an exemplary verdict.

Union Carbide got the Supreme Court (SC) to reduce the charges to causing death by negligence - and limit punishment. This is unfortunate. The charge carried a punishment of up to two years or fine, or both (section 304A). Otherwise, corporate liability would have been tested under culpable homicide amounting to murder, carrying an imprisonment for 10 years (section 304 Part II).

In 1989, the deal included exculpating Carbide from criminal proceedings altogether. Mercifully, in 1992, the SC lifted the immunity it gave to Carbide. But Union Carbide (US) denied criminal jurisdiction to India. Anderson, a prime accused in the charge sheet on 1987, was denied extradition in 2004 for the lack of more “concrete” evidence. The trial, thus, became an Indian affair, as nine other accused were Indians.

Too Little, Too Late:

Realising the growing anguish of the people, the Indian government quickly convened a meeting of the Group of Ministers to come out with an acceptable compensation package.

 The total package costs around INR 1,500 crore.

 INR 10 lakh for the dead.

 INR 5 lakh for those with permanent disability .

 INR 3 lakh for those with partial disability.

 INR 100 crore to destroy the Union Carbide plant in Bhopal and construct a memorial in its place.

 Separate INR 300-crore remediation proposal to dispose of toxic waste.

 Treatment of second and third generation people.

All companies go through constant monitoring and reviews. None can feign ignorance of potential disasters. Therefore, it is imperative to have laws that deter companies from being criminally negligent. But more than that, there is a need for an apolitical and efficient administrative and judicial set-up to enforce these laws. The lesson of Bhopal must be learnt.