Wednesday, June 30, 2010

A Legal Understanding of What Happened in Bhopal

By Asmita Basu

There’s masses of literature on this issue. I will think of some sources, although I don’t think the ones I read are available online. A recent write-up by Rajinder Puri in the Statesman provides an accurate overview. Here’s my attempt to break down the legal history. (Caveat: readers are advised to read more on this issue to get a better understanding, and apologies if you find this too basic and reductive)

Victims in Bhopal could file for compensation from UCC (the US holding company), UCIL (their Indian subsidiary), and the government/State. A suit for compensation can proceed simultaneously with criminal proceedings.

Points of difference between criminal and civil proceedings lie in evidentiary standards and outcomes. In criminal proceedings the evidentiary standard is proof beyond reasonable doubt, which is a very high standard and the outcomes are penalties to be paid to the State and/or imprisonment of the offenders. On the other hand, in civil proceedings, the evidentiary standard is a balance of probabilities (i.e. proof that one event is more likely than the other) and the outcome is, amongst other things, compensation to be paid to the victims.

As soon as the gas leak happened, “ambulance chasers” from the US descended on Bhopal. Their intention was to file compensation claims on behalf of victims against UCC in the US courts. “Ambulance chasers” are lawyers who don’t charge a fee but take a percentage from the compensation amount they win for their clients. This practice is not allowed in India to guard against exploitation. So the State decided to chase the ambulance chasers out and sue for compensation on behalf of the victims. This was done by a special legislation and under the principle of pareins patraie (sp?), which means that the State assumes the role of a benevolent patriarch over its citizens to proceed on their behalf. This was the first and perhaps the most significant nail in the coffin. After all, how can the State sue for compensation when the State itself is a party to the proceedings? [There was a challenge to the parens patrie law, but it was dismissed (Ms Jaising had appeared in that matter).]

The US courts rejected the suit for compensation on the ground that it was difficult to collect evidence from India (!) (This was done under a principle called forum nonconviniens, which is too complicated to get into details). The civil case was therefore pursued in Indian courts. The State settled the case for a paltry USD 470 million instead of USD 33 billion that was initially sought. (This amount when divided amongst the victims translates to Rs 10/- that I had mentioned in my earlier post). This travesty was justified on the grounds that the criminal proceedings were kept pending (not that the State had an option, since criminal cases cannot be dropped after being filed). And today, after 26 long years, we see the outcome of the criminal proceedings.

The point that I am making is that putting the now senile Warren Andersen behind bars does not translate to any tangible gains for the victims. Nor do the predictably paltry sentences and penalties act as effective deterrents. On the other hand, shelling out compensation would have been a far better deterrent- witness the current reverberations among BP shareholders and owners. But sadly, the Bhopal war had been lost in 1989, when the civil case was settled.

The Bhopal gas leak litigation will go on, I don’t have much hope. At the cost of sounding facile, the lesson to be learnt is that compensation cannot be treated lightly. As I see it, the silver lining in the recent judgment and the resulting outcry is that State has decided (been compelled to??) to retain the supplier’s liability clause in the nuclear deal. Hope there’s no retracting from this one.

Wednesday, June 9, 2010

Lick a Powerful Ass Day

This post has no point. There's absolutely no reason to write this, except that i want to blow off steam, and express my very deep disappointment and anger at the dance i see taking place around Bhopal.

Bhopal happened in 1984; by conservative estimates, 20,000 people died. After Dow took over Union Carbide in 2001, they insisted that they had no liability for an incident (sic) that happened in the 1980s, and that they never owned nor ran the plant responsible for the disaster.

The Indian government made some sounds that approximated 'please, sir, clean it up',
And then subsided into grumbles which cumulated in an approximated
'ok, sir, but see, we're really upset about this, you've hurt our feelings'.

Big fucking deal. Like Dow Chemicals cares. Like the US cares.

But We Care.

You see, we mustn't hurt the feelings of the Great North, or they may stop letting us lick their feet. And what a tragedy that would be. Imagine, no powerful Northern feet to lick.

The judgement came out yesterday. Yesterday, it was all over the front pages (except the parts devoted to buying-related advertising, of course/ the show must go on). Today, its slipped to page three and four, and an obituary-like tone has descended over the commentary. Its so sad, says the tone of the writing. Its so sad that this should happen, that our judiciary is inadequate, that we can relentlessly hound, and prosecute individual wrongdoers, but we cannot take to task a company which, which, considering its size and holdings, constitutes a target the size of a murder of Tyrannosaurs Rex.

(What is a collection of T-Rex called? I don't know, but 'murder' seems appropriate. I've never really got why the term is applied to crows, but i can very clearly see, in my mind's eye, why it would be appropriate for a collection of carnivorous dinosaurs.)

But you can't take a T-Rex out with a shotgun. They have teeth, and claws, and they move very fast.
Thats why you need lots of guns, very large and strong nets, people experienced in taking out T-Rex-es, and most important, strategy.

Isn't that the role of a state system in a situation like this? A state system that includes the executive, the legislature and the judiciary? In the happenstance of marauding murders of T-Rex, isn't this system is supposed to kick in with its infrastructure and experience?
It may take a village to teach a child, but it sure as heck takes more than a village to take out deliberate monsters leaking chemicals.

Unfortunately, it also requires will. Will on the part of a system to engage with, and turn its destructive power towards a problem or a threat. This, with the Indian state's 'sir, please give me your ass to lick' attitude is the will it lacks. I'd like to rephrase, actually. The will is very much present, its just turned in Other directions.

More land. More minerals. More FDI, more Northern ass to lick.
'please, sir, i missed that spot of shit, could you turn this way please, so i can lick that clean too?'

It seems that its not just Northern ass either, any ass will do, just so long there is the possibility that measurable rewards are considerable. Theres lots of home-grown asses that qualify in this category, because theres just one parameter for returns. And we all know what that is.

Who says we're a proud country? Who says we have heritage and tradition, and Indian Values? I say the judgement on Bhopal tells us that we have neither pride nor foresight. Nor hindsight, actually. And certainly, no values. Can the Upholders of Indian Values Please Stand Up and Explain to me How the Judgement on Bhopal fits in with Indian Values?

Sunday, June 6, 2010

Accepting the David Dan Prize

I don't know how many of you have been following this, but

Amitav Ghosh and Margaret Atwood just won, and accepted the David Dan prize, from Israel.

Now this is a matter of personal choice, of course. No one denies that being offered, and accepting a public prize of this nature is well within the realms of personal choice. But.

Tuesday, June 1, 2010

Not - Having - Kids

I just read this great post on not having kids, and wanted to add my half-paisa.

I'm 35, so this does come up. In fact it comes up a lot, much more than i'd want, or have the energy and time to deal with.

And I'd like to qualify that I like kids, specially once they're walking-talking human beings. Before that, i tend to fear that they will break, and that the parents will kill me. But once they're human, i get along with them just fine, and beyond the first gap-mouthed stare (kids are smart, they know this smiling face is attached to a fundamentally strange person), they seem to get along just fine with me.

And i'm very glad that many of my friends have kids, the whole aunt thing really appeals. Its just that i don't feel any impulse to reproduce, myself.

So the problem is not me, or, thankfully, my partner. The problem is the rest of the world, who severally feel that this non-reproduction is an act of social subversion, and needs to be discussed. At length.

'How many children do you have?'
(You'll be surprised at how often i get this. The assumption being that someone of my advanced years would naturally have multiple kids. I love this one, will answer 'none' if its a doctor, or 'eleven', if its someone i wouldn't mind pissing off)

'Why don't you have children?'
(None of your business, but if you insist on knowing, i'm sterile. Also, i have nightmares about IVF)
I don't know if i'm sterile, but lots of women are, so the statistical probability certainly exists. And from what i know of IVF procedures, anyone would have nightmares about them.

'Is there a problem?'
Accompanied by a 'you can talk to me' look. I HATE you-can-talk-to-me looks, unless they come from people i can actually talk to. And no one i can talk to would ask me this question.
The ideal answer is 'yes, there is a problem, actually, its people like you', but i've never used that. I usually describe fallopian tubes, and family histories of complicated and fatal pregnancies. None of which is true, of course. I would certainly not put my family's privacy on the line like that.

'Doesn't your husband want children?'
Implying that i'm a selfish bitch for getting in the way of my husband's dearest wish. My desperately unhappy husband, who is hiding his displeasure behind a perfectly calm, even cheerful facade
My answer here depends on how soon i want this conversation to end. 'No, he'd rather have dogs' will shut most people down (ha, ha, she's FUNNY).
Otherwise, a level stare and a 'No' will do it. You have to stop at the 'No' though, because any attempt to explain this will be taken as a sign of wavering.

'When will you have children?'
(Probably never, but if i do, i'll be careful to keep them away from you. I want them to grow up with a sense of other people's privacy)

'Why don't you want kids?'
Now, really, i would like to know how, and why, comparative strangers feel that i should discuss this with them. Does it seem like something at the social interaction level of current affairs? or the weather? Both of which i would be happy to discuss, at length.
But they don't want to talk about those things, they want to know why I (being a complex, multi-layered, public/private being) don't want kids. I'm supposed to explain, and justify, and bare my soul. Like hell i will.

And its not that complicated anyway, I'd just prefer not to reproduce.

Why is that such a big deal?