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.

1 comment:

Beq said...

Thanks for the overview Toto, that's a very neat (if grim)summing up. Thank you Debo for putting this up.