Extraditing Anderson won't benefit Bhopal victims

The clean up issue, ignored in the Bhopal gas tragedy settlement, emerged 20 years later, with the government trying to hold Dow Chemicals, UCIL's successor, liable on the 'polluter pays' principle. From the legal perspective, for the victims, efforts at Anderson's extradition or a Law Ministry face off with Dow on cleanup are pointless, writes Kumkum Sen

The first to sound the gong was the law minister, when he proclaimed "Burial of Justice". The media coverages peaked an alltime high and the government appears to be emerging from a 25-year-old hibernation to pursue actions long abandoned and follow leads that will get them nowhere.

December 3,1984 was the date when the lethal gas leak took place. Investigations established that leakages were common, safety systems were not properly functioning, as confirmed in a technical audit few weeks earlier.

Suits were filed in the local and US Courts, but the US proceedings were disallowed on the doctrine of forum non conveniens. The Union of India by an Act of Parliament ('Act') was authorised to represent all claimants, and filed a suit for damages in the Bhopal District Court against the US parent corporation and the Indian subsidiary. The Court, which had initially restrained UCC from disposal of assets, vacated the order conditionally within two weeks, but ordered an interim relief payment of Rs 350 crore.

This order was challenged and finally before the Supreme Court, and on its persuasion, the historic settlement was concluded. The Apex Court in ratifying the settlement, deemed it just and equitable that all civil and criminal proceedings were withdrawn or stood quashed.

But the litigations did not abate, as appeals against the settlement continued to be agitated in the Supreme Court. The Charan Lal Sahu judgement is regarded as a leading pronouncement in Indian jurisprudence in the invocation of the Latin maxim of parens patriae to accord recognition to the sovereign right of the State to divest victims of their rights to sue for their protection.

Lawmakers were also urged to replace the 1985 Fatal Accidents Act with a realistic regime to deal with industrial disasters, providing effective and speedy remedy on a "no fault" liability basis.

No move has been made in this regard till date by Parliament. And that after several directions by the Supreme Court, the final disbursement of the settlement funds to the affected parties took place in 2006, demonstrates how ineffective the State representation has been.

In one of these legal battles, on the objection that the pending criminal cases were separate distinct proceedings and not relatable to the Act, the Apex Court set aside the quashing and restored the proceedings.

During the pendency of these criminal proceedings, Keshab Mahindra approached the Supreme Court on the maintainability of the charges against him under Section 304 (II) of the Indian Penal Code ('IPC'), as there was no act which was undertaken knowingly and voluntarily to hurt the victims.

The State contended there was enough material to establish full knowledge and implications to establish sufficient mens rea. In considering the chargesheet, the Apex Court concluded that the proceedings as instituted did not make out a prima-facie case under Section 304(II),even assuming that the accused persons had knowledge that a defective plant dealing in hazardous substances was being operated, they could not have foreseen the disaster and the carnage.

The courts' decision that the charge would be under Section 304A restricted the trial Court from awarding any sentence exceeding two years imprisonment. Normally, higher courts are reluctant to intervene in investigation and trial processes, and the Supreme Court's pre- emption in this case explains why this is so.

Questions are being posed why Warren Anderson was not detained, or who connived in his escape. Or why the extradiction treaty between US and India was not invoked timely, and whether any purpose is served in activating this now. According to some this will work, as Anderson is an accused under Section 304, and a proclaimed offender.

The clean up issue, ignored in the settlement, emerged 20 years later, with the government trying to hold Dow Chemicals, UCIL's successor, liable on the "polluter pays" principle.

From the legal perspective, for the victims, efforts at Anderson's extradition or a Law Ministry face off with Dow on cleanup are pointless.

Mitigation lies in future actions, to have an effective civil liability law for all industrial disasters, not just the nuclear sector. If criminal liabilities are to remain in the general penal law domain, introduce an amendment in the IPC as in 304B, and not treat such offence on par with road accidents.

Discontinue the fiction of deemed approvals under Pollution Laws, and statutorily require corporations engaged in hazardous activity to maintain a contingency fund. Finally, take up DOW's offer on clean up and grant them immunity from legal liabilities.

Kumkum Sen is a Partner in Rajinder Narain & Co. and can be reached at Kumkumsen@rnclegal.com