Several questions regarding Bhopal remain unanswered, People hope that the new government will clear the mystery why India went soft on the culprits. Several questions regarding the Bhopal gas tragedy, which took place 30 years ago, remain unanswered to this day, even though successive governments have tried to deal with the surviving victims or the relatives of thousands of people who died on that fateful 2-3 December 1984. It is still not clear why the government of the day permitted Warren Anderson (he died on 29 September this year at the age of 92), the then Union Carbide chairman, to leave the country. Subsequently, enough was not done to get him extradited, fuelling speculation that some underhand dealings had been done to help him. According to unconfirmed reports, a secret agreement was reached with his representatives and huge amount of money was exchanged in addition to the sum paid as compensation to the victims. A story that did the rounds in the capitals social circles in the late 1980s at the time was that when a Union minister attended a gala reception at the Indian consulate in New York, where officials of the Union Carbide were also present, he wanted to know why there had been a delay in paying the compensation. He was politely told not to raise the issue as the matter had been settled. With whom and by whom is still a mystery, presuming this story was correct. Another mystery is that why the government has kept silent on the manner in which 4,700 lakh dollars ($470 million) given by the Union Carbide in 1989 was spent for the welfare of the victims. What prompted Union Carbide to finally agree to a declared settlement after contesting the case twice in the United States, where the Indian claim was rejected? If the turnaround was on humanitarian grounds, then why was this consideration not shown while contesting the case in the US? Or was the change of stance on account of some hard measures taken by an Indian team, which went to the US to pursue the case under the leadership of G.V.G. Krishnamurty, who was then a joint secretary in the Ministry of Law? Secondly, why did two leading lawyers of the country — J.B. Dadachanji and Nani Palkhivala — file affidavits in the US court appearing as witnesses? It is a matter of speculation whether these affidavits contributed to the court dismissing the case on grounds of forum non conveniens. It was ruled that the court of jurisdiction would be the court in India, something which suited Union Carbide, as had the case been tried in the US, the compensation would have been colossal. The information that was in public domain at the time was that at least one of the two legal luminaries had visited New York around 20 times while the trial was on. There is also the question of why Robins, Zelle, Larson and Kaplan, a legal firm run by Italian-Americans based in Minneapolis, Minnesota was hired when the case was being contested before Judge John F. Keegan in New York. And who selected this firm? The firm represented India along with Barrett, Smith, Schapiro, Simon and Armstrong in New York. A whopping sum of $1.6 million was paid to them for contesting the case, which India lost. Interestingly, Union Carbide paid $420 million, vide a bank draft number CBD 41688 dated 21 February 1989, of Manufacturers Hanover Trust Company in favour of the Registrar of Supreme Court. In addition, another bank draft (no. 382736 dated 24 February 1989) of the State Bank of India, New Delhi to the Registrar, Supreme Court for Rs 689,919,509 was sent by the counsel of Union Carbide. The bank drafts, the first in dollar account and the second in a rupee account were presented in the court of Justice R.S. Pathak, CJI and E.S. Venkataramiah, Ranganath Misra, M.N. Venkatachaliah and N.D. Ojha on 24 February 1989. C.S. Subramanium, RBI manager, who was present in the court, deposited the money at the Reserve Bank of India, Parliament Street. The money was for the welfare of the Bhopal victims. However, successive governments have not been able to explain whether this money continues to be in the RBI under the supervision of the Apex Court or it has been disbursed to the victims, partly or wholly. If it has not been given, why has there been a delay and if it has, whether proper receipts exist and whether the appropriate authority audited the accounts. It should not be difficult for the government to seek the status of this money since it does not amount to interfering in the judicial work of the Supreme Court, but relates to matters that come under the Apex Courts administrative powers. Ideally speaking, the money should have been paid to the Prime Ministers Relief Fund so that the dispersal could have been monitored easily. Earlier, the Union Carbide turnaround in the case came after a team of Indian officials was able to arm-twist the US firm in giving away this money. Originally a three-member team led by then Attorney General K. Parasaran was to go to the US in May 1987, but since a constitutional crisis was looming large, with President Zail Singh hell-bent on dismissing the Rajiv Gandhi government, the Attorney General was asked to stay back. Instead, on Rajiv Gandhis instructions, the other two members — G.V.G. Krishnamurty and Shyamal Ghosh, then joint secretary in the Ministry of Chemicals and Petrochemicals — left for the US for carrying out the preparatory work in consultation with the US lawyers for making a case against Union Carbide in the US Supreme Court. According to Krishnamurty, the two of them were in constant touch with K. Parasaran and were assisted by some very able officers from our embassy in Washington including D.S. Sastry, the legal adviser and H. Singh, an IFS officer. The Minnesota firm of lawyers initially declined to pursue the case in the US Supreme Court on the ground that since the case had been lost twice, they did not wish to be known as a firm, which was losing cases. The then Indian Law Minister, Ashok Sen, Law Secretary B.S. Sekhon and other officials had selected the firm. But after the Indian team insisted that they do as they were told, they agreed to move the application. However, the Indian team was able to trace a top safety specialist of Union Carbide, who had left the company after underlining safety lapses in several UC plants overseas. It was only after the testimony of this safety analyst was recorded where he admitted that the safety regulations had not been complied with fully and that the technology for third world countries was not at par with plants operating in the US, a final brief was prepared. Forty-one copies were filed in the US Supreme Court. Fearing that the case could have repercussions on some of the future UC projects in places like Indonesia, Puerto Rico and even Belgium, the multi-national company relented and offered a settlement on humanitarian ground in the Indian Apex Court. Krishnamurty recalled that D.S. Sastrys work had been exceptional. Interestingly, an Indian Law Institute publication Inconvenient Forum and Convenient Catastrophe of 1986, prepared by eminent jurist Upendra Baxi makes a scathing comment about Nani Palkhivalas role. Clearly, Mr Palkhivala has no idea of Bhopal, much less or tort law. I will have to content myself by saying that Mr Palkhivalas claimed eminence cannot rescue him from the charge of innocence of tort law developments. As to Bhopal, he should have realized that bursting or running over of reservoir in a nineteenth century England is simply no way comparable to a runaway reaction of MIC in late twentieth century India. Another interesting twist in the case came when the matter came up for hearing in Bhopal. Union Carbide or its representatives had booked all the tickets on an aircraft that was to leave for the destination that morning to ensure that no one appeared for the prosecution. However, Krishnamurty managed to call the controller of airports, a gentleman by the name of Sriniwasan, who issued instructions that the tickets should be re-issued. This enabled the government counsels to reach Bhopal in the nick of time. There has been a controversy over how Anderson left the country. The government had provided him a private aircraft to reach New Delhi from where he emplaned for the United States. The allegation was that the then Madhya Pradesh Chief Minister, Arjun Singh played a major role in this. But some years ago, former Foreign Secretary M.K. Rasgotra, in an interview mentioned that the government had assured a free passage to Anderson. Rasgotras interview provided clear indication that the Centre was aware of what was going on and the Ministry of External Affairs was on board on this decision. Arjun Singh subsequently tried to deflect the blame on his archrival and former Prime Minister P.V. Narasimha Rao, who was also at one stage Home Minister. However, while making a statement in the Rajya Sabha, Arjun Singh proved why he was known as the old fox in political circles. The astute politician used the opportunity to clear himself of complicity, but in the process complicated matters for his party, which all along had been trying to keep out Prime Minister Rajiv Gandhis name from the controversy. The carefully worded statement said that he had briefed Rajiv Gandhi on the developments in the wake of the Bhopal gas leak, thereby confirming that Rajiv was aware of what was going on. Victims and their relatives have great expectations from Prime Minister Narendra Modi and hope that he will help in getting them relief and clearing the mystery why the Indian government had been soft on Union Carbide.
Posted on: Tue, 09 Dec 2014 04:00:00 +0000
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