A Brief History of the Criminal Case
Within 24 hours of the gas leak, state authorities launched criminal proceedings.1 The crime was registered under section 304 A of the Indian Penal Code (IPC), which concerns causing death by negligence.2 Nine individuals and three corporations were accused, of which one individual and two corporations were based overseas. The case was taken over by India’s Central Bureau of Investigation (CBI) on December 9th, 1984.
The foreign corporations were Union Carbide Corporation (UCC), incorporated in New York State, and its wholly-owned subsidiary Union Carbide Eastern, Hong Kong (UCE), registered in Delaware.3 Union Carbide India Limited (UCIL), a 50.9% majority-owned Indian subsidiary of UCC, and the operator of the Bhopal plant, was the final corporate accused.
The foreign company official charged was Union Carbide Chairman, Warren Anderson, who arrived in Bhopal on December 6th carrying with him an ‘assurance of safe passage’ from India’s Foreign Secretary. A trained lawyer, Anderson later admitted he had decided to go to Bhopal “to head off lawsuits”.4 Anderson was arrested upon arrival in Bhopal on December 7th.
Criminal charges were filed, and Anderson was released on Rs. 25,000 bail despite being charged with a ‘non-bailable’ offence5. Later reports claim that Anderson’s release was ordered by Prime Minister Rajiv Gandhi, following the personal involvement of U.S. President Ronald Reagan.6 Anderson flew to Delhi in a state-owned aircraft and left India two days later.
Anderson’s bail bond stated that he was, “…undertaking to be present whenever and wherever I am directed to be present by the police or the Court”, 7 but he never returned to India and died in 2014 just prior to the 30th anniversary of the disaster.
On February 20, 1985, in response to US-based personal injury lawyers signing up thousands of survivors for actions, the Government of India (GoI) intervened, authorising itself exclusive rights to control all claims.
On March 29, 1985, the Indian Parliament enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act 1985, allocating itself sole power of legal representation in any civil suit arising from the disaster.8
India proceeded to act as plaintiff seeking damages in the Southern District Court of New York alleging that: UCC failed to prevent the escape of MIC gas after storing it in unnecessarily large amounts close to populated areas; that UCC owned, designed, constructed, operated and controlled the Bhopal plant; that UCC contributed to the disaster by use of defective safety systems, instrumentation, warning systems and operating and maintenance procedures.9
UCC responded by moving the court to dismiss on grounds that the US was an improper forum and invoked the doctrine of separate legal personality: “The Bhopal plant was managed, operated and maintained entirely by Indians in India.” 10
But statements by UCC in court contradicted those made in the immediate aftermath of the disaster. “To the best of our knowledge,” explained UCC Vice President Jackson Browning, “our employees in India (emphasis added) complied with all laws and we are satisfied with the facilities and the operation of them.“11 CEO Warren Anderson admitted “We have 100,000 employees in Union Carbide, and half of them reside outside of the United States” and, in explaining his visit to Bhopal, “it was absolutely essential to give backbone to our India company (emphasis added).”12
For more detail see: Criminal failure and “The Chilling Effect”: a short history of the Bhopal criminal prosecutions (para: The Question of Control pp57-58).
On May 12, 1986 Justice Keenan ordered dismissal of the suits on grounds of forum non conveniens.
On December 1st 1987, the CBI finally filed a detailed charge-sheet before the Chief Judicial Magistrate (CJM) of Bhopal13 with India and the U.S. being, for over 45 years, co-signatories to an extradition treaty which detailed the charge of manslaughter as an extraditable offence.14
Three consecutive summonses issued against Anderson and UCC were not served and, on May 16th 1988, after a further summons was issued, Robert Berzok, UCC’s then director of communications stated: “Union Carbide will not appear because, as a United States corporation, it is not subject to India’s jurisdiction.”15
Summons dated July 16, 1988 was served through letter Rogatory, including to Robert D. Kennedy, chairman of UCC “to appear in court Sept. 24 in connection with the criminal charge against Union Carbide.”16 A report was received from the Embassy of India, Washington, dated September 20, 1988, that the summons had been served on Warren Anderson and, on September 24, 1988, on John Macdonald, Secretary of UCC, and Peter J Whitley, solicitor for UCE in Hong Kong.
Neither summons received a response and on November 15, 1988, the CJM issued a bailable warrant against Warren Anderson and the responsible officers of UCC and UCE for causing judicial delay and deliberately disobeying court orders.17
Subsequent to the warrants being issued, the U.S. Department of Justice (DoJ) stated that the warrant against Anderson could not be executed because “execution of warrant is not covered by the Statutory provision of US laws on International Judicial assistance”.18 But, the DoJ had, since 1977, administered various bilateral treaties addressing Mutual Legal Assistance on Criminal Matters.
By the beginning of 1989, reports began to emerge of a settlement agreement between the GoI and UCC. Developments in the criminal case, and India’s seriousness in pursuing it, were described as motives.19
On February 9, 1989, the CJM in Bhopal duly declared Warren Anderson, UCC and UCE to be absconders (equivalent to the status of ‘fugitive’) and issued non-bailable arrest warrants. The warrants were not delivered, and an inspection of the UCC facility at Institute, West Virginia – slated for early 1989 – did not take place. The inspection had been intended to establish any differences between the design, construction, and operation of the US and Bhopal plants.
On February 14th, 1989, an Indian Supreme Court panel of judges interrupted civil appeal hearings concerning the 1984 disaster to propose a full and final settlement between India and Union Carbide. The two parties agreed immediately. In addition to reaching a civil settlement, the Supreme Court ordered that “To enable the effectuation of the settlement… all criminal proceedings related to and arising out of the disaster shall stand quashed wherever these may be pending.”20
A consequential order of February 15, 1989 directed that “all such criminal proceedings including contempt proceedings stand quashed and the accused deemed to be acquitted.”21
In a later submission to the Supreme Court, Attorney General Soli Sorabjee alleged that inspection of the Institute plant was planned for the middle of February and that the settlement “was intended to circumvent that inspection…”22
Around February to March 1989, public protest against the settlement resulted in the filing of review and writ petitions in the Supreme Court by groups representing the disaster survivors: Bhopal Gas Peedith Mahila Udyog Sangatan (BGPMUS), the Bhopal Gas Peedith Sangarsh Sahayog Samiti (BGPSSS), and other concerned groups.
After two years, on 10th March 1991, the Supreme Court revoked criminal immunity granted to UCC and all accused in the Bhopal gas leak disaster case. To meet the medical needs of the victims, the Court ordered the Government of India to construct a 500-bed hospital. The construction cost of the hospital and its running cost for eight years was to be borne by UCC and UCIL. As this 1991 Review judgement also upheld the civil settlement, party to the proceedings UCC accepted it in its entirety and, on the 11th November, criminal cases against all the accused were revived in the CJM’s Court at Bhopal.
After resumption of proceedings, summonses were served upon the American accused and a proclamation published in the Washington Post requiring attendance in court. By March 1992, the CJM, Bhopal threatened fugitive status and asset seizure unless the accused showed up in court.
Two weeks before the decisive hearing and in order to evade the threat of attachment of assets, UCC attempted to endow its entire 50.9% shareholding in UCIL (with a value between US $80-100 million) to a newly-registered Charitable Trust in London, ‘The Bhopal Hospital Trust’. The CJM refused to recognise the Trust and declared the asset transfer ‘malafide’, designed to defeat the order of the court, and directed immediate attachment of all UCC’s movable and immovable property in India. But two years later, following a plea by UCC’s advocate, the Supreme Court modified the order to allow the sale of UCIL shares for the purpose of building a hospital. Attempts to petition for recall of this order suffered five adjournments, by which time the sale of UCC’s 50.9% shares had been completed. With this October 1994 sale, UCC seemed to have exited India for good and Indian courts effectively lost all direct power to compel it to face trial.
On April 10th, 1992, the CJM, Bhopal issued a non-bailable arrest warrant against Warren Anderson and requested the CBI to arrange extradition proceedings. Between 1992 and 1995, five questions concerning the extradition of Warren Anderson within the Lok Sabha (Indian parliament) received the same response: “the matter is under consideration”.
It was later revealed that the CBI didn’t begin sending the required paperwork to the Indian Ministry of External Affairs until September 1993 and the ministry only began to examine the case files in February 1995, a process which took until September 1998. At this point, Indian Attorney General Sorabjee queried whether the evidence on record would meet the probable cause standard of American Law and directed that advice should be obtained from a “competent American attorney”, a process which took a further three years.
The case against the Indian accused was separated and moved to a local court. The Indian accused appealed the framing of charges and, when these petitions were dismissed, filed appeals in the Supreme Court. The judge diluted the main charge from culpable homicide to that of a rash and negligent act, a charge carrying a maximum sentence of two years. The BGPSSS filed a review but, in March 1997, the Supreme Court dismissed the petition without a word of explanation.
As Director of the Indian Central Bureau of Investigation between May 1994 and July 1995, BR Lall was in charge of criminal prosecutions in the Bhopal case. In 2010, he went on record to claim that he was directly instructed by the Indian Minister for External Affairs at the time not to actively pursue the case against the foreign accused.23 Lall’s claim has subsequently been supported by two other former CBI directors.
While the extradition process continued, survivor groups filed a set of 15 claims against UCC and Anderson in New York under provision of the Alien Tort Claims Act and international human rights and criminal law. Attempts to summon Anderson failed, and the court made a summary dismissal of the claims.
In September 2001, a U.S. Appeals Court ruled that, despite their fugitive status, the 1989 settlement precluded further claims against UCC and Anderson. However, the court did allow that, “…the amended complaint asserts that Anderson exercised significant direct control over management of the Bhopal plant, including control over safety procedures, the plaintiffs submitted at least some evidence to support these allegations…”.
On April 29th, 2003 the US consular section in New Delhi was asked to notarize extradition documents. On May 20th, 2003, the Embassy of India in Washington D.C. handed over the case files on Anderson to the State and Justice depts. It had been 16 years since the inception of criminal proceedings before the extradition request was delivered to U.S. authorities.24
More than a year after the extradition request, the U.S. Department of State prepared the text of its refusal. “The Government of the United States has carefully considered the Government of India’s extradition request for Warren Anderson, and has concluded that the Government of India’s request cannot be executed, as it does not meet the requirements of Articles 2(1)25 and 9(3)26 of the Extradition Treaty.”27
In December 2005, Indian officials gave more details of the official reasons given for the refusal: “The US authorities rejected the extradition request on various grounds including purported failure to meet the requirements of dual criminality, omitting to show probable cause or intent to commit the crimes with which Mr. Warren Anderson was charged, lack of knowledge of accused Mr. Warren Anderson of any deficiencies in the Bhopal plant etc. The US Government also informed the Government of India that the request for extradition could not be executed because it did not meet the requirements of the provisions of the extradition treaty between India and the United States.”28
But, section 9(c) of the Indo-U.S. extradition treaty appears to allow for a large amount of discretionary judgment and this process, involving an examination of the available evidence, would necessarily become a part of the public record. In the event that a finding of extraditability was made, the case would be referred back to the Secretary of State for a final decision on the surrender of the person sought.29
The foreign accused in the Bhopal criminal proceedings have evaded all summonses and arrest warrants; whereas, the Indian accused were convicted, of the lesser charges, on June 7th, 2010 and issued the maximum sentences of two years. They remain at liberty, their convictions unsettled, and the likelihood of custodial sentences being served remote.
Despite overwhelming evidence that UCC’s direct management played an essential role in decisions that led to the degradation of safety at the UCIL pesticides factory and despite evidence that it maintained a ‘constructive presence’ within India throughout the time that the factory was conceived, designed, built and operated, attempts to procure appearance of its representatives in court have failed. A former Fortune 500 American multinational corporation has wantonly defied numerous judicial summons and remains a “proclaimed absconder”, or fugitive from justice. The fugitive UCC, more recently, has remained sheltered by U.S. multinational Dow Chemical, since 2001 its 100% owner, and since August 31, 2017, by the merged DowDuPont.
On February 26 2004, Bhopal Group for Information and Action (BGIA) filed an appeal in the CJM court, Bhopal, asking that Dow be summoned to ‘show cause’ why it does not produce its wholly owned subsidiary, UCC before the Bhopal court in the ongoing criminal case.
In January 2005 the CJM ordered that summons be issued to Dow and, in February, another wholly-owned subsidiary of Dow’s, Mumbai based Dow Chemical International Private Limited (DCIPL), filed an Appeal before the High Court seeking to quash the order- despite DCIPL previously claiming that it “has no direct nexus either in terms of holdings or in terms otherwise with TDCC USA and/or UCC.” [DCIPL affidavit before CJM, Bhopal, dated 03 September 2004].
In March 2005, the High Court Judge granted stay on the summons against Dow and listed the matter for 27 April 2005.
Given that DCIPL was not a party aggrieved or in any way affected by the 6 January 2005 order of the Bhopal CJM, there should have been no legal basis for entertaining DCIPL’s Appeal let alone granting a stay on the Bhopal CJM’s order.
On 7 June 2011 Mohan P.Tiwari, Chief Judicial Magistrate, Bhopal, stated:
“Mr. Warren Anderson, UCC and UCC Kowloon Hong Kong are still absconding and therefore, every part of this case (Criminal File) is kept intact along with the exhibited and unexhibited documents and the property related to this case, in safe custody, till their appearance.”
The stay was finally lifted by the MP High Court on 19 October 2012 and BGIA moved an application at the CJM court for issuing summons directly to Dow, at its Michigan HQ, on 13 January 2013.
Since it acquired UCC in 2001, Dow has maintained that it is a separate company from UCC and has no responsibility for Bhopal. In a recent letter to Amnesty International, Dow stated that “any efforts to directly involve [Dow] in legal proceedings in India concerning the 1984 Bhopal tragedy are without merit”.
Dow’s position shows a complete disregard for the Indian criminal process and the rights to justice and remedy of the survivors of Bhopal. Dow attempted to interfere with the judicial process in order to avoid being involved in court proceedings and, in a 2005 communication, revealed following a Right to Information request in India, Dow lobbied the Indian government to “implement a consistent, government-wide position that does not promote continued GoI [government of India] litigation efforts against non-Indian companies over the Bhopal tragedy”.
1: Committee on Government Assurances report, op cit. ch.2 para. 7
2: 304A Causing death by negligence – “Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” The Indian Penal Code, Chapter 16
3: Warren Anderson, a national of the USA, since 1982 the serving Chairman of UCC; Keshub Mahindra, an Indian national, Chairman of UCIL; V.P. Gokhale, an Indian national, Managing Director of UCIL; Kishore Kamdar, an Indian national, Vice President and in charge of the Agricultural Products Division of UCIL; Jagannath Mukund, an Indian national, Works Manager of the Bhopal Plant; Dr. R.B. Roy Choudhary, Indian national, Assistant Works Manager of UCIL; S. P. Choudhary, Indian national, Production Manager of the Bhopal Plant; Shakeel Ibrahim Qureshi, Indian national, Plant Superintendent; and K.V. Shetty, Indian national, Production Assistant at the Bhopal plant. The corporations accused were Union Carbide Corporation (UCC), Union Carbide Indian Limited (UCIL) and Union Carbide Eastern, Inc. (UCE), a wholly owned Subsidiary of UCC, based in Hong Kong but incorporated in the U.S.A..
4: “Crisis Management: planning for the inevitable”, Steven Fink, p.176
5: Indian Penal Code, section 304, ch. 16. Punishment for culpable homicide not amounting to murder.– Whoever commits culpable homicide not amounting to murder shall be punished with 1[ imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death. or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
6: “Crisis manager confirms: Arjun ordered release, at Rajiv behest”, Pranab Dhal Samanta , The Indian Express, Jun 11 2010. See http://www.indianexpress.com/news/crisis-manager-confirms-arjun-ordered-release-at-rajiv-behest/632365/0
7: The full bond reads: I, Warren M Anderson s/o John Martin Anderson am resident of 63/54 Greenidge Hills Drive, Greenidge, Connecticut, USA. I am the Chairman of Union Carbide Corporation, America. I have been arrested by Hanumanganj Police Station, District Bhopal, Madhya Pradesh, India under Criminal Sections 304A, 304, 120B, 278, 429, 426 & 92. I am signing this bond for Rs. 25,000/- and thus am undertaking to be present whenever and wherever I am directed to be present by the police or the Court. Signed: Warren M Anderson. Note: Mr. Anderson’s signature was obtained after the language of this bond was translated into English by Mr. Gokhale and read out to Mr. Anderson.
8: Act No. 21 of 1985, accessed at http://www.commonlii.org/in/legis/num_act/bgldoca1985390/ (30/01/10)
9: “The Union of India, Plaintiff, against Union Carbide Corporation, Defendant”, United States Southern District Court of New York, April 8, 1985, reproduced in “The Bhopal Tragedy, One Year After”, an APPEN report, Sahabat Alam Malaysia, 1985, pp.223-8
10: Memorandum of Law in Support of Union Carbide Corporation’s Motion to Dismiss These Actions on Grounds of Forum Non Conveniens, 31 July 1985, in In Re Union Carbide Corporation Gas Plant Disaster at Bhopal, India in December 1984, 634 F Supp 842 (SNDY 1986)
11: Guardian, December 7, 1984
12: “In the Aftermath of Bhopal, Anderson Speaks”, Hartford Courant, January 16, 1985
13: Case RC 3/84/ACU-I (Bhopal Gas Tragedy Case)
14: See Rosline George vs Union of India And Ors. on 14 December, 1990, ILR 1991 Delhi 308 & Extradition Treaty between the United States of America and Great Britain, December 22, 1931 (accessed at http://www.oas.org/juridico/mla/en/traites/en_traites-ext-usa-guy.pdf on November 30th, 2013)
15: “India Acts in Carbide Case”, Reuters, May 17, 1988
16: AP, July 18th, 1988
17: Committee on Government Assurances (2003-2004), Thirteenth Lok Sabha, twelfth report (Extradition of Former Chairman, Union Carbide Corporation)
18: Committee on Government Assurances (2003-2004), Thirteenth Lok Sabha, twelfth report (Extradition of Former Chairman, Union Carbide Corporation). Formal requests for International Judicial Assistance between the U.S. and Foreign States ordinarily concern the obtaining of civil or criminal evidence by means of a comity-based system of letters rogatory. Evidence may take the form of documents or witness statements.
19: The Sunday Observer, January 7th, 1989
20: Union Carbide Corporation v. Union of India (1989) 1 SCC 674 at 675.
21: Ibid at 678.
22: UNION CARBIDE CORPORATION Vs. RESPONDENT: UNION OF INDIA, 03/10/1991
23: http://www.ndtv.com/article/india/was-told-to-go-soft-on-warren-anderson-former-cbi-official-30511 (accessed on November 30th, 2013)
24: The Extradition Treaty that has been in operation between India and U.S.A. since 1942 was reaffirmed through diplomatic exchanges in April, 1966. The Treaty was revised, and a fresh Extradition Treaty was signed on June 25, 1997, which came into force on September 14, 1999. The procedure for extraditing criminals from U.S.A. has remained the same under both the old and the new Extradition Treaty.
25: Article 2 of Indo-US extradition treaty states: “An offense shall be an extraditable offense if it is punishable under the laws in both Contracting States by deprivation of liberty including imprisonment, for a period of more than one year or by a more severe penalty.”
26: Article 9, clause 3 op cit: “such information as would justify the committal for trial of the person if the offense had been committed in the Requested State.”
27: Fax, May 25th 2004, Ashley Deeks, United States Department, Office of the Legal Adviser, Washington D.C. 20520
28: Written reply by the Ministry of Chemicals and Fertilisers to a parliamentary question, December 2005
29: The process is described in a Press Guidance note entitled “Extradition Request for Warren Anderson”, obtained by FOIA request in the United States.