A Simple History of the Criminal Case
- Criminal proceedings for “culpable homicide not amounting to murder” launched against US-based Union Carbide Corporation within 24 hours of the gas leak.1
- Nine individuals and three corporations accused, with one individual and two corporations based overseas.
- Foreign corporations charged: Union Carbide Corporation (UCC), incorporated in New York State, and wholly-owned subsidiary Union Carbide Eastern, Hong Kong (UCE).2
- 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.
- Warren Anderson, Union Carbide Chairman, accused foreign company official, arrived in Bhopal on December 6th. A trained lawyer, Anderson admitted he had decided to go to Bhopal “to head off lawsuits”.3
- Anderson was arrested upon arrival in Bhopal on December 7th and released on bail despite being charged with a ‘non-bailable’ offence4. Anderson flew to Delhi in a state-owned aircraft and left India two days later.
- Case taken over by India’s Central Bureau of Investigation (CBI) on December 9th, 1984.
- In March 1985, Government of India (GoI) 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 disaster8 and proceeded to act as plaintiff seeking damages in the US courts.
- UCC responded by moving court to dismiss on grounds of US being an improper forum and invoked doctrine of separate legal personality: “The Bhopal plant was managed, operated and maintained entirely by Indians in India.” 5
- Various summons issued against Anderson and UCC but not served and, in May 1988, Robert Berzok, UCC’s director of communications stated: “Union Carbide will not appear because, as a United States corporation, it is not subject to India’s jurisdiction.”6
- In February 1989 the Chief Judicial Magistrate (CJM), Bhopal, issued non-bailable arrest warrant against Anderson, UCC and UCE, for repeatedly ignoring summons.
- Warrants not delivered, and proposed inspection of the UCC facility at Institute, West Virginia, intended to establish any differences between it and the Bhopal plant cancelled.
- February 14th, 1989, Indian Supreme Court panel of judges interrupt civil appeal hearings and proposes full and final settlement between India and Union Carbide.
- 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.”7
- March 1989, public protest against settlement result in filing of review and writ petitions in the Supreme Court on 10th March 1991.
- March 1991, Supreme Court revokes criminal immunity granted to UCC and all accused in the Bhopal gas leak disaster case.
- Court also orders the Government of India to construct a 500-bed hospital, for disaster survivors, with construction and running costs for eight years borne by UCC and UCIL.
- 1991 Review judgement also upheld the civil settlement, 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.
- Summons served on Warren Anderson, including an announcement in the Washington Post requiring his presence in court.
- Anderson ignored summons and, on February 1, 1992, was declared ‘absconder’, along with two other entities, UCC (USA) and Union Carbide East (Hong Kong).
- After attaching the shares and properties of Union Carbide India (UCIL) to ensure appearance in court, Magistrate separated accused in the matter, since three, Anderson, UCC and UCE, were absconding.
- Remaining eight accused, including UCIL’s Chairman Keshub Mahindra and Managing Director V.P. Gokahle were committed to trial in Sessions Court, Bhopal, on charges of several counts, including culpable homicide. Charges appealed and upheld in Madhya Pradesh High Court, and later appealed in Supreme Court.
- In 1994, Supreme Court allowed UCC to sell its shares in UCIL to fund the Bhopal Hospital Trust, without enquiring why UCC could not procure the funds by other means. Despite UCC’s non-appearance in court, there now remained no means of forcing compliance, since UCC no longer owned any assets in India.
- 1996, appeal to the Supreme Court quashes culpable homicide charges, against the Indian accused, directed them to be charged under section 304-A of the Criminal Procedure Code- of causing death by negligence.
- 2002, CBI apply in the CJM, Bhopal to have main charge against Anderson diluted from culpable homicide to criminal negligence – a non-extraditable offence. Following 22-day hunger strike by members of survivor organisations, CJM rejected application and directed CBI to pursue extradition.
- More than a year after the extradition request, US Department of State present 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)8 and 9(3)9 of the Extradition Treaty.”10
- 2001, UCC merged with Dow Chemical (Dow) and On February 26 2004, Bhopal Group for Information and Action (BGIA) file appeal in the CJM court asking that Dow be summoned to ‘show cause’ why it does not produce wholly owned subsidiary, UCC before the Bhopal court in the ongoing criminal case.
- January 2005, the CJM orders summons be issued to Dow and, in February, another wholly-owned Dow subsidiary, Mumbai based Dow Chemical International Private Limited (DCIPL), files appeal before High Court seeking to quash 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].
- March 2005, High Court Judge grants stay on summons against Dow and lists matter for 27 April 2005. DCIPL was not a party aggrieved or affected by the 6 January 2005 order of the Bhopal CJM and there should have been no legal basis for entertaining DCIPL’s Appeal.
- June 7th, 2010, Indian accused convicted of lesser charges and issued maximum sentences of two years. They remain at liberty appealing conviction, and the likelihood of custodial sentences being served remote.
- 7 June 2011, CJM, states: “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.”
- Stay lifted by MP High Court on 19 October 2012 and BGIA move application at CJM court for issuing summons directly to Dow, at its Michigan HQ, on 13 January 2013.
- Between 2013 and 2016 CJM issued four notices summoning Dow to explain its subsidiary’s absence, none of which were served on Dow by the US Department of Justice (DoJ), despite U.S. being signatory to a Mutual Legal Assistance Treaty on Criminal Matters with India.
- On November 19, 2016, an application was filed urging the CJM to proceed ex parte in terms of the orders of the CJM dated 15.06.2004 and 06.01.2005 against the Dow Chemical Company for wilful violation of summons.
- Bhopal courts continue to issue notices but Dow refuses to acknowledge them. A new procedure allows the Bhopal courts to serve notices by electronic means and, since January 2017, multiple summons have been served directly on Ms. Amy Wilson, Corporate Secretary and Associate General Counsel of Dow.
- Neither Dow, nor Amy Wilson, has attended any hearings to which they have been summoned.
1: Committee on Government Assurances report, op cit. ch.2 para. 7
2: 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..
3: “Crisis Management: planning for the inevitable”, Steven Fink, p.176
4: 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.”
5: 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)
6: “India Acts in Carbide Case”, Reuters, May 17, 1988
7: Union Carbide Corporation v. Union of India (1989) 1 SCC 674 at 675.
8: 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.”
9: 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.”
10: Fax, May 25th 2004, Ashley Deeks, United States Department, Office of the Legal Adviser, Washington D.C. 20520