I had to regretfully decline the invitation to contribute to the Seminar issue [544, December 2004] dedicated to the 20th anniversary of the Bhopal catastrophe because of my resolution not to share any public platform with Fali Nariman ever since he assumed the UCC advocacy. I now make an exception because even some movement colleagues have read his contribution here as offering a veiled apology for his advocacy of an unjust cause and an unscrupulous client. No close reading of what he now says remains necessary to dispel this strangely erroneous impression. Instead, what we really get here is an elaborate apologia for the unconscionable settlement that he so assiduously actually promoted.
All that Mr. Nariman actually says now in recalling the words of Lord Eldon (perhaps because the culture of the Anglophile Bar lacks utterly any serious postcolonial apologetic vocabulary!) that ‘one has lived long enough to find out that one may be very angry and very wrong!’ (p. 27). All that he now says is that he was ‘very wrong’ in opposing before the Supreme Court the direction for interim relief issued by the Madhya Pradesh High Court. He does not say that he was equally very wrong when he contested the High Court’s ruling holding the UCC absolutely liable at law for causing this mass disaster or ‘toxic tort’. In a contemporaneous article in the Times of India I praised both these aspects; Mr. Nariman only applauds now the worse half. Thus even now he reiterates the ‘justice’ of his conviction that he was indeed very wholly right in contesting any judicial upholding of the UCC legal liability; indeed he went so far as to finally induce the Supreme Court Justices to settle the claim and subsequently fight tooth and nail our petition urging the court to review its ‘settlement’ orders and even all further associated proceedings!
Mr. Nariman now insists that we should ensure an adequate legislation that guarantees interim relief before the victims of ‘mass tort action... can establish and obtain a final executable decree for damages.’ But he still endorses a worldview that justifies the notion that considers it ‘more politic to subordinate the security of individuals and not to burden the enterprise of inevitable accidents’ (p. 27).
Mr. Nariman sees no difference between the accident that occurred in 1982 at the Bhopal UCC plant and the catastrophe that followed in 1984! Had the UCC then not altogether suppressed its own Internal Security Audit Report following the 1982 incident, the 1984 catastrophe would have simply not occurred. Far from being any ‘inevitable accident’, the catastrophe was entirely avoidable and ought to have been avoided. This surely is the implication even of the belated and effete UCC gesture acknowledging, on the eve of the 15th anniversary, its ‘moral’ responsibility. Mr. Nariman has no use even now for this acknowledgement!
Instead, he informs his readers that the law based on ‘fault as an essential element in tortiuous liability has moved in cycles’ (p. 27). This otherwise seductive analysis of the cyclical movement of tort liability fails, even now, to grasp the distinction between ‘inevitable accidents’ and managerially planned multinational human rights mayhems that create extensive catastrophes and mass disasters in the Third World or the Global South. Clearly, much more is at stake in Bhopal than what the throwaway phrase ‘security of individuals’ can ever possibly suggest. Even Mr. Nariman, surely in his private moment, ought to discern the difference between ‘inevitable accidents’ and a crime against humanity.
Indeed even now, Mr. Nariman is content to state that because ‘modern technology, however safe, is not infallible’ and that because the ‘victims of misfortune, more often than not, are unable to pin down the accident-producing activity to an ascertainable fault’, we must all search for ‘new rules of law’ that provide a regime of interim compensation or relief (p. 27). This welcome assertion in principle altogether obscures the fact that the forensic prowess of Mr. Nariman actually converted the injustice of the horrid acts of multinational corporate malefic governance into a simple and stark misfortune for the Bhopal victims! Mr. Nariman would have indeed argued differently had the catastrophe occurred in Mumbai (the original location proposal for the UCC plant in the vicinity of the civilian nuclear research facility and power station).
In any event, Mr. Nariman need not have taken the trouble, so late in the day, to make any fervent plea for interim relief in order to make this quasi-confessional statement that would surely have bewildered any priestly reception in a confessional chamber! As a matter of fact, our strategy of patiently queuing up at the durbar (where he met ordinary citizens with grievances) held by Prime Minister V.P. Singh had already resulted in his directions awarding interim relief (howsoever meagre) for the Bhopal violated, pending the outcome of the litigation. (Incidentally, on that occasion the prime minister was kind enough to confer upon me the status of an honorary citizen of Bhopal! In response to my question: ‘How long shall we have to wait’ he put his hand on my shoulder and said: ‘I will do my best; please return to Bhopal and spread the word of assurance!’).
Mr. Nariman still thinks that the Supreme Court ‘settlement’ orders, which he no doubt mightily helped fashion for the UCC, were fully justified on the spurious reasoning that he still continues to offer (pp. 27-28). Mr. Nariman, as the architect of the settlement orders, has to say only this to the Bhopal violated on the 20th anniversary: ‘Settlement is a poor guide to decision-making, but toxic torts do generate a lot of it.’ A nice play on words, indeed but also, by the same token, equally a ‘poor guide’ for understanding any literally bloody-minded justificatory performances for the ‘settlement’ even Twenty Years After!
Mr. Nariman’s invocation of Chief Justice Pathak’s sonorous invocation (p. 28) is the ultimate perfidy. Pathak ostensibly and extravagantly laments, in his judicial performance, that the friends of Bhopal violated ‘did not channel itself in any effort to put together a public-supported relief fund so that the victims were not left in distress, till the final decision in the litigation.’ This is a scandalous lie because, as already noted, we persuaded the V.P. Singh Cabinet to put some interim relief in place. Further, as far as we know, neither Pathak (who ordered the unconscionable settlement), nor Venkatachaliah (who ignobly strove to legitimate this against all canons of jurisprudence) have cared, as far as I know, to contribute even a farthing from their earnings and savings for the amelioration of the Bhopal violated humanity. Regardless, may I now publicly urge Mr. Nariman to at least dedicate all the attorney fees earned from defending the UCC towards the costs of medical and economic rehabilitation of the Bhopal violated? Many of us have dedicated our far more meagre earnings for the cause!
Mr. Nariman (p. 29) laments that none of Supreme Court’s directions for the amelioration of the Bhopal violated have been implemented, either in letter or spirit. But, surely, these smacked of originary constitutional insincerity because of the way in which the court upheld the settlement amount and justified its ‘adequacy’, without ever fully taking into account the scale of deaths and the inordinate intensity of injuries and suffering for the present and future generations of the Bhopal violated.
In any event, Mr. Nariman now occupies an eminent position as a learned nominated member of the Rajya Sabha and in that role he may develop and press a ‘New Deal’ for the still suffering Bhopal victims. Incidentally, his legislative tenure will alas also coincide with the Silver Jubilee of the catastrophe. Yet, hitherto his most spectacular initiative in that role consists in launching a Private Member’s Bill confiscating the daily allowances of the variously absentee members of the Indian Parliament.
Thus far, I have addressed you as Mr. Nariman. Now, in conclusion, may I address you as dear Fali (as a marker of our pre-Bhopal era esteemed friendship) to join us in our struggle for the restoration of justice to the Bhopal violated humanity? Both of us are now, indeed, in the evening of our lives, or more hopefully put, in its late afternoon! I fancy that we both remain indefatigably dedicated, if I may say so, to a vision of the rule of law that incrementally, even when not progressively, tends to make governance just, power accountable, and state ethical.
No doubt, dear Fali, our understandings of the future of human rights differ both in visions and methods of pursuit. Even so, surely our difference ought not to remain so unbearable/unbridgeable as to deny an order of our common human rights responsibilities of working together to ensure that the Bhopal violated humanity may no more further, and forever, remain re-victimized by the culture of impunity so heavily manifest (to quote Prince Hamlet) in the arrogance of power and the ‘insolence of office?’
The founder editor of Seminar, Romesh Thapar, valiantly endeavoured to combat injustice and rightlessness of the Internal Emergency of 1975-77. He imagined the constitutional right of the free press (and now electronic media) in terms of servicing the defence of those disarticulated by dominant formations of power. The UCC, and its normative cohorts, now declare an even more perennial enduring state of emergency against the present Bhopal violated and their next of kin in a relentlessly globalizing India, and indeed beyond. Surely, Seminar must now stand up and be counted as an authentic voice for the Bhopal violated?
Upendra Baxi
Warwick, UK
Dear Mr. Nariman, we read your article, ‘Some Reflections’ in the Seminar issue (544, December 2004) on the Bhopal gas disaster with great interest. As people who have great respect for your work, especially recently on Gujarat, we were surprised to learn during our research on the Bhopal disaster that you represented Union Carbide in the Indian courts against the victims. We found your article thought provoking, but it left us with some questions.
You argue in your article that the ‘toxicity of anger’ of victims in toxic tort cases like the Bhopal gas tragedy results in a ‘built-in inhibition to an early settlement of claims at a reasonable figure’ (emphasis added). In the Bhopal case, the settlement was based on a set of unknowns, such as the number of deaths and the nature and extent of personal and property damage. The present official death toll is five times the number on which the settlement was based. Damages have been estimated at billions of dollars. At no time before the settlement was announced were the victims consulted. Under such circumstances, can the Bhopal settlement be accurately characterized as ‘reasonable’?
You also argue in your piece for the creation of a fund using money from the government, voluntary contributions, and industries themselves to provide immediate relief for victims of man-made disasters, a practical and noble idea. Yet, when the Bhopal disaster took place, no such fund existed. In its absence, what is the appropriate solution to give timely and adequate compensation to victims of man-made disasters?
Your article dismisses the idea of the company being held liable, the ‘polluter pays’ principle, an established principle in both Indian and international law. You suggest that this is a ‘strange response’ evoked purely by ‘anger against the industrial enterprise believed to be responsible.’ You also rebuke ‘do-gooders’ from ‘affluent sections of society’ who ‘share the rage of the victims’ against Union Carbide but failed to put together a public-supported relief fund for the victims.
It strikes us as strange that you believe that making the public in a developing nation pay for the negligence of a transnational corporation attempting to take advantage of cheap labour and lax environmental regulations makes more sense than asking the polluter to pay. Keeping in mind that the Indian government originally asked for over $3 billion from Union Carbide in the American courts for damages, how much money do you think is a reasonable amount for the people of India to have given to Bhopal victims?
Since the disaster, along with the survivors, numerous ‘do-gooders’ including doctors, lawyers, environmentalists, activists, journalists, students, and many others have worked to raise funds, treat victims, record the effects of the disaster, study on-going pollution from the plant site, and bring attention to the continuing plight of the victims in Bhopal. The attention the 20th anniversary of the disaster received was an indication of the strength of the collective action of so many survivors and ‘do-gooders’ from all over the world. It is our hope that the continued international attention paid to the Bhopal gas disaster will bring us closer to an international legal framework that will cover the actions of multinationals in all countries in which they operate, and ensure that victims of man-made accidents secure speedy compensation and justice.
Dear Mr. Nariman, as ‘do-gooders’, we admit fully, we have still not done enough. But we ask you sincerely, what example have you, as a distinguished lawyer, an affluent member of society, and a Member of Parliament, set for us in aiding the victims of Bhopal?
Vijay K. Nagaraj and Nithya V. Raman
Rajsamand, Rajasthan
Fali Nariman’s response
LAST November I was invited to contribute my reflections on the Bhopal tragedy – 20 years down the road. I agreed. The article was published in the December 2004 issue of Seminar.
Obviously Professor Baxi read the article. Obviously, he did not like it. And he also did not like the idea that some readers may find the suggestions useful or interesting. On 3 January he e-mailed an ‘Open Letter to Fali Nariman’ to Seminar. It is only through the editor’s good offices, that I came to know that he had written such a letter: Baxi’s Open Letter was forwarded to me by Tejbir Singh on 11 January asking me if I cared to respond. I said I would, and thanked him for the courtesy.
Prof. Baxi’s opening sentence is a trifle pretentious: ‘I had to regretfully decline the invitation to contribute to the Seminar issue dedicated to the 20th anniversary of the Bhopal catastrophe because of my resolution not to share any public platform with Fali Nariman ever since he assumed the UCC advocacy.’ Sounds good – but not accurate. Baxi never made known to me his self-resolved ostracism of Nariman: on the contrary, on Professor Baxi’s infrequent visits to India, whenever we met he always greeted me with warmth and cordiality. The opening sentence takes me by surprise, as does the rest of the letter. Till I read his letter I did not know that Baxi had been invited by the editor to contribute an article for the December issue. Had I known that he wanted to do it solo, I would have gladly told the editor – ‘Please publish his article and send back mine.’
Baxi says little about the points made in my article nor does he suggest anything about the lessons to be learnt from it. Instead he fulminates at my shortcomings in the Bhopal case, in the course of which he severely castigates two Chief Justices of India as well – for initially approving the Bhopal settlement, and then re-endorsing the court’s approval once again in a review. As are all apex courts in any country, the Supreme Court of India is ‘infallible’, only because its judgments are final. And since 1991 (the last of the three major decisions of the Supreme Court in the Bhopal case), there has been no attempt on the part of jurists like Baxi (despite all the sound and fury in his letter) to move the court to reconsider or revise its findings in any of its judgments: on the basis of new material or any other credible evidence.
But criticism of decisions of courts, and of lawyer’s arguments in them, howsoever motivated and howsoever worded, are part of the give-and-take of a practising lawyer’s life, and also all in the course of a day’s work of a judge. And I would have left it at that.
But I never realised till I read this ‘open letter’ that Baxi had so much pent-up personal hatred for me: I have none for him. He apparently bears me a 20 year-old-grudge – that I should never have agreed in the first place to appear for UCC in the civil case. On the (sometimes questionable) assumption that as one grows older one becomes wiser as well, he may be right. The problem about human failings is that sometimes one lives to regret them. But I too have a grudge against Baxi – not a 20 year one, but a 30 year old one. He writes that: ‘The founder editor of Seminar, Romesh Thapar, valiantly endeavoured to combat injustice and rightlessness of the Internal Emergency of 1975-76’. Yes, Romesh Thapar did. But regrettably, Baxi did not. If he did combat the excesses of the Internal Emergency it was only after it was lifted, and this puts him in an entirely different league from the founder editor of Seminar. After I resigned as Additional Solicitor General of India on 26 June 1975 in protest against the imposition of the Internal Emergency, I heard and saw Professor Baxi extolling its virtues in broadcasts to the nation over Doordarshan, not in one broadcast but in several, in one of which he described the Internal Emergency as an act of rare statesmanship, necessary for disciplining the populace of India! My family and I remember this as vividly as Baxi remembers my role in the Bhopal civil case. Another problem with human failings is that one seldom recalls one’s own.
Frankly, I believe – and I say this generally and without attribution to anyone – that all human beings, all of us, in whatever sphere of activity we operate, should try and avoid deserving the plaudits of populism. Many years ago, the noted commentator Alistair Cooke wrote a brief character study of King Edward VIII – the man who abdicated the English throne to marry a divorced socialite. Alistair Cooke’s little piece was not flattering to the monarch of the moment, but the punch-line at the end was simply devastating:
‘The most damning epitaph you can compose about Edward – as a Prince, as a King, as a man – is one that all comfortable people should cower from deserving: he was at his best only when the going was good.’
I now respond to the letter of Vijay K. Nagaraj and Nithya V. Raman. Their doubts and queries are far less choleric; and in a tragedy of such grave proportions, a rational answer to the queries must be attempted. First they ask: ‘What is the appropriate solution to give timely and adequate compensation to victims of man made disasters.’ The answer is that the Bhopal tragedy highlighted the need to set up on a permanent basis a National Disaster Fund so that timely relief to those who suffer in a future man-made disaster is promptly available, and does not have to await the outcome of a legal proceeding to establish liability. In England there is a Disasters Emergency Committee set up on a permanent basis which has widespread support of the media, the banks and other agencies. Its rapid response network functions so well that in November 1999 it was able to launch a national appeal, not for any disaster in the United Kingdom but for the cyclone in Orissa: within three weeks it was able to raise from the British public £4.5 million, an eye-opener of what can be done if the will and the network is there.
Nagaraj and Raman then state: ‘Keeping in mind that the Indian government originally asked for over $3 billion from Union Carbide in the American courts for damages, how much money do you think is a reasonable amount for the people of India to have given to Bhopal victims?’ They also point out that at no time before the settlement was announced were the victims consulted; they state that the death toll is now five times the number of deaths on which the settlement was based. And the query they pose is, ‘Whether: under such circumstances, could the Bhopal settlement be accurately characterised as ‘reasonable? And if not, what should be done?’
Good questions. But all these questions have been raised before, and they have all been answered in binding decisions of the Supreme Court of India – binding on us all. First in the judgment dated 4.5.1989 of the Constitution Bench of the Supreme Court (of five judges presided over by Chief Justice Pathak) explaining the reasons why the court approved the settlement of 15 February 1989 (reported in 1989 3 SCC 38), next in the judgment dated 22.12.1989 of another Constitution Bench decision of five judges presided over by Chief Justice Mukharjee, upholding the validity of the Bhopal Act (in Sahu’s case: 1990 1 SCC 613), and third, in the judgments of Chief Justice Mishra and of Justices Venkatachaliah and Ahmadi reported in the Constitution Bench decision of five judges dated 3.10.1991 which heard and negatived the review petitions against the court approved settlement [(1991) 4 SCC 584]. The last case specifically dealt with the point about non-consultation with the victims and whether it vitiated the settlement, and as to whether the settlement fund was inadequate and if it ever became inadequate what the remedy was. I will refer to the relevant findings of the court as expressed in these judgments.
First, by its cryptic order dated 14.2.1989 [reported in 1989 (1) SCC 674] the Constitution Bench of the court directed that there be an overall settlement of the claims in the Bhopal suit for $470 million. The reasons for this order were set out in a subsequent order of the Constitution Bench dated 4.5.1989 [reported in 1989 (3) SCC 38] as to why and how the court had arrived at the settlement figure of 470 million US dollars and why the court considered this sum to be ‘just, equitable and reasonable’ for settlement of all civil claims. The Attorney General representing the Union of India (which under the Bhopal Act statutorily represented all claimants) had himself suggested to the court that a minimum of $500 million be made the basis of the settlement, and the court’s judgment dated 4.5.1989 specifically mentions this fact. The judges then set out in detail (in paras 22-29) the estimates they had made for adopting the total quantum of compensation. But they had also then contemplated the possibility of the judicial approval of the settlement being overturned. At page 51 of 1989 (3) SCC this is what they said:
‘…If, owing to the pre-settlement procedures being limited to the main contestants in the appeal, the benefit of some contrary or supplemental information or material, having a crucial bearing on the fundamental assumptions basic to the settlement, have been denied to the court and that, as a result, serious miscarriage of justice, violating the constitutional and legal rights of the persons affected, has been occasioned, it will be the endeavour of this court to undo any such injustice. But that, we reiterate, must be by procedures recognised by law. Those who trust this court will not have cause for despair.’
These observations then led to a series of review petitions and in the subsequent proceeding (in the review petitions) – which was argued for several weeks – the main challenge was that ‘the quantum of compensation settled was grossly low.’ After investigation, the Constitution Bench negatived this main challenge after specifically noting that the claim for compensation made by the Union of India in the Bhopal suit was for a sum of $3 billion (Rs 3900 crore). ‘The voluminous documentary evidence placed on the record of the present proceedings,’ the court said, ‘does not make out a case of inadequacy of the amount necessitating a review of the settlement.’
It was then contended that: ‘The "court assisted settlement" was as between, and confined to, the Union of India on the one hand and UCC and UCIL on the other. The Original Suit No.1113 of 1986 was really and in substance a representative suit for purposes and within the meaning of Order XXIII Rule 3B CPC inasmuch as any order made therein would affect persons not nominee parties to the suit. Any settlement reached without notice to the persons so affected without complying with the procedural drill of Order XXIII Rule 3-B is a nullity.’
It was also contended that: ‘In concluding that the settlement was just and reasonable the court omitted to take into account and provide for certain important heads of compensation such as the need for and the costs of medical surveillance of a large section of population, which though asymptomatic for the present was likely to become symptomatic later having regard to the character and the potentiality of the risks of exposures and the like future damages resulting from long term effects and to build in a "re-opener" clause.’
And there was the still further contention viz: ‘Does the settlement require to be set aside and the Original Suit No.1113 of 1986 directed to be proceeded with on the merits? If not, what other reliefs require to be granted and what other directions require to be issued?’
Each of these contentions were answered in detail in the main judgment (delivered by Justice Venkatachaliah, speaking again for a Constitution Bench of the Court) – all these contentions were, after due consideration, rejected (1991 4 SCC 584).
As to the settlement fund (the 470 million US dollars paid in by UCC) being ultimately found inadequate (because of larger number of deaths in future or the like the court said: ‘198. After careful thought, it appears to us that while it may not be wise or proper to deprive the victims of the benefit of the settlement, it is, however, necessary to ensure that in the – perhaps unlikely – event of the settlement fund being found inadequate to meet the compensation determined in respect of all the present claimants, those persons who may have their claims determined after the fund is exhausted are not left to fend for themselves. But, such a contingency may not arise having regard to the size of the settlement fund. If it should arise, the reasonable way to protect the interest of the victims is to hold that the Union of India, as a welfare state and in the circumstances in which the settlement was made, should not be found wanting in making good the deficiency, if any. We hold and declare accordingly.’
The court said that requiring the Union of India to make good the deficiency did not impute to it the position of a joint tortfeasor but only a welfare state. However, on this point (and on this point alone) one of the judges (Justice Ahmadi) dissented. But in dissenting this is what Justice Ahmadi said (1991 (4) SCC at p. 694 para 220):
‘220 …If I had come to the conclusion that the settlement fund was inadequate I would have done the only logical thing of reviewing the settlement and would have left the parties to work out a fresh settlement or go to trial in the pending suit. In the Sahu case as pointed out by Mukharji, C.J. the victims had not been able to show any material which would vitiate the settlement. The voluminous documentary evidence placed on the record of the present proceedings also does not make out a case of inadequacy of the amount, necessitating a review of the settlement. In the circumstances I do not think that the Union of India can be saddled with the liability to make good the deficit, if any, particularly when it is not found to be a tortfeasor…’
Then the important question posed to itself by the court was: ‘But what about those who are presently wholly asymptomatic and have no material to support a present claim? Who will provide them medical surveillance costs and if at some day in the future they develop any of the dreaded symptoms, who will provide them with compensation? Even if the award is a ‘once and for all’ determination, these aspects must be taken into account.’
On this, the following findings were recorded and the following directions given:
(a) ‘For a period of eight years facilities for medical surveillance of the population of the Bhopal exposed to MIC should be provided by periodical medical checkup. For this purpose a hospital with at least 500 beds strength, with the best of equipment and facilities should be established. The facilities shall be provided free of cost to the victims at least for a period of eight years from now. The state government shall provide suitable land free of cost.
(b) ‘In respect of the population of the affected wards (excluding those who have filed claims), Government of India shall take out an appropriate medical group insurance cover from the Life Insurance Corporation of India or the General Insurance Corporation of India for compensation to those who, though presently asymptomatic and filed no claims for compensation, might become symptomatic in future and to those later-born children who might manifest congenital or prenatal MIC related afflictions. There shall be no upper individual monetary limit for the insurance liability and the period of insurance shall be for a period of eight years in future. The number of persons to be covered by this group shall be about one lakh persons. The premia shall be paid out of the settlement fund.
(c) ‘On humanitarian consideration and in fulfilment of the offer made earlier, the UCC and UCIL should agree to bear the financial burden for the establishment and equipment of a hospital, and its operational expenses for a period of eight years.’
When the letter of Nagaraj and Raman raise rational questions about the Bhopal case, I only offer them quotes from judgments of the Supreme Court. This is not in any spirit of one-upmanship, but only because the specific questions that trouble them appear to have been answered in successive decisions of the apex court. If they have been wrongly answered (as Prof. Baxi has in his open letter repeatedly suggested) the mandate of the Constitution is that judgments of the highest court until reversed are binding on us all: and no one, not even Prof. Baxi has ever approached the court that its recorded findings be reversed.
In his letter, Prof. Baxi has described Chief Justice Pathak’s judgment in 1989 (3) SCC 38 in ordering the settlement as ‘unconscionable’ and has characterised it as ‘the ultimate perfidy’. He has then condemned Chief Justice Venkatachaliah’s judgment in 1991 (4) SCC 584 (refusing to again review and set aside the settlement) as ‘ignobly striving to legitimate this (settlement) against all canons of jurisprudence.’ But we must leave ‘jurisprudence’ and high-sounding phrases to jurists: it is not given to lesser mortals to castigate and tear apart judgments of successive Constitution Benches of the Supreme Court – not one judgment, not two judgments, but three of them, Benches headed by different justices (Pathak CJ, Mukharjee CJ, and Mishra CJ). Besides, harsh words do not undo judgments nor findings made in them. And under our system of jurisprudence, Parliament cannot by legislation undo or set aside findings made in judgments of the highest court: that can only be done by the court itself.
Another comment by Nagaraj and Raman is that they understand my article to have suggested that the UCC could not be held liable on the polluter-pays principle. Far from it: it is on this very principle that the settlement of 470 million US dollars was fashioned, agreed to by the Union of India through its Attorney General, and accepted as reasonable, fair and valid by the Supreme Court: not once (1989 3 SCC 38), not twice (1990 1 SCC 613), but again a third time after contest (1991 4 SCC 584) and after hearing counsel for all NGOs who chose to appear.
Then again, it is not I who had rebuked the ‘do-gooders’. Far from it. It was the court which had said that: ‘It is indeed a matter for national introspection that public response to this great tragedy which affected a large number of poor and helpless persons limited itself to the expression of understandable anger against the industrial enterprise but did not channel itself in an effort to put together a public supported relief fund so that victims were not left in distress till the final decision in the litigation.’ I quoted this in my article: In his letter, Baxi characterises the quote from the judgment of Chief Justice Pathak as a ‘scandalous lie’ – but no attempt was made by Baxi or by anyone else at any time to apply to the court to delete this paragraph as ‘scandalous’ or even as ‘false’ or ‘incorrect’.
Last, as to what example can I set or have I set – ‘for aiding the Bhopal victims’ – I confess ‘none’: except to draw pointed attention to the grave deficiencies in our law (and what the Supreme Court had said way back in 1990 about the grave deficiencies in our existing law and the need to reform it) in order to guard against, and especially in order to guard against future Bhopal-like disasters. That was in fact the thrust and purport of my article headed, ‘Some Reflections’.
Fali Nariman
Delhi
THE Bhopal gas disaster is a cause that has survived twenty years, a cause that has refused to disappear. Even while it is a symbol of corporate criminality and impunity, it has not been allowed to be reduced to a mere symbol. There are a range of persons and groups who have worked at ensuring that the Bhopal gas disaster does not get consigned to the archives. Professor Baxi’s ‘open letter’ provokes me to give at least some of them a name.
Prof. Baxi refers to the ‘ordinary citizens’ who met Prime Minister V.P. Singh in an effort to convince him that the government should accept its obligation to provide interim relief. The ‘affidavit on behalf of the Union of India with regard to the grant of interim relief to victims of the Bhopal gas leak disaster’, dated 12 March 1990 lists out seven ‘social action groups which have been representing the victims of the gas leak disaster’ who held a meeting with the government on 3 February 1990, which preceded the government’s decision. And these were: Bhopal Gas Peedit Mahila Udyog Sanghatan, Zahreeli Gas Kand Sangarsh Morcha, Bhopal Gas Peedit Sangarsh Sahyog Samiti, Jana Swasthya Kendra Bhopal, Bhopal Group for Information and Action, Gas Peedit Sangarsh Morcha and Gas Rahat Evam Punarwas Front. In 1986, when the district judge was petitioned to direct UCC to deposit a sum that could be expended in providing interim relief, it was the Zahreeli Gas Kand Sangarsh Morcha and Jana Swasthya Kendra who were the interveners/applicants.
It is important to recognize that the interim relief did not come from the state; it was money from the settlement fund that was used to pay the victims the small sums handed out as relief. These sums were then deducted when the compensation amounts were finally paid. The state had a hold on their money, and merely paid out of it. Today, when the order of the Supreme Court is being implemented where it directed the disbursement to the victims, pro rata, the monies left with the state, it is victims’ groups in Bhopal who are following the exercise through, contesting the official interpretation which will allow a further deduction to be made because the last time round victims were handed over amounts which were reduced by the recovery of interim relief. Even where victims’ organizations have fallen out with each other, on personality and on method, the core issues of justice to the victims, state obligations and corporate conduct have retained centrality.
Since Professor Baxi writes to the lawyer for the offending corporation advocating that he ‘dedicate all (his) attorney fees earned from defending the UCC’ to those impacted by the disaster, and since he refers to those with ‘far more meagre earnings who have contributed’, a surprising category of persons who emerged committed through the litigation ought to find mention: the lawyers for the victims. The virtual legal aid that lawyers in the Supreme Court provided has been a striking feature of this judicial venture. Indira Jaisingh, R.K. Garg, Anil Nauriya, Vibhuti Jha, Prashant Bhushan, Shanti Bhushan, Krishna Mohan Shukla and Muralidhar come immediately to mind, as does Rajan Sharma who has been dogged in his determination to use the US courts to get justice in Bhopal. I am sure I am missing names, as Rob Hager, and those who know them all could help acknowledge the skills and commitment they may have brought to the cause of the victims and survivors of Bhopal. Then there are the other professions, as represented, for instance, by the Medico Friends Circle, the International Medical Commission on Bhopal, or persons such as Ward Morehouse and a host of others who have worked not for lucre but so as not to let Bhopal die, and to demand accountability for corporations that bring risk and hazard amidst populations that are then rendered vulnerable.
When Prof. Baxi invites Mr. Nariman (or ‘Fali’) to ‘(work) together to ensure that the Bhopal violated humanity may no more be further, and forever, victimized,’ what gets left out is the work that the survivors, their local and global supporters, some professionals and other actors are doing to break through the ‘culture of impunity’ to which he refers. Professor Baxi’s proposal for a Baxi-Fali tie-up in the cause of their ‘common human rights responsibilities’ therefore sounds, if I may dare say it thus, a wee bit patronizing, and is unfair to the victims and survivors who have been so significant in keeping corporate culpability and state responsibility on the agenda, in Bhopal, all these years – something which I am certain he could never have intended. This invitation to collaborate also contradicts, entirely, the professor’s damning of Seminar for inviting Mr. Nariman to write his piece. Clearly, despite his initial refusal to share a platform, he now sees (as we did) the need to find out how the other side thinks, to try and influence the more corrigible among them if he can, and even work alongside if it seems like it may make a difference.
Usha Ramanathan
Delhi
GOA, as the historian Dr Teotonio R de Souza once put it, is a complex region with different groups having their own identities and ideas about what exactly it means to be ‘Goan’ and to belong to a place that everyone finds hard to define. Identities here grow out of sub-regional, caste, class, communal and other differences.
The Seminar November 2004 issue does an interesting job in focusing on a small region that otherwise gets obliterated from a wider pan-Indian debate. Goa simply gets left out either because of its size or exotic history or unusual background. To that extent it is a useful contribution. More so, in the backdrop of a local media which finds it more convenient to discuss the entire world but not its own region. Or to remain trapped in cliches and trivialities, rather than touch on issues that make a difference to the majority of 1.4 million people’s lives.
But that’s it. Seminar’s ‘Amchem Goem’ (literally ‘Our Goa’... whose really?) issue continues with the long-uninterrupted exercise of recreating Goa in the image and likeness of dominant perspectives. For too long ‘inconvenient’ perspectives on this state have simply not emerged, perspectives of the voiceless have not been heard, and we’d rather not interpret Goa going by what it really is.
Pre-1961, in colonial times, ‘Goa is Portugal’ was the dominant discourse. For the past four decades, the boot is on the other foot. So, the state – which Heta Pandit rightly describes as being in a ‘state of social, cultural and creative turbulence’ – can do no wrong. Nationalism has come to mean defending the indefensible actions of local elites, who rule, taking shelter under the hardly-relevant labels like that of the BJP or Congress, often with the tacit approval of an unchallenged New Delhi.
Goa’s economy still remains a puzzle. Post-1961, we’ve built an active factory that churns out statistics, but obviously the story just isn’t getting told. Political scientists, like Peter Ronald deSouza, have tried their bit in explaining the conundrum of local players. But this debate is too infrequent and inadequate, without meaning to demean the contributions already made.
Today, the problem with Goa is that we fail to see things from someone else’s perspective. Leave alone, we’re not even willing to concede that other points of view exist. Flag-waving Konkani patriotism is unwilling to concede that language issues here (resultantly, what seems like strange pro-Marathi sentiments) have more to do with caste and class and exclusions, rather than language itself. Then, how do we get beyond the hype of being ‘among the best developed states’ in India, and look at the stories told by Goa’s underweight babies and anaemic mothers? Don’t we need to have a debate on where all the enthusiasm about Goa’s ‘uniform’ civil code (in reality, neither uniform nor secular) comes from? Or whether colonial Goa really had all that ‘communal amity’ it claims to have had – Portugal after all, as Vishvanath Pai Panandiker rightly points out, couldn’t separate state from religion for much of its involvement here – much like the current-day regimes which are more subtly carrying on the divide-and-rule and discriminatory policies against sections of their population? In what way are stereotypes projected by, say a Damodar Mauzo, more acceptable than those created by Bollywood?
That said, it is perhaps no coincidence that the most useful contributions come from those condescendingly termed as ‘non-Goans’ in today’s Goa. Heta Pandit, Bal Mundkur and Katharina Poggendorf-Kakar have made useful points. Even if in the latter two cases, it’s a bit ironic that some complaints about today’s Goa are about the precise problems caused when big money gobbles up a region, either in the form of tourism or the well-heeled resettling there. Tanaji Halarnakar’s contribution here is of a very interesting perspective.
Maybe one is a bit hypersensitive over this, but we Goans are great at going to great lengths to ‘prove’ how superior our own visions of Goa, and cultures, are as against other Goans. Is one all alone in reading this as the sub-text of some essays in ‘Amchem Goem’?
‘Goa Portuguesa’ isn’t the currently-favoured flavour. ‘Goa Indica’ was a substitute term from researchers like Dr Caroline Ifeka, then with the Australian National University. Such concepts have been enthusiastically picked up by editor Arun Sinha as the thesis for his book. (Sinha’s work needs to be trashed, as done by Uday Bhembre, not because it offends the often-smug Goan worldview, but because it’s so off-target and a poor if not bigoted caricature of what makes Goa tick.) Maybe we’ll have to wait for another few decades before we can expect ‘Goa Goana’ to emerge, not as an excuse to justify bubbling Goan chauvinism, but as a category which represents more adequately the voice of all sections of opinion of her people. Including those kept voiceless for far too long.
Frederick Noronha
Saligao, Goa
I AM an NRI from Canada now visiting India. I read ‘The Diaspora’ issue in Seminar (538, June 2004) with keen interest. Here is a Canadian NRI perspective to complete the diasporic picture in North America. Perhaps a short note on myself is an apt way to begin.
My parents, ardent freedom fighters, lived in Lahore. After the Partition, with halts in refugee camps, they dropped anchor in Simla, the beautiful British town. Though in dire straits, the family was upbeat. After graduation, I became an officer in the Punjab government. The future looked rosy. Already the nation’s breadbasket, the province was poised to become India’s California. But then the Sikh separatist movement erupted. All progress halted and Punjab hobbled like a lame horse. It was a case of self-flagellation. I decided to leave India. I still recall my widowed mother’s flaxen face awash with tears as I bid her goodbye. She extracted a promise from me to return to serve India. I never did. The breach of that covenant still haunts me.
Canada is a land of opportunity. The higher degree completed, I thought of returning but friends advised otherwise. Punjab sizzled and Haryana and Himachal Pradesh were in gestation. Pushed to the wall, I got Canadian citizenship, a gold-plated identity valued worldwide. But that September night in 1968 when I lost my Indian citizenship was one of remorse and nostalgia. I felt as if I had betrayed India.
I have now worked in Canada for some 25 years: college lecturer, researcher and government officer. Recently I opted for early retirement that came with a fabulous Canadian pension. But mine is a singular case, it seems. Currently few Indo-Canadians, also called East Indians (that includes NRIs and Canadian-born offfspring), holding Canadian degrees, get a decent career-break. I see many of them unemployed or working only part-time. Two reasons explain this. One is that schools mint graduates en masse regardless of the market demand. So jobs shrink when economy dips. Canada is a racist nation is the other reason. In the past, French Canadians, Jews, Ukrainians, Italians and German immigrants suffered. Now East Indians and natives are the main victims. They are the last to be hired, first to be fired. Racism exists in both the public and private sectors. The federal public service has 250,000 employees; barely three dozen of them are Indo-Canadians in the officer category, mostly stuck at a dead-end. The feckless Canadian Human Rights Commission reports this fact annually. Scholars predict that racism against Indo-Canadians will plummet in two decades when throngs of mainstream Canadians reach the ‘senior citizen’ age. With white immigration from Europe drying up, demand for East Indian professionals will soar.
Conversely, unskilled Indo-Canadians, often with a low proficiency in English language, theoretically, hover at the ground level of the economic pyramid and are confined to the nation’s sweatshops. Some even prefer to work at the graveyard shift from 11 pm to 4 am. In fact, they are having a plush-time. Two-income family is the norm. Thrifty and hard working, they quickly acquire homes and other assets and reach a prosperity level unthinkable for them in India. There are nearly one million Indo-Canadians, most of them in the unskilled group. Typically, low-end jobs include taxi/bus drivers, sweepers in motels, construction labour, dispatchers, kitchen help, clerks, seamstresses, petty shopkeepers and so on. NRIs tend to live in mohallas where temples, gurdwaras and strip malls stuffed with Indian goods abound. These NRI islands, culturally different and socially offensive to the white majority, are vote banks to which even the sworn racist candidate must come a begging at election time.
All said, Canada is a great country. I wouldn’t exchange it for any other. It’s a nation of kind and peace-loving people. Its natural scenery and highways are superb; its healthcare excellent. It’s a world model of multicultural harmony. For the NRI, it is a bestower of the rare blessing of living on high moral ground. For example, when an NRI factory labourer returns home, after a long day’s work, he finds his fridge well stocked, his living room fitted with modern gadgets, his car parked at the curb-side and his kids doing well in the school. All this achieved without peddling bribe. It’s something unknown in today’s India.
As NRIs are wont to say, today’s India exists under a ‘corruption dome’, manipulated by the babu-business-politician syndicate. It can prevent any righteous act and perpetrate any unrighteous one. From the hawker in Karol Bagh, the widow dealing with the DDA, to the foreign visitor seeking visa registration, graft is the only route available. India is the only country where one must bribe to get a death certificate! Nothing seems sacrosanct any more. The courts, the school, the temple, all are tainted. No wonder the NRI never abandons Canada.
I wish to end on a happy note. Some 200,000 well-heeled, superannuated NRIs from North America, a new class of tourists, want to visit India routinely, to reconnect with their roots and savour her cultural and historical sites. This will boost Indian tourism and bring sizeable foreign exchange. In return, the NRIs want a safe long-distance bus service available at India’s major airports, the trashing of the stupid rule to register within 14 days of arrival, and the freedom to not pay bribes to the police while crossing inter-provincial borders by road. Is that too much to ask or give?
Prem Kumar
Andhra Pradesh
