Janki Bai Sahu, a survivor of the 1984 Bhopal gas tragedy, who filed a case in a US court on behalf of herself and her family and sought damages from Union Carbide Corporation (UCC), has had her appeal petition dismissed on several grounds, including the statute of limitations.
She and others had their petitioned dismissed last year and had appealed before a higher court. The case was originally filed in 2004. The petition was on the pollution of soil and groundwater by hazardous waste generated in the factory, site of what is considered the world's worst industrial disaster, when toxic gas leaked from it in December 1984, killing thousands then and many more from the after-effects in later years.
Sahu, the court said, appears to focus on being a public nuisance, and emphasizes that "everyone who creates a nuisance or participates in the creation or maintenance of a nuisance are liable jointly and severally for the wrong and injury done thereby". It cautions that courts are not to lay aside traditional notions of remoteness, proximate cause and duty when evaluating public nuisance claims. Sahu and her fellow plaintiffs, whose claims were not barred by the statute of limitations, initially filed a case in the Southern District of New York in November 2004. Sahu contended UCC be held directly liable for the leakage of poisonous gas on various stated grounds.
Judges Guido Calabresi, Jose A Cabranes and Barrington D Parker said in their dismissal order (a summary of which is available with Business Standard) on the appeal, "We conclude, substantially for the reasons set out at length in the district court's clear and thorough opinion and order (June 26, 2012), that under either public or private nuisance, no reasonable juror could find that UCC participated in the creation of the contaminated drinking water. Neither UCC's approval of the plan to "backintegrate" the plant, nor its transfer of technology for pesticide manufacture, its designs for a waste disposal system, or its limited involvement in remediation amount to participation in the failure of the evaporation ponds to contain the hazardous waste."
The judges further ordered, "We note in particular that it is clear from the undisputed facts that UCIL (United Carbide India Ltd), and not UCC, designed and built the actual waste disposal system and Sahu points to nothing in the record (or even in the complaint) that suggests the mere idea to use evaporation ponds as a means to dispose of wastewater was a cause of the hazardous conditions (on the allegation that UCC was aware that toxic waste was leaching into the soil and groundwater because the lining of the solar evaporations ponds had developed leaks). In short, no reasonable juror could find that the actions taken by UCC, legally caused or otherwise, indicated UCC's participation in the creation of the nuisance."
Associations of survivors of the gas tragedy and various non-government organisations battling for compensation and against UCC have condemned the decision.
They argue the district court took an unduly narrow view of who may be held liable for creating a nuisance and that the petition had adduced sufficient facts for a reasonable juror to find that UCC had participated in the creation of the hazards referred to.
The organizations said they'd now persuade the Union government, owner of the contaminated lands, to intervene.
"Internal corporate documents presented before the appellate court unambiguously demonstrates that Union Carbide Corporation, USA, and not its Indian subsidiary, had designed the waste disposal system in the Bhopal plant, as well as supervised its operation and monitored the harmful consequences of the hazardous design," said Rachna Dhingra of the Bhopal Group for Information and Action.
She alleged the judges turned a Nelson's Eye to the facts on record, to avoid making American corporations accountable for crimes committed outside the USA.
Nawab Khan, president of the Bhopal Gas Peedit Mahila Purush Sangharsh Morcha, said lawyers representing the plaintiffs were "exploring all options" to continue the legal fight. "It took survivors of the Nazi holocaust 50 years to obtain redress through the courts," Khan said. "Like them, we will not give up until we receive complete justice for the wrongs done to our families."
Balkrishna Namdeo, president of the Bhopal Gas Peedit Nirashrit Pension Bhogi Sangharsh Morcha, said the US judges clarification that the decision to absolve the parent corporation, a majority partner in the Indian subsidiary, should not be cited as a precedent for other cases "is the best illustration of how unsure the judges themselves are about the legal validity of their decision".
Louise Christian, award-winning British human rights lawyer, has said on the US court's verdict: "This decision to deny justice to poor and vulnerable people caused irreparable harm by big business should shame the world. The US appeals court has ignored compelling evidence about the central role played by the Union Carbon Corporation based in the US in equipping, overseeing and enabling the Indian offshoot of the company to produce UCC's own product...UCC failed to give advice which would have ensured not only that the leak of gas itself did not happen but also prevent the contamination which has poisoned the drinking water in a large area around where the plant was."
Adding: "Those who run multinational corporations should not be allowed to escape liability for grievous harm by creating complex corporate structures and hiding behind these. The paltry compensation paid in India to the victims and the failure to prosecute anyone over Bhopal is a disgrace. The history should be reviewed by the United Nations with a view to introducing international law mechanisms for securing justice in this and other cases."