Days after President Barack Obama lashed out at British Petroleum (BP) saying he would not let it “nickel-and-dime” his people in the oil spill case, the sessions court in Bhopal did precisely that with the victims in one of the world’s worst industrial disasters. There is no doubt this is one case where the victims have been let down completely by the Indian state — the government and the judiciary.
It is well accepted the Supreme Court erred badly first in 1989 by settling all civil and criminal liability at a piddling sum of $470 million (in 1991, it reopened the criminal case). Later, in 1996, the apex court reduced criminal charges from section 304 — culpable homicide with a maximum punishment of 10 years — to a milder section 304a, used in traffic accidents for deaths caused by rash or negligent acts, which limits the term of imprisonment and provides for lighter fines. In all this, the court has been strangely silent about the management of relief and the lack of medical research and treatment for the victims.
The apex court, known to side with environmental victims, has also been vacillating on the matter of what should be done with the abandoned factory site, which is full of toxic contaminants that the company left behind.
Bhopal is about shame. Bhopal is also about what the country, indeed all countries, must do about corporate liability for the unknown. In 1984, when the pesticide factory’s poison gas hit Bhopal, killing and maiming thousands, nobody had seen or imagined a disaster of this kind. The question of liability was hushed up, largely because it involved a US company. Nobody wanted to mess around with this corporate powerhouse, even in those times of relative innocence. The liability was established in ignorance, combined with powerlessness.
As a result, the amount settled for the disaster — still unfolding because lives continue to be lost and ailments do not go away — was less than what was agreed in the Exxon Valdez case that occurred a few years later in 1989. In this oil disaster, which hit the coast of Alaska in the US, the toll on the natural environment — the flora and fauna — was priced at double (some $1 billion settled for punitive and economic damages) of what was paid for the thousands of human lives lost and maimed in Bhopal.
But, oil interests in the US are not small fry. In 1990, post-Exxon Valdez, the Oil Pollution Act was passed. The Act capped the liability of economic damages from such an oil disaster at a mere $75 million. Today, even as the US is learning how it never anticipated a disaster such as the BP spill — a leak in an oil well so deep in the ocean that human intervention is not possible — this cap has become a point of friction in the country. Today, the Senate wants the cap removed. Otherwise it will have to prove that BP’s oil spill was the result of deliberate and gross negligence and/or regulatory non-compliance. The Senate knows this will be difficult to establish, given the country’s legal process. The issue is not negligence per se, but the fact that the regulator underestimated the risk of this drilling. They did not provide for safeguards. It is also no surprise then that Obama has accepted that in his country, regulations have been played around with and diluted because of the “cosy relationship between big oil and government”.
This is the right time to ask the Indian government to rethink the Civil Liability for Nuclear Damage Bill. The Bill caps the operator’s liability at Rs 500 crore per incident, with additional damages of approximately Rs 2,300 crore to be made good by the government. This amount is even less than what was paid in the case of Bhopal, a ridiculously low amount, and a joke when it comes to a nuclear accident.
US companies with an interest in the nuclear business desperately want India to pass this Bill. It will cap liability and hence reduce their insurance cover and costs. It is, thus, not a surprise that the official US response to the trial court judgment on Bhopal mentions this Bill and wants the Indian government not to link the two.
But there is a link. The issue of liability must be established and it must be based on full costs. All technologies must pay the real cost of their present and future dangers. Only then will we, as a society, try and understand the risks better. Only then will we, as a society, make better technology choices. After the shame of Bhopal, nothing less is acceptable.