All the perfumes of Arabia will not remove the taint of Bhopal disaster

One is saddened by the departure of Fali S. Nariman, a noted nonagenarian jurist without donating to the Bhopal disaster victims the legal fees which Union Carbide Corporation/Dow Chemicals Company, a US multinational company paid him, to erase the taint of Bhopal disaster. Prof. Upendra Baxi's advice in this regard is recorded in Nariman’s autobiography-Before Memory Fades. Notably, Nariman also represented asbestos companies. Carcinogenic Asbestos is banned in 70 nations. Its safe and controlled use is impossible. Dow Chemicals Company set up $ 2.2 billion compensation fund to pay victims of asbestos diseases, a liability of Union Carbide in US but not in India. Nariman departed without repenting for having represented corporate criminals. Human life is not confined to one's professional compulsions. One's inner life is guieded by moral compulsions, not professional ones alone.   

Nariman served as Additional Solicitor General of India from 1972 to 1975 but stepped down to protest the Internal Emergency imposed by the then Indira Gandhi led government. Nariman was right to conclude that "One of the lessons of the Internal Emergency (of June 1975) was not to rely on constitutional functionaries. These functionaries failed us-ministers of government, members of Parliament, judges of the Supreme Court, even the president of India". It revealed that even the president of India who signed the Proclamation of Emergency in compliance with the oral instructions prior to its intimation to the council of ministers on the night of June 25, 1975, cannot be trusted. As a consequence Constitution (44th Amendment) Act, 1978 had to be enacted insert Article 352 (3) to ensure that in future president must sign Proclamation of Emergency only after the decision of council of ministers is communicated to him/her in writing. This provision became effective from June 20, 1979. But Nariman forgot to recollect that it was during the Emergency that Union Carbide Corporation (UCC) was granted industrial license to set up its hazardous insecticide factory and research and development centre which was reportedly testing and manufacturing war chemicals in Bhopal.           

In the aftermath of world's worst industrial disaster in the factory of UCC, Nariman appeared for UCC as the lead advocate with Bomi Zariwala, his junior to defend it against the victims of UCC's industrial disaster. UCC engaged him late 1985 in the civil litigation arising out of the disaster. Nariman will have us believe that it all started on September 5, 1986 when Union of India filed a suit on behalf the claimants, the disaster victims under the provisions of Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 in the District Court of Bhopal demanding $ 3.3 billion as compensation from the UCC. The 1985 law was enacted on March 29, 1985 to make Union of India the sole plaintiff in a suit against the UCC and other defendants for compensation arising out of the disaster.  

Nariman's memory seems to have faded in this regard because the fact is that it all started with the filing of suit of Union of India on behalf of all the victims in the Southern District Court, New York presided over by judge John Keenan on April 8, 1985 after some 145 cases which were filed on December 7, 1984 on behalf of victims in various US courts were consolidated and placed before the judge. Union of India had demanded $ 3.3 billion as compensation from the UCC. The suit was filed in the District Court of Bhopal after judge Keenan dismissed the claim on May 12, 1986 subject to the condition that UCC will submit to the jurisdiction of Indian courts.   

On December 17, 1987, Judge Deo, District Judge, Bhopal ordered an interim compensation of Rs. 350 crores. This was challenged before the High Court at Jabalpur, Justice S.K. Sheth reduced the interim compensation to Rs.250 crores. Union of India and UCC challenged this on September 8, 1988 before the Supreme Court. On February 14/15, 1989, Supreme Court approved an abrupt settlement arrived at in the appeal by UCC whereby $ 470 million (its equivalent then was Rs 615 crores) was to be paid by it and its Indian subsidiary to the Union of India in full and final settlement without admitting liability. The role of R. S. Pathak, the 18th Chief Justice of India who relinquished office midway post 1984 disaster unjust settlement on "casual election" to join as a Judge, International Court of Justice and that of Nariman has remained under scrutiny since then. One has learnt that Pathak was all ready to leave but was forced to wait because he had many many judgments pending. If one looks at his judgments between February 1989 and May 1989, one can find the urgency embedded in it. Notably, some of his judgements did not get delivered but were released.  

Pathak was an elected judge of the International Court of Justice following the death of M. Nagendra Singh, an Indian judge who was then serving his second term. He served in this position from 1989 to 1991. In 1991 India decided not to renominate Pathak but he entered the fray with the backing of Ireland. After the Irish government came under attack from legislators who blamed Pathak for approving, as Chief Justice of India, the $470-million Bhopal disaster settlement with UCC, Pathak withdrew from the race. Both Pathak and Nariman were disliked because of this settlement. 

Nariman's autobiography reveals how he quoted Pathak copiously to defend himself in his writings on Bhopal disaster case. Taking note of this Prof. Upendra Baxi wrote, " Mr Nariman's invocation of Chief Justice Pathak's sonorous invocation is the ultimate perfidy."    

Recollecting Nariman's respect for Pathak, A.J. Philip, a senior journalist writes, "It is jokingly said that if you have a few millions of rupees to hire the services of Nariman, you can murder anyone and get away with it. No, money is not the only determinant for him. As my memory goes, he did not charge a single penny, though he pored over my case and suggested many changes in the affidavit I and the reporter concerned had to file in the High Court. What mattered to him was that The Tribune Trust was headed by Justice R.S. Pathak, a former Chief Justice of the Supreme Court of India".    

In his autobiography, he has recorded that he faced national and international criticism. Laurie S. Wiseberg, the editor of Human Rights Tribune, a prestigious foreign publication criticing him in 1992 in an article titled " Fallen Angels?" for appearing on behalf of UCC even as he served as a member of the executive committee of International Commission of Jurists (ICJ), Geneva. Nariman had responded to this criticism. Prof. Upendra Baxi had resolved not share any public platform with Nariman ever since he assumed the UCC advocacy. Both exchanged arguments in this read in an 2004-5 issue of Seminar, a reputed Indian journal.     

Several years later, in an interview with Karan Thapar on CNN-IBN, Nariman regretted the decision to take the UCC's case. He said, "I mean, one is always ambitious at that age. But I found later, but then it's too late. One can't walk out of the case one has already taken up... it was not a case; it was a tragedy." He told Thapar on CNN-IBN’s “Devil’s Advocate program that "he would not have accepted, “If I had to live my life all over again, as a lawyer, and the brief came to me, and I had foreknowledge of everything that later came in, I would certainly not have accepted the civil liability case which I did.” 

Given the fact that he continued to be UCC's lawyer, he must have known about an order of the Madhya Pradesh High Court's Divsion Bench of Justices Sheel Nagu and Devnarayan Mishra dated November 28, 2023 has initiated contempt proceedings against officials of the state and Union governments. But the order was recalled on February 19, 2024. Initially, the order had found these officials guilty and served notice for their failure to comply with the Supreme Court's direction dated August 9, 2012 seeking maintainance of consolidated medical records through computerisation and networking of medical records of all hospitals and clinics where gas victims have been undergoing treatment and for the failure of these officials to provide quality medical care through specialists and with the best of facilities. Now, the order of High Court's Division Bench of Justices Sheel Nagu and Vinay Saraf dated February 19, 2024 states that "it would be appropriate that assistance of Monitoring Committee is sought. It is thus directed that each contemnor or his/her representative, who should not be below the rank of Class-1 Gazetted Officer should appear on the next date of meeting of Monitoring Committee to enable the Monitoring Committee to assess present state and extent of compliance of order of Apex Court dated 09.08.2012 passed in Writ Petition (C) No.50/1998 and various directions passed by this Court and thereafter prepare report under various heads showing compliance/non compliance. The Monitoring Committee is requested to assist this Court by submitting report as enumerated above as expeditiously as possible. List in the third week of April, 2024." The unending wait for justice for the victims of the disaster is unlikely to come to an end in near future.  

Before his departure Nariman witnessed how on March 14, 2023, the Supreme Court's Constitution Bench led by Justuce S. K. Kaul dismissed the Union government’s curative petition against the unjust settlement of February 1989 on ground that it was the government which had categorised the huge majority of gas victims as suffering from only “minor” injuries. In its curative plea, the Union of India prayed for another $8.1 billion (Rs 7,844 crore) over and above the $470 million already paid in a settlement in 1989 by UCC (now owned by Dow Chemicals Company). The order of Justice is S. K. Kaul is ridden with factual errors, which is yet to be rectified.  

One checked for use of the phrase "blood money" in Merriam-Webster Dictionary. It says, "The blood money earned by people who profited from the tragedy." The corporate criminals survive on blood money.
Shakespeare has immoralised the fate of unjust people nin his Macbeth. Lady Macbeth notices, "Hell is murky," and observes, "Yet who would have thought the old man to have had so much blood in him? Here's the smell of blood still. All the perfumes of Arabia will not sweeten this little hand". Judges and lawyers are judged even after the delivery of judgements. The cry of the victims of preventable disasters resonates even after the departure of judges like Pathak and lawyers like Nariman after performing their professional roles and having earned their share laurels.            

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The author is a law and philosophy researcher and a lawyer. He is an ex-Fellow of Berlin based International Research on Authoritarianism and Counter Strategies (IRGAC).