17 Corporate Crime Reporter 30(12), July 28, 2003


It's been 19 years, and still Union Carbide and its former chairman, Warren Andersen, are fugitives from justice.

A deadly gas leak from Union Carbide's pesticide factory in Bhopal on December 3, 1984, poisoned at least 500,000 people.

More than 8,000 people died within three days and over 20,000 people have died to date as a result of their exposure.

Union Carbide and Andersen were charged with manslaughter, but they refuse to appear before the Indian courts.

Earlier this year, the government of India formally requested extradition from the United States. To no avail.

To gain some insight into the ongoing ordeal, we called on Satinath Sarangi of the Bhopal Group for Information and Action. Sarangi is perhaps the most knowledgeable Indian activist on the disaster and the criminal case.

We reached him at his offices in Bhopal on July 23, 2003.

CCR: What is your work?
I work in two organizations. The Bhopal Group for Information and Action is a support organization for the survivors. The other is the Samhavna Trust, which runs a free clinic for the survivors.

CCR: Where did you go to school?
Here in India.

I got my masters in metallurgical engineering. I did three years of my PhD, specializing in iron and steel. I dropped out in 1984 around the time of the disaster.

CCR: The Bhopal disaster affected your education.
I dropped out of school and quit my job also. I was working as a research engineer.

CCR: What have you been doing since the 1984 disaster?
I have been involved in the campaign, doing research, helping survivors, taking legal actions, bringing out newspapers, publications.

CCR: You went from being an engineer to being an activist?

CCR: Tell us what happened in 1984. When was it?
It was the night of December 2/3 in 1984.

Over 40 tons of methyl isocyanate, and other gases such as hydrogen cyanide, leaked from a pesticide factory that was owned and run by Union Carbide Corporation USA.

Because Union Carbide wanted to cut down on costs, they cut back on vital safety systems. There were seriously and grossly underdesigned safety systems. And some of these safety systems were turned off. Because of all of these reasons, the gases leaked, and covered almost all of the city of Bhopal, exposing 500,000 people to this deadly cocktail of gases.

About 8,000 people died in the first three days. More than 20,000 people have died so far. And people continue to die today. The exposure causes multi-systemic damages. About 120,000 to 150,000 continue to be ill from the exposure.

CCR: What are some of the symptoms?
Breathlessness. Diminished vision. Loss of appetite. Menstrual irregularities. Fatigue. Panic attacks. Depression. Anxiety. Joint pain. Body aches.

There is also immune system disruption, which means that people are more prone to infectious diseases -- like tuberculosis. Birth defects -- retarded growth among boys, many more menstrual problems among girls. Too many people with diabetes, hypertension, thyroid problems.

After all of these years, there is now a rise of cancers among people.

CCR: What was Union Carbide's initial response?
At first, they said a sick extremist blew up the facility. They ten said that a disgruntled worker sabotaged the facility. The latest story was that it was a disgruntled worker, he didn't mean harm, all he wanted to do was to sabotage the liquid, and it went out of control.

The company kept on changing the story without offering one iota of evidence. They brought forth the testimony of a tea boy -- a waiter -- who worked in the canteen. He said that they saw some people who were talking in a hushed manner.

But in fact, we have documents showing that Union Carbide and Warren Andersen, who was part of the management committee then, as far back as in 1972, knew that this would be an unsafe facility because they were going to send unproven technology. And they mentioned this very clearly. In the proposal for the methyl isocyanate plant, they said that by using this unproven technology they were going to save $8 million.

They also mentioned that if they spend less money, Union Carbide Corporation USA would continue to have majority stakes, which could be diluted if the Indian facility spent more. Union Carbide owned close to 60 percent of the facility at the time. It went down to about 50.9 percent at the time of the disaster.

CCR: Why did the US parent want to keep control?
There was a law at the time preventing multinationals from owning majority shares of companies in India. But Union Carbide was given permission because it brought in high technology.

CCR: In response to the disaster, the company offered money to the community, right?
They did offer money. Within a week after the disaster, private lawyers came to Bhopal and promised a lot of money. The Indian government passed a law, known as the Bhopal Law, which said that in the litigation, the government of India was the only agency that could speak on behalf of the victims.

The government of India then sued Union Carbide in the federal court in New York -- in Judge John Keenan's court. The government claimed $3.3 billion. Union Carbide fought that, arguing that U.S. citizens should not be paying money for a case that essentially should have been brought in India. They argued that this was an inconvenient forum.

Keenan, on grounds of forum non conveniens, sent the case back to India with the proviso that Union Carbide would have to abide by the judgments of an Indian court.

In 1985, the case went to New York.

In 1986, it came back to India.

The matter was in the District Court in Bhopal. Union Carbide threatened to cross-examine all claimants, which would take something like 1500 to 2000 years.

At that time, the survivor organizations moved a petition arguing that there should be a provision of interim relief, so that a bulk of money gets to the victims.

If the case was decided in favor of Union Carbide, the government would give the money back to Union Carbide. Otherwise, it would be added onto the final compensation.

CCR: Was there an interim settlement?
Yes, there was. The judge ordered Union Carbide to pay $270 million as the interim payment. But Carbide said this was an extremely dangerous precedent because it was like holding them liable without trial.

Union Carbide appealed the order, and it went to the Supreme Court of India.

On February 14, 1989, there was an announcement that the Supreme Court had sanctioned a final settlement for $470 million.

The three conditions for settlement were that all civil liabilities -- past, present and future -- will be extinguished. Second, that all criminal charges would be quashed. These are criminal charges of manslaughter, grievous assault, assault, killing and poisoning of animals. These were charges brought against three corporations -- Union Carbide Corporation USA, Union Carbide Eastern Hong Kong, and Union Carbide India Ltd. Also charged with nine officials -- Warren Andersen and eight other Indian officials.

That was the second condition. The third condition was that in the future, in any lawsuits brought against Union Carbide, the government of India would defend the case.

CCR: Was the initial settlement of $270 million ever paid?
No, it was never paid. The court ordered it, Carbide appealed, and the Supreme Court ordered a final settlement of $470 million.

Union Carbide eventually paid $420 million. The Indian subsidiary paid $45 million. They refused to pay $5 million, which was paid in the beginning to the American Red Cross, which was given to the Indian Red Cross.

CCR: Where did the $465 million go?
It went to a fund with the Supreme Court of India and was kept in the Reserve Bank of India.

CCR: Was the money distributed to the victims?
Yes, the victims went to the courts, and they had to show documents that indeed they had been exposed. But they were given very small sums.

CCR: How much did a death survivor get?
About $2,000.

CCR: What about for injuries?
They were given $500 out of which about $200 to $250 was deducted. The government had paid some interim relief every month for six years to the people. So, when the compensation was paid, the interim relief was deducted.

CCR: What is left from the $470 million?
Except for 16,000 claimants, a substantial number of claimants have received their compensation. What is left is about $360 million.

CCR: What will be done with that money?
Right now, we have supported a petition in the Supreme Court which is on behalf of representatives from the 37 municipal wards that are gas affected.

Just as a claimant in a motor vehicle accident case, or a worker's compensation case is entitled to the interest on the compensation, thus people in Bhopal should be allowed to collect this interest.

This matter was heard, and the government recently submitted a reply, saying that they did not have an objection in principle to this. But they said that 16,000 claimants remain, and they say it will take eight years to litigate their cases.

CCR: Where would you like the money to go?
We would like to see the money distributed to individuals who have been adversely affected.

CCR: Why shouldn't the money go to charitable institutions like yours who are helping the people?
We did a survey of one of the most severely affected communities, which is the one right opposite Union Carbide. We found that 91 percent of the people there received as little as $300 for lifetime injuries.

CCR: What happened to the facility itself?
It has been abandoned, and tons of toxic wastes lie both overground and underground. And the toxics have seeped into the groundwater and the groundwater is severely contaminated.

CCR: Who owns the facility?
Union Carbide has upped and left. So right now, it is under the control of the local government.

CCR: What was the genesis of the criminal case?
Right after the disaster, on the morning of December 3, a first information report, was lodged in the local police station. Warren Andersen came here on December 7, 1984. He was arrested the same day by the state authorities. Soon, he was released, but he signed a bail bond which was for 25,000 rupees, which is about $500. He was released on bail.

CCR: In retrospect, he shouldn't have been released, right?
Well, except that he promised to be present wherever and whenever he was directed to be by the court. He was charged with manslaughter, grievous assault, assault, killing and poisoning of animals. Anywhere between ten years to life imprisonment. Since then, he has never come back.

CCR: The company was also charged with crimes.
Yes, along with eight individual Indian officials.

After the settlement, the criminal charges were quashed. People protested in the streets and in the courts in 1989, 1990. Finally, on October 3, 1991, the final settlement was agreed to. In approving the final settlement, the court upheld the $470 million from Carbide. It said that if there is a shortfall, the Indian government should make up the shortfall. And secondly, it reinstated the criminal charges. It ordered the case to proceed.

The court sent a summons to Union Carbide and to Warren Andersen. Proclamations were published in the Washington Post in 1992. Andersen refused to go to India. And Union Carbide refused to appear.

CCR: What about the Indian companies and the other eight individuals?
They are still present in court facing the charges.

CCR: It's been since 1991, and the criminal case is still going on?

CCR: Why is it taking so long?
There are a large number of witnesses.

In 1992, Union Carbide Eastern Hong Kong, which was a Delaware registered, 100 percent subsidiary of Union Carbide, was dissolved. When the criminal case was restarted, Union Carbide just deregistered the companies. They shuffled the boards onto two new companies -- Union Carbide Asia and Union Carbide Asia Pacific, both based in Hong Kong. The prosecutors here did not know how to get a hold of a corporation that has been deregistered.

CCR: Who is the prosecutor in this case?
The Central Bureau of Investigation (CBI), which is similar to the FBI. It is a federal government agency.

CCR: Is there one person in charge of this case?
It's a team. The immediate supervisor is Tanuja Srivasdava.

CCR: Is she serious about this case?
She is new to the case. We have met with her a couple of times. But she seems to be the one person who is serious, yes. Things have changed after these new officials have taken over.

CCR: Were the previous officials serious about the case?
No, we don't believe so. One is they are not serious. The other is they are not competent to handle issues of corporate criminal law.

CCR: This woman is both serious and competent?
Yes, but she also does not know the answer to a number of question. She is not clear on what happens to the transfer of criminal liability after a merger.

One other point. When Union Carbide continued to abscond, the court said that if Union Carbide does not present itself, it was going to attach all of its properties, which were the shares that Union Carbide Corporation had in the Indian subsidiaries. That was in February 1992.

The shares in the Indian subsidiary were confiscated by the court.

The Indian government set up a trust in England. It was set up by an attorney at Sidley & Austin. The lawyer's name was Ian Percival. He was the solicitor general of England at the time of Margaret Thatcher.

He became the sole trustee. He came to India two years later and he told the Supreme Court to give permission to sell the shares to fund the gas victims interest. He also pleaded that the criminal charges be dropped so that the shares could be sold at a higher price so that more victims could benefit from this money. It was a devious kind of argument.

Of course, the charges were not dropped. The shares were sold to another company, which was a spinoff of a British multinational -- Williamson Magor.

CCR: How could they sell the shares if they were confiscated by the court?
The district judge in Bhopal had categorically told them that they should fund this 500 bed hospital from its own coffers, not by selling the confiscated shares. But the Supreme Court judge overruled this district court. And the judge who made the ruling is now the chairman of the trust that runs the hospital, which was built by the funds of the confiscated shares.

CCR: When was the hospital ordered built?
That was in 1992. It was built in 1996.

CCR: How much were the confiscated shares worth?
More than $100 million. That was spent on the hospital. The hospital was built, but they gearing up to be a paid patient's hospital, instead of a community hospital serving the poor. The major influence is on heart problems. They do not have a community health unit.

CCR: The criminal case is still proceeding. Are the prosecutors making progress?
Yes. The court has been asking the government to move on extradition for a long, long time. Last month, they moved to extradite Warren Andersen. They have yet to move to bring over representatives of the company.

We are in the case assisting the prosecution.

CCR: Why did the extradition request come down now after all of this time?
There was a meeting of ministers on this issue. A journalist friend saw a memo which said that to extradite Warren Andersen would jeopardize the investment climate.

CCR: What made them change their minds?
The judge continued to insist on extradition. In February, 2003, a committee of the Indian parliament found that the government had made a number of assurances before the parliament. This was a demand from all different political parties. The committee noted that these assurances were not fulfilled. They demanded that the government set an example and to stop the delay.

CCR: Is there an extradition treaty between the U.S. and India?
Yes. The government made the request to the State Department and to the Justice Department. We know that it was delivered on May 20.

CCR: The company merged with Dow Chemical. When was that?
They announced the merger in 1999. And they finalized the merger on February 6, 2001.

CCR: What has been the response of Dow Chemical?
Initially, they didn't want to speak with us. We had a demonstration in February 2001 in Bombay. After Union Carbide sold off its shares and went off, Dow moved in. Dow has two subsidiaries and two joint ventures in India. The demonstration was in front of a facility in Bombay. They agreed to meet after that.

They first took the position that they could not be held responsible for a factory they did not run in a place they did not visit. Finally, they agreed to talk on things.

After a year of negotiations, we found that they were taking advantage of the fact that we were talking with them. They were using it as a public relations campaign, but actually not delivering anything. We asked that they give us things that don't even cost money. Give us the results of the research on the effects of methyl isocyanate on living systems. We knew about these studies, but we couldn't get them.

They took two or three months to understand the question, and then they sent us information from the Internet, which we could have gotten ourselves.

So, basically, we found that we were wasting time in these negotiations. So, we held worldwide demonstrations against Dow. At the recent meeting we had with the CEO, William Stavropoulous. We met with him in Midland, Michigan on May 8, 2003. He said he could do nothing and we should go to the government of India.

The CEO who proceeded Stavropoulous was Michael Parker. We met him a year before. He said that we should use the money that was left behind in the bank to clean up Bhopal. This was the first time that anyone suggested anything like that. We demanded that the claimants had the right to the money, and that Dow would have to pay from their own accounts for the cleanup.

CCR: You want the site cleaned up by Dow?
Yes, that is one of our four demands.

We want Dow to force Warren Andersen and Union Carbide to present themselves in the criminal court in India. Second, they should provide medical care research and monitoring for survivors and the next generation. And third they should clean up the contaminated soil and water and provide clean water. And fourth, they should take care of the social and economic rehabilitation of the survivors.

CCR: Wouldn't Dow be facing the criminal charges now that the companies are merged?
There is little clear on the criminal law about a case against a merged company. And very few lawyers have dealt with this. There are so few precedents.

CCR: Does Union Carbide Corporation still exist?
Yes, as a 100 percent unit of Dow Chemical.

CCR: Where is Warren Andersen?
He is living in Bridgehampton, New York

CCR: Who is your lawyer?
We have an ongoing class action initiated in 1999. That case is still before Judge Keenan. The case was filed under the Alien Tort Claims Act. We asked for damage for the contamination, health problems. The case was dismissed in August 2000 by Keenan. We partly won the appeal in the Second Circuit. The Second Circuit said that both Warren Andersen and the company were liable for damages. It went bank to Keenan, who dismissed it once again in March 2003. And we have just filed an appeal to that.

CCR: Who is your lawyer?
Rajan Sharma. He is representing the victims.

CCR: Who represents the company?
William Krohley. He's with Kelly Drye & Warren.

CCR: Who is representing Andersen in the criminal case?
Union Carbide has no one. The Union Carbide unit her has a criminal lawyer, the top criminal lawyer in Bhopal.

CCR: What impact did this disaster have on life in Bhopal?
More than 70 percent of the people who were exposed earned their living through hard work. And thousands of them, 50,000 of them, cannot continue with their traditional trade or jobs. Particularly for young women, the menstrual problems and other gynecological problems, they face discrimination, difficulty in getting married. It has disrupted the social life of the city.

CCR: How did it change you?
It has made me more hopeful, which is weird. Even under these circumstances, things are possible. You have the government, the corporations, the legal system against you. The scientific bodies are apathetic. Medical institutions don't care. And yet things have been done and victories have been won.

[Contact: Satinath Sarangi, Bhopal Group for Information and Action, B 2-302 Sheetal Nagar, Berasia Road, Bhopal 462018 India. Phone: 011 91 755 274 3157. E-mail: [email protected]. Web: www.bhopal.net]

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