I was in Mumbai on that December night in 1984 when the gas leak tragedy struck Bhopal. I was head of an American multinational’s Indian subsidiary, a company not unlike Union Carbide, whose managing director happened to be my friend. We were among the few foreign companies that had stayed on and had toughened under the punishing conditions of the “license-quota-permit raj”. I was in shock over the horrific human tragedy but my sadness came from another thought: What if it had been me? I put myself in his shoes and wondered if I would have acted differently. Probably not, and I thought about human vulnerability and how unbelievable lucky I was.
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Twenty-five years later, a court has awarded two years of rigorous imprisonment to seven persons, including my friend, in the Bhopal case. The nation has been outraged both at the delay and the lightness of the sentence. Indignation at the sentence is understandable for so horrific a disaster — the human psyche seeks equally gruesome punishment to maintain moral equilibrium. The dawdling pace of justice in India is, of course, a national disgrace, but the fact is that crime and punishment in an industrial disaster are difficult and complex issues.
Establishing a higher level of crime would require showing criminal intent or prior knowledge of the disaster. For a higher sentence, the prosecutor would have to link the leaking of gas by an unbreakable chain of events to failure of individuals. It is difficult to imagine that directors or employees could have known that negligence on their part would lead to catastrophe of such a proportion, and if they had known of the consequences, would they have ignored it? In the absence of intent, the only crime is of “rashness and negligence” and for which the managers have been punished. But I am not sure if even that sentence will be sustained in appeal. The managers at Union Carbide knew they were dealing with a hazardous chemical but had no inkling that either the plant design or their operation was flawed. The 1982 audit report had pointed out a few infirmities but they had reportedly rectified them
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Look, for example, at the safety standards of the Indian railways. When did we last try to jail a railways minister or an employee for negligence?
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The lesson from Bhopal and from BP’s oil spill is that we need tort remedies to address the risk of future disasters. The legal system should not allow private individuals to keep the gains from dangerous activity and pass off losses to the public.
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We need regulation. Regulation should be strong enough to reduce risk, yet not so strong as to stifle our new found entrepreneurial energy. In the end, no amount of regulation will prevent catastrophe. Humans are prone to err. What is needed is dharma or good faith among both companies and officials to limit harm. Regulators should also remember that costs forced on companies become higher costs for consumers.