The 1989 settlement
What it does and doesn’t cover
The 1989 settlement between the Indian government and Union Carbide (over which the Bhopal victims were never consulted), protects the company only against civil liabilities arising out of the 1984 gas leak. It does not extinguish criminal charges nor does it apply to civil or criminal liabilities arising from the separate issue of massive ongoing pollution at the factory site of the soil and ground water.
Two kinds of liability were mentioned in the 1989 settlement, civil and criminal. Originally, both were quashed but after an appeal by survivors, the Indian Supreme Court in 1991 modified the settlement. The court upheld the quashing of civil liability (a major triumph for Carbide and massive injustice to its victims), however it reinstated criminal liability and ordered criminal proceedings against Carbide to be resumed. In its judgement, the Supreme Court recognised that in extinguishing criminal liability, the 1989 settlement had violated a core principle of criminal justice: namely that a person charged with a crime cannot simply pay his way out.
Given that this represented a major alteration in the settlement, the Supreme Court offered Union Carbide its money back. Carbide’s lawyers were in court to hear the decision, and loudly celebrated the upholding of the financial settlement. They did not bother to appeal the revival of criminal proceedings.
Almost certainly Carbide had already decided that it would never appear in an Indian court. Five years earlier, in New York, the company had argued that the case should be heard in India, and bound itself to abide by the decisions of the Indian courts. Now the American defendants simply refused the summons and claimed that the Indian court had no jurisdiction over them. Union Carbide and Dow never mention these things.