Beyond ‘Law and Order’
Victims of Abuse of Power
I Mallikarjuna Sharma
[Victimology was taken in earnest by the international community in 1985 with the UN General Assembly adopting the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power wherein the need for justice to victims of abuse of political and economic power though suffering not exactly due to violations of recognized criminal law provisions of the countries concerned was also emphasized. This paper tries to deal with victims of abuse of economic and political power—both in violation of existing criminal, civil law provision as also in the manner indicated in the above declaration.]
Victimology, Rober Elias
laments, is largely influenced by
the currently more prevalent 'law and order' ideology but the need of the hour is for intellectuals to come out of that framework, think deep and wide about various ramifications in the society and lend a broad societal approach to the subject of victimology—moving forward from what is called 'right realism' toward the appropriate societal change ideologies. He also opines that the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted by the UN General Assembly in 1985 does provide an opening for broadening how we define victimization by including the victims of abuse of political and economic power under that concept, but feels that even if we did so, we would still largely be excluding another significant source of victimization: that produced by corporations. He fears that the corporations, as non-governmental organizations, may not be included within the conventional definitions of 'abuses of power', even though they have enormous power, sometimes exceeding that of nation-states even. He emphasizes that corporations, moreover, produce extensive harms, and far more victimization—measured in terms of injuries, deaths, and financial losses—than common crimes.
In this context it would be instructive to know what exactly the referred Declaration by the UN General Assembly says on this aspect. The Declaration consists basically of two parts dealing with two different sets of victims—A. Victims of Crime arid B. Victims of Abuse of Power. The first part is more clear and precise since it takes into account persons who are affected by the already existing international or national laws of criminal liabilities. And in such situations it underscores the necessity of 1. Access to justice and fair treatment; 2. Restitution; 3. Compensation and 4. Assistance in regard to victims of crimes and lays down some broad guidelines. In the category of abuse of political and economic power, which, in this writer’s opinion, need not be and may not be limited to, as Robert Elias apprehends, only state or public sector abuses but can also embrace and confront the problems of corporate crimes even. As such, it would be necessary and useful here to cite in toto the part B of the declaration:
B. VICTIMS OF ABUSE OF POWER
18. "Victims" means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights.
19. States should consider incorporating into the national law norms proscribing abuses of power and providing remedies to victims of such abuses. In particular, such remedies should include restitution and/or compensation, and necessary material, medical, psychological and social assistance and support.
20. States should consider negotiating multilateral international treaties relating to victims, as defined in paragraph 18.
21. States should periodically review existing legislation and practices to ensure their responsiveness to changing circumstances, should enact and enforce, if necessary, legislation proscribing acts that constitute serious abuses of political or economic power, as well as promoting policies and mechanisms for the prevention of such acts, and should develop and make readily available appropriate rights and remedies for victims of such acts.
If one carefully goes through the above 4 sections or clauses, it would be evident that the UN General Assembly has deftly drafted them and nowhere there is an indication that either the victims or the wielders of power should be public authorities only. Especially Clause 21 requires state parties to the declaration to be responsive to changing circumstances and to enact legislation "proscribing acts that constitute serious abuses of political or economic power as well as policies and mechanisms for the prevention of such acts" which can clearly mean and be directed to corporate bodies even. It is obvious that economic power can be and is being wielded by corporate bodies all over the world.
There is no gainsaying that a philosophy and an ideology that glorifies money-making and adores millionaires and billionaires as leaders or role models of society and a system that accentuates greed for profit and power at the cost of rest of the society and leaves it to the 'invisible hands' of the so-called 'free market' to regulate the society at large is itself a menace to the welfare and happiness of the humankind. It is known to all how this system gives rise to ugly corporate wars and also real wars for division of spoils to grab precious natural resources for vested interests at the cost of millions of ignorant, innocent and unfortunate poor and needy peoples all over the world. The very booming industries of weapons of death and staggering profits made by merchants of death all round the world can be seen as an indubitable proof of universal victimization engendered and practiced by this system of society i.e. the capitalist system which is rampant today, unfortunately, almost all over the world. And India is no exception despite a constitution proclaiming socialistic pattern of society and equality.
A single illustration of the overawing wealth and revolting display of the same by Ambanis, especially Mukesh Ambani, by way of construction of his Antilia—a 27-storey palatial building with three helipads, six floors of parking and a series of floating gardens, and doubtful whether yet used as his main residence—which has been criticized as "an ostentatious display of wealth in a country where most people live on less than $2 a day and a city where more than half the population lives in slums" will do for the purpose of indicting this inhuman and unequal system. The same system again doles out huge privileges and facilities to the same tycoons by way of arbitrary increase in gas prices—in the instant case by the arbitrary decision of the Union Government to double the gas prices from the existing $4.2 (Rs 262.25) per mmbtu (million British Thermal Unit) to $8.4 (Rs 524.20) per mmbtu, making the gas prices in India one of the highest in the world—which will result in doubling of gas prices from 1 April this year (2014), and that will make the life of common man miserable since it will have a cascading effect on transport, domestic gas and even electric prices, which will cost the country a minimum of Rs 54,500 every year at the same time enabling the RIL (Ambanis) to make a future windfall of Rs 1.2 lakh crores, and all this due to active collusion between RIL and some ministers of the central government. And against this nasty development, on the complaint by eminent citizens—former cabinet secretary TSR Subramaniam, former Navy Chief Admiral RH Tahiliani, former Secretary to Government EAS Sarma and noted Supreme Court advocate Kamini Jaiswal—the Delhi Government, under the anti-corruption crusader Arvind Kejriwal, had quite recently ordered the anti-corruption branch to register an FIR against the chairperson, RIL, Mukhesh Ambani, Union Petroleum Minister M Veerappa Moily, former Petroleum Minister Murli Deora and former director general of Hydrocarbons VK Sibal under various sections of the Prevention of Corruption Act. This phenomenon is clearly victimization of the whole society—save for a few super rich upstarts benefiting—by the deliberate abuse of political power by the ministers and officers of the state organs, as also of economic power by the industrial tycoons, who too joyously collude with each other to draw sadistic pleasure in the enormous sufferings due to economic losses and social and psychological travails of the masses at large. Since this is the inexorable logic and inevitable consequence of the solely profit oriented capitalist system, it would not be incorrect to state that the capitalist mode of production and the superstructure of various societal relations built on it are by themselves the chief victimizers in the society and unless this system is radically changed to one of social control, social planning and social welfare—call it communism or socialism or social democracy or whatever—victimology will always perpetuate itself with the victim society left languishing without any efficacious cures.
Even to this day the Bhopal Gas victims and their families have not received adequate care or compensation and even on the intervention, or perhaps because of the intervention, by the Supreme Court of India, a relatively meager amount of 470 million dollars was finally settled for all the thousands of victims—families of about 20,000 dead and the thousands of others injured -which, according to Dr Ramana Dhara, who was also active on the medical and social field at the time of the disaster, was quite low compared to the enormous compensation Barrack Obama extracted from the British Petroleum company for the Gulf of Mexico oil spill which caused almost no human deaths but only lot of pollution and perishing of certain marine species. Dr Ramana Dhara, in a quite recent TED-MED talk in US, lamented that whereas the Bhopal Gas Disaster victims received only a total of some 470 million dollars amounting to just $500 per injured and around $3000 per dead victim's family, some 20 billion dollars was extracted by the US President from the BP just as interim relief. This shows the crass discrimination, the inequity and injustice so evident on its face as regards reaching relief to the victims of such disasters in the developed and developing countries and above all the inefficiency, impotence and failure of India's political and judicial systems to demand and extract the right amounts of compensation and proper measures of rehabilitation and stern steps of punishment of the guilty victimizers.
It may also be noted in this context that several members of the International Medical Commission on Bhopal Disaster had seriously criticized this stark discrimination in reaching right relief to the victims in these two cases thus:
"The recent $20-billion fund made available to the US government by BP for the oil leak in the Gulf of Mexico has unwittingly highlighted a double standard in the dispensation of justice for the two disasters. The Gulf oil spill is, undoubtedly, ghastly but it is as yet much smaller in scale and consequences than the Bhopal disaster. According to the official figures published by the Indian government, 3,500 people were killed outright with the subsequent death toll claimed to be in excess of 15,000. Union Carbide abandoned the plant after the disaster and has been accused of failing to clean up the site, exposing local people to water supply contaminated with toxic chemicals. The deep water tables in Bhopal and surrounding areas are now considered to be at risk of contamination. Even though Dow Chemical bought Union Carbide's assets, it has refused so far to take responsibility for its liabilities.
While there were Congressional hearings to hold BP publicly accountable for the Gulf oil spill, similar action did not occur for Union Carbide's monumental disaster in Bhopal, even though the company was cutting jobs, decreasing safety training, cutting maintenance costs, and using inferior technology in Bhopal compared to a similar plant in Institute, West Virginia. It took 17 years for the Indian government to obtain a once-for-all settlement of $470-million compensation on behalf of the victims—a meagre sum compared to the interim compensation fund of $20 billion, set up by BP.
The BP fund was set up without knowledge or evidence of injury/loss of human life, apart from those who were on the rig at the time of accident. Yet in Bhopal, without knowing the size of tie damage—for example, the number of people who died or assessing the levels of disability and the effects of long-term morbidity amongst the survivors—the full settlement for compensation was agreed at $470 million. This agreement between the government of India and Union Carbide was considered by the victims to be a violation of their human rights.
If international human rights laws and principles are to be applied, it is clear that there is a vast chasm between the current approach to the oil spill in the Gulf of Mexico and the Bhopal victims and their environment. Transnational corporations must be under exactly the same set of obligations, no matter where their operations take place in the world. We support holding those responsible for the Bhopal disaster to account in the same way as those responsible for the BP Gulf leak."
[The Hindu, 4 August 2010]
And, as per a Wikipedia report, "The 2010 Deepwater Horizon oil spill, the largest accidental release of oil into marine waters in history, resulted in severe environmental, health and economic consequences [initial oil rig explosion killing 11 persons and injuring 17, and largest oil spill in history of about 5 million barrels of oil affecting the coastal seas of several American states and killing lot of marine species]. The company (BP) pled guilty to 11 counts of felony manslaughter, two misdemeanors, and one felony count of lying to Congress, and agreed to pay more than $4.5 billion in fines and penalties, the largest criminal resolution in US history. Legal proceedings expected to conclude in 2014 are ongoing to determine payouts and fines under the Clean Water Act and the Natural Resources Damage Assessment. BP faces damages of up to $17.6 billion in the trial."
Another illustration of social victimology, in which category such disasters and/or destructive deeds can be grouped under, is more near-home—an eco-destructive campaign undertaken by the government and urban development and municipal authorities themselves in Hyderabad. This related to the deliberate destruction of the water-spread area of the historic Hussain Sagar lake and construction of a 'Necklace Road' filling up the waters with all trash and garbage and also permitting many commercial enterprises and above all a Railway Station to be built in the water-spread area which is against all canons of environmental law and justice and also directly violative of fundamental rights of citizens to clean waters, clean and eco-harmony. A writ petition was filed by some adjacent basti-dwellers and social activists of the city, at first an injunction was granted against the construction of the railway station, but later somewhat hastily revoked and so the public interest litigation had to knock the doors of the Apex Court by way of appeal against such interim order.
What is relevant here that despite people's protests and objections the state authorities themselves have with impunity embarked on the destruction of the historic lake, now reduced to almost one-third of its once sprawling water-spread area, thereby seriously damaging the lung-space of the entire Hyderabad citizenry. And an I-Max theatre, an NTR Gardens, a People's Plaza, an Eat Street, a Jala Vihar, etc. commercial enterprises and a Necklace Road, MMTS Railway Station and the elegant Necklace Road itself which have come up in the ruins of this lake, or which have been built by ruining the lake, and are in ostentatious display and existence since about two decades now—will or can all of these be demolished to restore the glory of the sprawling water-spread of the city's unique lake? Can the lung-space of the citizenry be at least restored if not enriched by any remedial measures and how long this litigation is going to take further—how many years/decades more before any equitable justice reached to the people of the city? This is another stark example of collective victimization by the state organs in collusion with corporate bodies.
Now just one illustration of individual victimization by a corporate company. This company illegally and fraudulently transferred a part of its industry to some other more cunning and fraudulent company in order to easily get rid of its unwanted 'surplus' workmen without the usual legal constraints confronting it otherwise and also to sell away some valuable properties as real estate to reap some windfalls and in that course transferred its workmen also en masse like chattel without any consultation process and any tripartite accord. A workman who protested against this transfer and only asked for settlement of accounts as on that day of transfer and refused to join the transferee establishment was totally disowned and he had to knock the doors of the High Court for justice. Even after a decade his case is pending but meanwhile he suffered a heart attack for which despite incessant requests neither the corporate management nor even the provident fund authorities did not extend a paisa of help—from his own legally due arrears. He had to again pray the High Court for the release of his own provident fund as medical advance which after long gestation was ultimately granted but by this time he had fallen into lakhs of rupees debts for undergoing a heart surgery and the post-operation medical care which is a daily encumbrance on his frail resources, and is undergoing a lot of distress, suffering and humiliation and is rendered totally destitute. This is happening in spite of the protective social welfare legislation, which is unfortunately not clear enough and not insisting on speedy and decent remedies to the victims of corporate frauds and unfair labor practices. This particular development in that company has also resulted in collective victimization of the workmen of that company with more than a hundred among them thrown out from the workforce by various devious means. The laws may sound progressive but are not quick enough, or quite tardy and impotent, and as Anacharsis lamented and Balzac polished up: "Laws are spider webs through which the big flies pass and the little ones get caught'. ooo
Vol. 47, No. 21, Nov 30 - Dec 6, 2014