[FONT=Arial, Helvetica, sans-serif]For A Few Pieces Of Silver[/FONT]
[FONT=Arial, Helvetica, sans-serif]AS NEW SKELETONS FALL OUT OF THE OLD BHOPAL GAS TRAGEDY, [/FONT] [FONT=Arial, Helvetica, sans-serif]SHOMA CHAUDHURY AND SHANTANU GUHA RAY TRACK HOW JUSTICE IS STILL BEING SUBVERTED TO PROTECT THE “INVESTMENT CLIMATE” IN INDIA[/FONT]
[FONT=Arial, Helvetica, sans-serif]SOMETIMES THE breaking news is not as important as the old record. In a small, box-shaped room in the shanty colony of JP Nagar in Bhopal, Leelabai, a tiny sparrow of a woman, sits crying. She doesn’t care about Warren Anderson. She lost her ailing 27-year-old daughter a month earlier to an undiagnosed disease. Her frail 23-year-old son looks like he’s 14 and her one-year-old grandson is lying on the floor sucking at a pacifier. Her husband is a day labourer. “It would have been better if my children had died right then. We bring them up with so much difficulty, it’s worse to lose them at this age. And what’s the point of having all these hospitals in our name if they can’t even diagnose why we are dying. They might as well shut the hospitals and let us die in our homes.”[/FONT]
[FONT=Arial, Helvetica, sans-serif]Leelabai is just one of lakhs of people across three generations who’ve been destroyed by the evil white cloud that floated out of the Union Carbide factory in 1984. Hazrat Bi, who sits next to her, had left her sleeping four-year-old son behind in the rush to escape that night. By the time she raced back to find him, he was unconscious. Although he survived, he grew up to have a deformed child. Such stories replicate endlessly through the colony. Survivors suffering from breathlessness, failing eyesight, painful stomachs, missing limbs, angry skins. Children of exposed parents born with incapacities of varying degrees.
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[FONT=Arial, Helvetica, sans-serif]In far-away Delhi, Brigadier Jitender Pal Sud, another survivor, sits in a wheelchair completely paralysed. “The gas did not kill me in one clean stroke. Its grip on my body has increased over the years; it’s eating away at me gradually.” But it is pointless to talk of the suffering of these people because, as it turns out, it seems the real story of Bhopal 1984 is not the devastation it brought. Or the legitimate search that should’ve been undertaken to ensure such a thing never happens again. The real and sinister story of Bhopal is the perceived impact it had on India’s “investment climate” and the distorted, craven ways in which successive Indian governments have worked to manage that.[/FONT]
[FONT=Arial, Helvetica, sans-serif]Over the last week — ever since a Bhopal trial court read out its verdict on the criminal case against Union Carbide functionaries on June 7 — there has been a series of shocking confessions. Twenty five thousand people dead, 5 lakh affected and the accused only get two years in jail and bail on a bond of Rs 25,000? This was too little justice to stomach for the world’s worst industrial disaster. The verdict seemed to unlock a sleeping consciousness. Outrage spilled across the country. Key people, silent for too long, began to speak up. Old facts tumbled into the media: how Warren Anderson, the CEO of Union Carbide USA and now chief absconder, had been flown into Bhopal on December 7, 1984, arrested ceremoniously at the airport, taken to the Union Carbide guest house, given tea, then on the orders of then Madhya Pradesh Chief Minister Arjun Singh, put on a State aircraft back to Delhi and out of India to safety.[/FONT]
[FONT=Arial, Helvetica, sans-serif]Captain RS Sodhi, director of aviation in Bhopal at the time, has spoken of how he was ordered by the chief minister’s office to arrange Anderson’s departure. Captain SH Ali, the pilot who flew the plane, has spoken of how District Collector Moti Singh and Superintendent of Police Swaraj Puri escorted Anderson and waved as he flew off. (Moti Singh has said he acted on the instruction of the state chief secretary; and there is no word from Puri but there’s video footage of him waving). In addition, Arun Nehru, former commerce minister and once a close Rajiv Gandhi confidant and strategist, has said that once Anderson reached Delhi, he met President Giani Zail Singh and Home Minister PV Narasimha Rao like some visiting dignitary before flying out to safety. And BR Lall, a CBI officer and principal investigator in the Bhopal case till 1995, has said the CBI was instructed by the Ministry of External Affairs not to pursue the extradition of Anderson.[/FONT]
[FONT=Arial, Helvetica, sans-serif]These disturbing admissions have led to two things over the last week: a renewed clamour for extraditing Anderson, who is now 90 years old; and a conjecture game about whether it was Prime Minister Rajiv Gandhi who directed Anderson be let off. In a sense, both concerns are dangerously shortsighted. The extradition of Warren Anderson is certainly warranted (though unlikely) and would be symbolically satisfying. But what will Leelabai and the generations that come after her gain by merely nailing a 90-year old man? Equally, as Arun Nehru says, it is surely an inescapable fact that Rajiv Gandhi not only knew but had sanctioned Anderson’s flight out of India. But to pin it at that would be to relegate the travesty of Bhopal merely to a past mistake, committed by an earlier government.[/FONT]
[FONT=Arial, Helvetica, sans-serif]The real and dark truth about Bhopal is that these recent revelations are not isolated events but part of a continuing story whose outcome will have farreaching implications for our collective life as a nation. Talking about Rajiv Gandhi’s culpability in letting Anderson go, Arun Nehru said something that seems to have escaped majority attention. To paraphrase loosely, it might be wrong to judge events in the 1980s with the perspective of India in 2010, he said. India was poor and it was very difficult to get money invested into the country. Punishing Anderson would have sent out a bad signal to the US business. (A declassified CIA note reiterates this view.)[/FONT]
[FONT=Arial, Helvetica, sans-serif]Disturbing as this may be, it is plausible that Anderson was let off in 1984 not out of individual corruption but a misguided attempt to boost investor confidence in India — “under American pressure”, as senior Congress leader Digvijay Singh puts it. The trouble is, the Indian government’s ‘leniency’ did not stop there. Nothing has changed in India 2010. A cluster of damaging official letters from 2006 to as recently as 2008, accessed through RTI, shows that what was done for Union Carbide in 1984, and after, is still being done for its successor company Dow Chemical today. Shockingly, these letters show some of the most powerful men in government and industry, from Prime Minister Manmohan Singh to P Chidambaram (then Finance Minister), Kamal Nath (then Commerce and Industry minister), Ronen Sen (then Indian Ambassador to the US) Montek Singh Ahluwalia, Deputy Chairman, Planning Commission, Abhishek Singhvi, Congress spokesperson and Ratan Tata, among others, consulting each other on the best way to allow Dow Chemical to evade liability in paying for the remediation (or clean-up) of the toxic contamination in Bhopal.[/FONT]
[FONT=Arial, Helvetica, sans-serif]Their rationale — referred to again and again in the letters — is still the same: how to enhance “India’s investment climate”. According to these letters, at a meeting of the US-India CEO Forum, Andrew Liveris, CEO of Dow Chemical, pledged that he would invest Rs 1,000 crore in India if the government would whisk away all the uncomfortable “legacy issues in Bhopal” arising out of Dow buying Union Carbide in 2001. The Indian government is not only willing to fall over backwards to do this, it is willing to subvert the cause of justice in Bhopal. Willing to set a bad precedent which will impact India for generations to come.[/FONT]
[FONT=Arial, Helvetica, sans-serif]Even as this travesty unfolds — driven by the same logic of wooing investors — the government is simultaneously pushing for a dangerous Nuclear Civil Liability Bill that excuses foreign suppliers from all criminal liability and seeks to cap their maximum financial liability at Rs 500 crore in the event of a nuclear disaster. (The rest to be borne by the Indian taxpayer.) It further states that potential victims will have no right to take foreign suppliers to court and only the Indian operator — Nuclear Power Corporation of India Ltd (NPCIL) — can sue the suppliers if it so wishes. It allows victims only 10 years within which to make claims (ruling out corporate liability for long-term or multi-generation health impacts). And it deems that all nucleardisaster related litigation will be outside the purview of ordinary Indian courts: claims and civil cases will only be entertained in a Nuclear Damages Commission. A sort of single window to justice (and, therefore, also easier to “manage”).[/FONT]
[FONT=Arial, Helvetica, sans-serif]Ratan Tata’s offer to pay for the toxic waste clean-up tried to turn legal liability into an act of private grace[/FONT] [FONT=Arial, Helvetica, sans-serif]To understand the staggering — almost tectonic — significance of all this, one has to go back to the beginning. To the ugly story of how India was made to sell itself — body and soul — to protect foreign investment.[/FONT]
[FONT=Arial, Helvetica, sans-serif]SATINATH SARANGI sits laughing helplessly in a coffee shop in Delhi, a few days after the criminal case verdict. He had first gone to Bhopal from Banaras Hindu University as a relief volunteer in 1984. He never returned and has been one of Bhopal’s key campaigners for 26 years. With every story he tells, he laughs. The magnitude of betrayals is so huge, there can be no other response. Rashida Bi, however, asks if it would have been better if they had picked up the gun.[/FONT]
[/FONT] [FONT=Arial, Helvetica, sans-serif]Mapping the complicated story of the Bhopal gas disaster is like walking into an eerie, multi-chambered hall of horrors. One chamber holds the story of the disaster, the devastations it brought, the compensation given, the dilutions that were engineered. A second chamber holds the story of another separate and ongoing disaster: Union Carbide’s toxic waste both on the factory premises and in the three solar evaporation ponds where it used to dump this waste — a contamination which predates the night of December 3 and which is still poisoning the communities around. A third chamber holds the tortuous legal story and the subversion of justice that led to last week’s outrage. Other chambers hold stories about corrupt pollution boards; aborted medical surveys; a thousand unkept promises.[/FONT]
[FONT=Arial, Helvetica, sans-serif]But, in a sense, the second chamber has the most far-reaching consequences for India. It is the chamber of legacies. It asks: who is liable for the environmental mess created by an industrial company? Who will be responsible for the dangerous health impacts of its negligence? How strongly will India monitor and bring cavalier corporate behaviour to book? Or to use former Boston Consultancy head Arun Maira’s more succinct terms: “Whose *** will you kick when things go wrong? Where does the buck stop?” How we deal with these questions in the Bhopal gas tragedy case will determine how such industries do business in India in the future.[/FONT]
[FONT=Arial, Helvetica, sans-serif]The urgent story of Dow Chemical and the current Indian government involves this second chamber.[/FONT]
[FONT=Arial, Helvetica, sans-serif]The Union Carbide factory in Bhopal sprawls over a 100 acres. All along its edges are teeming, shanty colonies, no mandatory buffers between poison and people. (Shockingly, according to TEHELKA’s sources, the reason the lethal Union Carbide factory came to Bhopal in the first place in 1975 is because the then Industries Minister Shankar Dayal Sharma, who later became the President of India, insisted it be set up in his constituency rather than the more deserted Jagdalpur, where it was intended. RK Sahi, who was then Deputy Director in the ministry, confirmed this when he told The Hindu that the entire department was against granting the industrial licence. “We knew that discarded technologies were being transferred to India. It was obsolete in the US, but it was being dumped in our country. We all knew that,” he said. “These things were finally decided at a high level. There was a lot of talk of political interference in those days. Union Carbide had been trying for a licence since 1970. They only got it during the Emergency, which was not a democratic government. So, whatever somebody wanted to do, he or she did it then.”)[/FONT]
[FONT=Arial, Helvetica, sans-serif]For two decades after the disaster, the abandoned factory remained as it was — untended. Its lethal waste — capable of causing cancer, physical and mental retardation, headaches, dizziness, skin afflictions and worse — seeped dangerously into the soil and underground water. Above ground, many of the pipes and tanks began to corrode with time and spill their hazardous content. Several toxicity studies were done — including a damaging one by Union Carbide itself in 1989, where the samples resulted in 100 percent morbidity in fish within 24 hours. There are other company memos from 1977 and 1982 — predating the apocalyptic night in 1984 — which speak of leakages and toxic seepage into sub-soil water sources. However, these were never made public and no initiative was undertaken to remediate the site. (A major reason for the delay in responding to the hazardous waste in the factory premises after the disaster was the part played by NEERI, a government scientific agency, in downplaying the risk assessment. Again, there are Union Carbide internal memos that talk of how the company decided to fund NEERI’s research so that it would give the company an “opportunity to participate and put forward our views during the progress of the study and try to protect the company’s interest.”)[/FONT]
[FONT=Arial, Helvetica, sans-serif]The continuing tragedy of Bhopal is the official push for a corporate utopia of ‘all-rights-and-no-duties’[/FONT] [FONT=Arial, Helvetica, sans-serif]Faced with this adamant corporation, refusing its ethical and legal duty to clean up its toxic site, some Bhopal campaigners filed a case in a US court. Finally, in 2004, a local activist Aloke Pratap Singh filed a PIL in the Madhya Pradesh High Court urging the immediate remediation of the site and requesting that Dow Chemicals be held liable for it. In May 2005, the Ministry of Chemical (then under Ram Vilas Paswan) petitioned the court to direct Dow to deposit Rs 100 crore in advance for remediation. In the five years since then, this petition has remained the only tiny wedge that has stopped Dow — and through it Union Carbide — from getting away scot-free.[/FONT]
[FONT=Arial, Helvetica, sans-serif]In all the official letters accessed through RTI , this googly from the Ministry of Chemicals comes up for repeated mention. Disturbingly, it is corporate patriarch and Co-Chairman of the influential US-India CEO Forum, Ratan Tata who first suggests to then Finance Minister P Chidambaram in July 2006 that the remediation of the site should be taken over “in national interest” by “responsible Indian corporates in the private and public sector” as delays in the litigation “could cause illness and even death to people other than those affected by the old Bhopal tragedy.” However, far from being merely a humanitarian act of conscience undertaken by Indian corporates as an interim measure while the courts pin down the corporation actually responsible for the mess, Mr Tata’s offer comes with strings attached. In a November 2006 letter to Montek Singh Ahluwalia, he mentions a letter written by Dow CEO Andrew Liveris to Ambassador Ronen Sen in which Liveris specifically asks that the Ministry of Chemicals withdraw their wedge in the door: the application for Rs 100 crore as an interim deposit. Tata writes, “Obviously this is a key aspect because the application implies that the Government of India views Dow as ‘liable’ in the Bhopal Gas Disaster case”. His offer to set up a private remediation fund still stands, he says, if the deadlock can be broken. Yet, he goes on to say, “I also understand the High Court hearing continues the fairly positive process wherein the court is focussing on the remediation of the site while reiterating their earlier order that the government of India and the government of MP should bear the cost of remediation equally”! (My italics; my exclamation of dismay.)[/FONT]
[FONT=Arial, Helvetica, sans-serif]This one letter from Andrew Liveris was sufficient to trigger a frantic carousel of consultations between ministers. Both Chidambaram and Kamal Nath strongly urge that Tata’s offer be taken up and Dow be let off the hook — to bolster investor confidence. The Prime Minister’s principal secretary, TKA Nair even suggests to Dow that they approach Congress spokesperson Abhishek Singhvi “for guidance.” (Singhvi goes on to become counsel for Dow in t he toxic waste case and is currently arguing influentially in court on why Dow is not liable. “This is what a glorious party led by lawyers like Nehru and Gandhi has come to,” says the PIL litigant, Aloke Pratap Singh.) However, despite this high pressure lobbying, the Ministry of Chemicals doggedly refuses to withdraw its wedge.[/FONT]
[FONT=Arial, Helvetica, sans-serif]One might ask, what was wrong with Tata’s offer? The answer is simple. Like most civilised countries, India follows a common legal principle: the polluter pays. Through his offer, both Tata, Dow and the Indian government were seeking to turn what should be a non-negotiable ethical and moral duty — and legal liability — for any polluting industry into an act of personal magnanimity. If this had gone through as a precedent, victims of industrial disasters in India would have been reduced to seeking remediation as a voluntary (and unreliable) act of grace rather than their legal right. In fact, in the same breath that he offers to set up a fund, in his letter to Montek Singh, ironically, Tata also refers to the “positive process” in court which would lead to the government of India and government of Madhya Pradesh paying for the remediation of UCC — and thereby Dow’s — toxic waste. So the eventual buck was to be passed not even to supposedly enlightened industrialists like him but the ordinary Indian taxpayer.[/FONT]
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[FONT=Arial, Helvetica, sans-serif]The disturbing thing is, the corporate utopia of ‘all-rights-and-no duties’ that is currently being pursued through sleight of hand will become the legal position if the Nuclear Civil Liability Bill goes through. Indians will become disenfranchised.[/FONT]
[FONT=Arial, Helvetica, sans-serif]Attempts to reach Abhishek Singhvi and Home Minister Chidambaram for their rationale led nowhere. Singhvi was out of the country; Chidambaram responded with, “Sorry, I have nothing to share.”[/FONT]
[FONT=Arial, Helvetica, sans-serif]Andrew Liveris’ letter had the government in a tizzy. The Bhopal victims’ walk to Delhi achieved nothing[/FONT] [FONT=Arial, Helvetica, sans-serif]MANAGEMENT GURU and former Procter and Gamble head,
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[FONT=Arial, Helvetica, sans-serif]Gurcharan Das has recently written a book on the “Dharma of Capitalism”: he understands the moral tightrope of engendering a friendly “investment climate” in India. “I sympathise with what you are saying. You are right about the difference between legal liability and private magnanimity, but I would not be too harsh on people like Chidambaram and Kamal Nath. The investment community is still very hostile to India. I am just back from New York and it was humiliating to hear investors’ views on India and how corrupt it is. China is way ahead of us as a preferred destination. We have a lot of catching up to do.”[/FONT]
[FONT=Arial, Helvetica, sans-serif]Unfortunately, this seems a fallacious argument. Few would oppose the transformation of India into a less corrupt society: the opposition is to a government that is willing to sacrifice the interests of its own citizens, violate the principles of natural justice — and even subvert the law of the land — merely to sweeten the climate for foreign investors. The real question facing the country then is: on what terms should we accept business? How can we ensure that a corporate entity also behaves like a good citizen?[/FONT]
[FONT=Arial, Helvetica, sans-serif]“It all depends on how strong a country is,” says a reputed IT industrialist, who does not wish to be named. He’s right. Dow’s position in India is that it is not liable for any of Union Carbide’s legacy issues. In the US though, in a 2003 shareholder statement, it voluntarily looked into “asbestos issues associated with Union Carbide’s former business activities” and not only held itself liable but put aside $2.2 billion as “potential cost of resolving pending and future claims against Carbide.” As a result of this assessment, the statement says, “Carbide — and consequently Dow —took a pretax charge to earnings of $828 million in the fourth quarter of 2002” (my italics).[/FONT]
[FONT=Arial, Helvetica, sans-serif]“Carbide — and consequently Dow”: that is the evident (and self-confessed) relationship Bhopal campaigners are trying to insist on in their search for justice. But the weight of almost the entire political establishment is against them. The BJP may be shouting ho{censored} about the Congress’ culpability in letting Anderson off, but its own senior MP, Arun Jaitley has written a detailed note on why Dow should not be made liable for the remediation cost in Bhopal. (A copy of this is with TEHELKA). To understand the legal sleight of hand — “corporate veil” — that both Dow and the Indian government are using to defend this position, one has step into the third chamber of horrors and go back to the shameful ways in which earlier Indian governments allowed Union Carbide to evade its liability in the first place. The protection of Dow now is in a continuum with the abject protection extended to Carbide then.[/FONT]
[FONT=Arial, Helvetica, sans-serif]The Bhopal pesticide plant was owned by Union Carbide India Limited (UCIL), in which Union Carbide USA (UCC) had a majority 50.9 percent shares. The plant was however designed by UCC and most of its day-to-day running was closely monitored by it. After the fateful night of December 3, a case was filed in the district court in Bhopal against UCC, UCIL and other sister companies. Under the Bhopal Act of 1985, the government made itself the sole litigant on behalf of the victims and initially sued Union Carbide for $3.3 billion in damages. However, when the litigation promised to go on for years, the chief magistrate directed UCC to pay Rs 350 crore as an interim fund. UCC appealed against this in the MP High Court and the judge there reduced the sum to Rs 270 crore. The Indian government cross-appealed at the Supreme Court and in 1989 Justice RS Pathak directed an out-of-court settlement between the government and UCC.[/FONT]
[FONT=Arial, Helvetica, sans-serif]This settlement itself was a terrible travesty. The amount agreed on was $470 million — barely 15 percent of what was first claimed. The key consideration was not how much Bhopal’s victims needed, but how much UCC had set aside as insurance. What was infinitely — infinitely — worse was that as part of the settlement package, the government agreed to quash every other civil and criminal liability against UCC in perpetuity. “We ransacked the Union Carbide office in Delhi,” says Satinath. “We were so angry, when we couldn’t find anything else, we tore their telephone directories.”[/FONT]
[FONT=Arial, Helvetica, sans-serif]The national uproar forced the issue back in the courts and though the Supreme Court upheld the settlement twice, in 1991, it was forced to re-allow criminal proceedings against UCC and UCIL. UCC, however, failed to appear before the court and the chief magistrate attached all its properties in 1992. Shamefully (and infamously), Chief Justice AM Ahmadi overturned the magistrates’ decision in 1994 and allowed UCC to sell its shares in UCIL — on the condition that the proceeds would go towards a Bhopal Memorial Hospital Trust. The Khaitan Group, owner of McLeod Russell — makers of Eveready batteries — bought UCIL. In 1996, Ahmadi extended further inexplicable courtesies and diluted the criminal charges against UCC and its web of companies from “culpable homicide not mounting to murder” (304-II of IPC) to “causing death by negligence” (304 A of IPC). Very soon after — in a visible and degrading conflict of interest— he became the chairman of the Rs 400 crore Hospital Trust he had helped create.[/FONT]
[FONT=Arial, Helvetica, sans-serif]US agencies hauled up Dow for paying $200,000 in bribes to Indian officials; India did absoutely nothing[/FONT] [FONT=Arial, Helvetica, sans-serif]“I have never seen such a draconian and undemocratic Trust,” says Aloke Pratap Singh. “No one can ask any questions. The Trust will pass from him to his heirs and they have no liabilities if there are any losses.” Interestingly, the Trust is also co-chaired by the son of Sir Ian Percival, who is a lawyer with a firm retained by UCC. Leelabai was right not to be concerned about Warren Anderson: she understands that she doesn’t have the voice that will control his destiny. “We, the people,” may have given ourselves the Constitution, but though both Leelabai and Hazra Bi walked 800 kilometres from Bhopal to Delhi — once in 2006 and again in 2008 — seeking an appointment with Prime Minister Manmohan Singh, hoping for justice, they could not set off a flurry of consultative letters in the ministries. How could they: those were the exact years letters were flying fast and thick to attend to Andrew Liveris.[/FONT]
[FONT=Arial, Helvetica, sans-serif]“The government didn’t falter, it’s the Chief Justice who decided to charge the accused under a section meant for car accidents. It’s unfortunate since man-made disasters can’t be treated as accidents,” Law Minister Moily tells TEHELKA over a brief phone conversation from Bengaluru. Counsel for Bhopal victims, Karuna Nundy says they are going to file a curative petition and re-open the criminal case. Sources also say Moily is now putting pressure on Ahmadi to quit the Trust. But the truth is, nothing Ahmadi did was without the government’s knowledge — or sanction. Or else, why did they not appeal against his decision all these years?[/FONT]
[FONT=Arial, Helvetica, sans-serif]SO HOWabjectly far is India willing to stretch to create a conducive investment climate? Is it willing to brave another industrial disaster?[/FONT]
[FONT=Arial, Helvetica, sans-serif]It would seem so. In the unseemly hurry to please Dow Chemical, a special Technical Committee under a government Task Force, directed 40 metric tonnes of the lethal waste from the Bhopal factory to be disposed of in an incinerator and storage facility at Pithampur, near Indore, run by Ramky Enviro Engineers Ltd. The culpable inefficiencies of Ramky and its Pithampur facility are an epic chamber of horror in themselves: akin to a mere shift in location of crime. No one in government seems concerned, for instance, that the Central Pollution Control Board (CPCB) has made several adverse remarks during its inspections about leaking drums, spillages, unscientific evaporation ponds and the general shoddiness of the Pithampur facility. Or that Tarapur village is right next door. Or that when the court ordered that surface hazardous material at the Bhopal factory should be packed and put away somewhere safe, Ramky cavalierly hired some local labourers and got barefooted men and women, with accompanying children, to handle and sweep all the waste — without even the charade of protective gear.[/FONT]
[FONT=Arial, Helvetica, sans-serif]No one in government seems to be embarrassed, either, about the fact that around the time Indian ministers were writing to each other with awe about Dow’s potential investments in India, Dow was being penalised by the US Securities and Exchange Commission, under the Foreign Corrupt Practices Act, for paying $200,000 in bribes to Indian officials to fast-track the registration of their controversial pesticide Dursban (which it sells for residential use in India though it is banned everywhere else). Dow meekly paid $325,000 as civil penalty to the American SEC, while India did nothing.[/FONT]
[FONT=Arial, Helvetica, sans-serif]What’s extremely disturbing is that around this time, in fact, the Maharashtra government was working overtime to clear a controversial Dow Chemical research project in Chakan, near Pune, which — according to The Economic Times but not independently corroborated by TEHELKA — had been rejected both in the US and Europe for safety and toxicity concerns. Far from putting it through stringent examination, however, Indian officials noted on Dow’s October 2006 application: “This is a prestigious project. Just get it examined from pollution point of view and put it up in seven days.” Four lakh square metres of land is given to Dow very soon after and permission for a chemical manufacturing unit is granted on flimsy paperwork.[/FONT]
[FONT=Verdana, Arial, Helvetica, sans-serif]PRESIDENTIAL EDICT US President Barack Obama visits the site of the recent oil spill. He has announced strict punitive measures; but on Bhopal, he is strangely tight-lipped[/FONT]
[FONT=Arial, Helvetica, sans-serif]As word spread, local people and campaigners flowed into Chakan to protest. The buildings under construction were vandalised. Andrew Liveris wrote another spate of letters to Chidambaram and Kamal Nath in October 2008 with aggressive directives: if the state government wanted to review the project, he argued illogically, construction work at the site must be allowed to proceed simultaneously. “The potential implications of these costly disruptions” would prove to be “potentially devastating examples of lack of support for foreign investors,” he threatened. “The government must speak with one voice”, he advised. And ended with the barely veiled order: “We look for tangible evidence of government action in the next 30 days.” Hardly the tone one would expect from a mere corporation to the sovereign Republic of India. Still, the bevy of ministers did what they could. Poised on the verge of a joint venture with a chemical company called GACL in Gujarat, Liveris had, yet again, wanted the Ministry of Chemicals to withdraw its Rs 100 crore wedge in the door. The PMO referred the Dow request to the Law Ministry to see what could be done.[/FONT]
[FONT=Arial, Helvetica, sans-serif]Hearteningly, like the Ministry of Chemicals, the Law Ministry refused to cave in. It observed that “irrespective of the manner in which UCC has merged or has been acquired by Dow Chemical, if there is any legal liability, it would have to be borne by Dow Chemical…” It went on to add it could not assure that the new investment proposed by Dow Chemical would be “immune from the orders of the Court”.[/FONT]
[FONT=Arial, Helvetica, sans-serif]Dow might deem this bad investment support strategy, but India’s citizens would say the Law Ministry was merely doing its job. Self-confidently inviting industry to live and work and profit within the laws of the land.[/FONT]
[FONT=Arial, Helvetica, sans-serif]THERE IS a common axiom among corporations: the business of business is business. This idea allows companies to make money under any circumstances: it creates, to quote Arun Maira, “the legal fiction” that a corporate is a citizen yet somehow exists outside of society. But India is proof that this legal fiction cannot sustain itself in a mature democracy. In recent years, as successive Indian governments have panic-shopped for foreign investment, ironically, ordinary Indian citizens have resisted with claw and blood. Contrary to popular belief, this is not because ordinary Indians are opposed to industry but because they see that business has accrued to itself the right to practice unjustly: seizing land at will; devastating environments; placing itself out of scrutiny.[/FONT]
[FONT=Arial, Helvetica, sans-serif]As national outrage over Bhopal swept across the media, sources say Prime Minister Manmohan Singh told close aides he did not wish Bhopal to become an albatross for the Congress the way the Babri Masjid had become for the BJP. If this is true, he might have to soar beyond strict legalities into the loftier realm of ethics and dharma. As this goes to press, US President Barack Obama has got UKbased energy major BP to commit $20 billion toward cleaning its oil spill in the Gulf of Mexico; and $100 million compensation fund for oil industry workers left jobless. India had asked UCC for only $3.3 billion: it came away with $470 million.[/FONT]
[FONT=Arial, Helvetica, sans-serif]A few years ago, the Prime Minister had famously declared Maoists as “the greatest security threat to the nation” and said the unrest in the heart of India was spoiling the “investment climate of the country.” Now, Rashida Bi is contemplating the gun too — even if only as a joke.[/FONT]
[FONT=Arial, Helvetica, sans-serif]If he really wants to preserve the climate he cares for, then, he could issue a new set of instructions to his group of ministers, slated to meet on June 18: send Bhopal’s toxic waste to safe and reputed incinerators, where no fresh community stands to be harmed. And make Dow pay for the legacy of the worst industrial disaster in the world.[/FONT]
Tehelka - India's Independent Weekly News Magazine
[FONT=Arial, Helvetica, sans-serif]AS NEW SKELETONS FALL OUT OF THE OLD BHOPAL GAS TRAGEDY, [/FONT] [FONT=Arial, Helvetica, sans-serif]SHOMA CHAUDHURY AND SHANTANU GUHA RAY TRACK HOW JUSTICE IS STILL BEING SUBVERTED TO PROTECT THE “INVESTMENT CLIMATE” IN INDIA[/FONT]
[FONT=Arial, Helvetica, sans-serif]SOMETIMES THE breaking news is not as important as the old record. In a small, box-shaped room in the shanty colony of JP Nagar in Bhopal, Leelabai, a tiny sparrow of a woman, sits crying. She doesn’t care about Warren Anderson. She lost her ailing 27-year-old daughter a month earlier to an undiagnosed disease. Her frail 23-year-old son looks like he’s 14 and her one-year-old grandson is lying on the floor sucking at a pacifier. Her husband is a day labourer. “It would have been better if my children had died right then. We bring them up with so much difficulty, it’s worse to lose them at this age. And what’s the point of having all these hospitals in our name if they can’t even diagnose why we are dying. They might as well shut the hospitals and let us die in our homes.”[/FONT]
[FONT=Arial, Helvetica, sans-serif]Leelabai is just one of lakhs of people across three generations who’ve been destroyed by the evil white cloud that floated out of the Union Carbide factory in 1984. Hazrat Bi, who sits next to her, had left her sleeping four-year-old son behind in the rush to escape that night. By the time she raced back to find him, he was unconscious. Although he survived, he grew up to have a deformed child. Such stories replicate endlessly through the colony. Survivors suffering from breathlessness, failing eyesight, painful stomachs, missing limbs, angry skins. Children of exposed parents born with incapacities of varying degrees.
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[FONT=Arial, Helvetica, sans-serif]In far-away Delhi, Brigadier Jitender Pal Sud, another survivor, sits in a wheelchair completely paralysed. “The gas did not kill me in one clean stroke. Its grip on my body has increased over the years; it’s eating away at me gradually.” But it is pointless to talk of the suffering of these people because, as it turns out, it seems the real story of Bhopal 1984 is not the devastation it brought. Or the legitimate search that should’ve been undertaken to ensure such a thing never happens again. The real and sinister story of Bhopal is the perceived impact it had on India’s “investment climate” and the distorted, craven ways in which successive Indian governments have worked to manage that.[/FONT]
[FONT=Arial, Helvetica, sans-serif]Over the last week — ever since a Bhopal trial court read out its verdict on the criminal case against Union Carbide functionaries on June 7 — there has been a series of shocking confessions. Twenty five thousand people dead, 5 lakh affected and the accused only get two years in jail and bail on a bond of Rs 25,000? This was too little justice to stomach for the world’s worst industrial disaster. The verdict seemed to unlock a sleeping consciousness. Outrage spilled across the country. Key people, silent for too long, began to speak up. Old facts tumbled into the media: how Warren Anderson, the CEO of Union Carbide USA and now chief absconder, had been flown into Bhopal on December 7, 1984, arrested ceremoniously at the airport, taken to the Union Carbide guest house, given tea, then on the orders of then Madhya Pradesh Chief Minister Arjun Singh, put on a State aircraft back to Delhi and out of India to safety.[/FONT]
[FONT=Arial, Helvetica, sans-serif]Captain RS Sodhi, director of aviation in Bhopal at the time, has spoken of how he was ordered by the chief minister’s office to arrange Anderson’s departure. Captain SH Ali, the pilot who flew the plane, has spoken of how District Collector Moti Singh and Superintendent of Police Swaraj Puri escorted Anderson and waved as he flew off. (Moti Singh has said he acted on the instruction of the state chief secretary; and there is no word from Puri but there’s video footage of him waving). In addition, Arun Nehru, former commerce minister and once a close Rajiv Gandhi confidant and strategist, has said that once Anderson reached Delhi, he met President Giani Zail Singh and Home Minister PV Narasimha Rao like some visiting dignitary before flying out to safety. And BR Lall, a CBI officer and principal investigator in the Bhopal case till 1995, has said the CBI was instructed by the Ministry of External Affairs not to pursue the extradition of Anderson.[/FONT]
[FONT=Arial, Helvetica, sans-serif]These disturbing admissions have led to two things over the last week: a renewed clamour for extraditing Anderson, who is now 90 years old; and a conjecture game about whether it was Prime Minister Rajiv Gandhi who directed Anderson be let off. In a sense, both concerns are dangerously shortsighted. The extradition of Warren Anderson is certainly warranted (though unlikely) and would be symbolically satisfying. But what will Leelabai and the generations that come after her gain by merely nailing a 90-year old man? Equally, as Arun Nehru says, it is surely an inescapable fact that Rajiv Gandhi not only knew but had sanctioned Anderson’s flight out of India. But to pin it at that would be to relegate the travesty of Bhopal merely to a past mistake, committed by an earlier government.[/FONT]
[FONT=Arial, Helvetica, sans-serif]The real and dark truth about Bhopal is that these recent revelations are not isolated events but part of a continuing story whose outcome will have farreaching implications for our collective life as a nation. Talking about Rajiv Gandhi’s culpability in letting Anderson go, Arun Nehru said something that seems to have escaped majority attention. To paraphrase loosely, it might be wrong to judge events in the 1980s with the perspective of India in 2010, he said. India was poor and it was very difficult to get money invested into the country. Punishing Anderson would have sent out a bad signal to the US business. (A declassified CIA note reiterates this view.)[/FONT]
[FONT=Arial, Helvetica, sans-serif]Disturbing as this may be, it is plausible that Anderson was let off in 1984 not out of individual corruption but a misguided attempt to boost investor confidence in India — “under American pressure”, as senior Congress leader Digvijay Singh puts it. The trouble is, the Indian government’s ‘leniency’ did not stop there. Nothing has changed in India 2010. A cluster of damaging official letters from 2006 to as recently as 2008, accessed through RTI, shows that what was done for Union Carbide in 1984, and after, is still being done for its successor company Dow Chemical today. Shockingly, these letters show some of the most powerful men in government and industry, from Prime Minister Manmohan Singh to P Chidambaram (then Finance Minister), Kamal Nath (then Commerce and Industry minister), Ronen Sen (then Indian Ambassador to the US) Montek Singh Ahluwalia, Deputy Chairman, Planning Commission, Abhishek Singhvi, Congress spokesperson and Ratan Tata, among others, consulting each other on the best way to allow Dow Chemical to evade liability in paying for the remediation (or clean-up) of the toxic contamination in Bhopal.[/FONT]
[FONT=Arial, Helvetica, sans-serif]Their rationale — referred to again and again in the letters — is still the same: how to enhance “India’s investment climate”. According to these letters, at a meeting of the US-India CEO Forum, Andrew Liveris, CEO of Dow Chemical, pledged that he would invest Rs 1,000 crore in India if the government would whisk away all the uncomfortable “legacy issues in Bhopal” arising out of Dow buying Union Carbide in 2001. The Indian government is not only willing to fall over backwards to do this, it is willing to subvert the cause of justice in Bhopal. Willing to set a bad precedent which will impact India for generations to come.[/FONT]
[FONT=Arial, Helvetica, sans-serif]Even as this travesty unfolds — driven by the same logic of wooing investors — the government is simultaneously pushing for a dangerous Nuclear Civil Liability Bill that excuses foreign suppliers from all criminal liability and seeks to cap their maximum financial liability at Rs 500 crore in the event of a nuclear disaster. (The rest to be borne by the Indian taxpayer.) It further states that potential victims will have no right to take foreign suppliers to court and only the Indian operator — Nuclear Power Corporation of India Ltd (NPCIL) — can sue the suppliers if it so wishes. It allows victims only 10 years within which to make claims (ruling out corporate liability for long-term or multi-generation health impacts). And it deems that all nucleardisaster related litigation will be outside the purview of ordinary Indian courts: claims and civil cases will only be entertained in a Nuclear Damages Commission. A sort of single window to justice (and, therefore, also easier to “manage”).[/FONT]
[FONT=Arial, Helvetica, sans-serif]Ratan Tata’s offer to pay for the toxic waste clean-up tried to turn legal liability into an act of private grace[/FONT] [FONT=Arial, Helvetica, sans-serif]To understand the staggering — almost tectonic — significance of all this, one has to go back to the beginning. To the ugly story of how India was made to sell itself — body and soul — to protect foreign investment.[/FONT]
[FONT=Arial, Helvetica, sans-serif]SATINATH SARANGI sits laughing helplessly in a coffee shop in Delhi, a few days after the criminal case verdict. He had first gone to Bhopal from Banaras Hindu University as a relief volunteer in 1984. He never returned and has been one of Bhopal’s key campaigners for 26 years. With every story he tells, he laughs. The magnitude of betrayals is so huge, there can be no other response. Rashida Bi, however, asks if it would have been better if they had picked up the gun.[/FONT]
[/FONT] [FONT=Arial, Helvetica, sans-serif]Mapping the complicated story of the Bhopal gas disaster is like walking into an eerie, multi-chambered hall of horrors. One chamber holds the story of the disaster, the devastations it brought, the compensation given, the dilutions that were engineered. A second chamber holds the story of another separate and ongoing disaster: Union Carbide’s toxic waste both on the factory premises and in the three solar evaporation ponds where it used to dump this waste — a contamination which predates the night of December 3 and which is still poisoning the communities around. A third chamber holds the tortuous legal story and the subversion of justice that led to last week’s outrage. Other chambers hold stories about corrupt pollution boards; aborted medical surveys; a thousand unkept promises.[/FONT]
[FONT=Arial, Helvetica, sans-serif]But, in a sense, the second chamber has the most far-reaching consequences for India. It is the chamber of legacies. It asks: who is liable for the environmental mess created by an industrial company? Who will be responsible for the dangerous health impacts of its negligence? How strongly will India monitor and bring cavalier corporate behaviour to book? Or to use former Boston Consultancy head Arun Maira’s more succinct terms: “Whose *** will you kick when things go wrong? Where does the buck stop?” How we deal with these questions in the Bhopal gas tragedy case will determine how such industries do business in India in the future.[/FONT]
[FONT=Arial, Helvetica, sans-serif]The urgent story of Dow Chemical and the current Indian government involves this second chamber.[/FONT]
[FONT=Arial, Helvetica, sans-serif]The Union Carbide factory in Bhopal sprawls over a 100 acres. All along its edges are teeming, shanty colonies, no mandatory buffers between poison and people. (Shockingly, according to TEHELKA’s sources, the reason the lethal Union Carbide factory came to Bhopal in the first place in 1975 is because the then Industries Minister Shankar Dayal Sharma, who later became the President of India, insisted it be set up in his constituency rather than the more deserted Jagdalpur, where it was intended. RK Sahi, who was then Deputy Director in the ministry, confirmed this when he told The Hindu that the entire department was against granting the industrial licence. “We knew that discarded technologies were being transferred to India. It was obsolete in the US, but it was being dumped in our country. We all knew that,” he said. “These things were finally decided at a high level. There was a lot of talk of political interference in those days. Union Carbide had been trying for a licence since 1970. They only got it during the Emergency, which was not a democratic government. So, whatever somebody wanted to do, he or she did it then.”)[/FONT]
[FONT=Arial, Helvetica, sans-serif]For two decades after the disaster, the abandoned factory remained as it was — untended. Its lethal waste — capable of causing cancer, physical and mental retardation, headaches, dizziness, skin afflictions and worse — seeped dangerously into the soil and underground water. Above ground, many of the pipes and tanks began to corrode with time and spill their hazardous content. Several toxicity studies were done — including a damaging one by Union Carbide itself in 1989, where the samples resulted in 100 percent morbidity in fish within 24 hours. There are other company memos from 1977 and 1982 — predating the apocalyptic night in 1984 — which speak of leakages and toxic seepage into sub-soil water sources. However, these were never made public and no initiative was undertaken to remediate the site. (A major reason for the delay in responding to the hazardous waste in the factory premises after the disaster was the part played by NEERI, a government scientific agency, in downplaying the risk assessment. Again, there are Union Carbide internal memos that talk of how the company decided to fund NEERI’s research so that it would give the company an “opportunity to participate and put forward our views during the progress of the study and try to protect the company’s interest.”)[/FONT]
[FONT=Arial, Helvetica, sans-serif]The continuing tragedy of Bhopal is the official push for a corporate utopia of ‘all-rights-and-no-duties’[/FONT] [FONT=Arial, Helvetica, sans-serif]Faced with this adamant corporation, refusing its ethical and legal duty to clean up its toxic site, some Bhopal campaigners filed a case in a US court. Finally, in 2004, a local activist Aloke Pratap Singh filed a PIL in the Madhya Pradesh High Court urging the immediate remediation of the site and requesting that Dow Chemicals be held liable for it. In May 2005, the Ministry of Chemical (then under Ram Vilas Paswan) petitioned the court to direct Dow to deposit Rs 100 crore in advance for remediation. In the five years since then, this petition has remained the only tiny wedge that has stopped Dow — and through it Union Carbide — from getting away scot-free.[/FONT]
[FONT=Arial, Helvetica, sans-serif]In all the official letters accessed through RTI , this googly from the Ministry of Chemicals comes up for repeated mention. Disturbingly, it is corporate patriarch and Co-Chairman of the influential US-India CEO Forum, Ratan Tata who first suggests to then Finance Minister P Chidambaram in July 2006 that the remediation of the site should be taken over “in national interest” by “responsible Indian corporates in the private and public sector” as delays in the litigation “could cause illness and even death to people other than those affected by the old Bhopal tragedy.” However, far from being merely a humanitarian act of conscience undertaken by Indian corporates as an interim measure while the courts pin down the corporation actually responsible for the mess, Mr Tata’s offer comes with strings attached. In a November 2006 letter to Montek Singh Ahluwalia, he mentions a letter written by Dow CEO Andrew Liveris to Ambassador Ronen Sen in which Liveris specifically asks that the Ministry of Chemicals withdraw their wedge in the door: the application for Rs 100 crore as an interim deposit. Tata writes, “Obviously this is a key aspect because the application implies that the Government of India views Dow as ‘liable’ in the Bhopal Gas Disaster case”. His offer to set up a private remediation fund still stands, he says, if the deadlock can be broken. Yet, he goes on to say, “I also understand the High Court hearing continues the fairly positive process wherein the court is focussing on the remediation of the site while reiterating their earlier order that the government of India and the government of MP should bear the cost of remediation equally”! (My italics; my exclamation of dismay.)[/FONT]
[FONT=Arial, Helvetica, sans-serif]This one letter from Andrew Liveris was sufficient to trigger a frantic carousel of consultations between ministers. Both Chidambaram and Kamal Nath strongly urge that Tata’s offer be taken up and Dow be let off the hook — to bolster investor confidence. The Prime Minister’s principal secretary, TKA Nair even suggests to Dow that they approach Congress spokesperson Abhishek Singhvi “for guidance.” (Singhvi goes on to become counsel for Dow in t he toxic waste case and is currently arguing influentially in court on why Dow is not liable. “This is what a glorious party led by lawyers like Nehru and Gandhi has come to,” says the PIL litigant, Aloke Pratap Singh.) However, despite this high pressure lobbying, the Ministry of Chemicals doggedly refuses to withdraw its wedge.[/FONT]
[FONT=Arial, Helvetica, sans-serif]One might ask, what was wrong with Tata’s offer? The answer is simple. Like most civilised countries, India follows a common legal principle: the polluter pays. Through his offer, both Tata, Dow and the Indian government were seeking to turn what should be a non-negotiable ethical and moral duty — and legal liability — for any polluting industry into an act of personal magnanimity. If this had gone through as a precedent, victims of industrial disasters in India would have been reduced to seeking remediation as a voluntary (and unreliable) act of grace rather than their legal right. In fact, in the same breath that he offers to set up a fund, in his letter to Montek Singh, ironically, Tata also refers to the “positive process” in court which would lead to the government of India and government of Madhya Pradesh paying for the remediation of UCC — and thereby Dow’s — toxic waste. So the eventual buck was to be passed not even to supposedly enlightened industrialists like him but the ordinary Indian taxpayer.[/FONT]
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[FONT=Arial, Helvetica, sans-serif]The disturbing thing is, the corporate utopia of ‘all-rights-and-no duties’ that is currently being pursued through sleight of hand will become the legal position if the Nuclear Civil Liability Bill goes through. Indians will become disenfranchised.[/FONT]
[FONT=Arial, Helvetica, sans-serif]Attempts to reach Abhishek Singhvi and Home Minister Chidambaram for their rationale led nowhere. Singhvi was out of the country; Chidambaram responded with, “Sorry, I have nothing to share.”[/FONT]
[FONT=Arial, Helvetica, sans-serif]Andrew Liveris’ letter had the government in a tizzy. The Bhopal victims’ walk to Delhi achieved nothing[/FONT] [FONT=Arial, Helvetica, sans-serif]MANAGEMENT GURU and former Procter and Gamble head,
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[FONT=Arial, Helvetica, sans-serif]Gurcharan Das has recently written a book on the “Dharma of Capitalism”: he understands the moral tightrope of engendering a friendly “investment climate” in India. “I sympathise with what you are saying. You are right about the difference between legal liability and private magnanimity, but I would not be too harsh on people like Chidambaram and Kamal Nath. The investment community is still very hostile to India. I am just back from New York and it was humiliating to hear investors’ views on India and how corrupt it is. China is way ahead of us as a preferred destination. We have a lot of catching up to do.”[/FONT]
[FONT=Arial, Helvetica, sans-serif]Unfortunately, this seems a fallacious argument. Few would oppose the transformation of India into a less corrupt society: the opposition is to a government that is willing to sacrifice the interests of its own citizens, violate the principles of natural justice — and even subvert the law of the land — merely to sweeten the climate for foreign investors. The real question facing the country then is: on what terms should we accept business? How can we ensure that a corporate entity also behaves like a good citizen?[/FONT]
[FONT=Arial, Helvetica, sans-serif]“It all depends on how strong a country is,” says a reputed IT industrialist, who does not wish to be named. He’s right. Dow’s position in India is that it is not liable for any of Union Carbide’s legacy issues. In the US though, in a 2003 shareholder statement, it voluntarily looked into “asbestos issues associated with Union Carbide’s former business activities” and not only held itself liable but put aside $2.2 billion as “potential cost of resolving pending and future claims against Carbide.” As a result of this assessment, the statement says, “Carbide — and consequently Dow —took a pretax charge to earnings of $828 million in the fourth quarter of 2002” (my italics).[/FONT]
[FONT=Arial, Helvetica, sans-serif]“Carbide — and consequently Dow”: that is the evident (and self-confessed) relationship Bhopal campaigners are trying to insist on in their search for justice. But the weight of almost the entire political establishment is against them. The BJP may be shouting ho{censored} about the Congress’ culpability in letting Anderson off, but its own senior MP, Arun Jaitley has written a detailed note on why Dow should not be made liable for the remediation cost in Bhopal. (A copy of this is with TEHELKA). To understand the legal sleight of hand — “corporate veil” — that both Dow and the Indian government are using to defend this position, one has step into the third chamber of horrors and go back to the shameful ways in which earlier Indian governments allowed Union Carbide to evade its liability in the first place. The protection of Dow now is in a continuum with the abject protection extended to Carbide then.[/FONT]
[FONT=Arial, Helvetica, sans-serif]The Bhopal pesticide plant was owned by Union Carbide India Limited (UCIL), in which Union Carbide USA (UCC) had a majority 50.9 percent shares. The plant was however designed by UCC and most of its day-to-day running was closely monitored by it. After the fateful night of December 3, a case was filed in the district court in Bhopal against UCC, UCIL and other sister companies. Under the Bhopal Act of 1985, the government made itself the sole litigant on behalf of the victims and initially sued Union Carbide for $3.3 billion in damages. However, when the litigation promised to go on for years, the chief magistrate directed UCC to pay Rs 350 crore as an interim fund. UCC appealed against this in the MP High Court and the judge there reduced the sum to Rs 270 crore. The Indian government cross-appealed at the Supreme Court and in 1989 Justice RS Pathak directed an out-of-court settlement between the government and UCC.[/FONT]
[FONT=Arial, Helvetica, sans-serif]This settlement itself was a terrible travesty. The amount agreed on was $470 million — barely 15 percent of what was first claimed. The key consideration was not how much Bhopal’s victims needed, but how much UCC had set aside as insurance. What was infinitely — infinitely — worse was that as part of the settlement package, the government agreed to quash every other civil and criminal liability against UCC in perpetuity. “We ransacked the Union Carbide office in Delhi,” says Satinath. “We were so angry, when we couldn’t find anything else, we tore their telephone directories.”[/FONT]
[FONT=Arial, Helvetica, sans-serif]The national uproar forced the issue back in the courts and though the Supreme Court upheld the settlement twice, in 1991, it was forced to re-allow criminal proceedings against UCC and UCIL. UCC, however, failed to appear before the court and the chief magistrate attached all its properties in 1992. Shamefully (and infamously), Chief Justice AM Ahmadi overturned the magistrates’ decision in 1994 and allowed UCC to sell its shares in UCIL — on the condition that the proceeds would go towards a Bhopal Memorial Hospital Trust. The Khaitan Group, owner of McLeod Russell — makers of Eveready batteries — bought UCIL. In 1996, Ahmadi extended further inexplicable courtesies and diluted the criminal charges against UCC and its web of companies from “culpable homicide not mounting to murder” (304-II of IPC) to “causing death by negligence” (304 A of IPC). Very soon after — in a visible and degrading conflict of interest— he became the chairman of the Rs 400 crore Hospital Trust he had helped create.[/FONT]
[FONT=Arial, Helvetica, sans-serif]US agencies hauled up Dow for paying $200,000 in bribes to Indian officials; India did absoutely nothing[/FONT] [FONT=Arial, Helvetica, sans-serif]“I have never seen such a draconian and undemocratic Trust,” says Aloke Pratap Singh. “No one can ask any questions. The Trust will pass from him to his heirs and they have no liabilities if there are any losses.” Interestingly, the Trust is also co-chaired by the son of Sir Ian Percival, who is a lawyer with a firm retained by UCC. Leelabai was right not to be concerned about Warren Anderson: she understands that she doesn’t have the voice that will control his destiny. “We, the people,” may have given ourselves the Constitution, but though both Leelabai and Hazra Bi walked 800 kilometres from Bhopal to Delhi — once in 2006 and again in 2008 — seeking an appointment with Prime Minister Manmohan Singh, hoping for justice, they could not set off a flurry of consultative letters in the ministries. How could they: those were the exact years letters were flying fast and thick to attend to Andrew Liveris.[/FONT]
[FONT=Arial, Helvetica, sans-serif]“The government didn’t falter, it’s the Chief Justice who decided to charge the accused under a section meant for car accidents. It’s unfortunate since man-made disasters can’t be treated as accidents,” Law Minister Moily tells TEHELKA over a brief phone conversation from Bengaluru. Counsel for Bhopal victims, Karuna Nundy says they are going to file a curative petition and re-open the criminal case. Sources also say Moily is now putting pressure on Ahmadi to quit the Trust. But the truth is, nothing Ahmadi did was without the government’s knowledge — or sanction. Or else, why did they not appeal against his decision all these years?[/FONT]
[FONT=Arial, Helvetica, sans-serif]SO HOWabjectly far is India willing to stretch to create a conducive investment climate? Is it willing to brave another industrial disaster?[/FONT]
[FONT=Arial, Helvetica, sans-serif]It would seem so. In the unseemly hurry to please Dow Chemical, a special Technical Committee under a government Task Force, directed 40 metric tonnes of the lethal waste from the Bhopal factory to be disposed of in an incinerator and storage facility at Pithampur, near Indore, run by Ramky Enviro Engineers Ltd. The culpable inefficiencies of Ramky and its Pithampur facility are an epic chamber of horror in themselves: akin to a mere shift in location of crime. No one in government seems concerned, for instance, that the Central Pollution Control Board (CPCB) has made several adverse remarks during its inspections about leaking drums, spillages, unscientific evaporation ponds and the general shoddiness of the Pithampur facility. Or that Tarapur village is right next door. Or that when the court ordered that surface hazardous material at the Bhopal factory should be packed and put away somewhere safe, Ramky cavalierly hired some local labourers and got barefooted men and women, with accompanying children, to handle and sweep all the waste — without even the charade of protective gear.[/FONT]
[FONT=Arial, Helvetica, sans-serif]No one in government seems to be embarrassed, either, about the fact that around the time Indian ministers were writing to each other with awe about Dow’s potential investments in India, Dow was being penalised by the US Securities and Exchange Commission, under the Foreign Corrupt Practices Act, for paying $200,000 in bribes to Indian officials to fast-track the registration of their controversial pesticide Dursban (which it sells for residential use in India though it is banned everywhere else). Dow meekly paid $325,000 as civil penalty to the American SEC, while India did nothing.[/FONT]
[FONT=Arial, Helvetica, sans-serif]What’s extremely disturbing is that around this time, in fact, the Maharashtra government was working overtime to clear a controversial Dow Chemical research project in Chakan, near Pune, which — according to The Economic Times but not independently corroborated by TEHELKA — had been rejected both in the US and Europe for safety and toxicity concerns. Far from putting it through stringent examination, however, Indian officials noted on Dow’s October 2006 application: “This is a prestigious project. Just get it examined from pollution point of view and put it up in seven days.” Four lakh square metres of land is given to Dow very soon after and permission for a chemical manufacturing unit is granted on flimsy paperwork.[/FONT]
[FONT=Verdana, Arial, Helvetica, sans-serif]PRESIDENTIAL EDICT US President Barack Obama visits the site of the recent oil spill. He has announced strict punitive measures; but on Bhopal, he is strangely tight-lipped[/FONT]
[FONT=Arial, Helvetica, sans-serif]As word spread, local people and campaigners flowed into Chakan to protest. The buildings under construction were vandalised. Andrew Liveris wrote another spate of letters to Chidambaram and Kamal Nath in October 2008 with aggressive directives: if the state government wanted to review the project, he argued illogically, construction work at the site must be allowed to proceed simultaneously. “The potential implications of these costly disruptions” would prove to be “potentially devastating examples of lack of support for foreign investors,” he threatened. “The government must speak with one voice”, he advised. And ended with the barely veiled order: “We look for tangible evidence of government action in the next 30 days.” Hardly the tone one would expect from a mere corporation to the sovereign Republic of India. Still, the bevy of ministers did what they could. Poised on the verge of a joint venture with a chemical company called GACL in Gujarat, Liveris had, yet again, wanted the Ministry of Chemicals to withdraw its Rs 100 crore wedge in the door. The PMO referred the Dow request to the Law Ministry to see what could be done.[/FONT]
[FONT=Arial, Helvetica, sans-serif]Hearteningly, like the Ministry of Chemicals, the Law Ministry refused to cave in. It observed that “irrespective of the manner in which UCC has merged or has been acquired by Dow Chemical, if there is any legal liability, it would have to be borne by Dow Chemical…” It went on to add it could not assure that the new investment proposed by Dow Chemical would be “immune from the orders of the Court”.[/FONT]
[FONT=Arial, Helvetica, sans-serif]Dow might deem this bad investment support strategy, but India’s citizens would say the Law Ministry was merely doing its job. Self-confidently inviting industry to live and work and profit within the laws of the land.[/FONT]
[FONT=Arial, Helvetica, sans-serif]THERE IS a common axiom among corporations: the business of business is business. This idea allows companies to make money under any circumstances: it creates, to quote Arun Maira, “the legal fiction” that a corporate is a citizen yet somehow exists outside of society. But India is proof that this legal fiction cannot sustain itself in a mature democracy. In recent years, as successive Indian governments have panic-shopped for foreign investment, ironically, ordinary Indian citizens have resisted with claw and blood. Contrary to popular belief, this is not because ordinary Indians are opposed to industry but because they see that business has accrued to itself the right to practice unjustly: seizing land at will; devastating environments; placing itself out of scrutiny.[/FONT]
[FONT=Arial, Helvetica, sans-serif]As national outrage over Bhopal swept across the media, sources say Prime Minister Manmohan Singh told close aides he did not wish Bhopal to become an albatross for the Congress the way the Babri Masjid had become for the BJP. If this is true, he might have to soar beyond strict legalities into the loftier realm of ethics and dharma. As this goes to press, US President Barack Obama has got UKbased energy major BP to commit $20 billion toward cleaning its oil spill in the Gulf of Mexico; and $100 million compensation fund for oil industry workers left jobless. India had asked UCC for only $3.3 billion: it came away with $470 million.[/FONT]
[FONT=Arial, Helvetica, sans-serif]A few years ago, the Prime Minister had famously declared Maoists as “the greatest security threat to the nation” and said the unrest in the heart of India was spoiling the “investment climate of the country.” Now, Rashida Bi is contemplating the gun too — even if only as a joke.[/FONT]
[FONT=Arial, Helvetica, sans-serif]If he really wants to preserve the climate he cares for, then, he could issue a new set of instructions to his group of ministers, slated to meet on June 18: send Bhopal’s toxic waste to safe and reputed incinerators, where no fresh community stands to be harmed. And make Dow pay for the legacy of the worst industrial disaster in the world.[/FONT]
Tehelka - India's Independent Weekly News Magazine
