If you are not able to down load Justice Krishna Iyer's article
from my e mail which is a must read, it is to be found in the Hindu ,
14th June on the Opinion page.
Niloufer Bhagwat
----- Original Message -----
From: Niloufer Bhagwat
To: [email protected]
Sent: Monday, June 14, 2010 5:21 PM
Subject: JUSTICE KRISHNA IYER'S REACTION TO THE BHOPAL GAS HOMICIDE AND THE
FAILURES OF THE POLITICAL AND LEGAL SYSTEM
Dear Colleagues ,
I am forwarding Justice Krishna Iyer's reaction to the
developments in the aftermath of one of the world 's biggest
industrial and chemical disasters which was the direct result of
the acts of commission and omission not only of the UNION
CARBIDE HEADQUARTERS BUT ALSO OF UNION CARBIDE
( INDIA ) . Seen I have seen the original records while researching
while assisting in the Petition to set aside the Judgment of the
Supreme Court when a five Judge Bench of the Supreme Court
headed by Chief Justice Pathak not only dictated consent terms
but quashed the CRIMINAL CASE in consideration for the paltry
settlement of 470 million . A judicial decision which was on the
face of it ILLEGAL as no criminal case of this nature can be
quashed . As a consequence of this Petition for REVIEW OF
THIS ORDER OF THE SUPREME COURT A NEW BENCH
WAS CONSTITUTED WHICH RESTORED THE CRIMINAL
CASE AGAINST UNION CARBIDE .IT WAS ALREADY KNOWN
BY THE SUPREME COURT BENCH HEADED BY JUSTICE PATHAK
THAT WARREN ANDERSON HAD JUMPED BAIL .
The lead Counsel at the relevant time for the Petitioners
were Mr. R.K.Garg and Ms Indira Jaisingh .Mr. R.K.Garg
submitted that Union Carbide was liable for damages and
under the Penal Law . That the government of India could
not assume the financial liability for the acts of omission
and commission of Union Carbide .
Nani Palkhiwalla was an EXPERT WITNESS FOR UNION CARBIDE
WHO DEPOSED IN THE NEW YORK DISTRICT COURT THAT THE
GOVERNMENT OF INDIA WAS SEEKING AID DISGUISED AS
COMPENSATION OF THE VICTIMS OF THE GAS DISASTER WHEN
THE GOVERNMENT OF INDIA FIRST FILED A SUIT FOR COMPENSATION
BEING ADVISED THAT THE INDIAN COURTS WOULD NOT SPEEDILY
DISPOSE THE PROCEEDINGS OR AWARD ADEQUATE COMPENSATION
AS THEY WERE NOT KNOWN TO HANDLE CASES OF THIS NATURE
WITH ADEQUATE COMPETENCE .Ms Indira Jaising took the same position
that the Suit should not be filed in the United States . This line of argument
emboldened UNION CARBIDE IN SUBSTANTIALLY REDUCING
THE DAMAGES THAT IT WAS READY AND WILLING TO PAY IN INDIA
WITH THE SUPREME COURT HEADED BY CHIEF JUSTICE PATHAK ACTUALLY
DICTATING CONSENT TERMS EXONERATING UNION CARBIDE OFFICIALS
FROM ALL CRIMINAL LIABILITY .CHIEF JUSTICE PATHAK OBTAINED
THE NECESSARY VOTES THEREAFTER FOR APPOINTMENT AS JUDGE
AT THE INTERNATIONAL COURT OF JUSTICE AS THE TERM OF
JUSTICE GAJENDRA SINGH WHO DIED WITHOUT COMPLETING HIS
TERM HAD TO BE FILLED IN .
It was after the New York District Court rejected the Suit of the
Government of India that the Supreme Court dictated consent
terms between Union of India and Union Carbide quashing
the criminal case later restored due to efforts made . The
civil compensation amount was not reviewed by the Supreme
Court .
Mr. Fali Nariman appeared for the Union Carbide in the
Supreme Court at all stages . None of the lawyers appearing
for Union Carbide were attacked as appearing for " terrorists"
who had gassed victims as against the Hindutva campaign
against the lawyers who defended innocent Muslims falsely
charged in recent times .
Both the Congress spokesman and BJP spokesman
( lawyers )advised Dow Chemicals whose AGENT ORANGE
WAS USED TO DESTROY FORESTS AND CROPS
IN THE VIETNAM WAR AS A WEAPON EXPERIMENT
ON A LARGE SCALE . The advise was that DOW
CHEMICALS should be assured by the government of
India that it had no liability for the clean up . Whereas
Companies are taken over with their ASSETS AND
LIABILITIES FOR ACTS COMMITTED BEFORE THE
TAKE OVER .THIS INCLUDES LIABILITY FOR THE
CLEAN UP .
Mr. Ratan Tata while holding out that Indian
industries will clean up the site , is not disclosing
from where the financial allocation will come from.
DOW CHEMICALS WHICH TOOK OVER UNION
CARBIDE IS RESPONSIBLE FOR THE CLEAN
UP AND HAS THE RESOURCES TO DO SO .
THE GOVERNMENT OF THE USA IS ALSO LIABLE.
There is no doubt whatsoever that Warren Anderson
was assisted by members of the Indian government
at the Centre and the State under pressure from the United
States government which acts on behalf of its Corporations
to assist Warren Anderson's departure from India and to
jump bail as Warren Anderson had been arrested on arrival
at Bhopal .
Though Chief Justice Ahmadi was a member of the previous
bench which RESTORED THE CRIMINAL CASE AGAINST
THE OFFICIALS OF UNION CARBIDE WHICH HAD BEEN
ABSOLVED OF ALL CRIMINAL LIABILITY BY THE FIVE
JUDGE BENCH OF CHIEF JUSTICE PATHAK , THE JUDGE OUGHT
NOT TO HAVE INTERFERED WITH THE CHARGES FRAMED
BY THE TRIAL JUDGE ,AS FRAMING A CHARGE AT THAT
STAGE WAS WITHIN THE JURISDICTION OF THE TRIAL
COURT AND THE PROSECUTOR .THE DIFFERENCE BETWEEN
CULPABLE HOMICIDE AND DEATH CAUSED BY NEGLIGENCE.
THE WHOLE UNION CARBIDE WAS KEPT IN A DANGEROUS
state with cost cutting of essential functions and critical parts
including shutting down of air-conditioning necessary for maintenance
of crucial units , was clear from 1981 onwards .Even before the
disaster of 1984 workers had been affected and the matter
raised in the Bhopal Assembly reported in the newspapers
including the Times of India almost two years before the
disaster . If this fact had been brought to the knowledge of
the Supreme Court , the charge could in no way have been
modified . In any case Chief Justice Ahmadi and Justice
Mujumdar ought not have been persuaded by Counsel for
the Union Carbide to reduce the charge as the best person
to determine whether the Charges were correctly framed at
the relevant time was the trial judge before whom the proceedings
were pending .
ALL THE ABOVE STATEMENTS ARE MADE FROM
AFFIDAVITS AND IN PLEADINGS FILED AND REPORTS
ON THE STATE OF THE UNION CARBIDE FACTORY BY
TECHNICAL EXPERTS .
Indira Jaisingh who is now the Additional Solicitor General
has a duty to ensure that the sentence of those convicted
is enhanced as an example of all Companies neglecting
the maintenance of hazardous plant operations indifferent
to the lives of Indian citizens which its own governments
deem cheap and expendable . This includes the view of
more than one political party presently scoring debating
points .
Justice Krishna Iyer gives you the political viewpoint
as a former Judge of the Supreme Court , now sitting
in judgment over the Indian Legal and Political System .
There is little time to lose , if India is not to be
devastated by Corporate rule including over its
agriculture among other sectors .Contamination
of Indian economic and environment affects all
groups of people . There is little understanding
of this that poisoning of water , air , food protects
no one .
Since a detailed article will take a longer time ,
I decided to place a few vital facts before you.
Niloufer Bhagwat
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