Incidentally when I was preoccupied with all these issues , I was
charged bya former Defense Minister , his government and the NSC
with running the Navy !!!!!!!! We did the legal work in the Petition
before Chief Justice Sabyasachi Mukharji without any payment
and covered the expenses ourself for research and other material .
After the criminal case was restored . I returned to work on
a Petition for the Navy ..........
Niloufer Bhagwat
----- Original Message -----
From: Niloufer Bhagwat
To: Admiral Bhagwat ; gajendra singh
Cc: [email protected]
Sent: Tuesday, June 15, 2010 3:36 PM
Subject: A CAPSULED VERSION OF THE MAIN ISSUES OF THE GASSIFICATION OF INDIAN
CITIZENS BY UNION CARBIDE AN ALERT FOR THE CONTEMPLATED NUCLEAR LIABILITY BILL
INFLUENCED BY CORPOATIONS NOT INTERESTED IN ADEQUATE SAFETY STANDARDS
Dear Colleagues ,
The written statement of Union Carbide filed before the District Court at
Bhopal in the Civil Suit for damages at paragraph 35 admits that frequent
accidents of exposure to lethal substances had occurred from 1981 to 1982
resulting in leakage of lethal substances at the Union Carbide Plant at Bhopal
in which a worker died and others suffered grievous injuries .
The 1982 " Operational Safety Survey " performed by three Union Carbide
technicians from the USA found a number of " major concerns" at the BHOPAL
PLANT OF UNION CARBIDE including :
1. Potentials for release of toxic material in the phosgene/MIC unit and
storage areas , either due to equipment failure , operating problems , or
maintenance problems.
2. Deficiencies in safety valve and instrument maintenance programmes
etc......
What was not revealed were the cost cutting measures dictated by Union
Carbide USA complied with without demur by Union Carbide India .
The matter was raised in the Madhya Pradesh Assembly where the details of
Mr. Khan's death after exposure to phosgene were raised and the Labour
Minister gave a reply .
An aspect which is significant is that Union Carbide ( USA ) FROM IN OR
ABOUT 1979 desired to dispose of the Plant as its subsequent REVISED
financial feasibility was in question . THIS IS THE CLUE AS TO WHY THE COST
CUTTING MEASURES WHICH WERE HAZARDOUS FOR THE PUBLIC AND THE WORKERS AT THE
PLANT WERE RESORTED TO .
I have been repeatedly stressing that TNCs and Indian Companies are at all
times concerned with their balance sheets , where as political propaganda in
India continues to make out CEOs of COMPANIES AS PARAGONS OF VIRTUE AND REAL
'MAI BAAPS " PROJECTING THEM AS THE NEW ROYALTY OF INDIA A MYTH WHICH IS
FOSTERED BY LEGAL CIRCLES WHICH REPRESENT COMPANIES .
NO COUNTRY CAN ABANDON STRICT REGULATORY MEASURES AND NO FAULT LIABILITY
COVERING THE COMPLETE COST OF LOSS OF LIVES AND CLEAN UP AND EVEN WINDING UP OF
THE COMPANY IN SERIOUS CASES . SINCE THERE IS NO LIMIT ON PROFITS THERE CANNOT
BE LIMITS ON DAMAGES TO BE IMPOSED .CORPORATE GOVERNANCE OF A COUNTRY IS
HAZARDOUS AS POLICY PERSPECTIVES OF A SOCIETY ARE DIFFERENT FROM DECISIONS IN
A BOARDROOM . ENRON IS ANOTHER EXAMPLE .
LAWS HAVE MORE THAN ONE OBJECTIVE , AN IMPORTANT ONE IS DETERRENCE . Chief
Justice Pathak 's five judge Bench comprising Justices R.S. Pathak ,
E.S.Venkatramiah , Ranganath Misra , M.N.Venkatchaliah and N.D.Ojha dictated
the consent terms and quashed criminal liability completely as though it was
deemed acquittal of concerned Union Carbide officials ( in the meanwhile
Warren Anderson had jumped bail ) an unheard of concept and accepted 470
million after the Suit was rejected by the New York District Court on the
specious plea of lack of Jurisdiction though Union Carbide had its headquarters
in the USA ( this was done by the Court to limit the amount of damages payable
to the citizens of a developing country where lives are cheap camouflaged as
the doctrine of sovereignty of Indian Courts) and the suit was filed once
again in India by the Union of India .
A subsequent Bench of Chief Justice Sabyasachi Mukherji , Justice K.N.Singh
, Justice S. Ranganathan and Justice A.M.Ahmadi held that quashing of criminal
proceedings could not have been resorted in consent terms dictated by the
Supreme Court at the instance of the Union of India and Union Carbide as such a
settlement was not within the purview of the Bhopal Gas Leak Disaster (
Processing of Claims ) Act 1985 . However the compensation amount of 470
million accepted by the Bench of Chief Justice Pathak was not reviewed .
As stated earlier Union Carbide took advantage of the fact that the District
Court at New York declined to hear the Suit of the Union of India on behalf to
the Victims contending that though Union Carbide had its headquarters in the
USA and most of its financial assets in the USA , the District Court at New
York declined jurisdiction and the Suit was once again filed in India where the
Union Carbide had insufficient assets ( a deliberate ploy ) to meet the claims
made on behalf of the victims . As stated earlier by me Mr. Palkhiwalla was an
expert witness for Union Carbide in the New York District Court stating on
affidavit that the Court did not have jurisdiction . Similarly Ms Indira
Jaisingh contended in articles and otherwise that the New York District Court
did not have jurisdiction even though the assets of Union Carbide in India
were insufficient to meet the claims .
The Union of India under the Bhopal Gas Leak ( Processing of Claims ) Act
1985 had sought to take over the legal responsibility for pursuing the Claims
of all affected citizens to consolidate all claims . Some Petitioners financed
by NGO s were at cross purposes filing different petitions and suits not
pursued consistently as a consequence the consent terms were dictated without
hearing affected citizens on the claims and peremptorily the consent terms
were dictated accepting 470 million by Chief Justice Pathak 's bench quashing
all criminal proceedings on the specious plea that it was necessary to obtain
urgent relief as Court proceedings would take an inordinately long time in
India .
When the criminal case was restored once again Union Carbide contested in the
Supreme Court in a Special Leave Petition the charge of Culpable Homicide as
defined by Section 299 read with Section 304 contending that the original FIR
filed at Bhopal had registered a case interalia under Section 304 A causing
death by a rash and negligent act while the CBI Prosecutor had successfully
convinced the trial Judge and the Madhya Pradesh Court that the charges
interalia of Culpable Homicide , causing grievous hurt were maintainable and
should be framed . For culpable Homicide pre-meditated intent or knowledge that
the accused is likely by such act to cause death is an essential ingredient
.The Bench of Chief Justice Ahmadi and Justice Majumdar should have declined to
interfere with the framing of charges by the trial court upheld by the Madhya
Pradesh High Court .
If the prosecution had produced adequate evidence of the series of fatal and
serious accidents at the Bhopal Plant of Union Carbide between 1981 and 1982
and the cost cutting measures resorted to at the cost of the safety of the
plant in view of the subsequent report on financial feasibility and the
decisions hazarding the safe operation of the Plant with evidence of the death
of a worker and injuries to others;then the charge of culpable homicide should
not have been reduced to death caused by a rash and negligent act . However
within the Indian political and legal system the Commpany and its Directors and
Management are held as prima facie innocent no matter who dies and even when
the economy of whole regions is devastated, example Enron .Presently the
Indigenous people in Central India have to be cleared out from their villages
to make way for mining TNCs in violation of UN Resolutions on Indigenous
Peoples Rights and in violation of Constitutional protection to tribal land and
habitat . With MOUs drawn up without consulting affected interests given no
rights whatsoever .
Justice Krishna Iyer has finally despaired of the legal and political system
in its present form and has termed the legal system as Pre-Victorian ( I
belong to the law movement, which he inspired until we discovered from our own
experiences that the legal system was an extension of the political system
despite some very brave Judges determined to do justice ) To-day as I see my
colleagues politically assassinated or threatened and attacked for defending
the economically and weaker sections against unjust charges ( Judge Tahilyani
acquitted in the 26/11 case the client of Shahid Azmi who was killed for
defending so called " Terrorists"who was in reality an innocent man ) when I
see a doctor belonging to the famous Vellore tradition of Medicine treating the
tribal among other people arrested by the Government of Chhatisgarh and denied
bail for two years ,when I see innocent victims of pogroms and those killed in
fake encounters and thousands in Mumbai , Gujarat without any relief despite
being openly attacked and abused every day for the mere accident of belonging
to religion ,an accident of birth ; when I see farmers committing suicide
with their wives and children pauperised ; when I see workers reduced to
contract labour despite despite toiling year after year ; when I see public
health and nutrition denied to millions of children ; I conclude that what
Justice Krishna Iyer has now written on 14th July 2010 in the Opinion page of
Hindu is a verdict we can only ignore at grave peril to our present and future .
THE MOST SERIOUS ACT OF UNION CARBIDE USA AND UNION CARBIDE INDIA WAS THAT
THE ANTIDOTE TO THE EXPOSURE OF THE LETHAL GAS WAS NOT IDENTIFIED AN ISSUE
WHICH THE LATE Mr.R.K,GARG ASSISTED BY ME RAISED IN THE SUPREME COURT RECORDED
IN THE JUDGMENT OF THE BENCH HEADED BY CHIEF JUSTICE Sabyasachi Mukharji and
recently once again raised by the courageous DR BINAYAK SEN THE HUMANE DOCTOR
PAR EXCELLENCE , AN OUTSTANDING PATRIOT , WHO SAYS THAT THE UNION CARBIDE EVEN
FAILED TO SPECIFY THAT THE ANTIDOTE SODIUM THIOSULPHATE THAT WOULD HAVE MADE A
MAJOR DIFFERENCE IN TREATING VICTIMS DR PATNAIK STATES . FURTHER HE REITERATES
WHAT WE STATED TO THE COURT THE UNUSUAL SECRECY IN REVEALING THE NATURE OF THE
CHEMICAL AND THAT NONE OF THE ICMR STUDIES WAS CARRIED THROUGH TO COMPLETION .
To conclude this is not the Democracy which Mahatma Gandhi envisaged and
finally Justice Krishna Iyer as a former Judge and erstwhile Law Minister of a
Left Front Government has pronounced his verdict, LONG OVERDUE .
Niloufer Bhagwat
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