Interview: Charan Lal Sahu, Adv. Supreme Court.

There was a gas leak case in Bhopal from Union Carbide in 1984. On the night of 2-3 December 1984, a Union Carbide Pesticide Plant in Bhopal emitted tones of poisonous methyl isocyanine gas, killing around 3,000 persons instantly and many more died later on.

It was one of the worst industrial disasters in the world or according to the Advocates who dealt with this case and went to America to settle the claims would naturally throw more light on the same case, which the New York Court has reinstated concerning Bhopal gas victims.

Mr. Charan Lal Sahu, you were one of the leading Advocates in the case of Union Carbide and went to America regarding settlement of the claims of those victims.

What’s this case and why it is reinstated in US Court after a long time?

Mr. Sahu said:

Basing on agency reports and the releases of IANS, and also being the old Advocate connected with this case and further keeping in mind the proceeding of the present case in New York Court, I can briefly say that SA group of people living in the nearby area of the Pesticide Plant in Bhopal, filed a lawsuit in 2004.

The claimants have pleaded that they have suffered serious health problems due to contamination of soil and water in the area by the leakage of toxic gas from the plant run by Union Carbide.

The case was dismissed by the lower court in 2006 and 2007 but the US Second Circuit Court of Appeals (Manhattan) on Monday said that the lower courts did not give the plaintiff enough notice to respond to Union Carbides bid to dismiss the case.

The Hon.’ble court took a view that the case is closed. But the US Circuit Judge Robert D,.Sack said,”

“But we think there is a reasonable likelihood that, in light of the peculiarly difficult procedural history of this and related litigation, the plaintiffs were not aware they were in danger of an adverse grant of summary judgment based on the submissions prior to the district courts order converting the motion and then deciding it.”

So far I know, H. Rajan Sharma, the attorney representing the Bhopal gas victims, is working on the case. In my opinion, the judgment would enable them to conduct a detailed study on the role of Union Carbide in the contamination of groundwater in Bhopal.

Mr. Sahu, what’s the lawsuit seeking relief?

The lawsuit is seeking clean up, monitoring, and damages for personal injury caused to about 20,000 individuals along with property damages. The company, now owned by Dow Chemicals, had paid a compensation of $470 million (Rs 2,243 crore) in 1989.

Mr. Sahu, what’s the reaction of Union Carbide?

Answer by Mr. Sahu: Union Carbide claimed on Monday in a statement that the judgment should not be interpreted as a ruling on the merits of the case and said the claims would be ultimately dismissed.

“The Second Circuit did not discuss the merits of the case or the merits of the trial judges ruling of dismissal and its decision should not be interpreted as a ruling on the merits,” the statement said.

A class action alleging damages from contaminated water near the site of the notorious 1984 Union Carbide gas explosion in Bhopal, India, has had almost as many lives as a cat. On Monday, a three-judge panel from the U.S. Court of Appeals for the Second Circuit reinstated the suit, which had been dismissed sua sponte by Manhattan federal district court judge John Keenan. "The district court," wrote the appellate judges, "erred in the manner in which it converted the defendants' motion to dismiss into a motion for summary judgment."

A version of the case was first filed against Union Carbide and its former CEO Warren Anderson in 2001, a couple years after the British branch of Greenpeace conducted the first tests on water near Bhopal. That suit, fashioned as a class action, sought property and personal injury damages, cleanup of the site, and medical monitoring for the class. The case was dismissed, refiled, and dismissed again, essentially because plaintiffs weren't property owners and their personal injury claims were barred by the statute of limitations. Then in 2004 a team of plaintiffs lawyers--Cohen Milstein Hausfeld & Toll; Williams Cuker Berezofsky; EarthRights International; and solos Curtis Trinko and H. Rajan Sharma--tried again, filing a new class action that made most of the same allegations as the previous suit but purportedly solved the statute of limitations and standing problems.

Kelley Drye & Warren, representing Union Carbide, moved for summary judgment and a dismissal of the second case. In a 2005 opinion, Judge Keenan dismissed all but one claim. While the plaintiffs' appeal of that ruling was pending, Keenan addressed the last remaining claim. He granted summary judgement for Union Carbide. "This case is closed," he wrote in a 2006 opinion that radiates irritation. "The court directs the clerk to remove the case from the court's docket."

The appeals court found that Keenan had not given the plaintiffs adequate notice that he was converting the motion to dismiss into a summary judgment motion and did not provide them a chance to oppose summary judgment with evidence and arguments. The Second Circuit reinstated all the claims and remanded the case to Judge Keenan. (One can only imagine his joy at receiving the news.)

"We're hoping we'll finally get to the merits of the case," plaintiffs lawyer Richard Lewis of Cohen Milstein told the Litigation Daily. "This is a very serious problem. Thousands of people are drinking water contaminated with carcinogens." We also called Union Carbide counsel William Krohley of Kelley Drye for comment but didn't hear back.

Read the full decision here (pdf).

On November 3, 2008, the U.S. Court of Appeals for the Second Circuit reinstated plaintiffs’ claims against Union Carbide Corporation for ongoing, massive water pollution at its infamous plant in Bhopal, India, reversing a lower court’s dismissal of the case. A poisonous gas leak from this same plant killed thousands of people in 1984.

After the 1984 disaster, Union Carbide fled India, leaving vast amounts of untreated toxins at the plant site that have contaminated the drinking water supply of nearby residents. Plaintiffs sued to force Union Carbide to clean up its mess and compensate those injured. The district court decided on its own to evaluate defendants' evidence at an early stage of the case, and dismissed. The Second Circuit reversed that decision, finding the dismissal to be improper because the district court did not give the plaintiffs adequate opportunity to respond to the factual argument the district court raised on its own. The Court of Appeals did not need to reach plaintiffs’ argument that the evidence already in the case is more than sufficient to permit plaintiffs to present their case to a jury.

EarthRights International serves as co-counsel for the plaintiffs in this case.

Read a brief history of the US lawsuit here.

Bhopal: A non-government organisation working for victims of the 1984 Bhopal Gas Tragedy today protested a proposal by the Welfare Commissioner (Gas Tragedy Claims) to destroy documents presented in claim courts.

'''This will amount to injustice,'' Bhopal Gas Peedit Mahila Udyog Sangathan Convenor Abdul Jabar told mediapersons here while reacting to newspaper reports that all documents barring some necessary ones would be destroyed after August 31.

Advocating that compact discs be prepared on all the documents, he expressed apprehension that Union Carbide -- allegedly responsible for the tragedy -- would be benefitted by destruction of documents.

Indian Express, November 20, 2007

Judge who got Union Carbide to pay up was respected internationally

NEW DELHI: Two years ago, around this time in November, when former Chief Justice of India R S Pathak was given the responsibility of conducting an inquiry into the oil-for-food-scam on the basis of Volcker report, he had said, in his usual striking style, “I will conduct the probe with an open mind, uninfluenced by media reports.” The simple, yet characteristic remark, showed his persona of being a disciplinarian all through his life.

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Justice Raghunandan Swaroop Pathak, who passed away in the Capital following a cardiac arrest on Sunday would have celebrated his 83rd birthday on November 25 this year. But fate had other plans which none could alter.

Justice Pathak, in his career, which saw a remarkable journey from a lawyer to a judge and gradually to the Chief Justice of India. Second son of Gopal Swarup Pathak, former Vice-President of the country, Justice Pathak was also one of the few Indian jurists to be appointed as a Judge at the International Court of Justice at The Hague.

A man who holds the distinction of being the youngest person to be appointed as a judge, will also be remembered for his landmark ruling in on one of the worst ‘manmade’ disasters — the Bhopal gas tragedy. As the CJI, he headed the bench that directed the US multinational Union Carbide to enter a settlement with the Indian Government, underlining that interest and welfare of lakhs of people affected by the gas leakage was paramount.

Although Justice Pathak in February 1989 refrained from issuing any directions for launching criminal proceedings against top officials of the US firm responsible for the tragedy, he did his bit in offering relief and rehabilitation to the victims by expeditiously settling the case. It was his landmark ruling wherein the Union Carbide was asked to pay $470 million as a full and final settlement to the Indian Government for payment to the victims.

Justice Pathak, who was born in Bareilly, enrolled himself as a lawyer on November 8, 1948 after completing his masters in law from Allahabad University. A thorough professional, the young lawyer became a judge of the Allahabad High Court in 1962. Ten years later, he became the Chief Justice of Himachal Pradesh High Court and was elevated as the judge of the Supreme Court in 1978. Finally, he took over as the top judge — the Chief Justice of India (CJI) — in December 1986.

Justice Pathak relinquished the august office without completing his tenure on June 18, 1989 barely after he had delivered the Bhopal gas tragedy decision. Acclaimed for knowledge of civil laws, he became one of the few Indian jurists to make a mark at the International Court of Justice.

He will always be remembered as a man who wore several hats. He even served as president of the ad hoc division of the International Court of Arbitration for Sport, Switzerland, for several years. Creating his mark in national and international forums alike, Justice Pathak also had the distinction of being a member of the Board of Advisers, Foundation for International Environment Law and Development, London, and the Chairman of the Nehru Trust for Indian Collections in the Victoria and Albert Museum, London.

As pointed out by legal expert Fali S Nariman, “Justice Pathak was arguably one of the most popular judges internationally.” Justice Pathak was also elected Chairman of the World Congress on Law and Medicine in 1985 and was the member of the International Panel of Chief Justices on Genetic Technology in Seoul in 1987.

Known for his penchant for excellence, Justice Pathak shouldered responsibilities even in his last years. He headed the commission, set up by the Government in 2002 to inquire into the allegations pertaining to the oil-for-food scam, which continue to create ripples in the Indian politics. Unfazed by the names of people like former External Affairs Minister Natwar Singh, Justice Pathak made a record of sorts by giving his report within stipulated time.

Bhopal, Aug 4 (UNI) Chief Judicial Magistrate Ajay Srivastava's court today heard arguments on an application by the prosecution in a criminal case related to the 1984 Bhopal Gas tragedy, which claimed thousands of lives and maimed several lakhs of people.

The next hearing in the case has been fixed on August 18.

The prosecution had urged the court to grant permission for deposition of a few prosecution witness again.

Advocate C Sahay appeared in the court on the behalf of the CBI, while Mr Ajay Gupta was present in the court on the behalf of the defence.

Accused S I Qureshi and K V Shetty did not appear before the court. Both submitted an application for not being able to be present in the court. The application was accepted.

On the intervening night of December 2-3, 1984, thousands died after inhaling methyl isocyanate while several lakh persons continue to suffer the deleterious effect of inhaling the deadly vapours.

The Delhi High Court and Indian Supreme Court have provoked a massive social crisis in Delhi, a city of 14 million and the seat of India's government, by issuing a series of uncompromising court orders directing the Municipal Corporation of Delhi (MCD) to demolish or seal all "illegal" buildings in the city.

If this order is strictly enforced, a majority of the structures in the capital city may be totally or partly demolished, sealed or otherwise made unusable, stripping millions of their livelihood and homes.

Reinforcing its belligerent stance, a panel of India's Supreme Court issued a ruling on Monday November 6 that rejected separate applications from the MCD, the Delhi [Union Territory] government, and the Indian government seeking postponement of the sealing operation that the courts had ordered on September 29. In their applications, the various governments pointed to a "law and order problem"—a reference to months of escalating protests that culminated in a September 20 uprising against the sealing campaign that resulted in 4 deaths.

Dismissing the widespread and repeated anti-sealing agitations that have convulsed the city as challenge to the "rule of law," the court aggressively asserted, "No one can be permitted to place a dagger at the government's neck and seek relief. No one can be permitted to hold the city and its law-abiding citizens to ransom."

The Supreme Court also sternly reminded the governments that "It is the obligation of governments to ensure compliance of the orders of this court."

The court ordered a Monitoring Committee (MC)—which was set up by the courts to monitor the court-directed sealing campaign and consists of three court-appointed, unelected bureaucrats—to decide on a date for resumption of sealing operations after "consultations" with the MCD.

The Court also asked the Monitoring Committee to file weekly status reports in a sealed envelope so as to prevent any government entity or other legal authority from access to its contents. The MC, for all intends and purposes, has now become the de facto executive power in charge of sealing operations. It is constantly maintaining pressure upon and handing out instructions to elected officials in Delhi, acting in defiance of the wishes of the Delhi Union Territory government and of India's national government, both of which have a share in the running of the capital.

Following the court ruling, the city was again shut down by agitations. The government responded, as it has frequently in recent weeks, by deploying paramilitary forces.

The Delhi authorities also ordered the city's schools, which have been forced to close repeatedly over the past several months due to anti-sealing protests, closed on November 7 and 8.

Court orders for sealing and demolishing illegal buildings were issued as a result of litigations filed over the past several years by individuals and associations who were angered by the theft of public land and illegal commercial activities in residential areas.

In response to the court orders, the MCD has already partially or completely demolished and sealed hundreds of buildings over the past year, provoking violent opposition from traders, small businesses, and residents.

A 3-day "Bandh" (total shutdown) organized by Confederation of All India Traders (CAIT) was observed from Oct. 30. The bandh brought commercial activity in India's capital city to a virtual standstill and resulted in several angry confrontations between demonstrators and police. The shutdown was called in response to court deadline to the MCD to seal the shops of 45,000 traders, who have established themselves in zones designated as residential, by Nov. 1.

Both the ruling Congress Party and the Hindu Supremacist Bharatiya Janata Party (BJP) have tried to capitalize on the agitation with local party leaders joining the demonstrations. While both parties are beholden to big business, they, particularly the BJP, derive critical popular support from small, family-owned businesses.

In an attempt to dampen the agitation against the sealing program, the authorities have made a show of sealing and/or demolishing several illegally constructed large business establishments and chain-stores that cater to the better-off. But it is small traders and hawkers, because of their lack of capital and political connections, who will be most adversely impacted by the crackdown on businesses that were built in contravention of the municipal plan.

Many working class and poor people identify with the traders both because they patronize their businesses and because the campaign against illegal buildings also threatens to target many of their homes.

The MCD's attempt to seal several commercial establishments on September 20 provoked street clashes in several areas of the capital, clashes that spread to the mainly working class Seelampur area of East Delhi.

The authorities attempted to quell the uprising in Seelampur using large contingents of police and paramilitary forces. They shot dead at least four Seelampur protesters, including a 7 year old boy, and injured over 100 people. Over 30 policemen were also injured.

Displaying its petty-bourgeois orientation, the CAIT blamed the uprising on "anti-social" elements.

The September 20 confrontations prompted the Indian government, the Delhi Government and the MCD to appeal to the courts to order a temporary halt to the sealing operation, so as to facilitate attempts to find a political solution. In line with this, the MCD had issued orders on September 7 and 15 hastily rezoning around 2200 roads as commercial areas, thus exempting many businesses from sealing and closure.

But the courts, including India's highest court, have rejected any and all attempts to defuse the situation, insisting that the sealing campaign proceed in the face of mass opposition. The courts have even criticized the September re-zoning, raising the possibility it could be struck down by court fiat.

According to the MCD up to 80 percent of the 3.2 million buildings in New Delhi are either partially or completely illegal and some 1,600 of the 3000 housing colonies [neighborhoods] in the city may be illegal.

The Supreme Court is well aware that the problem of illegal buildings and settlements has been decades in the making.

There is no doubt that much of the illegal construction is the product of the actions of wealthy and powerful individuals—building contractors, businessmen, corrupt municipal officials, police and, last but not least, politicians.

But many of the so called illegal businesses are owned by petty, small or medium traders whose businesses are their sole means livelihood. Others are grocery stores, medical clinics, attorneys' offices and internet kiosks that grew up alongside residential neighborhoods and have existed as an integral part of them for decades.

New Delhi has expanded spontaneously and often "illegally" as its population exploded from about 4 million in 1965 to an estimated 14 million today. Meanwhile the various authorities, the city corporation, and above all India's national government have utterly failed in their responsibility to provide housing and infrastructure so as to facilitate the planned development of the city.

India's courts have either ignored or deliberately shown their contempt for such complex realities.

There is no doubt that the various court rulings have provoked a major crisis between the MCD, Delhi Government, and Indian government on one hand and the judiciary on the other. In the name of upholding the rule of law, the courts are aggressively asserting the power to dictate public policy.

However it needs to be stressed that all of them share the ultimate goal of transforming Delhi and India's other major cities from their current state as overcrowded, poverty ridden agglomerations, frequently lacking in basic infrastructure, into "world class cities" that are business friendly and can become magnets for investment. But they disagree on tactics, with the Supreme Court openly urging a bloodbath if necessary to enforce the sealing and demolishing of illegal buildings and slums.

Over the past decade and a half—in line with the Indian bourgeoisie's abandonment of its national economic strategy and the associated claims that India was evolving in a "socialist" direction—the Indian Supreme Court has emerged as a spearhead of neo-liberal reform, issuing a flurry of rulings attacking democratic and worker rights and expanding the power of business and management.

The Supreme Court has taken an active role in assisting the entry of foreign investments by issuing several judgments in favor of overseas corporations.

In 1989 the Indian Supreme Court, without consulting the victims of the 1984 gas leak at the Union Carbide plant in Bhopal, abruptly ruled as final a settlement of $470 million dollars reached between the Indian government and the Union Carbide Corporation. The company was criminally culpable in causing over 22,000 deaths and injuring at least 120,000 others, leaving many maimed for life.

India's highest court also enabled Union Carbide Corporation to wash its hands of any further responsibility by allowing it sell its Indian plants to the giant multinational Dow Chemicals. This was a clear signal to foreign corporations that their business interests will be protected even when they commit mass crimes.

The court has also issued several anti-democratic judgments restricting public debate and the right to strike. For example, in February 2006 the Indian Supreme Court imposed an unprecedented ban on public debate about or protests against, the dismantling of the toxin-laden French aircraft carrier Clemenceau in India's ship decommissioning yards. [See Indian Supreme Court imposes sweeping ban on public debate on toxic warship].

In 2002 the Indian Supreme Court mounted an open attack on free speech by jailing the famous Indian writer and activist Arundathi Roy for criminal contempt for daring to criticize the Supreme Court. [See Arundathi Roy jailed for contempt of court]

In an open assault on the rights of workers, the Supreme Court ruled in July 2003 that public employees in India have neither a "legal or moral right" to strike. (See Millions of Indian government employees to go on strike today)

In 2005 Prime Minister Manmohan Singh announced the ambitious 1000 billion rupee ($22.5 billion) innocuously-titled Jawaharalal Nehru National Urban Renewal Project (JNNURP) that aims to create "world-class cities" in India.

As publicized by the government, this 7 year project is aimed at improving infrastructure such as roads, electricity, water and sewer systems in 60 urban areas of the country. However in reality, its primary aim is to attract foreign investment by providing publicly-funded infrastructure and catering to the needs of the well-to-do. This scheme involves terrorizing and violently uprooting the slum dwellers who comprise the majority of urban population in many cities.

Over the past two years, the Delhi government has ruthlessly demolished slums along the banks of the Yamuna river, uprooting over a quarter of million and confiscating their land to build an "athletes village" for the upcoming 2010 Commonwealth Games. The government says it wants to make Delhi "slum free" ahead of the games. But of course proper homes are not being offered to the slum-dwellers.

The aggressive stand taken by the court against illegal buildings and businesses in the capital is its way of pressing the political elite to accelerate the already announced plans for "urban renewal".

There is no doubt that the court orders will provoke major confrontations in the capital, since the sealings and demolitions threaten to impact on millions of people in the city.

The crisis in India's capital is a portent of immense confrontations in the coming years as the ruling elite attempts to forcibly transform urban areas in line with it's a neo-liberal vision of India serving as a major site of cheap labor manufacturing, business processing and research for the global market.

See Also:
India's prime minister pledges to accelerate neo-liberal "reform"
[21 October 2006]
In response to intensifying class antagonisms
India's Congress Party revives discredited "Garibi Hatao" slogan
[21 October 2006]
India's pro-investor plans for urban renewal
[24 March 2006]

New Delhi, Aug 28: Undeterred by the adverse verdict by a US court on an appeal by Bhopal gas tragedy survivors, a group has taken up the fight against Union Carbide Corporation in the same court.

A case filed by Ramavtar Sahu for compensation, medical monitoring and clean-up of toxic waste near Union Carbide's Plant in Bhopal as well as offsite water pollution is pending before the court of second circuit of appeals in USA.

"The Sahu matter has twelve plaintiffs alleging personal injury and health impacts from polluted water supply in Bhopal," their counsel H Rajan Sharma said from New York.

The two cases were among the many cases filed by the survivors of the world's worst industrial disaster in Bhopal on the night of December 3, 1984, which killed more than 3,000 people and seriously affected more than two lakh others.

The US court had earlier this month rejected the appeal of one Hasina Bi and 14 others for compensation and direction to union carbide to carry out clean-up operations in Bhopal.

"It (Hasina Bi's case) was a significant setback, (but it is not the end of the matter," he said, adding Bi's case had certain limitations as it was only for property damage from Union Carbide India Ltd (UCIL) factory.

Sharma said Sahu's case was different from the previous one and the verdict in Bi's case would not affect this case.

"The panel's opinion makes it clear that it was limited to the facts of Haseena Bi's case," he said and sought support from the Government of India to help resolve the Sahu matter.

BHOPAL - After an appellate court in the United States rejected claims by Bhopal city residents, seeking compensation from Union Carbide for environmental contamination around the site of the world's worst industrial disaster, plans are afoot to have the case transferred to India.

"Every setback presents us with new opportunities and only strengthens our resolve”, Satinath Sarangi, of the Bhopal Group for Information and Action (BGIA), one of several activist groups working with the survivors of a runaway reaction in Union Carbide's pesticides plant in this central Indian city in December 1984, that left an estimated 3,500-7,500 people dead and many more maimed.
http://www.ipsnews.net/news.asp?idnews=34547

The Supreme Court has asked the Centre to inform the court through an affidavit, the exact number of people who died and were injured in the Bhopal gas tragedy in 1984.

After getting the reply, the SC is likely to examine whether to re-open the Bhopal Gas tragedy settlement between the Centre and Union Carbide for $470 million.

The Supreme Court's order came on a petition filed by an NGO that is seeking to re-open the settlement.

The petitioners had contended that the number of dead and injured were five times higher than the number pointed out by the Centre.

The Centre has also directed the Madhya Pradesh state government to handover the list of 18,000 victims who were untraceable.

New York, Aug. 20 (PTI): In a major setback to survivors of Bhopal gas tragedy, a US appellate court has rejected their plea against Union Carbide Corporation for compensation and removal of hazardous waste from its chemical plant.

The US Court of Appeals for the Second Circuit rejected the petition filed by one Hasina Bi and 14 other survivors for compensation and removing hazardous material from Union Carbide's unit in the central Indian state of Madhya Pradesh.

The chemical plant was shut down after deadly Methyl Isocynate gas leaked from it on December 3, 1984 killing 2,660 people and seriously affecting the health of another two lakh.

"(Hasina) Bi's claim for public nuisance fails because Bi has not alleged any special injury or damages beyond that of the general inconvenience to the public at large," the circuit judges said, while rejecting their petition.

"In any event, Bi resides illegally on government-owned ground. She, therefore, cannot sustain claims for trespass or private nuisance under New York law," the judges said.

In the petition, Bi challenged an order by Justice John F Keenan of New York's South District Court in October last year that rejected her suit for damages against Dow Chemicals, the present owner of Union Carbide after a six-year legal battle.

The survivors had demanded damages from the company and alleged that their water acquifiers were polluted due to the leak of hazardous chemicals from the UCC factory in Bhopal.

"The complaint does not allege that Bi is an owner or legal tenant on any property contaminated by leakage from the chemical plant site, nor did Bi contest the magistrate judge's finding that she is not a property owner despite an opportunity to do so before the judge and district court," the judgement, delivered on August 10, said.

The circuit court upheld the order of New York court and said the district court did not abuse its discretion while refusing to reinstate Bi's claim for remediation of the plant site and the groundwater beneath it.

"We have already affirmed dismissal of these claims because of impracticality of a court-supervised clean-up project on the land owned by a foreign sovereign," it said.

However, the appellate court mentioned a letter submitted by the Counsul General of India before it, which stated that Indian government and the state of Madhya Pradesh would welcome any relief for remediation of the UCC plant.

But that letter does not obviate any of the sensitive and severe difficulties identified by the district court regarding the administration of remediation of land owned by a foreign sovereign in its own country, they observed.

"Yet, India has indicated that it would control such a process, thus the same problems (lack of control and potential conflict with Indian authorities) are inherent in any attempt to clean up the groundwater," the appellate court said.

The New York district court had last year observed that any clean-up of the groundwater would affect the public in Bhopal and it could not be undertaken without the permission and super vision of Indian government.

"The court will not grant relief where it happens to be impossible and impractical," the district court had said.

This case was filed by survivors after the Government of India and Union Carbide reached a settlement in February 1989.

Under the settlement supervised by the then Supreme Court Chief Justice R S Pathak in February 1989, the Centre had agreed to withdraw all civil and criminal suits against Union Carbide officials. Moreover, the company had agreed to pay 470 million dollars (about Rs 750 crore in 1989).

Carnage witness Zahira Sheikh's imprisonment reflects "dual... standards" of access to justice manifest since globalisation, according to an Indian law scholar. The view was voiced by Prof Upendra Baxi last weekend in a conference where participants were invited by Prime Minister Manmohan Singh to critically examine issues of the day.

Speaking on Access to Justice in a Globalised Economy, Prof Baxi cited half a dozen judicial orders he said erected a "wall of difference" between "globalised and de-globalised Indian citizens".

A former Delhi University Vice Chancellor, Prof Baxi has served as Professor of Law at Delhi University as well as Warwick University in England and authored a large number of professional books and other publications.

The SC orders covered India's accession to the World Trade Organisation, the $470 million Bhopal Gas disaster settlement, rejection of temps' bid to regularise jobs, Narmada dam construction, demolitions and Best Bakery case.

Prof Baxi said the "structural adjustment" of judicial role began with the apex court's very stance on world trade conditionalities.

It was "comprehensively urged" before the Court that Indias accession to the WTO "violated not just Part 111 provisions but also the basic structure of the Constitution.

"The Court, overall, asked the petitioners to return to its powers as and when any such deleterious impact became more manifest!" It "did not even seek to match the blood-group of the WTO agreements, especially the TRIPS-- Trade-Related Aspects of Intellectual Property Rights-- with Parts 111 and IV of the Constitution.

"May I suggest that we read this decisional stance as the first step towards the structural adjustment of judicial review power, process, and activism?" "A second momentous development towards the structural adjustment of judicial role and activism," he said, occurred "through the entirely unconscionable and unconstitutional judicial orders decreeing the infamous Bhopal settlement"- or what he called a instance of victims "re-victimised".

He said the Court not merely reduced the compensable amount from the "Indian government computed US $3 billion to $470" million but also granted the Union Carbide full immunity from criminal proceedings.

It surrogated "the Indian government as a fully-fledged clone of that multinational, and all its world-wide affine, in regard to all civil action, Indian and world-wide! "Twenty-one years since, and I cannot speak of this without a lump in my heart, the catastrophic victims remain staggeringly re-victimised." He said a third story concerned the "determined reversal of the proud labour jurisprudence of the Supreme Court itself.

"The juristic and juridical labours of" Justices VR Krishna Iyer, D A Desai, O Chinnappa Reddy, M P Thakkar, K Subba Rao, P B Gajendragadkar, Mohammed Hidyatuallah "are now reversed by many a hurried stroke of insensitive judicial pen!

"A 2006 decision of the Supreme Court even goes so far as to overrule without specific naming all prior judicial decisions. "This judicial adventurism, there is no other appropriate way of naming this after all, remains an entirely unaccountable and rather unprecedented judicial technique in the annals of the Commonwealth judiciary! "The learned Justice who writes the principal opinion even goes so far as to suggest that his predecessors laboured under a misimpression that ours was a socialist constitution! "This eminent judge compelled a momentous jurisprudential anxiety for me; I scoured the histories of recent amendments to find whether some recent constitutional amendments had after all deleted this 42nd Amendment insertion to the Preamble to the Constitution! "Allow me to bring to you the good news that this perambulatory recital has survived the ravages of contemporary Indian globalisation! The bad news is that now for the Supreme Court of India this makes not a tattle of difference! "I am not saying at all the later Justices may not feel free to dissent from their predecessors. Nor am I saying that the predecessors may claim any prophetic wisdom over the future of constitutional development.

"However, I do wish to suggest with the fullest constitutional sincerity that in doing so they remain fully accountable at the bar of public reason. And in this they seem now altogether to collectively fail." Prof Baxi said a fourth instance of structural adjustment of judicial power was furnished by the Supreme Courts "meandering jurisprudence" concerning the Narmada Dam construction.

"At one decisional moment, we are told that the height of the dam may not be raised without the most solicitous regard for the human rights, and human futures, of the ousted project affected peoples.

"At another decisional moment stands enacted the unconstitutional pari passu principle under whose auspices submergence may actually occur with some indeterminate regard for relief, rehabilitation, and resettlement.

"At a third moment, the affected peoples stand somehow assured of that the Court is not powerless to render justice to the adversely affected peoples even as submergence occurs.

"Who knows what a fourth moment may after all turn out to be? The present writing on the judicial wall fully suggests the possibility that the Court may terminally declare that the tasks of relief, resettlement, and rehabilitations stand almost fully and magically accomplished!" Prof Baxi said, A fifth horrid story of the structurally adjusted judicial role and responsibility stands now furnished by the judicially mandated/mediated sanction for the urban demolition drives that cruelly impose themselves on the bloodied bodies of the urban impoverished.

"Some recent judicial performances go so far as to fully suggest a total reversal of human rights to dignity and livelihood, which the Court itself since the Eighties indeed not too long ago so painstaking evolved.

"The enforced evacuees stand denied all rights of constitutional due process, including access to their erstwhile meager belongings. "The bulldozers remove the last sight of their existence as documented citizens; all evidence of title and occupation-- including the only passport they posses by way of pattas, their inchoate title deeds, and prominently their ration cards) stand maliciously and wantonly destroyed.

"Not too long ago during the 1975-76 imposition of the internal Emergency, such happenings were poignantly described as emergency excesses.

"Today, these somehow constitute the badges of good governance!" Prof Baxi said the sixth instance concerned "the harsh way in which the Indian Supreme Court dealt with the contempt committed by Zahira Sheikh." Here was "an eye-witness to the destruction by arson of her own kin... by the Hindutva mobs," treated "as news/views 'commodity' in hyperglobalising Indian mass media... as a resource appropriated by local politicians and by some activists alike" and as a target of "human rights and social movement activism." Prof Baxi saw Ms Sheikh as "overall... a deeply traumatised victim of organised political catastrophe" compelled by the force of circumstance to make contradictory statements.

That is what finally decreed "her fate as a contumacious Indian citizen worthy only of the most severe punishment in the annals of contempt jurisprudence." Prof Baxi noted how the same Court had remained "largely lenient in its regard for Kalyan Singh for an objectively presented far worse egregious contumacious conduct.

"It also remained lenient for Aurundhati Roy, an NBA-- Narmada Bachao Andolan-- activist marshalling the power of International Union of Journalists, and Shiv Shankar, a former Union Law Minister, for a while marshalling the power of judicial elevation.

"Both of these remained far more contumacious; yet they were thought eligible for the otherwise rather relaxed standards of contempt jurisprudence. Yet, the Supreme Court leaned heavily on Zahira.

"How may we understand this judicial asymmetry in our, or indeed in any access talk save by the fact that that high political status was simply not available to Zahira?" "To depict the scenario thus is not to present any mean-mouthed mode of attributing any class differential in access to justice.

"I only seek to service with the highest order of responsibility in discharging my citizen responsibility acting under my Part IV-A fundamental duties of Indian citizens, by highlighting differential practices of access to justice under the Indian Constitution.

"In the same spirit, some of us have now approached the President of India for pardoning Zahira; we know that this may not happen, although in a proud 50+year Indian democratic development this, it ought to.

"But this much remains clear: accesses to justice claims remain differentially distributed by the apex Court. Its ire at contumacious conduct by public citizens is increasingly met by different standards for some de-globalised compatriots.

"The wall of difference thus erected between globalised and de-globalised Indian citizens seems to enact some contradictory dual, even multiple, standards of differential access to justice." He said "I sincerely hope... I (am) wrong in saying this. At the same moment, surely, all this should give us some pause in our parrot-like or His Globalising Masters voice-type talk concerning 'access to justice'."

What follows is a hurried copy of Mahindra's words.

Statement of Keshub Mahindra

I Keshub Mahindra son of Late Kailshchandra Mahindra permanent resident of Mumbai aged 82 years residing at 9 & 10 St Helen's Court, Deshmukh Marg, Mumbai.

Mahindra outside the Bhopal court in February

I deny all the charges framed against me in above case. I say that there is no evidence to sustain the charges framed against me.

"At the very outset I wish to state that the accident were a tragic and sad one. Although i was chairman of the company the day to day management of this company was with the Managing Director and his team of professionals and experts. My interaction in respect of the affairs of Union Carbide India Limited was only with Board members and invitees to Board meetings or in the shareholders meeting and only in respect of the policy issues and policy matters that were placed before the Board of Directors or for its deliberations and discussions. I resigned as Chairman and Director of UCIL on 19th September 1986."

"Besides contributing to the areas of business and industry, I have also contributed in myriad fields like those of academics, culture, legal and social reforms, philanthropy, governmental committees, international institutes."

"UCIL had 14 manufacturing plants all over the country which provided employment to 9000 employees."

"In view of my Non-executive capacity, as other non-executive Directors, I was not aware of the detailed operations of the plants including the plant at Bhopal."

"As Chairman, my responsibilities were to chair the meetings of the Board of Directors and meeting shareholders in accordance with Articles of Association."

"None of the matters referred to in the evidence before the court was brought before the Board of Directors or to my attention or knowledge."

"I believe that the Company appointed experts and professionals of caliber to manage the operations of the Company ion a day to day basis and since there was virtually not a a single incident of lack of safety that was reported to the Board in respect of many of the plants, the Board of Directors believed that the company was being run in a professional and safe manner."

"I learnt of the leakage of the gas from the Bhopal plant in the morning of 3rd December 1984 when i received a call from the Managing Director Mr Gokhale. I was informed that all necessary steps were being taken by the Company to minimize the problem though nobody at that time knew the magnitude of the incident."

"Mr Gokhale informed me that he was flying down to Bhopal on 5th December 1984. He went and met the Chief Minister and pledged all support from UCIL. On 7th December 1984 I along with UCC Chairman Mr Warren Anderson also flew down to Bhopal to meet the Chief Minister to provide any support that may be required. However, shortly after landing I along with various other persons was arrested."

"At the Board meeting the Board was kept informed of the excellent safety record of the various safety plants of the Company. To the best of my knowledge only one incident of an accident in the Bhopal plant in 1982 was brought to our notice. We were however, informed that the incident was a result of the employee not taking safety precautions as advised by the Company. The Board in 1984 was also informed that the Bhopal plant has received a safety award and a congratulatory message regarding the safety of the plant from the then Chief Minister Shri Arjun Singh, Labour Minister Shri Shyam Sundar Patidar and from the National Safety Council and Union Carbide Corporation."

"As a member of the Board of Directors of UCIL I say that the Board of Directors of the Company took all possible steps as were consistent with law and safety to protect the health and safety of the employees and citizens and run its business and plants in accordance with law and high manufacturing and safety standards."

Extracts of Keshub Mahindra's CV:

Awards

1985 : Companion, British Institute of Management

1987 Chevalier De La Lagion D'honneur

Government bodies :

President Emeritus : Employers Federation of India

Academic :

President : Governing Council University of Pennsylvania Institute for the Advanced Study of India

Positions held in 1984 :

Non-executive Chairman of :

Indian Aluminum

Otis Elevator

Remington Rand of India

Non Executive Director of :

Ballarpur Industries

Bombay Dying & Manufacturing Company Ltd.

Tata Chemicals

Tata Iron and Steel Company

The India Hotels

ICICI

Metal Box

HDFC

The other non-executive Directors of UCIL:

A W Lutz [UCC Nominee]
F J Costello [UCC Nominee]
P C Mannix [UCC Nominee]
R Natarajan [UCC Nominee]
R E Brindley [UCC Nominee]
J M Rehfield [UCC Nominee]
J B Law [39, Old Ridgebury Road, Danbury, CT, USA]
A M M Arunachalam
N N Lahiri
Bhaskar Mitter
J N Saxena

The Bhopal Gas tragedy case proceedings have been going on for over twenty years.Till date CBI has brought 215 witnesses in the case in which statement of 178 people have been registered. Today statement of two accused were recorded before Magistrate Anil Kumar Gupta.

Talking to media person Salinath Shadgi, member of Bhopal Gas Tragedy organisation alleged that hearing in the case was being done at a slow pace.

He further alleged that neither CBI nor Indian government was not doing anything to extradite Waren Anderson, former Union Carbide chairman to India.

“ Since the case started all the three foreigner accused are absconding. On 7 December,1984, Waren Anderson gave bail of 25,000 rupees and promised to come whenever he is needed but till now he has never come for a single hearing. The most painful thing is that neither Warren Anderson nor Union Carbide or Union Carbide Eastern have been presented before the court. The Indian Government has also not taken any steps to bring them to India,” said Satinath Pandagi.

The members of Bhopal Gas Tragedy organisation are demanding Special Prosecution cell to get early justice.

However,advocate of CBI C. Sahay denied all the charges and said that they were trying their level best to extradite all the accused.

“ There are different proceeding for the foreign accused. We have taken steps; Many times Indian ministry has tried to bring them to India. It is not that we are not doing anything in this regards,” said C. Sahay.

On December 2nd, 1984, 27 tons of poisonous gas including methyl isocyanate leaked from a storage tank at a Union Carbide pesticide plant in Bhopal,took the lives of more than 7,000 people.

This disaster is regarded the worst chemical disaster in history. Union Carbide is now a wholly owned subsidiary of Dow Chemical.