Opinions

No Life Or Liberty

tim — 2008-06-14T12:25:18+00:00

NITYANAND JAYARAMAN, Tehelka Magazine, Vol 5, Issue 24, June 21, 2008

A clause that could save lives doesn’t seem to apply to Bhopalis

SACHIN JATAV would like to play cricket like his namesake. But forget running between the wickets, this 13-year-old can barely walk properly. When he is not staggering on his feet, he just thrashes about, somehow coping with the excruciating pain in his legs. Sachin lives near Union Carbide’s football field-sized solar evaporation ponds in Bhopal. These were filled to the brim with the pesticide factory’s toxic effluents and were just left there to dry. Along with the rain, the poisons in the pond leached into the groundwater. Sachin and his parents are among more than 25,000 Bhopalis who use this poison-laced water for drinking, bathing, everything.

Like Sachin, numerous children living in Bhopal suffer from congenital and water contamination-related diseases. 14-year-old Sarita Malviya lives with her family in a community where the handpumps spit out poisoned water. Her hands and arms are perpetually sweat-soaked, covered with a light rash. Her palms look scaly, crisscrossed by abnormally deep lines. “This is because of the water,” Sarita says. Her youngest brother, nine-year-old Vijay — generally a helpful, energetic kid — is a terror when he gets agitated. He is uncontrollable, inconsolable.

The first signs of water contamination arose in 1982, when Madhya Pradesh’s former Gas Relief Minister, Babu Lal Gaur, was still a lawyer. He had helped some farmers get compensation from Union Carbide when their cattle died after drinking the contaminated water. Now, 26 years have passed and at least 10 governmental and non-governmental studies have confirmed the groundwater contamination. The poisons found in the water can cause cancers, birth defects, joint pains, behavioural disorders, chaotic menstrual cycles, and early onset of puberty and menopause.

On April 1 this year, Hazira Bi, a grandmother of five who lives near the Carbide factory, sent an RTI request to the Prime Minister’s Office (PMO) seeking inspection of files relating to the disaster. The desperation in her application was palpable: “I am a survivor of the 1984 Union Carbide gas tragedy. I am currently in New Delhi, after having walked 800 kilometres, seeking a meeting with the Prime Minister. The demands are integral to our well-being, health and the well-being of my children and grandchildren as they include actions on vital issues such as livelihood support, social support and drinking water. Therefore, I am constrained to make this request under the ‘Life and Liberty’ clause that requires you to furnish the information within two working days.”

The PMO responded on May 7, over a month later. “We treated it as a normal application because we felt that the information sought does not invoke life and liberty,” a PMO official said.

The response of the Central Information Commission (CIC), to whom the matter was referred to on May 12, was no better. In an email response to a complaint — about the lack of action — the Chief Information Commissioner, Wajahat Habibullah, wrote: “I’m sorry you haven’t received redress, but we could not see grounds for invoking the provision of life and liberty in this case. You may be assured of a decision in the immediate conclusion of the 10 days provided to the PMO.”

Till date, well beyond the stipulated 10-day notice period, no decision has been communicated.

What prompted the PMO and CIC to deny the application of the “life and liberty” clause to Hazira Bi’s application? The Bhopalis have been denied life, liberty and justice for more than two decades now. But that does not justify any further delay. The authorities cannot say: “You’ve been drinking poisoned water since 1981. What’s a wait of a few more months?”

Every day of delay in providing clean water to these communities means an added exposure to poisons for more than 25,000 Bhopalis. It means more stolen childhoods, and more hapless parents. Little wonder then that Bhopalis have not just walked from Bhopal to Delhi, but also spent more than 60 days sitting on the sidewalk in our hostile capital, pushing home their demands to the Prime Minister. On two occasions, they broke into the high-security zone to reach the PM’s residence, including the recent incident when nearly 40 of them chained themselves to the PM’s fence. Timely inspection of the files in the PM’s office could have given the Bhopalis a peep into the minds that are destroying their lives, and help them strategise their struggles accordingly.

What do you do when you know that a factory is spewing out life-threatening poisons into your primary school? You want to find what the Pollution Control Board is doing about it; instead you find that you are not entitled to receive the information without delay to enable corrective action. Is not condemning someone to drink poisoned water or breathe poisoned air, for even one day longer than can be helped, a perversion of ‘life and liberty’?

Why I'm going on hunger strike for Bhopal

tim — 2008-06-12T12:28:30+00:00

Indra Sinha, guardian.co.uk, June 12 2008

Victims of the Union Carbide gas leak continue to suffer, their injuries and deaths uncompensated. We must support them

On July 26 2006, my friend Sathyu Sarangi called me in tears from Bhopal to tell me that our mutual friend, Sunil Kumar, had taken his life. Sathyu said that when they lifted Sunil down from the ceiling fan from which he had hanged himself, he was wearing a T-shirt that said, "No More Bhopals".

Sunil was an orphan of the Union Carbide mass-gassing of Bhopal, losing his parents and three siblings on that night of terror. Aged 12, he began doing two jobs a day to bring up his surviving sister and baby brother Sanjay. He became a leader of the survivors' struggle for justice and was one of the people I loved most in Bhopal.

The BBC reported, wrongly, that Sunil was the inspiration for Animal in my novel Animal's People, but Animal certainly benefited from Sunil's courage, sense of humour and ability to live on 4 rupees (£0.05) a day. Like Animal, Sunil heard voices in his head, and suffered nightmarish visions. You can read his story here.

On the day that Sunil died, Dow Chemical's CEO Andrew Liveris visited the UN to deliver a much-publicised speech. Fireboats hired by Dow's public relations agency jetted huge sprays aloft over the Hudson River as Liveris told the assembled diplomats "Lack of clean water is the single largest cause of disease in the world and more than 4,500 children die each day because of it … We are determined to win a victory over the problem of access to clean water for every person on earth … we need to bring to the fight the kinds of things companies like Dow do best."

Stirring words. But when asked if he would clean up Bhopal, where the drinking wells of 20,000 people have been poisoned by chemicals abandoned by Dow's subsidiary Union Carbide, causing an epidemic of cancers and hundreds of children to be born malformed and with brain damage, Liveris replied, "We don't feel this is our responsibility".

Liveris couldn't be more wrong. Under the "polluter pays" principle enshrined in both Indian and US law, Union Carbide is responsible for cleaning up the contamination and compensating the thousands whose lives have been ruined. In buying Union Carbide's assets, Dow also acquired its liabilities. Dow set aside $2.3bn to settle Union Carbide's US asbestos liabilities. How then can it refuse to accept Union Carbide's Indian liabilities?

The hard answer is that Indians are not quite as human as Americans. Dow paid $10m to settle out-of-court with an American child damaged by Dursban, a pesticide so dangerous that it has been banned for domestic use in the US. But Dow employees were found to have bribed Indian Ministry of Agriculture officials to license Dursban as safe for home use in India. If an Indian child dies I doubt if there'll be $10m or even $10,000. As a Dow public affairs chief famously remarked of the paltry compensation paid to Union Carbide's victims, "$500 is plenty good for an Indian".

Why doesn't the Indian government force Dow to clean up Bhopal? The Indian law ministry has advised Prime Minister Manmohan Singh that Dow is indeed liable for Union Carbide's misdeeds in Bhopal. It's exactly what he doesn't wish to hear. He and his ministers are in contortions to appease Dow, which has offered to invest $1bn in India if freed from its Bhopal liabilities. When news broke of this sordid backroom hustling, 280 legal professionals, among them retired judges and eminent lawyers, said the attempts to exculpate Dow were unconstitutional and illegal.

Earlier this year, 50 Bhopali survivors, many old and sick, walked 500 miles to Delhi to ask the prime minister for safe drinking water and to make Dow clean the factory. For two months Manmohan Singh left them camped on a sweltering pavement without a reply. When Bhopali women brought their damaged children to his house and chained themselves to his railings, he had them arrested. The policewomen who led them away wept.

When India's prime minister finally gave a reply, it was all prevarication, no substance. The Bhopalis then declared that they would launch an indefinite hunger strike until their demand for justice was met.

On the eve of the fast, police beat up women and children as young as six years old who had gone to protest outside the prime minister's office. The police said they'd been told to get tough. Many of us around the world rang to protest and I asked a Mr Muthukumaran of the prime minister's office if Manmohan Singh had ordered the beatings. "Are you joking?" he replied. On the contrary, I had rarely been more serious.

As I write this the Bhopalis are still in jail, and we hear that Dow Chemical is sponsoring an exhibition called The Gallery of Good at the Cannes advertising festival. Next Monday, Dow will present The Chemistry of Socially Responsible Marketing, which is presumably the advertising campaign on which it has lavished upwards of $100m. But telling lies beautifully does not make them true. Wouldn't it have more socially responsible to use the money for cleaning up Bhopal?

I have spent much of the last five years writing a novel in which victims of a chemical disaster caused by a rogue corporation are sold out by their own politicians, triggering a desperate hunger strike. Animal's People is set in the fictional city of Khaufpur, but whatever success it has had, it owes to the inspiring courage and spirit of the Bhopalis, and the descriptions of the hunger strike were drawn directly from the experiences of my friends.

Sunil is dead, but on their small stretch of pavement in Delhi, now battered by monsoon rain, nine others have sat down to begin an indefinite fast for justice. Among them are my old friend Sathyu and, grown up into a fine young man, Sunil's baby brother, Sanjay.

How can I not join them? How can we all not support them?

• To join the fast for a period, or to register your support, please visit www.bhopal.net. Donations for medical care in Bhopal may be made at www.bhopal.org/donations/

From a Government without a heart

tim — 2008-05-31T23:29:26+00:00

Bhopal dharna diary, May 29, 2008

This morning, we got half of what we came here for.

Prithviraj Chavan, representing the Prime Minister's Office, came to the dharna sthal and read a statement conveying the Government's in-principle agreement to our demand for the Empowered Commission. This is a huge first step. The Commission would ensure the execution of rehabilitation schemes for gas survivors and victims of water contamination. But the devil is in the details, and the PM's statement was starkly devoid of detail. Chavan did specifically mention that medical research into long-term effects of Carbide's poisons will resume forthwith, and that water would be delivered by November. (They can drink poisoned water till then.)

Coming from a Government without a heart, even this announcement gave cause for celebration to Bhopalis. The meeting of all these demands is important, it allows the survivors to continue to... well... survive.

It has been a long road, a tough stay. A lot of people have died waiting for some of these demands to be fulfilled; a lot of people have seen their health, and that of their children, irreversibly damaged; and a lot of people have suffered severe symptoms of the exposure for 24+ years. 600,000 people in all. Going by figures estimated by the Centre for Rehabilitation Studies, Government of Madhya Pradesh, just in the last three months that the Bhopalis have been on padayatra and dharna about 90 gas-affected persons are likely to have succumbed to the long-term effects of the poisons.

These sobering realities notwithstanding, for the living and the fighting, we're glad to receive some acknowledgement that the Prime Minister is listening to us. As Rashida Bi said, "Unki aakh to khuli, kaan tak aawaaz toh aayi (he has finally opened his eyes, our voices have reached his ears)." Our friend Piyush -- who was arrested for juxtaposing the PM's face on to the bodies of the three see-no-evil, hear-no-evil monkeys -- would be glad to know that his appeal has had some effect. The Prime Minister is now able to see and hear. His feelings for fellow-humans -- particularly, those that are poor -- are still lacking. How else would you explain an offer by the PM that does not even guarantee that the mothers can give clean drinking water to their babies when they return to Bhopal? The Prime Minister has said the Bhopalis would have to wait until November 2008 to get clean water.

Reflecting on the PM's statement later in the day, the euphoria wore off and some of the old cynicism crept back in. What exactly have we won? An assurance from a PM (who has once broken his word) that we have the right to live? Elation followed by an empty sense of betrayal is now a familiar pattern for Bhopal. That is not to say we haven't learned from this cycle – each time we win an agreement with more teeth, more guarantees. Cynicism, for people like the Bhopalis who refuse to give up, only means better preparation, better follow-up and a realisation that every assurance squeezed out of a spineless politician only signals the beginning of another long struggle to help the politician live up to his word. And this time too, follow up is critical – going by our experiences, every little detail has to be examined, every deadline has to be enforced. In a way, the padyatra and dharna, were simply prologue to the struggle ahead.

And as for the other thing - the giant elephant weighing us all down – namely, legal action against Dow and Union Carbide. Our Hon'ble Prime Minister -- God bless his lost spine -- and the entire cabinet have been unable to muster the courage to take action against Dow Chemical. They are afraid of the Americans. Will Georgie bomb us for daring to pursue legal action against an American company? Not a word has been said about deregistering the three pesticides that Dow registered illegally by bribing officials. Nothing on revoking the approval given to Reliance to purchase Union Carbide's Unipol technology. And nothing said on whether the Government will -- even half-heartedly -- pursue the extradition of Warren Anderson and Union Carbide's representative. Strangely, all three things are not merely being required by the Bhopalis. They are also required by law.

Since 1992, when the Chief Judicial Magistrate proclaimed Carbide and Anderson absconders, the Government of India has specific instructions from the Court to produce Carbide's representative and ol' man Anderson in court to face trial. But successive Governments have decided that it is safer to ignore the Court than it is to piss off the United States of America. In the case of the bribery scandal involving the illegal registration of three pesticides, Dow has gotten away with murder, literally. Barring a little negative publicity, nothing concrete has materialised. Every time the Bhopalis shout for deregistering the pesticides, the Government will issue a well-heeled statement that investigations are on, or that the next painful, deliberate step is being conceived, and then will be considered, and then, perhaps, acted upon. Meanwhile, thanks to Dr. Singh’s spinal difficulties, Dow Chemical continues to profit from the sales of these three pesticides, including one (Dursban) that robs the childhood of our children.

The Bhopalis are unwavering in their commitment to see all their demands met. Our health, our bodies need to be looked after, but the outrage that has been the callousness of Union Carbide, and now Dow, has to be righted. Mr. Prime Minister, we have 600,000 Bhopalis and countless supporters, here and worldwide, demanding that one company, just one company, be pulled up for its wrongdoings. We don't understand the hesitation at punishing Dow for poisoning our communities, we cannot begin to comprehend why they are being allowed to introduce even more poisons into the country, and we shudder at the only possible reason for it: that you value its dollars more than our lives, more than righting the wrongs that were done to us. And it’s not just about us: it’s about No More Bhopals, its about sending a strong message to the world, to polluting industries everywhere, that India is open for business, but no business that compromises the environment or human rights will be tolerated.

Arundhati Roy speaks out on Bhopal

tim — 2008-05-23T18:35:15+00:00

Public statement

May 23rd, 2008

The lessons of Bhopal do not lie in our past but in our future. By refusing to meet the people of Bhopal who have suffered for decades after the Union Carbide/Dow Chemicals gas leak Prime Minister Manmohan Singh, who is at the forefront of the Corporatization of India's Economic Policies, is sending out a clear message to the Corporate World: In India you are free to poison, rob and kill our people. The Government will protect you. You will never be brought to book.

Saare jahan se Nchha

tim — 2008-05-23T16:51:50+00:00

Nityanand Jayaraman, Hindustan Times, May 22, 2008

For those passing by 7 Race Course Road on Wednesday, a wet day in the national capital, a strange scene may have greeted them outside the Prime Minister’s residence. People had chained themselves to the railings of the perimeter gate of the PM’s residence and before too long, were hauled into police vans by the dozen. Who were these people? And why were they there on such an unnaturally cool summer day with freshness in the air? These people were survivors and victims of the Bhopal Gas ‘tragedy’ protesting against the cacophonous silence on their two-point charter they have demanded from the man who lives inside the premises they were gathered outside.

These people had walked 800 kilometres from Bhopal to reach New Delhi in late March and are still on dharna at Jantar Mantar. But more than the distance, it is the matter of time — nearly quarter of a century — that has worn them down, that has made them tired. Their charter asks for two things: one, that a special commission be set up to rehabilitate families of gas tragedy survivors and those affected by the contaminated water in Bhopal; two, that the Government of India pursue legal action against Union Carbide and Dow Chemical. Just in case the government gets too nervous, compensation doesn’t even figure in the list of demands of these people.

A special commission, they say, is the only mechanism that can ensure the implementation of assurances of successive PMs that rehabilitation will be done. The fact that the plight of the survivors has gone from bad to worse over the last 24 years is proof enough that previous attempts to coordinate rehabilitation measures — through a Group of Ministers on Bhopal and, since 2006, by a Coordination Committee — have failed.

Legal action against Dow and Union Carbide is necessary not just for closure for those bereaved and hurt by the gas and poisoned groundwater. Survivors say that is the only way to ensure that future ‘Bhopals’ are not repeated elsewhere. But what has the government done to hold the guilty accountable? Nothing. Union Carbide and its former chairperson Warren Anderson, both of whom face charges of culpable homicide and grievous assault, are absconding from Indian courts since 1992. No fresh attempts have been made by the government to enforce their appearance in court.

Unrelated to the gas disaster, but arising from the routine operation of a poorly maintained chemical factory, Union Carbide has also created environmental liabilities for itself — involving the clean-up of toxic wastes and contaminated groundwater, and compensating people hurt by the consumption of the poisoned water. By virtue of its acquisition of Union Carbide in 2001, Dow Chemical has inherited Carbide’s civil liabilities — of clean-up and compensation for water-affected people. Also, in acquiring Union Carbide, Dow was well aware that it was inheriting an absconder. While Dow cannot be held responsible for the original crime of causing the disaster, it is guilty of harbouring an absconder — an offence under Section 212 of the Indian Penal Code.

In April 2006, when the survivors and victims of Bhopal met Manmohan Singh after a 35-day walk, 15-day sit-in and a six-day hungerstrike, the PM promised to explore all options within law to hold Carbide and Dow accountable. Barely a few months later, the Union Commerce Ministry approved collaboration between Reliance and Dow for the transfer of Union Carbide-owned and patented technology. A 900,000-tonne per year polypropylene plant being built by Reliance in its Jamnagar Special Economic Zone will use Carbide’s Unipol PP technology, catalysts and process software. This is illegal. Union Carbide’s assets in India are subject to confiscation as per the 1992 order of the Bhopal magistrate. In 2005, Indian Oil was forced to scrap a deal with Dow involving the Carbide-owned ‘METEOR’ technology. Dow had falsely claimed that the technology to be licensed was its own and not Carbide’s in order to avoid questions about the latter’s absconder status.

Why would the Government of India go out on a limb to help Dow Chemical? A note forwarded by Planning Commission Deputy Chairperson Montek Singh Ahluwalia to Prime Minister Manmohan Singh has the answer. The approval, the note says, “was greatly appreciated [by Dow] as a signal that Dow was not blacklisted as an investor”.

Dow’s jitters began when the Ministry of Chemical filed an application in the Madhya Pradesh High Court demanding Rs 100 crore from Dow as an advance to cover costs of environmental remediation at Carbide’s Bhopal site. In 2005, Dow began a lobbying operation that roped in the support of a veritable list of influential people in the Government. Indian Ambassador to the US Ronen Sen, Montek Singh Ahluwalia, Finance Minister P. Chidambaram, Commerce Minister Kamal Nath, Ratan Tata and the then Cabinet Secretary B.K. Chaturvedi were soon singing Dow’s tune — that any overtures to hold Dow liable for Bhopal-related issues will scare away Dow’s promised $1 billion investment in India and also discourage other American investors. Once again, issues of investment are clouding issues of justice.

Dow’s crimes in India do not arise only from its association with Union Carbide. In February 2007, US financial regulator, the Securities Exchange Commission (SEC) fined Dow $325,000. The reason: Dow had paid Rs 80 lakh as a bribe to Indian agriculture ministry officials to expedite registration of three pesticides — Dursban, Nurelle and Pride. Talking to faculty members in IIT-Bombay, Dow India CEO and old Carbide hand Ramesh Ramachandran blamed the bribery scandal on its employees. Dow, he said, took pro-active action against the errant officials. But what he did not mention was that Dow had approved this expenditure in its submission to the SEC. Even worse, the illegally registered products are still being sold freely in India.

In 2000, Dursban was withdrawn from all home and garden products in the US. Announcing this, US Environmental Protection Agency chief Carol Browner declared that this action came after “completing the most extensive scientific review of the potential hazards from a pesticide ever conducted. This action, the result of an agreement with the manufacturers, will significantly minimise potential health risks from exposure to Dursban, also called chlorpyriphos, for all Americans, especially children.”

Responding to a question about the bribery in Parliament, Agriculture Minister Sharad Pawar said in May 2007 that a CBI probe was underway. The probe is concluded. But the report is gathering dust. In the meantime, the illegally registered pesticides are poisoning our children, and those guilty are roaming free.

In demanding that the Dow-Reliance deal is revoked, and that the illegal registration for the pesticides be withdrawn, the people from Bhopal you may have seen outside the Prime Minister’s house on Wednesday are fighting for a cause much larger than their own.

Nityanand Jayaraman is a Chennai-based independent journalist and researcher.

A heartless PM?

tim — 2008-05-22T16:46:51+00:00

Mail Today, May 22, 2008

IT is quite disturbing to note that the country's Prime Minister has no time to meet a group of innocent women and children suffering due to the toxic legacy of the worst ever industrial disaster in modern history. That too when this group of hapless people walked all the way from Bhopal to the national capital — just to remind the PM that he has not delivered on what he had promised them two years back. It leaves one wondering if this government has any concern left for ordinary people — the aam admi by whom it otherwise swears.

The PM's consistent refusal to meet these people, leave alone accede to their demands, has hardened the belief that he is hell bent on doing business with Dow Chemicals and does not want to displease the chemicals giant by giving an appointment to people who want Dow to take on the liability (as well as the assets which it seeks) of Union
Carbide, since it owns Carbide now. What is at stake is the promised investment of $1billion.

Why is Dr Singh keen on this investment from acompany which was penalised in America last year for having bribed Indian agriculture officials for expediting registration of three toxic pesticides in this country? Why did he not take aclear stand when the file was sent to him with the Law Ministry's opinion that Dow's investment can't be immune to its liability? Why has he not taken any action to set up an Empowered Commission on Bhopal, as recommended by the head of his own Group of Ministers on Bhopal? Why is his office stonewalling RTI applications relating to Bhopal? Is the pleasure of an American chemical giant more important to the PM than the wails of kids still being born with congenital deformities in Bhopal? Mr Prime Minister, please do some introspection as you enter your last year in office.

`Second Bhopal disaster is govt-Created`

tim — 2008-05-18T11:18:43+00:00

Sreelatha Menon, Business Standard, May 18, 2008

Q&A: Satinath Sarangi

Satinath Sarangi of the Bhopal Group for Information and Action tells SREELATHA MENON that activists made a mistake by delaying raising the issue of removal of the 8,000 tonnes of toxic waste from Union Carbide's Bhopal plant.

Where were you when the 1984 disaster in Bhopal took place and what brought you to work there among the survivors?

I am from Orissa. I had done my engineering in metallurgy from Banaras Hindu University and was pursuing my PhD when the disaster took place. I heard of it on radio and decided I will do some relief work. I reached there the next day and could not leave after that. I felt I was needed there.

Who were the others who were providing relief?

There were many people trying to help. They found nothing was being done and so they decided to organise the survivors. I joined them in the Jehrile Gas Kand Sangarsh Morcha. It had three leaders and none of them was a gas victim or survivor. There was someone from the Left. He joined the Congress and then the BJP. There was a lawyer. He made it big due to Bhopal. Then there was Anil Sadgopal. No one is there in the picture now. I and some people from a trade union of Union Carbide formed the Jan Swasthya Kendra as health was the main concern then. People were not getting treatment and their bodies were getting swollen. Bhopal Group for Information and Action was formed after that as we got involved in legal action.

Did you get funds for these activities from international agencies?

We approached the International Labour Organisation, we went to New York to speak to the United Nations, to UNHCR (UN High Commissioner for Refugees) and the International Court of Justice.They all said it would have been easier if it was a natural calamity. Finally, we formed the Sambhavna Trust with individual donations like book royalties of Dominique Lapierre and annual advertisements in The Guardian. These two sources have provided us enough money to run the organisation and to treat 160 people daily since 1991.

What did you do for a living in Bhopal?

Initially, my friends used to send me money. There was Arvind Rajgopal, now a professor in New York University, who was with me and used to help me with money. I used to write for feature agencies. I also worked as a daily-wage worker in a straw board mill near the Bhopal bus stand till they sacked me a year later as there were cases against me.

What cases?

Our organisation started a clinic in June 1989 with a trade union of Carbide workers. We were giving injections that were antidotes to the chemicals. We kept records of the healthy effects of this medicine. But after 21 days, goons and police took away the records of 1,300 patients. We were put in jail for 18 days on charges we were conspiring against government officials. Many scientific studies were done at that time by the government and they all concluded there were no lasting health effects of the chemicals. We came across a study by the Indian Council of Agricultural Research on damage to plant life. It was meant only for official use. The government raided our clinic and charged us under the Official Secrets Act for possessing those papers.

The Vardarajan committee report on the disaster talked about toxic waste in 1985. How come neither the government nor the activists picked up on that till Union Carbide left the country and got merged with Dow Chemicals?

The report was bad and I doubt if the committee ever visited the premises. There is also no mention of the 8,000 tonnes of chemicals that are lying buried in the plant premises. It did mention toxic waste. But that was not part of the terms of reference of the panel.

So Carbide kept quiet about the chemicals lying there?

We have records of Union Carbide's 1981 telexes sent to the headquarters in the US that say the solar evaporation ponds are leaking. The government knew in 1982 that cattle were dying of toxic exposure. The latter was settled by a lawyer who later became Bhopal gas relief minister, Babul Lal Goud (sic).

Did you try to probe into the waste left there?

The first time we said waste should be removed was in 1990. We had done a study on water and soil contamination and the result was presented before the government and the Union Carbide AGM in 1990. Scientific agencies were trying to prove there was no damage. The chairman of the state pollution control board, VK Jain, who was later jailed on corruption charges, told me almost every day I met him that there was no contamination of water. He would say abhi to koi mara nahi hai. A Congress minister went to the site with media and drank a glass of water from there. He threw up in two minutes. This was the drama being played before 1998.

But there was no hue and cry about the toxic waste till recently?

Only after the 2004 Supreme Court order that the toxic waste has to be removed as it was contaminating the water there did we get the government to accept there was a problem.

So you blame the government for the second disaster, of continued damage caused by the chemicals left behind by the company.

The second Bhopal disaster is a creation of the government itself. In 1989, Union Carbide gathered evidence that ground water had 100 per cent fish mortality. Then they sponsored a research by NEERI, which gave a report that the factory was contaminated within the four walls but water was drinkable within the 10-km radius. We have internal correspondence between NEERI and Union Carbide advisors where the latter suggests: Let us not say water is potable, let us say it is of good quality.

But the Vardarajan committee report should have prompted some action, legal at least, on removal of toxic waste in the 80s.

Yes, it was a mistake on our part. We should have agitated much earlier. There were reports of contamination. The first report was from the public health engineering department of the Madhya Pradesh government in 1991 that water from 13 locations was dangerously polluted. But it did not mention the waste lying there.

Is the waste visible?

It is visible like a hill. But for several years, no one could go there as Carbide had posted sentries. I used to steal into the premises for samples of soil. The truth is Union Carbide just slipped away.

Twenty-four years after

tim — 2008-05-09T23:08:32+00:00

Indra Sinha, Indian Express editorial, May 9, 2008

Damaged children are still being born in Bhopal. So who’s responsible?

Indra Sinha

Recently, the UK’s Guardian newspaper published a shot of what looked like a golf bag containing a pair of clubs. These were in fact the shrivelled, twisted legs of 14-year-old Adil, one of hundreds of children born malformed or brain-damaged to families living near the Union Carbide factory in Bhopal.

The same factory in December 1984 leaked poison gas, killing thousands in the most hideous and disgusting ways. Adil’s mother was caught in the gas but survived. I am lucky, she’d say, but a new terror was already on the way.

People didn’t know that their drinking wells were being poisoned by chemicals leaking from the factory. The water began to smell and taste foul. Held up to the light it appeared full of oily globules which sank to form a tawny layer. The goo was a cocktail of lethal poisons, but at the time no one knew this. Except Union Carbide.

A 1989 secret Carbide memo records proof that it knew soil and water in its factory were badly poisoned by chemicals whose effects included skin and eye damage, cataracts, diarrhoea, vomiting, abdominal pain, liver and kidney damage, convulsions, brain damage, anaemia, birth defects and cancers.

Despite the obvious danger to nearby communities, Carbide’s bosses issued no warning. Many families were already ill from its poison gas leak. Carbide watched in silence, and allowed them to be poisoned a second time. In the debate about who is responsible for clean-up we should never forget this inhuman and criminal act of negligence.

By 1993, Adil’s mother was married, pregnant with Adil, and Carbide’s silence had lasted four years. When environmentalists, alarmed by soaring rates of cancer, birth-defects and early deaths near the plant, expressed fears that chemicals might be poisoning the water supply, Carbide denounced them as mischief-makers.

In 1999 Greenpeace tested soil and water in 14 areas near the factory. They found mercury levels 6,000,000 times higher than normal and more than 30 chemicals in the water — many proven to cause birth defects and cancers. A 2001 study found lead, mercury and the factory’s signature poisons in the breast milk of nursing mothers. In some communities 95 per cent of women are anaemic. During Carbide’s ten years of silence, hundreds of children were born with terrible injuries. If you are willing to risk being seriously upset, you can see their pictures on www.bhopal.org.

Union Carbide’s final act of contempt was to leave Bhopal without cleaning its factory. Twenty-four years after the gas disaster, chemicals spill from rotting sacks and drums. People still have to drink poisoned water. Damaged children are still being born.

Union Carbide (US), majority shareholder in the factory, disclaims responsibility for the ongoing poisoning. For 16 years it has also refused to appear in the Bhopal court where it is faces serious criminal charges relating to the gas disaster. Carbide is now 100 per cent owned by Dow Chemical, which set aside $2.3 billion to meet Carbide’s US asbestos liabilities, but refuses to accept Carbide’s Indian liabilities. Dow’s managers sit on Carbide’s board, but Dow pretends it has no power to produce its wholly-owned subsidiary in court.

Dow spokesmen disingenuously add that all Carbide’s liabilities in India were covered by the 1989 settlement. Untrue. The water poisoning was never part of that settlement.

Now Dow would like to expand its business in India. It has found allies in heartless and irresponsible politicians who have done nothing to clean the factory or provide clean water but who seek ways to free Dow of its Bhopal liabilities.

Promises made to the Bhopali survivors two years ago by Prime Minister Manmohan Singh have been dishonoured. A Supreme Court order dated 2004 to provide clean water has been ignored. The Bhopalis recently walked 800 kilometres to meet Manmohan Singh. For more than a month he and his law minister have not found time to meet them.

Those poisoned in Bhopal continue to sicken and die, without help, without compassion, without justice.

Sinha is author of ‘Animal’s People’

The ultimate constitutional and human rights obscenity

tim — 2008-04-24T23:53:12+00:00

Prof Upendra Baxi

April 23, 2008

The Bhopal -violated and long- suffering humanity justly continue to claim their human rights, to voice their saga of suffering, contending the cruel and predatory ways of Indian governance. They do a great service in reminding us that Indian governance cannot continue as if internationally and constitutionally proclaimed human rights never existed!

Not merely was Union Carbide Corporation unconscionably let off the hook by a constitutionally unjustified Supreme Court of India settlement order which shrivelled to nothingness (the GOL estimate of US$3.3 billion to a paltry US$ 470 award); very little has been done to actually ameliorate the extraordinary suffering of the Bhopal –violated Indian citizens.

As if this implosion of chemical-Holocaust suffering were not enough, what now occurs are some terminal forms of profoundly neo-liberal, unconstitutional governance.

Now even a self-proclaimed progressive UPA government proceeds to fashion ways in which Dow Chemical may owe no legal, constitutional, or corporate social responsibility to the Bhopal -violated humanity, even when it may best continue to maximise its profit and power. What this means is the ultimate constitutional and human rights obscenity, a form which now favours human rights impunity for successor global corporations, which may not even owe a tattle of social responsibility for the perpetuation of inhuman wrongs.

It is never too late for the Government of India to follow the path of constitutional justice for the Bhopal -violated. Rather then telling them that they have no rights, the time has surely come to tell global corporations that they owe greater human rights responsibilities than ever before.

I support the Bill and the plan of action.

Dr .Upendra Baxi
Professor of Law
University of Warwick

It is bad science to keep information back

tim — 2008-04-22T13:06:23+00:00

Satinath Sarangi, the Hindu, April 22, 2008

In addition to knowing about and treating their poison-ravaged bodies, the people in Bhopal need research to know what lies in store for the children born to gas-affected and contamination-affected parents.

Right to knowledge: A Bhopal gas tragedy survivor sitting in protest in New Delhi.

India is considered to be the third largest scientific humanpower, yet some of the most basic information on the Bhopal disaster remains unavailable even after 23 years. While government scientific agencies remain oblivious to this, the victims continue to struggle for such knowledge. Sitting in Jantar Mantar after an 800-kilometre walk are 50 victims of the Union Carbide gas disaster demanding that the Prime Minister who set up the Knowledge Commission set up an empowered commission on Bhopal for medical research and health monitoring.

In 1985, some among the women padyatris had marched to the local government hospital, holding bottles of urine. They demanded that doctors examine their bodies to see if they should carry on or terminate their pregnancies. They expected the doctors to test the amount of thiocyanate in their urine for an evaluation of the toxins circulating in their bodies. They wanted them to administer sodium thiosulphate injection so that they could excrete some of the toxins they had involuntarily inhaled on that terrible night. They were worried that they might give birth to children with defects. The women were denied medical tests and advice, and police chased them away with sticks. Ironically, this happened in March 1985 when medical researchers from the Indian Council of Medical Research were carrying on a double blind clinical trial to test the efficacy of sodium thiosulphate as a detoxificant for the gas exposed.

Teratogenic effect

While the fears of the women regarding the teratogenic effect of Union Carbide’s gases were realised soon after, the results of the clinical trial by the ICMR took 22 years to be published. Its conclusion — sodium thiosulphate administered intravenously could indeed cause the body to excrete the poisons circulating in the blood stream. ICMR’s data indicates that over 23,000 people have died so far as a consequence of the disaster.

Without doubt if ICMR’s results on sodium thiosulphate trial were made known in 1985, just the simple administration of this inexpensive drug could have saved many people.

Rest of the history of ICMR’s involvement in Bhopal is no less scandalous. Twenty two of the 24 research projects carried out by ICMR between 1985 and 1994 remain unpublished. For years after the disaster, for reasons that remain unexplained, there was an official ban on publication of medical research on Bhopal. The ban was lifted in 1996 but ICMR is yet to share its findings with doctors in Bhopal let alone the 100,000 Bhopal people who were part of the studies.

While ICMR is keeping its Bhopal research findings boxed up, Union Carbide continues to withhold unpublished research on the health effects of Methyl Isocyanate, the poison gas. Over the last two decades several requests made to the highest officials of Union Carbide to disclose the findings of the research it carried out for several years at the Carnegie-Mellon Institute at the University of Pittsburgh have been denied. Just last month, the issue came up in the discussion of the faculty of IIT Bombay with officials of Dow Chemical, Union Carbide’s current owner. The officials declared unfamiliarity with the research, promised to try and obtain the findings but would not commit to a time line.

Union Carbide has not been as successful in suppressing information with regard to the environmental health consequences of its disposal of hazardous waste from the pesticide factory. Internal documents of the corporation obtained through the New York district court include bioassay reports of 100 per cent fish mortality in samples of ground water from in and around the factory at five to 10 times dilution.

Through persistent efforts under the Right to Information Act, one of the Bhopal padyatris recently obtained copies of quarterly monitoring reports of ground water quality from the State Pollution Control Board. These reports show that chemicals known to cause damage to brain, lungs, liver and kidneys and give rise to cancers and birth defects are present in high concentrations in the water of the local community hand pumps. Sadly, the ICMR has not found it fit to initiate research on the health impact of the contamination of ground water that continues to be routinely used by 25, 000 people.

Reason for agitation

The big reason why the victims of Bhopal continue to agitate for generation and publication of health information against its deliberate denial by the Indian government and the number one chemical corporation of the world is that such information is essential for their health and lives. In the absence of research, providing temporary symptomatic relief has been the mainstay of medical care ever since the morning of the disaster. The indiscriminate prescription of steroids, antibiotics and psychotropic drugs is compounding the damage caused by the gas exposure.

Despite spending over Rs. 300 crore from the public exchequer and establishing more hospital beds per 1,000 population in Bhopal than in the U.S. or Europe, the failure of the government’s system of healthcare to offer sustained relief has led to a proliferating business for private doctors and nursing homes. In the severely affected areas, most of the meagre compensation has gone to private doctors, nearly 70 per cent of who are not even professionally qualified. Yet they constitute the majority of the medical care providers.

In addition to knowing about and treating their poison-ravaged bodies, the people in Bhopal need research to know what lies in store for the children born to gas-affected and contamination-affected parents. While the Bhopalis have been clamouring for this information for 23 years, the ICMR has not exactly covered itself in glory in this respect. From 1988 to 1991, ICMR’s research team in Bhopal reported that children of gas-exposed parents had delayed physical and mental development and lower values for anthropometric parameters such as height and mid-arm circumference compared to children born to unexposed parents. Despite the positive and significant findings regarding teratogenic effect of the toxic exposure, and desperate requests from the Principal Investigator that the study be continued till the children attain puberty, it was wound up abruptly in June 1991 following directions from the ICMR headquarters.

The specially empowered commission for long-term research and rehabilitation that the Bhopal padyatris are asking for is long overdue. Let us hope that the government finally summons the political will to stop the medical disaster in Bhopal by setting up such a commission.

(The writer is a member of Bhopal Group for Information and Action, and founder-trustee of Sambhavana Trust Clinic offering free treatment to gas victims and their children.)

Abandoned to their fate

tim — 2008-04-09T15:44:40+00:00

Indra Sinha, The Guardian, April 9th, 2008

Victims of the Bhopal disaster are still campaigning for justice. Their suffering is emblematic of the struggle faced by huge numbers of Indians

Wahid Khan, 72, blinded by the gas which spread over Bhopal from a pesticide plant owned by an Indian subsidiary of Union Carbide Corporation on December 2 1984. Photo: Corbis

At the end of January I was dining with an old friend, now one of India's top policemen. Intelligence, counter-terrorism, external threats, internal security, he'd done it all. He knew of my work with the Bhopal gas survivors, whom I'd accused successive Indian governments of betraying.

"Betrayal? Isn't that rather a strong word?"

"Well, what would you call selling out the Bhopalis for a pittance? Canning all medical studies into the effects of the gas? Letting Union Carbide leave Bhopal without cleaning its factory? Turning a blind eye while toxic waste leaks and poisons the local water supply? Ignoring a supreme court of India order to provide clean water? Beating up women and children who dared to ask why nothing had been done? Doing business with Dow Chemical while its wholly-owned subsidiary Carbide refuses to appear in court to face criminal charges? Conspiring to get Dow off the Bhopal hook in return for $1bn? All this while people are still sick, while hundreds of children are being born deformed? What part of this cannot be called betrayal?"

As we spoke, my Bhopali friends were preparing to walk 500 miles to Delhi for the second time in three years. After the last march they had sat for a fortnight on hunger strike before the government deigned to talk to them. The politicians had made plenty of promises but kept none, so the Bhopalis were about to walk again.

"Indra, Indra," replied my friend, when I was finally done. "Don't tell me you are really so naive. Politics isn't about social justice. It is about power."

It didn't used to be. Not entirely. Long marches and hunger strikes were the weapons of Mahatma Gandhi. His portraits still hang in Indian embassies, where his politics are nowadays an embarrassment.

Modern India is everything Gandhi loathed: a society of ephemera that worships money, cheap celebrity and expensive foreign goods. The poor have been abandoned, their memory obliterated by a deluge of commercials for share issues and cars. It is "anti-progress" (and thus unpatriotic) to mention the thousands driven from their homes by huge dams, the 150,000 farmers who have committed suicide over the last decade, the 100,000 members of ethnic communities forcibly displaced by mining and steel corporations in a savage unreported war in the forests of central India. These poor have no share in India's new wealth, no voice and no powerful friends. When they get in the way of progress they can expect to be jailed, tortured, gang-raped or murdered. They are the victims of what Arundhati Roy has called "the most successful secessionist struggle ever waged in independent India - the secession of the middle and upper classes from the rest of the country."

Politicians may grit their teeth when Roy speaks (in Gujarat they organised a wholesale burning of The God of Small Things) but for the moment she and other prominent dissenters are protected by their fame. For how much longer? In the central Indian war zone, filing a news story could land you in jail. Or worse. A police phone call was intercepted. "If any journalists come to report," the district's senior officer was heard to say, "get them killed."

In my novel, Animal's People, a character asks: "When grief and pain turn to anger, when our rage is as useless as our tears, when those in power become blind, deaf and dumb in our presence, and the world's forgotten us, what then should we do? Must we put away anger, choke back our bitterness, and be patient, in the hope that justice will one day win? We have already been waiting 20 years. And when the government that is supposed to protect us manipulates the law against us, of what use then is the law? Must we still obey it, while our opponents twist it to whatever they please? It's no longer anger but despair that whispers, if the law is useless, does it matter if we go outside it? What else is left?"

This article was amended on Thursday April 10 at 11.30am

Prevent a third Bhopal tragedy

tim — 2008-04-02T15:01:06+00:00

Praful Bidwai, Livemint, April 2, 2008

It’s a litmus test for India’s claim that it can deal with globalization without sacrificing vulnerable citizens

More than 23 years after the world’s worst ever chemical industry accident at the Union Carbide Corp. pesticides plant in Bhopal, its victims are struggling to get a modicum of justice — and to reaffirm their human dignity and the fundamental principles of any civilized social compact.

Fifty of them have trudged the 800km distance from Bhopal to Delhi to demand that Prime Minister Manmohan Singh abide by his April 2006 promise to rehabilitate them fully, get the plant site cleansed of the 9,000 tonnes of chemical residues which continue to poison people, and take the long-overdue legal action against Carbide and its successor, Dow Chemical Co., incorporated in the US. It is on that assurance that the survivors had called off their 21-day dharna, including a six-day hunger strike in 2006.

In place of a high-level commission, the survivors had asked Singh to set up a “coordination committee”. That committee has not taken a single decision. Instead of affirming the rule of law against Dow, the government is under pressure to let it walk away from its responsibility to clean up the Bhopal mess. Meanwhile, more than 100,000 Bhopalis exposed to the 1984 gas leak suffer from severe disabilities and disorders, and 25,000 are forced to consume groundwater contaminated with chemicals, which cause birth defects, cancers and other health damage.

Involved here is not just natural justice and the rule of law, but a litmus test for “emerging economic giant” India’s claim that it can deal with globalization without sacrificing some of its most vulnerable citizens at the altar of corporate profit. The Bhopal disaster killed more than 3,000 people within a week and inflicted grievous chemical damage upon more than 200,000. This has since caused a further estimated 18,000-20,000 deaths.

Dow fully bought Carbide in 2001, and by natural law, takes over all its liabilities and assets. Yet, it has offered to bear the cost of (partially) cleaning the Bhopal site — but only on condition that it’s freed of all legal liabilities, including criminal liability on charges of culpable homicide.

Dow has been strenuously lobbying Indian officials while holding out the lure of large-scale investments — if it’s let off the liability hook. Between 2005 and 2007, numerous influential people pleaded on its behalf, including Planning Commission deputy chairman Montek Singh Ahluwalia, finance minister P. Chidambaram and commerce minister Kamal Nath, besides top-notch US-India Business Council office-bearers such as Ratan Tata and Dow chief Andrew N. Liveris.

Dow has been illegally selling Carbide’s technologies in India through front companies such as Mega Vista Marketing Solutions and Mega Vista Global Services — in defiance of a 1992 court order, which directs the government to confiscate all of Carbide’s assets in India because Carbide is a proclaimed absconder from Indian law. Dow stands implicated in a series of legal infringements and violations of due process, including misrepresentation and attempts to bribe agriculture ministry officials to register pesticides.

In 1989, Carbide escaped civil liability for the faulty plant design and gross negligence, which caused the accident, by paying a paltry $470 million in a collusive and grossly unjust settlement. But its criminal liability still survives.

However, Carbide and its directors have refused to stand trial in a Bhopal criminal court. Meanwhile, Dow has been sheltering these fugitives from the law and selling Carbide’s products, technologies and services in India.

Dow’s offer confronts the government with a critical choice. Either it cuts a deal with this multinational in a mercenary fashion; or it sides with the survivors.

The government is sharply divided. The ministry of chemicals and fertilizers has held Dow legally liable for cleaning the site, and demanded in court that it deposit Rs100 crore as initial payment. But the ministry of law has a questionably lenient interpretation of Dow’s liability.

There’s evidence that Carbide misrepresented the truth by claiming it has no liabilities on account of the gas disaster. In fact, Carbide, some of its directors, including former chairman Warren Anderson, and its Indian subsidiary stand charged in India with causing death by a negligent act. The Indian government has failed to prosecute them. It claims it cannot trace Anderson (whose address in a New York suburb has been widely publicized).

Dow maintains that being an American company, it’s not subject to Indian jurisdiction. The courts have not yet ruled on this, but only asked that a part of the overground waste, 386 tonnes secured in a warehouse, be removed and incinerated. The courts are silent on what should be done with the 8,000 tonnes of underground waste, and also with the hundreds of tonnes strewn all over the plant site.

In 2005, the victims’ groups succeeded in getting a contract between Dow and the public sector Indian Oil Corp. annulled. This involved the licensing of a proprietary Carbide technology. Dow is now negotiating the sale of petrochemicals technologies with Reliance Industries. All manner of entrenched interests are helping Dow duck its legal obligations. The Indian government seems inclined to bow to their pressure by putting corporate investment above the life and well-being of its citizens.

Bhopal’s second tragedy — the gas leak was the first — was the terrible 1989 settlement under which most victims received less than Rs7,000 each for grave injuries and a lifetime of suffering, although a few with better access to physicians and judges got 10 times more. Families of the dead got as little as Rs2 lakh. Much of this was siphoned off by judges, bureaucrats and middlemen. Now, a third tragedy may unfold, through Dow, unless Manmohan Singh listens to the survivors — and his own conscience and promises.

Praful Bidwai is an independent columnist and environmentalist. Comments are welcome at theirview@livemint.com

Comment, April 4th:

This refers to “Prevent a third Bhopal tragedy” by Praful Bidwai, Mint, 2 April. The article states that “In place of a high-level commission, the survivors had asked Singh to set up a coordination committee”.

But the survivors have marched to New Delhi now, as in 2006, asking for an empowered commission. Only on the Prime Minister’s personal assurance that a coordination committee will do the job did they accept that offer in place of a commission. The faith they had reposed in the PM seems misplaced.

It is unfortunate that the PM has not seen it fit to address the 23-year-old concerns of the victims of the world’s worst industrial disaster. He has, however, shown remarkable alacrity in responding to the concerns of Dow Chemical.

In the last two years that Bhopali mothers and children have continued to consume contaminated water, the PMO has facilitated a cabinet secretary’s note, which recommends against the ongoing litigation in the interests of the “scope of investments in this sector.”

The ministry of commerce has approved a deal where Dow Global will license Union Carbide’s Unipol technology to Reliance Industries—despite a 1992 order declaring Carbide an absconder and directing the government to seize all its assets.

The government has been unable to find Union Carbide and produce it in court. But it has been able to facilitate Union Carbide’s continued business in India. It is shameful that poison-ravaged Bhopal survivors are forced to walk 800km twice in two years, and brave police lathis and indignity for what ought to have been provided to them without their asking.

—Nityanand Jayaraman
International Campaign for Justice in Bhopal

Veil of deception

tim — 2008-03-26T15:12:35+00:00

The following article refers to a legal opinion given by Congress spokesperson, and legal counsel for Dow Chemical, Abhishek Manu Singhvi that was discovered through Right To Information requests filed from Bhopal.

Frontline, Volume 25 - Issue 07, Mar. 29-Apr. 11, 2008

BHOPAL GAS TRAGEDY

Veil of deception

H. RAJAN SHARMA

Dow and, by implication, UCC should not be allowed to conduct business as usual in India without accounting for the costs of the Bhopal havoc.

Widows and other family members of Bhopal gas victims, under the banner of Gas Pidit Nirashrit Pension Bhogi Sangharsh Morcha, protest against Dow Chemical and Union Carbide on the 23rd anniversary of the tragedy in Bhopal, on December 2, 2007.

“Bhopal is also a metaphor for development as a disaster of sorts which demands that the casualties be forgotten and dictates that a community that fails to develop is obsolescent. An entire structure of propaganda, erasure and amnesia on Bhopal was orchestrated by science, government, and corporations which allowed the language of compensation as the only avenue of expression of outrage and injustice – and even compensation was precarious at best.”

- Arturo Escobar, Encountering Development

THE victims of the world’s worst industrial disaster are on the march again. This time they are marching to New Delhi to protest against an official move by the Government of India to pave the way for Dow Chemical Company to embark on a series of investments in the country, despite the fact that its wholly owned subsidiary is Union Carbide Corporation (UCC), the principal author of the world’s worst industrial catastrophe, which took place in Bhopal on December 2, 1984.

Even though UCC remains a “proclaimed absconder” or fugitive from the Indian courts where criminal charges for culpable homicide against it remain pending and even though Dow Chemical is a respondent in a petition in which the Indian government itself has sought clean-up costs for the badly polluted plant site in Bhopal where thousands of tonnes of toxins continue to poison the drinking water of approximately 20,000 residents of 16 residential areas near the plant, the Indian government is attempting to absolve Dow from any civil and criminal liability, clearing the way for foreign investment and even transfer of technology from the parent company while UCC, its subsidiary, is permitted to evade answering for those same civil and criminal liabilities concerning its misconduct in Bhopal.

The device for accomplishing this travesty, and lending it an air of legality, is an opinion obtained through the Right to Information (RTI) legislation which purports to conclude that Dow cannot be held liable, in any event, for the criminal charges stemming for the 1984 accident or the clean-up of the toxic nuisance caused by the UCC plant site. That opinion is based on an analysis of “successor liability” and the law concerning the “corporate veil” between Dow and UCC. Since both are American corporations, there is little question that United States law controls both those legal inquiries.

Corporate veil is a legal doctrine that grants independent existence to separately incorporated companies even if a subsidiary is wholly owned by the parent. The liabilities of the subsidiary may not be imposed upon the parent, despite the parent’s shareholder status, unless certain legal requirements are met for “piercing the corporate veil” between the two. Those legal requirements vary by jurisdiction in the U.S., but generally require an evidentiary showing that the subsidiary was wholly controlled or dominated by the parent company in order to transfer liability from subsidiary to parent. Successor liability is premised on the assumption that if a corporation acquires or merges with another, it assumes the civil and criminal liabilities of its acquisition target as a “successor-in-interest” standing in the shoes, so to speak, of the company it purchased.

The opinion relies on the corporate veil and a somewhat muddled reading of successor liability to excuse Dow for UCC’s outstanding and unresolved liabilities concerning the Bhopal disaster and present-day environmental pollution. But the legal analysis is fatally flawed on both counts. One can dispose of the successor liability issue most readily. The opinion relies heavily and tautologically on chronology to suggest that Dow Chemical had no connection to UCC at the time of the disaster or, indeed, at the time that decisions were made which caused the resulting pollution of water supplies. Those facts, however, ought to be immaterial. Successor liability is always imposed on an acquirer of corporate assets after-the-fact when it had no factual or legal connection with the acquired entity. If that were not so, successor liability would not exist at all and a corporate wrongdoer could simply evade all liability by merging with or selling its assets to a third party. The plea that Dow’s connection to the events at issue is too remote to impose successor liability is neither here nor there.

The question of successor liability is moot, in any event, because the corporate veil between Dow Chemical and UCC as its wholly owned subsidiary may be pierced on a showing of fraud or wrong alone. The RTI opinion erroneously assumes that a third party such as the Government of India would have to show that Dow Chemical controlled and/or dominated UCC as its “alter ego” in order to pierce that veil. That may have been the case if the question were governed by New York law. Although UCC is incorporated in the State of New York, Dow Chemical is a Delaware corporation.

The “corporate veil” that is sought to be pierced is that of Dow Chemical, not that of UCC. Thus, Delaware law, and not New York law, controls the issue of veil-piercing and successor liability under well-settled choice-of-law rules governing this question. The conclusions advanced by the opinion are, therefore, erroneous as a matter of law.

Under Delaware law, the corporate veil may be pierced “in the interest of justice, when such matters as fraud, contravention of law or contract, public wrong, or where equitable consideration among members of the corporation require it, are involved”. See Pauley Petroleum Inc. v. Continental Oil Co ., 43 Del. Ch. 516, 521, 239 A.2d 629, 633 (1968); Geyer v. Ingersoll Publications Co., 621 A.2d 784, 793 (Del.Ch. 1992). (“[A] court can pierce the corporate veil of an entity where there is fraud or where a subsidiary is in fact a mere instrumentality or alter ego of its owner.”)

In contrast, New York courts disregard a party’s corporate veil more “reluctantly”. New York law requires a party seeking to pierce the corporate veil to show domination of the subsidiary by the parent and that the domination was used to commit a wrong or fraud. The opinion assumes, incorrectly, that the latter New York-style showing would be required in order to impose UCC’s liabilities on Dow. Controlling Delaware law mandates otherwise; that is, that a party seeking to pierce the corporate veil between UCC and Dow need only show evidence of fraud or wrong.

There is, sadly, plenty of evidence of such fraud in the sorry history of the Bhopal travesty. At the time that Dow acquired UCC on or about 2001, UCC was a “proclaimed absconder” from India’s criminal prosecution. The Second Circuit has itself acknowledged that UCC’s tender of its shares in Union Carbide India Limited (UCIL) to the so-called Bhopal Memorial Hospital Trust “was a fraudulent conveyance designed principally to avoid prosecution” in India.

Before Dow’s acquisition of UCC, the latter had been selling products in India through undisclosed third-party agents in order to avoid subjecting itself to the lawful jurisdiction of Indian courts. In the recent case of MM Global Services, Inc. v. Dow Chemical Co., 404 F. Supp. 2d 425, 428-9 (D.Conn. 2005), those undisclosed third-party agents sued Dow as UCC’s parent alleging that Union Carbide and its affiliates ceased acting consistently with their alleged contractual and legal obligations and, in particular, undertook efforts to establish Dow, untainted by the Bhopal tragedy, in place of the plaintiffs as a direct seller of products to end-users in India.

That is a classic fraud and abuse of the corporate form. Dow is perpetrating a prototypical corporate shell-game on India’s courts and government. This type of conduct is precisely the sort of “fraud” or “public wrong” that permits a court applying Delaware law to pierce the corporate veil to hold Dow liable for UCC’s liabilities.

Even if no fraud could be shown, it is enough under Delaware law to show that the corporate form has been used to commit a wrong. Central and State authorities in India have continued to demand that UCC be liable for the remediation of the badly polluted plant site. The Madhya Pradesh High Court case was commenced against UCC and Dow, both of which have claimed that they are not subject to the jurisdiction of India’s courts. Aiding and abetting a subsidiary to escape the lawful jurisdiction of Indian courts while planning to carry out that subsidiary’s business in the very jurisdiction whose laws it flouted is a sufficient wrong or “abuse of the corporate form” to warrant veil-piercing. It is no different in essence from a parent stripping the assets of a subsidiary to render it judgment-proof, conduct which has been held sufficient to warrant veil-piercing in numerous cases.

The Indian government would be well advised not to rely on the proffered opinion, whatever its source or provenance. The Bhopal survivors and their activists are prepared to challenge vigorously any attempt to excuse Dow from accepting its full share of UCC’s liability in courts both in the U.S. and in India, to say nothing of the public arena. Dow and, by implication, UCC should not be allowed to conduct business as usual in India without accounting for the full costs of the havoc they have caused in Bhopal while a veil of legalistic deception is cast over their liability, a liability that India’s taxpayers will have to shoulder if the corporate wrongdoers are given a free pass. India's position as an emerging economy gives it considerable leverage over foreign investors such as Dow and UCC who want to do business in its markets. It is high time that the Indian government learnt to use it to advance the nation's interests, instead of betraying them.

H. Rajan Sharma is a practising international lawyer based in New York. He is at present lead counsel in class action litigation against Union Carbide concerning environmental pollution caused by its Bhopal plant.

The Bhopal Gas Chamber

tim — 2007-11-23T14:09:14+00:00

S. Anand, Tehelka, November 23, 2007

Union Carbide is now Dow Chemicals. Rid of the tainted name, it’s being wooed by both the Tatas and the PMO, reports S. ANAND

We may overlook the element not listed on the chart… The missing element is the human element.
—from Dow’s ad campaign

ON DECEMBER 3, 1984, Tank 610 on the premises of the Union Carbide Corporation (UCC)’s factory in Bhopal, containing 41 tonnes of methyl isocyanate, leaked. According to the UCC’s own technical report, 24.5 metric tonnes of “unreacted MIC” escaped along with 11.79 tonnes of “reaction products”. None of the six safety systems at the plant was functional. The gas, in its trail, left 22,000 dead and 1,50,000 disabled.

Warren Anderson, then American chairman of UCC, was charged with culpable homicide in India. Since his brief arrest and bail in December 1984, he has ignored summons from the Bhopal district court. The trial is yet to begin. In July 2004, the US refused to extradite Anderson.

Meanwhile, in 2001, Dow purchased Union Carbide for $9.3 billion as a wholly owned subsidiary. Dow has refused legal or moral liability for the Bhopal disaster. In ovember 2006, Industrialist and Investment Commission chairman Ratan Tata wrote to the Planning Commission, asking the $46-billion chemical giant to be absolved of all liabilities. Why would Tata bat for Dow? Both Ratan Tata and Dow Chemicals president and CEO Andrew Liveris are on the India-US CEO forum (established in 2005 at the PM’s behest). The two met last October in New York. Protestors in Bhopal targeted Ratan Tata and sought to boycott all Tata products. Earlier, JRD Tata had condemned the arrest of Anderson.

Kamal Nath, Union Minister for Commerce and Industry, backed the idea of an “industryled remediation arrangement”. Such collusion at the highest level came to light when Bhopal activists obtained certain documents from the PMO under the RTI Act in June.

Congress party spokesperson Abhishek Manu Singhvi is Dow’s counsel. Unselfconsciously, the PMO’s file on Dow contains Singhvi’s “legal opinion”. Cabinet Secretary BK Chaturvedi’s note of April 6 indicated where the PMO stood: “Given the scope for future investments in the sector, it stands to reason that instead of continuing to agitate these issues in court for a protracted period, due consideration be given to the prospect of settling these issues appropriately.”

In May, Reliance Industries Ltd got the green signal to buy suspect Union Carbide technology, routed via Dow, for their 9 lakh tonnes-per-annum polypropylene production facility in Jamnagar (Flirting with the Bhopal Villain, TEHELKA, June 11, 2005). Despite its claimed status as “absconder from justice” since 1992, the UCC has managed to maintain healthy sales of its products, processes and services in India.

Why should Indians, not just Bhopalis, be wary of Dow? During the Vietnam War, Dow became the sole supplier of napalm to the US military. Along with Monsanto, Dow also supplied a herbicide, known as Agent Orange, which was used as a biological weapon in Vietnam. A lawsuit filed in a US court by the Vietnam Association for Victims of Agent Orange was dismissed in 2005. Dow has been successfully sued for various other excesses by Americans. According to the US Environmental Protection Agency, Dow has some responsibility for 96 of the US’s worst toxic waste dumps.

In June 2006, Dow launched a clever ad campaign to clean up their image, in which it claimed to have discovered Hu, the Human Element — an accretion to the periodic table. Invoking Indra Sinha Animal’s People, Dow could well argue that the Bhopal victims are all animals. There is no Hu element in Bhopal, after all.

From Tehelka Magazine, Vol 4, Issue 46, Dated Dec 01, 2007

Dow Chemical: A tragedy of errors

tim — 2007-11-12T14:48:26+00:00

Derek Baron, Central Chronicle, November 12, 2007

One major controversy in the history of Dow misadventures is the ambiguity and sketchiness surrounding its production of Agent Orange for the Vietnam War

The Dow Chemical Company, which merged with Union Carbide in 2001, has become the face of the opposition in the campaign for justice for the Bhopal gas-leak disaster of 1984. Dow refuses to take responsibility for the criminality of Union Carbide, claiming that the 1989 Carbide settlement has taken care of everything and leaves all Bhopal-related liability - which includes both a criminal and a civil suit - out of Dow's hands.

Dow Chemical, founded over a century ago, enjoys the legacy of being a pioneer of chemical industry and one of the largest chemical manufacturers in the world. It has even been called one of the "founding fathers of the synthetic chemical revolution."1 While having a history of innovations, breakthroughs, and expansion, Dow also has a long record of misadventures and "global toxic trespasses." Dow has a history of denying, delaying, or withholding information necessary to understand many of the dangers and toxins in the products it manufactures.

Action was recently taken against Dow on bribery or "improper payments." Dow Chemical's DE-Nocil Crop Protection, Ltd., was found guilty of paying over $200,000 to Indian officials of the CIBRC, Central Insecticides Board and Regulation Committee.

One major controversy in the history of Dow misadventures is the ambiguity and sketchiness surrounding its production of Agent Orange for the Vietnam War. Agent Orange is a defoliant made primarily of two agricultural herbicides, 2,4-D and 2,4,5-T. Dow was the largest supplier of herbicides to the United States government during the war. Peter Sills, author of a book on Agent Orange, claims, "Dow...must have realized that the risks [of the herbicides found in Agent Orange] were much greater than normal."2 A study by Bionetics Research Labs showed 2,4-D and 2,4,5-T both caused significant deformities and miscarriages on rat and mouse subjects. As the war came to a close, thousands of veterans filed lawsuits against Dow and other manufacturers of Agent Orange. A compensation fund of $184 million was later settled upon, to be paid by seven major producers of Agent Orange, including Dow. Dow has never accepted any responsibility for the harm 2,4,5-T and 2,4-D can yield on the human body, despite thousands of cases of cancers, miscarriages, hemorrhaging, and other horrific symptoms. Dow has since admitted that it was aware of the hazardous effects of 2,4,5-T and 2,4-D since the mid 1960's, but Dow's official statement on the issue reads, "Today, the scientific consensus is that when the collective human evidence is reviewed, it doesn't show that Agent Orange caused veteran's illnesses."3 The Dow blunders and mistruths did not stop there. Dioxin, a highly toxic chemical byproduct of many industrial processes - processes in which Dow specialized, including many reactions involving chlorine and plastics - is toxic, even lethal, and hard to retain or suppress. Dr. Matthew Meselson of Harvard University said in 1979 that, "If you feed a guinea pig one-billionth of its weight with dioxin, this will kill the guinea pig."

Dow's scientists have announced that dioxin is also to be found in many common products and circumstances, "refuse incinerators, fossil-fueled powerhouses, gasoline and diesel powered automobiles and trucks, fireplaces, charcoal grills and cigarettes."4 In the 1990's Dow was suspected of foul play when it withdrew dioxin-heavy products simultaneously with the anonymous leak of highly reliable information on the toxicity of dioxin.

Once again, no action has been taken by Dow to undo or counteract the damage already done by dioxin and by with the withholding of crucial information on dioxin toxicity. "Dow..." states its official position, "actively promotes improvements and solutions [to the dioxin problem] across industry."

Nor could a small trailer park in Plaquemine, Louisiana, escape Dow Chemical's chemical trespass. Overlooked by a massive Dow vinyl chloride monomer (VCM) factory, residents of Myrtle Grove trailer park received notice in 2001 from the Louisiana Department of Health and Hospitals (DHH) that their groundwater may be contaminated, when state tests as much as four years old found alarming levels of vinyl chloride.