Government of India-Dow deal on Bhopal illegal, legal professionals say

PRESS RELEASE April 23, 2008
Lokayat
Pune Municipal Employees Union
Pune Shahar Molkarin Sangathana
Sarva Shramik Sangathana, Pune

Pune, 23 April, 2008 — More than 280 legal professionals, including retired judges and eminent lawyers, have said the attempts by the Prime Minister’s office to grant immunity to Dow Chemical from its Bhopal liabilities are unconstitutional and illegal. A memorandum signed by lawyers, retired judges and law students says that Government of India is colluding with Dow Chemical to extinguish is legal liability in an exchange of promise to invest $ 1 billion in India. Congress spokesperson Abhishek Manu Singhvi, counsel for Dow in the MP high court and co-chairman of the US-India CEO Forum Mr. Ratan Tata are playing key role in helping Dow Chemical walk away from its legal liabilities. “Seen in light of the case in Madhya Pradesh High Court, this collusion constitutes a Contempt of Court by the Government”, the memorandum states.
In 2005, the Department of Chemicals and Petrochemicals had asked the Madhya Pradesh High Court to direct Dow Chemical to deposit Rs. 100 crores as advance towards clean-up of contamination in Bhopal. A note prepared by the former Cabinet Secretary Mr. B.K. Chaturvedi refers to letters from Ratan Tata, and from Dow Chemical to the Indian Ambassador in USA highlighting Dow’s difficulty in investing in India unless the application filed by the Department of Chemicals is withdrawn. The Cabinet Secretary concludes that “. . .given the scope of 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. An important aim is to remove uncertainties and pave the way for promoting investments in the sector.”
Dow claims on its website that: “Dow never owned or operated the plant, which today is under the control of the Madhya Pradesh state government. Dow acquired the shares of Union Carbide Corporation more than 16 years after the tragedy, and 10 years after the $470 million settlement agreement – paid by Union Carbide Corporation and Union Carbide India, Limited – was approved by the Indian Supreme Court.” However, as the memorandum argues, citing numerous US Supreme Court Judgements, by acquiring Union Carbide, Dow has inherited both the assets as well the pending liabilities of Carbide.
The memorandum signed by some of the top legal luminaries of the country, including Retd. Justice of Supreme Court Justice P. B. Sawant, Advocates Prashant Bhushan, Indira Jaisingh, Mihir Desai, as well as many other advocates from Delhi, Chennai, Mumbai and Bangalore, argues that the principles of “polluter pays” and strict and absolute liability for compensation of affected persons, and remediation of damaged health and environment are well established in Indian law. By virtue of this, Union Carbide, and now its successor company Dow Chemical are responsible for the environmental clean-up of the Bhopal site as well as compensation and health reparations Through this proposed settlement, the Government of India is contemplating letting Dow off the hook, even while failing to discharge its own statutory duties of protecting the environment and holding the polluters liable.
In March 1992 the Chief Judicial Magistrate of Bhopal ordered confiscation of all properties of Union Carbide in India. However following its acquisition by Dow Chemical in 2001, Dow has refused to present its subsidiary before the court, and on the other hand, has continued to profit from the unlawful sale of Union Carbide’s properties in India. For example, in 2006, the Government of India approved the sale of Union Carbide’s UNIPOL technology through Dow to Reliance Industries. While the Government is allowing Union Carbide to sell its products in India, when it comes to forcing it to appear before the court, it claims it has not been able to locate Carbide’s correct address so that notice can be served on it in the environmental clean-up matter.
Survivors of the 1984 Bhopal disaster, and victims of water contamination are currently camped out in Jantar Mantar after a 800 km padyatra from Bhopal to Delhi. Besides their demand for a special empowered commission to address issues of rehabilitation, the Bhopalis have also demanded that the Government should pursue Union Carbide and Dow for their respective liabilities, and that the Government should abandon efforts to shield Dow from liabilities for clean-up.
The Government of India is trying hard to ride roughshod over the protests of the Bhopal gas survivors and free Dow from its legal liabilities arising out of the Bhopal Gas Tragedy. It is willing to sell out the interests of more than one lakh of its own people just for a foreign investment of $1billion. This same eagerness of the Govt of India to allow Dow to enter India trampling all laws and norms, its willingness to sell out of the interests of the health and livelihoods of the people of the country just for a few dollars of FDI, is again evident in the way Dow has been allowed to sell the pesticide Dursban in India, and even allow it to set up a plant to manufacture this pesticide at Lote Parshuram in Ratnagiri District in India.
• Dow has admitted to bribing Indian officials to get this pesticide registered in India. In February 2007, the US Security and Exchange Commission reported that Dow has admitted to paying two lakh dollars (Rs. 80 lakhs) in bribes to Indian officials to get three pesticides registered in India. One of these pesticides is Dursban or chlorpyrifos.
• Dursban is proven to cause brain damage in children. It is banned for household use in USA, and environmental activists in that country are agitating demanding a complete ban on this pesticide because of its deadly toxicity. In 2003, Dow paid a fine of two million dollars (Rs. 8 crores) to the state of New York for illegally advertising Dursban as “safe”. Yet Dow is not only allowed to manufacture and sell Dursban in India, in its literature for Dursban in India, Dow claims that Dursban is essentially safe for humans and domestic animals!
Given its willingness to bow before the financial might of Dow, when this MNC actually comes up with a proposal to invest $100 million and set up a R&D centre near Pune, the government is obviously going to bend over backwards and give it all the necessary clearances including environmental clearances, violating all our environmental laws, even if the R&D centre threatens to pollute the entire area and destroy the livelihoods and health of the people of the region. That this project is going to be very harmful is evident from the absurd lengths to which the Government is going to deny us a copy of the project report and the Memorandum of Understanding signed between the Government and Dow Chemical Company. In reply to an RTI application asking for copies of these two documents, filed with the Department of Industries, Mantralaya, Mumbai, the reply received was that under Section 8(1) (a) of the RTI Act, this information cannot be given. Under this section, information which would “prejudicially affect the sovereignty and integrity of India” or “relations with a foreign state” can be denied. Applying this section to information about Dow’s R&D project is simply absurd. What has information regarding Dow, a criminal company, got to do with the sovereignty and integrity of the country?
We, socially concerned activist organizations of Pune, demand that:
1. The Government should immediately agree to the demands of the heroic Bhopal Gas Tragedy survivors:
• Set up a special empowered commission to address issues of rehabilitation for the Bhopalis;
• Pursue Union Carbide and Dow for their respective liabilities;
• Abandon efforts to shield Dow from liabilities for clean-up.
2. Investigate and take action against Dow for bribing Indian officials to register Dursban in India, and immediately ban its manufacture and sale in India.
3. Immediately cancel the permission given to Dow Chemical for setting up a Research and Development Centre in Shinde Vasuli near Pune.
Alka Joshi, Neeraj Jain
Lokayat

Medha Thatte
Pune Shahar Molkarin Sangathana

Mukta Manohar
PMC Employees Kamgar Union

P. N.Palekar Sarva Shramik Sangathana

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