Memo on Bhopal: lawyers, retired judges question ‘immunity’ to Dow

Express News Service, April 22, 2008
NEW DELHI, APRIL 21: More than 200 retired judges and lawyers have signed a memorandum that says that the attempts made by the Government to grant “immunity” to Dow Chemical from its Bhopal liabilities are “unconstitutional and illegal”. The memorandum alleges that the Central Government is colluding with Dow Chemical to let it off its legal liability in an exchange for a promise to invest $ 1 billion in India.
The group has managed to procure documents under the RTI Act that show that Congress spokesperson Abhishek Manu Singhvi, counsel for Dow Chemicals in the Madhya Pradesh High Court, and Ratan Tata, co-chairman of the US-India CEO Forum, believe that company has no legal liabilities. “Seen in the light of the case in Madhya Pradesh High Court, this collusion constitutes a Contempt of Court by the Government,” states the memorandum.
In 2005, the Department of Chemicals and Petrochemicals had asked the Madhya Pradesh HC to direct Dow Chemical to deposit Rs 100 crore as advance towards clean-up of contamination in Bhopal. A note prepared by former Cabinet Secretary 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in USA, highlighting Dow’s difficulty in investing in India unless the application filed by the Chemicals Department is withdrawn.
The Cabinet Secretary says, “Given the scope of future investments in the sector, it stands to reason that instead of continuing to agitate against these issues in court, due consideration be given to the prospect of settling them appropriately. An important aim is to remove uncertainties and pave the way for promoting investments in the sector.”
Addressing a press conference on Monday, Supreme Court Advocate Prashant Bhushan and former Rajya Sabha MP and senior journalist Kuldip Nayyar said that the Governments of India and Madhya Pradesh and Dow Chemical are “joint tort feasors” and are responsible for the condition of the Bhopal site and its surroundings. 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.
Dow has argued that its wholly-owned subsidiary Union Carbide is a separate legal entity that handles its own liabilities, and that the Government of India should pursue Union Carbide and not Dow. “Dow’s argument is specious. Carbide has been an absconder since 1992. Dow knows very well that its subsidiary will not respond to summons from Indian courts,” said Nayyar.
“As a 100 per cent owner of Union Carbide after the merger, Dow is saddled with successor liability. Its attempts to use the corporate veil, separating Dow and Union Carbide, to evade liability is fraudulent,” added Bhushan.
Survivors of the 1984 Bhopal disaster, and victims of water contamination are currently camping in Jantar Mantar after an 800-km padyatra from Bhopal to Delhi. Besides their demand for an empowered commission to address rehabilitation issues, they also want the Government to pursue Union Carbide and Dow for their respective liabilities.

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