Obama need not come under undue pressure about Anderson

To The Editor,
Bhopal.net

Sub:- Obama need not come under undue pressure about Anderson.

Ref:- (i)- Judicial delay a blessing in disguise for Bhopal tragedy victims due to Mexico gulf BP oil leak.
(ii)- Obama may use example of Bhopal settlement to streamline US corporate laws.
(iii)- Coy’s non – technical directors and managers should me made culpable only after coy’s technocrats and State regulatory and inspection bureaucrats.
(iv)- Every limited coy should be made separate and independent entity.
(v)- GOI giving undue importance to judiciary.
(vi)- Need for uniform Compensations for dead and injured in all tragedies.
(vii)- USA should drop all the civil cases in US courts regarding Bhopal tragedy.
(viii)- GOI should enact law for third party insurance for hazardous industries.

Dear Sir

Though no doubt, justice delayed is justice denied but had the last week judgment by subordinate court [in 1984 Bhopal gas tragedy in which 20,000 were killed and over five hundred thousand were injured / maimed and in which 7 officers of the company (coy) Union Carbide India limited (UCIL) have been sentenced to 2 years of imprisonment] come within eighties when there was no globalization, then it would have gone in oblivion after some impotent protests of victims and others and some hollow noises by media. But not only now the times are different but also the similarity with ongoing crises in USA regarding Mexico gulf British Petroleum’s oil leak has made all the difference in highlighting this matter to the extent it has now become possible to do. But this matter will not see its logical and legal conclusion unless the following is done:-

(1)- Anybody who has experience of working in large scale chemical / petrochemical industries knows that regarding licensing, construction, continuous technical up-gradation, maintenance, operation, safety and inspection of such hazardous plants there are eight agencies involved (i)- Regulatory / licensing Govt. departments (ii)- technical consultant who provides technology and design / supply and supervise the construction of plants, equipments and machines. (iii)- Technical department of the factory (iv)- operation department of factory (v)- Maintenance department of factory (vi) Safety department of factory (vii) Management of factory with financial and administration powers (viii)- Inspection department of Government. But so much noise is created in Indian media by all, regarding fixing culpability in this tragedy without explaining the role of these 8 agencies where each / any of these 8 agencies failed which resulted in this Bhopal tragedy.

(2)- Hence US Govt. (which has reportedly promised to look into the matter of extradition of UCIL chairman Warren Anderson if India requests so) should not succumb to any pressure from Indian Govt. or its people or media or NGOs etc to harass Anderson unless Govt. of India (GOI) first submit a report to US Govt. about the role of these 8 agencies and about the failure or innocence of these 8 agencies in this tragedy. Otherwise it will have highly damaging effect on the moral of non-technical entrepreneurs (promoters and other share holders) , directors and managers of the corporate world of not only of USA and India (where all most all the leading industrialists are managing hazardous industries) but also of entire world in this age of globalization. Of course if Anderson is found prima-faci guilty after going through said report by Govt. of India then he should be extradited to face justice in the courts of India.

(3)- On the other hand GOI is unnecessarily blaming (i)- Supreme Court of India (SCI) for diluting charges from culpable homicide to criminal negligence (ii)- Subordinate judiciary for letting Anderson escape through bail (iii)- judiciary for delay of 25 years in disposing the case.

(4)- Will GOI enlighten the people that what stopped GOI, who is rightly seized of this matter of Bhopal tragedy of such an immense scale since beginning (i)- from filing review petition in SCI if GOI did not agree with the so called dilution of charges by SCI (ii)- from incorporating explanation to Indian Penal Code to its relevant sections of 304 and 304 -A for the benefit of such victims in future (iii)- from immediately pursuing the matter of extradition of Anderson with US Govt. (even if innocent goofing-up by GOI and Madhya Pradesh State Govt. is granted for argument sake in the escape of Anderson after bail by court without appeal against bail). There is nothing on record to show that GOI persistently pursued the matter of extradition of Anderson with US Govt. since December 7, 1984 when this escape of Anderson was widely reported in media. and (iv)- from constituting fast track court for the trial of accused of Bhopal tragedy especially in view that fast track courts are not a novelty in India.

(5)- Therefore GOI is not only unnecessarily blaming judiciary but also giving undue importance to judiciary in a parliamentary system of democratic India.

(6)- Nothing has done more harm to corporate culture than the practice of holding companies and subsidiary companies in India regarding matters of unethical leverage and security / accounting scandals and also about succession. Hence USA should persuade India to stop this undesirable practice and instead should ask for registration of each company as a separate independent entity. This will take care of succession related matters too of DOW, which has allegedly taken over UCIL with lot of controversies about criminal and civil liabilities of DOW after take over.

(7)- Though in this matter Obama will face great resistance from US corporate sector but by this time (with 18 months in white house) Obama must have realized that in this age of globalization the example from other concerned countries can be gainfully used to bring pressure on the intransigent domestic constituencies in order to make them see reason in due course of time.

(8)- GOI should also bring a suitable legislation about uniform compensation (taking regard to the income tax / land revenue paying capacities of the victims) to killed and injured in various tragedies like rail, road, air accidents floods, tsunami, fire, terrorist attacks etc. Presently it is unjust and arbitrary method by which various Govt. of States and Centre give compensation to these victims.

(9)- One can understand that the victims of 26/11 terrorist attack in Mumbai can approach Pakistani judiciary because as per law in Pakistan any Pakistani who indulges in criminal acts on Pakistani soil but which has repercussions in other country, can be tried by criminal courts of Pakistan and also Pakistani civil courts may entertain civil suits on the basis of and pursuant to sentences awarded in criminal proceeding. Hence US Govt. should move US courts to drop all the civil proceedings related to Bhopal tragedy as there is no sentence awarded to any US citizen in relation to Bhopal tragedy.

(10)- Because hazardous industries may cause immense deaths and injuries to general public and it may not be possible for such industries to pay compensation out of its cash resources (had there been any Indian coy than UCIL of USA, then even after winding up of the coy and selling its all the free assts it wouldn’t have been possible to many Indian coys to pay worth mentioning compensations to the killed and injured / maimed victims of Bhopal tragedy), therefore GOI should make it mandatory through comprehensive legislation (depending upon the severity of the hazard) that the hazardous factories will have to take third party insurance in order to cover the likely victims from general public (other than the employees of such hazardous factory). It should not be forgotten that in a limited company its owner (the share holders) have limited liability.

(11)- Here it is needless to say that once the criminal liability of these 8 said agencies are decided and accused tried in criminal courts of India then civil liability regarding compensation to victims and other civil liabilities regarding environment etc can easily be recovered by Indian judiciary from Indian State and UCIL (especially when every limited coy is registered in India as separate and independent entity).

Yours truly

Hem Raj Jain

Greater NOIDA, (U.P.)
(Address and telephone number supplied)

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