WHY THE LAW MINISTER IS WRONG

 

The legal opinion below represents the view of some of India's most eminent lawyers including:

Advocates Indira Jaisingh and Rajeev Dhawan.

Usha Ramnathan, internationally reputed academic in law.

Mr. MC Mehta, Goldman award winner in 1996, said "this is a golden opportunity for the Indian government and it must make best use of it".

Retired Chief Justice of the Supreme Court Krishna Iyer, who has submitted to the Prime Minister a legal note stating that the Bhopal Act and the 1989 settlement do not address Union Carbide's liability on the issue of contamination and toxic wastes.

Please address polite emails and faxes and telephone calls, quoting the legal opinion below to:

1. Dr Manmohan Singh, Prime Minister of India
Prime Minister's Office
Room No. 152,
South Block,
New Delhi, 110001
Tel: +91 11 23012312, 23018939, Fax : 23016857
Bungalow No. 19,
Safdarjung Road,
New Delhi. 110011
Residence Tel 23018668, 23015470
Fax : 23015603

2. Mr. Ram Vilas Paswan, Minister of Chemicals
Tel: +91 11 23386519, 23386364 Fax: 011 +91 11 233 86519
Email: mincf.cpc@sb.nic.in
jsc.cpc@sb.nic.in
meenarl@nic.in



LEGAL NOTE: WHY LAW MINISTER BHARADWAJ IS WRONG

Legal issues regarding statement to be submitted before the US Federal Court
by the Government of India in the matter related to clean up of contaminated
ground water and soil in and around the abandoned factory of Union Carbide
in Bhopal, Madhya Pradesh, India.


1. According to the March 17, 2004 decision of the Second Circuit Court of
Appeal of the US Federal Court in the class action suit initiated by
survivors' organizations and individual survivors of Bhopal, the US Court
may direct the plant-site remediation in the event that the Indian
government or the State of Madhya Pradesh seeks to intervene in the action
or otherwise urges the court to order such relief.


2. According to the letter [No. 775/1025/2004/47 dated June 7, 2004] from
the Government of Madhya Pradesh to the Secretary, Ministry of Chemicals and
Fertilizer, Government of India, "...the Government of Madhya Pradesh has
'no objection' if the US Court orders the Union carbide for the removal and
proper disposal of the toxic waste." However, the Government of Madhya
Pradesh has entrusted the Government of India to communicate this stand
before the US Federal Court.


3. From discussions with officials of the Ministry of Law, Government of
India it appears that the matter of submission of a statement as required by
the US Court is being erroneously connected to the Bhopal Gas Leak Disaster
[Processing of Claims] Act, 1985. The text of the Bhopal Act clearly
mentions that its objective is "to secure that claims arising out of, or
connected with, the Bhopal gas leak disaster are dealt with speedily,
effectively and to the best advantage of the claimants and for matters
incidental thereto". Facts enlisted below would make it clear why the Bhopal
Act cannot be invoked in this present matter.


3.1. The matter before the US Federal court is related to the contamination
of soil and ground water in and around the Union Carbide factory in Bhopal.


3.2. The contamination of ground water and soil is a result of reckless
dumping of hazardous chemicals and chemical waste in and around the factory
above and below the ground. This dumping of chemicals and chemical waste
took place during the routine operation of the plant from 1970 to 1984.


3.3. The issue of contamination of ground water and soil was neither a part
of the claims presented by the Government of India in the US Court in 1985
nor was this issue included in the settlement of 14-15 February 1989. This
issue did not find mention in the revised judgement on the settlement on
October 3, 1991.


3.4. In the course of the ongoing litigation on the class action suit in the
US Federal Court, Union Carbide did attempt to distance itself from the
claims arising out of contamination of ground water and soil by stating that
all Bhopal claims had been settled with the Indian Government. However, the
US Court after careful consideration, has decided to make a distinction
between claims related to the disaster and those arising out of
contamination of soil and ground water that in fact pre-date the disaster.


3.5. The order of March 17, 2004 mentioned above is a consequence of the US
Court's stand on the matter, which is that of distinguishing the matter of
soil and ground water contamination from the issue of the gas leak disaster
of December 1984.


4. In the context of the stand taken by the US Federal Court there is no
need to amend the Bhopal Act or refer to it in any manner.


5. Given that the Madhya Pradesh government has taken a positive stance with
respect to the statement to be submitted before the US Court it is now left
to the India Government to submit such a statement that neither requires the
Indian government to be a party in the suit nor entails any expenditure of
money