'A Manifest Collusion Between Ministers, Officials And Dow Chemical'

The PMO documents gathered using the Right To Information Act (RTI) show a manifest collusion between ministers, officials and Dow Chemical to protect it from the liabilities of Industrial catastrophe of Bhopal. The documents reveal how some of the ministers who have been made part of  the Group of Ministers (GoM) by the Prime Minister have been acting to safeguard the interest of the US corporation in question, which is liable for Bhopal disaster.

The GoM that has been constituted does not inspire confidence. Notably, the GoM, headed by Union Home Minister P Chidambaram, was constituted on May 26, 2010 by the PM's Office. It is expected that notification of the same from the Cabinet Secretariat will be issued shortly. The documents gathered using RTI reveal how Chidambaram and Kamal Nath have already expressed their support for Dow Chemical Company's proposal to save it from Union Carbide Corporation's liability which it inherited in 2001 after merger.

In a letter dated November 10, 2006, Chidambaram wrote to the Prime Minister about his visit to United Sates to review issues with the Indo-US CEO Forum in New York wherein he submitted a tour report mentioning his comments on Ahluwalia’s note. Referring to the matter of Dow Chemicals, and Ratan Tata’s offer for remediation, Chidambaram stated, “I think we should accept this offer” in his comments dated 5th December, 2006. 

In December 2006, Dr S Jaishankar, Joint Secretary, Ministry of External Affairs in note titled “Issues Emerging from Indo-US CEO’s meeting” underlies how Dow has “sought a statement from GOI (Government of India) in the Court clarifying that GOI does not regard Dow as legally responsible for liabilities UCC” and wants to avoid any “cloud of legal liability”.

In February 2007, Kamal Nath even wrote a letter to Prime Minister Manmohan Singh about the matter. In the letter, despite acknowledging the fact that the matter is sub judice he said “that a group under the chairmanship of the Cabinet Secretary be formed to look” in the matter of the liability of the Dow Chemicals “in holistic manner in a similar manner as was done in respect to the Enron Corporation with respect to Dabhol Corporation”. The immorality of his suggestion lies in the fact that he totally ignores the Enron scandal that led to the bankruptcy of the Enron Corporation, a US energy company.

Incidentally, Ratan Tata in his role as the Chairman of the three-member Investment Commission, set up in the Ministry of Finance in December 2004 by the Government of India, wrote to P Chidamabram, the then Finance Minister, suggesting setting up of a Fund for remediation on the site of Bhopal disaster that “would cost approximately Rs 100 crores.”

Donning another hat, Tata wrote again -- this time as Chairman, Tata Sons Limited -- to Montek Singh Ahluwalia, Deputy Chairman, Planning Commission, Government of India on October 9, 2006 with regard to resolving “various legacy issues” of  “Dow Chemicals” pursuant to the recommendations of the Indo-US CEO Forum pointing out how the Investment Commission has not had “much success” in this regard. He referred to the interest of Andrew Liveris, CEO of Dow Chemicals with regard to approaches/solutions to the issue.” 

As Chairman, Tata Sons Limited, Tata wrote again to Montek Singh on November 26, 2006 referring to letter of Andrew Liveris that was sent to Ronen Sen, India’s Ambassador to US wherein a request was made saying that “it is critical for them to have the Ministry of Chemicals and Fertilizers withdraw their application for a financial deposit by Dow against the remediation cost, as that application implies that the Government of India views Dow as ‘liable’ in the Bhopal Gas disaster case.”

Notably, Liveris had complained to Ronen Sen about how “GOI (Government of India) has taken position adverse to Dow“, in the Madhya Pradesh High Court. The case is still pending. Chairman, Tata Sons Limited, Tata wrote again this to time to the Prime Minister Manmohan Singh on 5th January 2007 wherein he put on record the meeting of the members of Investment Commission with the PM to discuss “the old Union Carbide tragedy”. The PMO letter, from B V R Subramanyam, Private Secretary of the Prime Minister, dated January 12, 2007 assured Tata that “the matter is being examined” and “the Prime Minister has seen” his letter and “ has taken note of its contents”.

The real issue arising out of Bhopal verdict that has necessitated the setting up of the GoM is its fallout on the proposed Liability for Nuclear Damage Bill that is pending in the parliament. It has emerged that any future liability regime must include criminal liability and must not cap the amount of civil liability because the damage from a nuclear or chemical disaster depends on the direction and nature of the wind at the time of the accident. 

The WTO case is relevant because soon after the conclusion of the Uruguay Round, some state governments had filed a case in the Supreme Court on the grounds that the government of India had no authority to accept obligations arising out of the Agreement on Agriculture (AoA) because of agriculture’s status as a state subject. India's accession to WTO was challenged because WTO is a supranational legal system for corporations, outside our constitution and courts. 

Prof. Upendra Baxi had commented that had India's Supreme Court not overruled the submission with regard to the unconstitutionality of India's accession to WTO, Bhopal judgement would have been different. The apex court's decision in the WTO accession case ignored legal sovereignty of India and paved the way for a distorted verdict in Bhopal disaster case.

The government of West Bengal reiterated these concerns in May 2001, saying that ‘agriculture is a state subject, therefore all agreements, legislations etc., are within the exclusive domain of the state governments’, and that it was unacceptable that ‘the government of India had signed the AOA…. without first arriving at a consensus among the state governments’. 

Notably, the state governments were and are not regarded as significant stakeholders during the Uruguay Round and WTO negotiations although some of the Indian states larger than many WTO members, but also because agriculture is a state subject.

While India's apex court disregarded the argument of states' consent, the fact is that state consent is an important source of legitimacy for the WTO. State consent is seen as an expression of a state's own free will and, therefore, when a state consents to a WTO agreement, it is assumed that WTO membership is in its best interests. State consent is also an expression of a state's Legal Sovereignty. What is expected of WTO to be legitimate is to ensure that its member states consent to be its members but when states of India do not give consent to Indian state in matters of international and multinational negotiations, the was/is disregarded. The WTO accession case set a bad precedent and Bhopal verdict is a fallout of the same.

It is noteworthy that the convicts have been held guilty under Sections 304-A (causing death by negligence) instead of 304-II (culpable homicide not amounting to murder) of the Indian Penal Code as per the original charge besides Sections 336, 337 and 338 (gross negligence).

It has become clearer that the corporations are undemocratic institutions by legal design, which makes them ungovernable which is making the very existence of democratic legislatures effete. Legislatures must make them subservient to legislative will.

The Bhopal case provides a historic opportunity for democratic governments of US, India and others to ensure a genuine legal remedy to set an example in order to give a befitting reply to those who question the efficacy of representative democracy.

Gopal Krishna is Convenor, ToxicsWatch Alliance