By Parvez Bari, TwoCircles.net,
Bhopal: The survivors of the Bhopal Gas Tragedy, the world’s worst industrial catastrophe, as well as the NGOs working for their welfare have welcomed today’s Madhya Pradesh High Court decision to lift the stay against summoning of The Dow Chemical Company (TDCC), USA, in the criminal case of December 1984 gas disaster.
The survivors and the NGOs see it is a big step towards making Union Carbide face trial in India, which has been absconding for last 20 years. The Bhopal Group for Information and Action (BGIA) said that it was a victory of their legal action in this matter after 8 years.
On February 26, 2004 BGIA had filed an appeal in the CJM court, Bhopal asking that TDCC be summoned to show cause why it won’t produce its wholly owned subsidiary, Union Carbide Corporation – USA before the Bhopal court in the ongoing criminal case. UCC-USA has been absconding since February 1992.
On January 6, 2005 CJM, Bhopal ordered that summons be issued to TDCC, USA. Dow Chemical International Private Limited, (DCIPL), filed an appeal in the MP High Court and in response to this appeal Justice Rakesh Saxena granted a stay on issuing of summons against TDCC, USA on March 17, 2005. This was an illegal order as appeal filed by DCIPL, which was neither aggrieved nor affected by the Bhopal CJM order of January 6, 2005.
In the last seven and half years the matter has come before more than 10 judges including Justices Sungandhi Lal Jain, Suresh Chandar Sinho, P.K. Jaiswal, U.C. Maheshwari, M. A. Siddiqui, Rakesh Saxena, Tarun Kumar Kaushal, N.K. Gupta, R.C. Mishra and G.S. Solanki who finally passed the order.
In the last 20 years the prosecution in the criminal case on the Bhopal disaster, the CBI has not made the tiniest attempt to produce absconding UCC-USA in court. The fact that the order is against TDCC which owns and does business in India and that has presented itself in the Indian courts through its counsels should make criminal prosecution of UCC easier.
Rachna Dhingra of BGIA thanked the lawyers duo of Avninder Singh and Harmeet Singh Ruprah for their relentless effort in successfully pursuing this case.
The five NGOs which have followed the case closely are: Bhopal Gas Peedit Mahila Stationery Karmchari Sangh, Bhopal Gas Peedit Mahila Purush Sangharsh Morcha, Bhopal Gas Peedit Nirashrit Pension Bhogi Sangharsh Morcha, Children Against Dow Carbide and Bhopal Group for Information & Action.
It may be recalled here that on the intervening night of December 2-3, 1984 Union Carbide pesticide manufacturing factory had spewed poisonous Methyl Iso-cyanate gas whereby 3000 people had perished virtually instantly and over the years about 25000 have kissed death and the sad saga is still continuing uninterruptedly. About half a million are suffering from the side effects of the poisonous gas and several thousand people have been maimed for life.
The Timeline in the matter of Summons against The Dow Chemical Company to make Union Carbide Corporation, USA appear in the Criminal Case of the Gas Disaster is as follows:-
1 December 1987: Central Bureau of Investigation (CBI) files charge sheet against Union Carbide Corporation (USA), Warren Anderson and ten other accused including Union Carbide (Eastern) Hong Kong, and UCIL.
1 February 1992: Chief Judicial Magistrate, Bhopal proclaimed UCC (USA) as an absconder and ordered UCC to present itself before the CJM on 27/3/1992.
30 March 1992: Chief Judicial Magistrate, Bhopal ordered confiscation of Union Carbide Corporation’s properties in India – its 51 % shares in Union Carbide India Limited.
6 February 2001: Union Carbide Corporation merges with The Dow Chemical Company and becomes 100% owned subsidiary of The Dow Chemical Company, USA.
26 February 2004: Bhopal Group for information &Action filed an application before the Chief Judicial Magistrate, Bhopal asking that the Court issue a Letter Rogatory for International judicial assistance from the United States Department of Justice to serve summon / notice / warrant upon the Head Quarters of The Dow Chemical Company, [TDCC], at Midland, Michigan, USA to produce proclaimed absconder accused Union Carbide Corporation in the criminal trial on the December 1984 Bhopal disaster. BGPMUS and BGPSSS filed application to summon DCIPL to the CJM’s court.
3 September 2004: Filed another response application at the CJM court
10 September 2004: Bhopal Group for Information & Action (BGIA) filed additional submission at the CJM court
6 January 2005: Chief Judicial Magistrate passes an order to issue summons against The Dow Chemical Company (TDCC), Midland USA,
February 2005: Mumbai-based Dow Chemical International Private Limited (DCIPL) filed an Appeal before the M.P. High Court seeking quashing of the order of CJM, Bhopal dated 6 Jan 2005. (Case No. MCRC 1377/2005 filed in MP High Court
17 March 2005: High Court Judge (Mr. Rakesh Saxena) granted stay on the summons against The Dow Chemical Company, USA and listed the matter for 27 April 2005. Given that DCIPL was not a party aggrieved or in any way affected by the 6 January 2005 order of the Bhopal CJM, there is no legal basis for entertaining DCIPL’s Appeal let alone granting a stay on the Bhopal CJM’s order.
27 April 2005: Justice U. C. Maheshwari approves the Stay on summoning TDCC and extends it till further orders.
8 July 2005: Justice Ajit Singh approves the Stay on summoning TDCC and extends it till further orders.
18 August 2005: High Court’s Order directs that Notices be issued to all applicants within a week. No notices were ever served to Bhopal Group for Information and Action the original applicants.
15 February 2006: Judge A.K. Shrivastav continued the Stay on summoning TDCC but asked the matter to be listed after four weeks for final hearing.
2006: The case is listed several times for Final hearing as per the MP High Court website but no final hearing took place till July 2012.
17 September 2009: Bhopal Group for Information and Action filed an application before the MP High Court for urgent hearing
21 June 2010: In this GOM meeting following decision regarding this criminal complaint. The GOM stipulated that timeline for pursuing this would be 14 August 2010. Ministry of Law and Department of Chemicals and Petrochemicals on the advice of Attorney General would move on this matter. (Annexure 3)
“Separately CJM Bhopal issued summons on 6.1.2005 to Dow Chemicals Company, US. Subsequently the company filed an appeal in the High Court and on 17.3.2005, the High Court stayed the order issuing summons.
The liability of Dow Chemicals Company is being contested in these and other proceedings by the said company. It is essential that the question of liability of Dow Chemicals Company should be first settled before any proceedings can be taken against the company.
Hence, GOM recommends that Ministry of Chemicals and Fertilizers and CBI may be directed to file appropriate applications/motions before the Courts concerned and request the courts, especially the High Court to expeditiously decide the question of liability of Dow Chemicals Company and/or any other successor to UCC/UCIL. Once this question is decided the various legal proceedings involving Dow Chemicals Company and any other person/company found liable can be taken forward.”
21 September 2010: Solicitor General of India (Mr. Gopal Subramanium) gave his opinion on this matter. (Annexure 4)
“In my opinion it does not appear necessary to file a separate application. Since the CBI is a party, it would be appropriate if submission is urged by the CBI in the said application in accordance with instructions from the Central Government.”
18 March 2011 Mr. Rakesh Aggarwal, Dy. Inspector General of Police, CBI, AC.I, New Delhi wrote a letter to the Secretary, Department of Legal Affairs seeking a clarification on the opinion of the Attorney General.“The CBI wanted to know the nature of the application that has to be filed in the High Court in terms of the advice by the Solicitor General that the same is to be “in accordance with instruction from the Central Government”
21 March 2011 Solicitor General clarified CBI query and wrote the following opinion (Annexure 5)
The expression “in accordance with instructions from the Central Government” is intended to means such directions as are issued by the Central Government parens partria, in the larger interests of Public Justice including the victims.
Thus I conclude that
CBI may request the High Court to take up the matter at the earlier and determine the liability of M/s Dow Chemicals.
Urge necessary submissions in this regard
Since the CBI is the prosecution agency, and if the matter can be mentioned before the Court, that would suffice. If it becomes imperative for the Court to receive any formal application seeking early hearing, then the same may be filed. There is no need for any further application since the Trial Court had issued notice and the High Court is seized of the mater
24 March 2011: GOM meeting was held and a copy of the opinion of the Solicitor General was given to the representative of the CBI.
22 September 2011: Representatives of five Bhopal survivor organizations wrote to Director, CBI, GoM on Bhopal and Prime Minister regarding urgent intervention in the matter of summoning The Dow Chemical Company, USA as the 100 % owner of absconding UCC, USA in the criminal case on the Bhopal disaster.
3 November 2011: Representatives of five Bhopal survivor organizations met with Mr. Prabodh Kumar, HOZ of Anti Corruption Unit I urging CBI to file an urgent application for vacation of stay against summoning The Dow Chemical Company. As per the GOM’s March 2011 decision, the application should have been filed by August 2010
2 January 2012: CBI filed the application for urgent hearing in the MP High Court.
7 March 2012: DCIPL filed an application for adjourning the hearing and it was granted by the High Court. While BGIA though its counsel Mr. Avninder Singh opposed the adjournment, CBI’s counsel did not oppose DCIPL’s application for adjournment.
26 March 2012: DCIPL filed an application for adjourning the case and it was granted by the High Court. BGIA opposed the adjournment but not CBI
9 May 2012: DCIPL filed an application for adjourning the case and it was granted by the High Court. BGIA opposed the adjournment but not CBI
5 July 2012: DCIPL filed an application for adjourning the case and it was granted by the High Court. BGIA opposed the adjournment but not CBI
23 August 2012: DCIPL filed an application for adjourning the case. BGIA opposed the adjournment but not CBI. Justice G S Solanki directed that the matter would be set for final hearing on September 13.
13 September 2012: Justice G S Solanki hears the matter and reserves his judgement.
19 October 2012: Order vacates Stay on summoning TDCC, USA before the court of CJM.