Dow shalt pay

Civil society groups resist Dow Chemicals bid to evade liability for the Bhopal gas disaster as the government seeks to absolve it.

The Union Carbide

In June, activists working among the survivors of the 1984 Bhopal gas leak disaster obtained certain documents from the Prime Ministers Office under the Right to Information Act. These documents suggest how keen the government is to relieve the Dow Chemical Company of any liability for the disaster and its toxic legacy.

Among the documents is an internal note submitted by Minister for Commerce and Industry Kamal Nath to the Prime Minister on February 7. This note deals with the issue of legal liability of the Dow Chemical Company of the United States, which purchased Union Carbide Corporation (UCC) and its Indian investments in 1999. The Minister referred to the public interest litigation (PIL) going on in the Madhya Pradesh High Court about the 1984 disaster, in which the Ministry of Chemicals and Fertilizers had moved the court in May 2005 to seek directions to Dow to deposit Rs.100 crore as remedial cost.

Kamal Nath suggested that in view of the likelihood of substantial investment from Dow in India, a group led by the Cabinet Secretary be formed to look into the matter holistically and the matter of legal responsibility of the company be left for the court to decide. He proposed that this group could consult all the stakeholders including industry, which, according to a letter from Ratan Tata, chairman of Tata Sons Limited, was willing to have an industry-led remediation arrangement (Frontline, February 9).

Kamal Naths reference was to a letter Tata had written to Finance Minister P. Chidambaram regarding the creation of a Remediation Fund with contributions from the private sector. On Tatas proposal, Prime Minister Manmohan Singh wrote: This proposal requires serious consideration. Maybe a small group under Cabinet Secretary look into it involving among others Environment Ministry. Both Chidambaram and the Deputy Chairman of the Planning Commission, Montek Singh Ahluwalia, to whom Tata had written similar letters, concurred with the view that the pending case in the High Court need not deter the consideration of Tatas proposal.

The Department of Chemicals and Petrochemicals, the administrative department concerned, however, opposed Tatas proposal. In its note on January 5, the department revealed that it had told a representative of Dow who visited the department that there appeared to be no valid ground for the Government of India to withdraw or modify its application dated May 10, 2005, filed in the Madhya Pradesh High Court (seeking Rs.100 crore as compensation from Dow) since the issue of deleting the name of Dow was sub judice.

The PIL petition was filed by Alok Pratap Singh in July 2004 seeking directions to the Central and State governments for the removal of the toxic wastes from the former Union Carbide India Ltd (UCIL) plant site at Bhopal and for remediation. Singh pleaded that the court hold Dow responsible for causing environmental pollution and pass suitable orders against the company to assume the yet-to-be discharged liabilities of UCC for the continuing and long-term impact of the disaster. He sought directions to Dow to provide for long-term medical care for the victims of the gas leak, for research and for monitoring the ill-effects of the pollution of land and water in and around the factory site at Bhopal.

Dow, which was also made a respondent in the petition, requested the High Court to implead UCC (U.S.A) and Eveready Industries India Limited (EIIL) as respondents and to delete its name from the array of parties on the grounds that it had nothing to do with the matter.

The High Court permitted the inclusion of UCC and EIIL but is yet to issue orders on whether to delete the name of Dow. The High Court has constituted a task force for removing and destroying the toxic wastes lying at the abandoned factory site. The rationale for the courts order was that the responsibility for clean-up should not overshadow the question of the clean-up itself. The court, therefore, did not give priority to determining Dows liability and its responsibility for the clean-up.

Dow has consistently denied inheriting any liability for the Bhopal legacy from UCC. However, back in the U.S., it set aside $2.2 billion to address future asbestos-related liabilities arising out of the Carbide acquisition. Activists of the International Campaign for Justice in Bhopal argue that if Dow can assume responsibility for asbestos-induced illnesses among victims in America, why then it should deny responsibility towards the victims of Bhopal and its continuing toxic legacy.

Residents of neighbourhood

The Department of Chemicals and Petrochemicals explained its position on Tatas offer as follows: The matter is sub judice and the High Court of Madhya Pradesh is itself monitoring the entire process of environmental remediation. Moreover, it may be mentioned that as per the provisions of Hazardous Wastes (Management and Handling) Rules, 1989, it is the polluter who is liable for meeting the cost of environmental remediation. It may be appropriate that such an offer is submitted to the High Court of Madhya Pradesh by the individual/agency making the offer and seek directions thereon.

But the departments note of caution had no impact. A note prepared by Cabinet Secretary B.K. Chaturvedi on April 6 made clear what ought to be the government policy: Given the scope for future investments in the sector, it stands to reason that instead of continuing to agitate these issues in court for a protracted period, due consideration be given to the prospect of settling these issues appropriately. An important aim is to remove uncertainties and pave the way for promoting investments in the sector.

The Cabinet Secretary referred in his note to Tatas letter stating that it was critical for Dow to have the Ministry of Chemicals and Fertilizers withdraw its application in the Madhya Pradesh High Court for a financial deposit by Dow against the remediation cost, as that application would imply that the Government of India viewed Dow as liable in the Bhopal gas disaster case.

The Cabinet Secretary, therefore, suggested reconstitution of the existing Group of Ministers (GoM) dealing with matters relating to the Bhopal gas disaster with appropriate changes in its mandate to help Dow. The GoM is yet to be reconstituted as suggested by him.

Curiously, the Prime Ministers Office kept in its file a copy of the legal opinion tendered by Abhishek Manu Singhvi, Dows counsel in the Madhya Pradesh High Court and also spokesperson for the Congress party. Singhvi suggested that Dow could not be held responsible and/or liable for the Bhopal gas tragedy and could not be held liable for the alleged contamination and/ or consequent cleaning up of the Bhopal site.

While the government with the probable exception of the Department of Chemicals and Petrochemicals by and large appears to be inclined to let Dow evade liability for the Bhopal clean-up, civil society groups have successfully resisted Dows efforts to woo public opinion.

The resistance has surprisingly come from groups of students, faculty members and alumni of the Indian Institutes of Technology (see box). This happened in the wake of Dows recent attempts to forge links with the IITs for recruitment for its upcoming R&D centre in Maharashtra.

Dow was expected to come for pre-placement talks in IIT Madras and IIT Bombay in October. But on October 10, a petition signed by 67 students and 22 faculty members of IIT Madras reached its Director, M.S. Ananth. It requested him to remove Dow Chemicals from the list of companies invited for campus placements. Following this, Dow cancelled its talks scheduled on both these campuses.

On October 24, senior journalist Praful Bidwai and Ramon Magsaysay award winner Arvind Khejriwal, both IIT alumni, launched a Blacklist Dow campaign in New Delhi and released a petition signed by over 1,000 alumni and former faculty members of the IITs. They urged each of the seven IITs to bar Dow from any partnership or role in the premier institute. During the release, Bidwai said, The company has to clean up the toxic wastes in Bhopal, compensate the victims of contamination, and force its subsidiary to face criminal trial in the Bhopal court. Otherwise, it will be met with hostility wherever it goes in India.

As a fallout of this campaign, students in the Chemical Engineering Department of IIT Kharagpur have turned down sponsorship from Dow for their annual tech fest, Cheminsight, this year. Last year, the company was a major sponsor for this event. Also, in Kharagpur, Dow has not been invited for campus placements. In IIT Kanpur, students have put up an online petition demanding that the institute refuse Dow sponsorship for the International and INNCOM-6 Conference, scheduled for December. The petition has received around 100 signatures from IIT Kanpur students.

In their petition, the students have referred to the various controversies in which the company is embroiled. In August, officials of Dow AgroSciences, an Indian subsidiary, were implicated by the Central Bureau of Investigation (CBI) for bribing Agricultural Ministry officials to expedite the registration of three pesticides between 1996 and 2001.

These pesticides included Dursban (chlorpyrifos), which had been taken off American markets after studies pointed to threats of toxic poisoning from it. Dow reportedly managed to make significant profits through the sales of these pesticides in India.

The petitioners have also raised the issue of Indian Oil Corporation cancelling a technology tie-up with Dow Global Technologies Inc., a subsidiary, in 2005 because the company had attempted to pass off a Union Carbide patented technology as its own.

Said P.M. Bhargava, renowned scientist and chairperson of The Sambhavna Trust in Bhopal: It is heartening to see a young generation of elite students take a moral stance for the cause of the underprivileged victims of Bhopal.