ToxicsWatch Alliance (TWA)
Bhopal/Jabalpur, October 20, 2012
The trial court of chief judicial magistrate (CJM) had issued a show cause notice to Dow Chemicalss in response to an application moved by three activists Abdul Jabbar, of Bhopal Gas Peedit Mahila Udyog Sangthan (BGPMUS), Satinath Sarangi of Bhopal Group for Inormation and Action (BGIA) and ND Jaiprakash of Bhopal Gas Peedit Sangharsh Sahyog Samiti (BGPSSS) praying that Dow Chemicals company of USA and members of its board of director should be issued summons for presence in the court.
They contended that Dow Chemicals by taking over UCC in February, 2001 has taken over all the assets and liabilities of that company. On January 6. 2005, the CJM court, which was seized of the matter then, had issued notice to the Dow Chemicals. DCIPL had gone in appeal against the CJM court's order and was granted stay by the MP high court.
However, Justice GS Solanki on Friday dismissed the DCIPL petition holding that it is for the trial court to decide whether UCC has ceased to exist following merger with Dow Chemicals or it still exists as a legal entity.
"The question with respect to merger of Union Carbide Corporation (UCC) in the Dow Chemicals Company, USA and whether UCC still survives as a separate legal entity are open for determination before the trial court," HC said.
Justice GS Solanki further said these issues cannot be considered at this stage. The trial court had issued notice to Dow Chemicals well within its jurisdiction and thus the petition is liable to be dismissed, assistant solicitor general RL Gupta argued.
The court of CJM has announced verdict into Bhopal gas tragedy case of December 3, 1984 in the year 2010 and ex-chairman of Union Carbide Corporation Warren Anderson is already declared as absconder, Gupta said. Thus, no law point is required to be decided in the matter, the assistant solicitor general said. Counsel for BGPSSS and BGPMUS objected the claims of DCIPL that it was a company situated at Mumbai and has no direct nexus either in terms of holding or in terms of otherwise with the Dow Chemicals Company USA and UCC.
The two NGOs stated if the DCIPL has no nexus with the Dow Chemicals Company USA and UCC, it has no locus either to seek any stay or any relief from the court over orders of the trial court at Bhopal.
NGOs happy but …
Expressing happiness over the decision, activists Abdul Jabbar and Satinath Sarangi, however, said that it as a sad commentary on our legal system that it took seven years for the high court to decide whether CJM order to issue show cause notice to Dow Chemicals was legally correct or not.
"It's a major step towards prosecution of UCC, which has been absconding in the case for 20 years, in the Bhopal gas disaster criminal case. Dow Chemicals has assets in India and they have major business presence too. They will now have to force the UCC to present itself in court for trial. We, however, maintain that Mumbai-based company DCIPL had no locus standi to apply for a stay in the case as it was neither an affected party nor an aggrieved party but it not only got stay but despite our requests for urgent hearing in the case, it remained in effect till now," said Satinath Sarangi.
"We welcome the decision. It would pave way for prosecution of a corporation in the case but a decision on our application of 2001, 11 years later is of course a sad commentary on our legal system", said Abdul Jabbar.
What' could happen now? All the eight Indian accused in the case, who faced trial in the case, were convicted and sentenced to two years of imprisonment in June 2010. Three other accused in the case, Union Carbide Corporation (UCC), Union Carbide (eastern), Hong Kong and then chairman of UCC Warren Anderson were declared proclaimed absconders by the court after they failed to appear for trial in the court. Accordng to legsal experts, with the high court dismissing the Dow Chemicals International Pvt Ltd (DCIPL) petition on Friday, litigation in the matter in the court of Chief Judicial Magistrate (CJM), Bhopal, could begin afresh and Dow Chemicals could be asked to produce UCC for trial in the case.
(With inputs from Neelesh Chaudhary from Jabalpur)