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US & Indian Supreme Court, Bhopal Disaster Case & Corporate Influence

Written By mediavigil on Wednesday, March 02, 2011 | 8:56 PM

We, in India (who are grappling with the phenomena of Paid News & Gift Journalism) were outraged by the 5-4 ruling of US Supreme Court in the Citizens United v. Federal Election Commission that gave First Amendment protections to corporations, unions and non-profits involved in election advocacy which tantamount to promoting property based democracy. There can be no disagreement with the contention that "Corporations are not people, they do not vote, and they should not be able to influence election outcomes" but US Supreme Court's 5 judges in their wisdom feel otherwise.

We agree with the 90-page dissent order of Justices John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor arguing that the majority opinion of the US Supreme Court bench "threatens to undermine the integrity of elected institutions across the Nation." 

Influence of corporations is most blatantly visible in the Bhopal's Industrial Disaster case. It may be noted that Rajiv Gandhi led Indian government had allowed Warren Anderson to flee as a quid pro quo arrangement with US government on giving a presidential pardon to one Adil Shahryar (who was close to the Indian Prime Minister). Adil's father Muhammad Yunus, former Indian Ambassador to Spain and long time Chairman of the Trade Fair Authority of India was close to the Gandhi family. Adil, who was given a federal sentence of 35 years in prison for various crimes, was given a presidential pardon by US president Ronald Reagan on June 11, 1985.

See, e.g., Exec. Grant of Clemency to Adil Shahryar (June 11, 1985) (son of aide to Indian Prime Minister Rajiv Gandhi, serving 35-year federal sentence for explosives and fraud offenses, freed as “goodwill gesture” on occasion of Gandhi’s visit to U.S.) U.S. DEP'T OF JUSTICE, OFFICE OF THE PARDON ATTORNEY, WARRANTS OF PARDON,

Hollywood actor Charlton Heston wrote to Attorney General William French Smith in 1982 asking him to intervene in the case of a friend's son (Adil Shahryar) who was sentenced to 35 years in prison for trying to blow up a ship, the assignment was given to Mr. Smith's special assistant, John G. Roberts Jr.

According to recently released government documents, Mr. Roberts reviewed the case and prepared a memorandum explaining that Mr. Heston's version of it was incomplete if not incorrect. He drafted the ''Dear Chuck'' letter from Mr. Smith that constituted a polite but firm brushoff to Mr. Heston, who was an acquaintance of Mr. Smith.

Shahryar was arrested by the US anti-corruption department on charges of importing illegal substance and put in US prison for felony. 

Adil was tried in federal court, before a jury, on five counts: (1) attempting to firebomb a ship; (2) false statements on various certificates in connection with the shipment; (3) mail fraud; (4) making of a firearm (the bombs); and (5) use of a firearm (the bombs) in the commission of a felony. 

The case was airtight: evidence linked Adil to the purchase of the bomb materials, and he had only an incredible story attempting to pin the blame on two associates to present in defense. He was convicted and sentenced, after a sentencing hearing, to 35 years. The judge indicated he viewed the attempted firebombing of the ship as very serious. Adil had what the prosecutor described as a "superb" defense attorney
during the trial, though Adil fired him before the sentencing hearing. The assistant U.S. attorney who tried the case concluded that Adil was "dangerous and deserves every day of the 35 years he got."

Adil was subsequently convicted by Federal Judge Jarmes Kehoe on May 17, 1982 in five cases to consecutive terms totalling 35 years.

Adil was released six months and four days after Warren Anderson was let go on 25,000 Rupees bail by the Congress led Government of India on December 7th 1984.

Most recently, the Bhopal's Industrial Disaster case came up for hearing on 28th February, 2011 in the Supreme Court of India. The Court issued notices to Union Carbide Corporation, Dow Chemicals Company, Mcleod Russel India and Eveready Industries Limited on curative petitions pertaining to compensation, criminal proceedings and transfer of case from High Court to the apex court, in the Bhopal Gas tragedy case. The apex court seeking the reply from the companies in three weeks, decided to hear the criminal case from 13th April, 2011.

Three petitions were filed by the government last year for seeking a re-hearing of a previous judgement (of 1996) passed by the Supreme Court. As per the government the decision led to “gross miscarriage of justice”. Of the three petitions, one is on enhancement up to Rs 7000 Cr of compensation, another on criminal proceedings and another for transfer of the case for compensation being presently heard by Madhya Pradesh High Court.

The five judge bench comprising of Chief Justice of India SH Kapadia, Justice Altamas Kabir, Justice RV Raveendran, Justice B. Sudershan Reddy and Justice Aftab Alam issued notices today after hearing Attorney General GE Vahanvati appearing for Union of India and senior counsel Harish Salve appearing for Dow Chemicals. The Bench ordered, "Generally in curative petitions, hearing in Court is not granted. However, looking to the larger public interest and in view of the petition(s) involving substantial question of law and of public importance, we have decided to hear these curative petitions in Court."

The Attorney General appearing for the centre informed the apex court that a writ petition was filed in Madhya Pradesh High Court which will also be deciding on the question of whether Dow Chemical will inherit the liabilities of Union Carbide Corporation and Union Carbide India Ltd which was responsible for the tragedy. The centre wants the case to be transferred from the High Court to the five judge bench of apex court as otherwise there will be two courts hearing over the same question and issues of jurisdiction of high court will arise.

Salve appearing for Dow Chemical in both civil and criminal cases opposed the idea of transferring the case.
Attorney General also informed the court that nowhere in past has the question of compensating for the environmental damages was considered. The curative petition was first heard on 3rd December 2010, exactly 26 years after the industrial catastrophe.

The government sought enhancement of compensation claiming an amount of Rs 5000 Cr to Rs 7000 Cr from respondent companies. The amount has been claimed for (a) expenditure incurred by the Central/ State towards relief and rehabilitation measures, (b) remedial measures to be undertaken for Environmental Degradation and (c) additional compensation with interest.

The centre has defined this act as “an attempt to cure gross miscarriage of justice” and has sought enhancement on ground that “settlement compensation amount determined by this (Supreme) Court was based on certain factual assumptions which have been found to be completely incorrect and far removed from reality. This has vitiated the very basis of the compensation”.

It has been argued that “Union of India has not only a statutory duty under the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 to represent the interest of the victims, but also has a constitutional duty to ensure that adequate compensation is paid by the tort feasor (party wrong doing) for the damage caused to the citizens of this country”.

Centre through its petition appealed that the impugned (challenged) judgment did not take into account the impact of the disaster on the environment and that the respondent companies are liable to pay the costs on account of environmental degradation. The centre claims Rs 315.7 Cr as cost for remediation of the environmental degradation and removal of waste in form of stored toxic waste, Contaminated Soil and Decommissioned MIC and SEVIN Plants.

The centre submitted that total number of death caused by tragedy were 5,295 against 3,000 deaths whish was taken as basis for calculation of compensation in the impugned judgement.

Furthermore, the number of cases of minor injuries is 5.28 Lacs whereas the challenged order proceeded on the basis of only 50,000. Also the number of cases of temporary disability is 35,455 whereas the impugned order proceeded on the basis that there were only 20,000 such cases of temporary disability. Many civil rights groups have however estimated the number of victims as to be much higher than even what the centre’s petition claims now.

The companies which have been made party to the case are-
• Union Carbide Corporation, a wholly owned subsidiary of Dow Chemicals Company, having its head office at Texas, USA. - Was the holding company of the Union Carbide India Ltd (UCIL), at the time of the disaster. It is fully owned subsidiary of The Dow Chemicals Company since 2001.
• The Dow Chemicals Company, having its head office at Michigan (USA) - Fully owns Union Carbide Corporation
• Mcleod Russel India, having its registered office, at Kolkata - Had purchased 50.9 per cent share-holding of Union Carbide Corporation in UCIL in April, 1994
• Eveready Industries Limited, India, having its registered office at Kolkata - Union Carbide India Ltd is currently known as Eveready Industries Ltd.

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