Blame the Indian Government: A Response

[A guest post by Prateek Andharia in response to Arghya and Umakanth]

This is in response to Arghya’s previous post, indicating the various angles to the Bhopal-Dow-Olympics controversy. While I believe that in reality, whether Dow sponsors the “greenest Olympics yet” or not is hardly an issue for genuine legal debate/discussion, it is nevertheless one that possesses unique moral dimensions, highlighted by various insightful comments on the original post. To truly comprehend the issue at hand, we must divorce the legal from the moral in this matter.

Dow, as indeed British Prime Minister David Cameron too, has more than adequate grounds in law, as highlighted by this response to the original post by V. Umakanth, to defend itself from the taint of being involved with the Bhopal disaster (Wasn’t the owner when the disaster happened, full & final settlement by the State, etc.). Nevertheless, there is an aspect of the settlement and the law laid down by the Court subsequently on the settlement which too few people seem aware of, or which too many people choose to ignore. The Court, for two reasons, 1) anticipating future variance in the actual claims or disbursements and 2) to “cure” the defects arising out of an apparent violation of the principles of justice (that the principles of natural justice had been violated had already been declared by a Constitution Bench in Charan Lal Sahu’s case 1990 (1) SCC 613), held that any deficiency in the settlement fund was to be made up by the Union of India.

Justice Venkatchaliah, in his leading judgment for the Constitution Bench sitting on Review, declared, in 1991 (4) SCC 584 at para. 198, that:

“After a careful thought, it appears to us that while it may not be wise or proper to deprive the victims of the benefit of the settlement, it is, however, necessary to ensure that in the-perhaps unlikely event of the settlement-fund being found inadequate to meet the compensation determined in respect of all the present claimants, those persons who may have their claims determined after the fund is exhausted are not left to fend for themselves. But, such a contingency may not arise having regard to the size of the settlement-fund. If it should arise, the reasonable way to protect the interests of the victims is to hold that the Union of India, as a welfare State and in the circumstances in which the settlement was made, should not be found wanting in making good the deficiency, if any. We hold and declare accordingly.” [Emphasis supplied]

This aspect of the Court’s decision is especially important given that most of the ire of civil society and the victims has been directed at the Company (first UCC and now Dow), with a mere passing admonishment of the Government. The fact of the matter, as far as the law is concerned, is that any deficiency of funds, be it on account of the injured, the dead or environmental damage (this last, a head of expense completely ignored), is to be paid by the Government. When we talk of the civil curative petition pending before a Constitution Bench, the State is arguing there, not for the victims but for itself – for relieving itself of the liability to pay and to pass on this liability to Dow Chemicals. Needless to say, the claim is on shaky ground, given the stringent standards required for the SC to reconsider its reviewed decisions (on that aspect, interested readers may see this) and inordinate delay on the part of the Government. If the victims are not getting their due, it is because of the State preferring to spend its money on the Commonwealth Games and not because of some big, bad corporate wolf running away from liability. Therefore, the legal issue of liability begins and ends with the State – any re-examination on the liability question will be done soon enough, by the apex Court.

As for the moral issue of whether or not Dow should be allowed to sponsor the games – well, I’m sure most agree that Dow’s relationship to the Bhopal tragedy is unique, and while legally distant, in terms of perception it is seen as the new avatar of the corporate baddie, whether or not it likes it. As has been pointed out, it is profiting from the purchase of UCC, owing to the product line as well as (believe it or not) goodwill, and consequently cannot choose to erase, unilaterally, the perception of it as the adoptive father of a delinquent corporate. But the solution to the problem is hardly a boycott of the Games, that really would be tantamount to cutting off the nose to spite the face – a black armband or boycott of opening ceremony would be far more reasonable as well as enduringly visible.

The Bhopal saga is indeed tragic, but the answer to the wrongs committed is hardly blaming of the corporate entity, an introspection of our own Government’s role is indeed far more apposite.