Editor: NAGARAJ.M.R       VOL.3 issue. 44         04 / 11 / 2009

Editorial : BHOPAL GAS TRAGEDY 1984 -Bhopal, India
 --  END 25 YEARS OF INJUSTICE TO PEOPLE OF BHOPAL

 Shortly before midnight on 2 December 1984, thousands of tonnes of
deadly chemicals leaked from Union Carbide's pesticide plant in
Bhopal, central India. Around half a million people were exposed.
Between 7,000 and 10,000 people died in the immediate aftermath and a
further 15,000 over the next 20 years.

Nearly 25 years later, the factory site has not been cleaned up. More
than 100,000 people continue to suffer from ongoing health problems.
Efforts to provide rehabilitation â€" both medical care and measures
to address the socio-economic effects of the leak â€" have fallen way
short of what is needed.

Many of those affected are still waiting for adequate compensation and
the full facts of the leak and its impact have never been properly
investigated. No one has ever been held to account for what happened
at Bhopal and efforts by survivors' organizations to use the Indian
and US court systems to see justice done and gain adequate redress
have so far been unsuccessful.

Bhopal is not just a human rights tragedy from the last century â€" it
is a human rights travesty today. The legacy of Bhopal persists
because the people of Bhopal have never been able to claim their
rights. Moreover, the negative impacts of the leak are affecting new
generations. Studies have shown how the exposure to the toxic gas
causes long-term effects, which can continue in children born in gas-
exposed families.

For 25 years the Indian government has failed the people of Bhopal.
Promises have been repeatedly broken and no adequate action has ever
been taken to address the impacts of the gas leak.

No company can be allowed to evade responsibility for the impacts of
its operations. Union Carbide must be held to account for what
happened at Bhopal. Dow Chemicals, which now owns Union Carbide, must
cooperate fully with the Indian government and the courts in India to
ensure justice is done and the site is fully cleaned up.

At the first instance the Government of India failed to ensure that
Union carbide India Limited (U.C.I.L) has installed proper safety
measures and fully implemented it in practice, at it's plant in
Bhopal. The Government of Madhyapradesh through it's labour
department, factory inspectorate & pollution control board failed to
enforce safety practices & environmental protection. In turn, the
U.C.I.L didn't install in full, the safety measures being followed by
it's parent company union carbide corporation (U.C.C) at it's
Various plants in the U.S.A. The U.C.I.L. didn't give community
training to residents of nearby localities, to cope up with
emergencies ie. Industrial accidents. U.C.I.L gave a go - by to safety
practices, as it treated Indian lives as cheap. The government of
Madhya pradesh instead of shifting slum dwellers around U.C.I.L, to
other safe place, gave them legal title deeds just months before the
tragedy in 1984.

Now, refer the following:-

1. After the accident at it's U.C.I.L. plant at Bhopal, India in 1984,
when the U.C.C.  Chairman/C.E.O. came over to Bhopal from U.S.A to
visit the accident site, local police arrested him on the charges of
manslaughter. However, the Government of India got him released.

2. In 1985, Government of India enacted "Bhopal claims Act" took- away
the right of appeal of all the Gas tragedy victims & declared itself
as the sole representative of all victims. This said act itself is
violative of victim's fundamental & human rights. The
victims didn't choose Government of India as it's representative under
will, agreement, trust or pleasure.

3. The paradox of this "Bhopal claims Act" is that, Government of
India which is also a party to the crime, tragedy, itself is the
appellant. The appellant (Petitioner),defendant are Government of
India, Prosecution by Government of India & Judged by Government of
India.

4. In 1989, when an appeal about interim compensation to be paid by
the U.C.I.L to all the victims was being heard in the apex court, the
supreme court of India without giving a chance to the victims to make
their point, without consulting them, without making a proper
assessment of damages/losses, gave an arbitrary figure as verdict &
dropped all civil, criminal proceedings against U.C.C.&U.C.I.L

5. In the same year 1989, the Government of India without consulting
the victims of disaster, without making proper assessment of damages/
losses, negotiated a settlement with the U.C.C. and in turn gave full
legal immunity to U.C.C.& U.C.I.L from civil &
Criminal proceedings

6. Even the Government of India didn't present the case of victim's-
gas tragedy victims, properly before the U.S.courts, where the U.C.C
is based. All these premeditated acts only benefited the criminals-
U.C.C&UCIL. Are not the supreme court of India & Government of India,
here to safeguard Indians and to safeguard Justice?

After all these crimes, the Government of India failed to distribute
compensation in time to victims. It has failed even to provide safe
drinking water to the residents near the accident site, It has failed
to provide comprehensive medical care to the victims, till
date . It has even failed to get the accident site cleared off toxic
wastes either by the culprit management or by it self, that too after
20 years. The very presence of these toxic wastes since 20 years is
further contaminating, polluting the environment and taking toll of
more victims.

Particularly in the case of "Bhopal Gas Tragedy" the supreme court of
India & Government of India are deadlier criminals than U.C.I.L&U.C.C.

Just consider a case here, Just a few years back an U.S.based M.N.C
ENRON set-up a power project in Maharashtra, India through it's
subsidiary. When Maharashtra state Electricity Board failed to lift
power from Enron& pay them monthly guaranteed revenue, Enron
threatened to invoke, open the "Eschrew Clause" with the Government
of India & to approach international arbiter U.K. Government of India
has stood as conter-guarantee in this case. Finally the Government
paid, of course subsequently the parent ENRON collapsed due to other
reasons. If in this case if Government of India failed to pay-up as a
counter guarantee & refused to comply with the award of International
arbiter, definitely Government of U.S.A. would have stepped into the
scene to protect it's MNC. Hypothetically, In the same vein if Enron
has caused damages to Indians either through negligence of safe
practices or industrial accidents or bank frauds
amounting over and above it's Capital base & insurance cover, then it
would have been the duty of parent Enron & Government of U.S.A. to
step in & pay-up.

In the same way, the U.C.I.L has caused massive damages to Indians &
refusing to pay commensurate to damages. Dow chemicals which took-
over U.C.C. is also refusing to pay. DOW chemicals which is the new
owner of U.C.C. naturally inherits both profits, credits lent &
liabilities to pay of U.C.C. Still it is refusing to pay. Now it is
the turn of Government of U.S.A. to cough-up the sum.

Nowadays, it has become routine for central & State ministers to go-
on foreign jaunts, to globe -trott inviting F.D.I/ M.N.Cs to India.
They do sign numerous agreements, only favouring MNC. When tragedies
occur or when they cheat Indian banks/ investors, it is Indians who
suffer. The ministers & bureaucrats thinks themselves as wizards and
enters into agreements with MNCs, industrialists in a hush-hush
manner, with vast scope for possible corruption. Is it not the duty of
government to be transparent ?
Jai Hind , Vande Mataram .

Your’s sincerely ,
Nagaraj.M.R.

An appeal to honourable supreme court of USA & HE Honourable president
of USA  Mr.Obama

Your government protects all Americans, all American companies both
inside America & abroad. If an American tourist is murdered in a third
country , American investigators fly over to that country  to conduct
investigation in total disregard to local laws. In the same way , if
the interests of an American company is threatened in a third country
American government goes to it's rescue.

However , when an American company butchers , causes mass man
slaughter in a third country , as an American company did in Bhopal
India , no action by American government. Still the said American
company has not removed , cleared the accident site of poisonous
debris at Bhopal India since decades and still causing mass man
slaughter  , no action by American government  why ?

Some US based companies are selling soft drinks , food products ,
medicines , drugs in third world countries , which are causing grave
health damages to the public. The quality standards of these products
are fit cases of rejections by US FDA. Some US companies are selling
drugs ( which are banned in the USA ) to third world countries , still
us companies are exporting such dangerous medicines , foods to third
countries . no action by US government , why ? is it because you think
that the lives of  non Americans are cheaper than Americans ?

Hereby, I do request your kindself ,

1 . to initiate criminal prosecution against US based key management
personnel responsible for Bhopal gas tragedy .

2 . to make either the respective company management or US government
to pay compensation to victims of Bhopal gas tragedy  on par with
American lives , as if the same tragedy happened in the USA itself.

3 . to order the management of the said company to clean up Bhopal off
poisonous debris , from the accident site at their own expense.

4 . To legally prosecute US exporters &  US based companies selling
products  ( which violates US FDA regulations or banned in the USA for
domestic consumption ) to third countries.

CALL ON US PRESIDENT & US CONGRESS

Dear President Obama and members of Congress,

I welcome President Obama's executive orders to close Guantanamo and
end the use of torture. Further, I welcome the appointment of a
Special Prosecutor to investigate a number of cases of detainee abuse
as a positive steps toward accountability. However, I am deeply
concerned that human rights violationsâ€"and impunity for human rights
violations--continue. This in spite of the fact that human rights
violations are immoral, illegal andâ€"according to military and
intelligence expertsâ€"ineffective and counterproductive.

There is an alternative. I am writing to urge you to respect human
rights, follow the law and counter terror with justice:

- Ensure accountability for torture and abuse, as required by law. Set
up or support an independent commission of inquiry to investigate
torture and other human rights violations committed by the U.S.
government in the name of countering terrorism; ensure that all those
who broke the law are prosecuted; and ensure redress and remedy to
victims;

- Reject indefinite detention and unfair military commissions.
Guantanamo detainees must either be charged with a crime and fairly
tried in U.S. federal court, without recourse to the death penalty, or
be released, to countries where their human rights will be respected;

- Bring U.S. detentions at Bagram and other U.S. facilities in
Afghanistan and Iraq into compliance with international law and human
rights standards;

- Close all possible loopholes for torture and other ill-treatment,
and end any use of rendition and secret detention by or on behalf of
the U.S. authorities anywhere.

The U.S. government is required by law to respect human rights and to
ensure accountability for human rights violations. I call on you to
follow the law.

Your's Sincerely,
nagaraj.m.r.

Visit following websites to know about the  crimes of  Indian public
servants

CROSS EXAM OF INDIAN JUDGES
http://sites.google.com/site/sosevoiceforjustice/cross-exam-of-indian...
,

POLICE NOT REGISTERING COMPLAINT
http://sites.google.com/site/sosevoiceforjustice/police-not-registeri...
,

10 reasons why we don’t need GM foods

With the cost of food recently skyrocketing – hitting not just
shoppers but the poor and hungry in the developing world – genetically
modified (GM) foods are once again being promoted as the way to feed
the world. But this is little short of a confidence trick. Far from
needing more GM foods, there are urgent reasons why we need to ban
them altogether.
 1. GM foods won’t solve the food crisis
A 2008 World Bank report concluded that increased biofuel production
is the major cause of the increase in food prices.[1] GM giant
Monsanto has been at the heart of the lobbying for biofuels (crops
grown for fuel rather than food) — while profiting enormously from the
resulting food crisis and using it as a PR opportunity to promote GM
foods!
“The climate crisis was used to boost biofuels, helping to create the
food crisis; and now the food crisis is being used to revive the
fortunes of the GM industry.” — Daniel Howden, Africa correspondent of
The Independent[2]
“The cynic in me thinks that they’re just using the current food
crisis and the fuel crisis as a springboard to push GM crops back on
to the public agenda. I understand why they’re doing it, but the
danger is that if they’re making these claims about GM crops solving
the problem of drought or feeding the world, that’s bullshit.” — Prof
Denis Murphy, head of biotechnology at the University of Glamorgan in
Wales[3]
2. GM crops do not increase yield potential
Despite the promises, GM has not increased the yield potential of any
commercialised crops.[4] In fact, studies show that the most widely
grown GM crop, GM soya, has suffered reduced yields.[5]
“Let's be clear. As of this year [2008], there are no commercialized
GM crops that inherently increase yield. Similarly, there are no GM
crops on the market that were engineered to resist drought, reduce
fertilizer pollution or save soil. Not one.” — Dr Doug Gurian-Sherman,
former biotech specialist for the US Environmental Protection Agency
and former advisor on GM to the US Food and Drug Administration[6]
3. GM crops increase pesticide use
Official data shows that in the US, GM crops have produced an overall
average increase, not decrease, in pesticide use compared to
conventional crops.[7]
“The promise was that you could use less chemicals and produce a
greater yield. But let me tell you none of this is true.” — Bill
Christison, President of the US National Family Farm Coalition[8]
4. There are better ways to feed the world
A major recent UN/World Bank-sponsored report compiled by 400
scientists, and endorsed by 58 countries, concluded that GM crops have
little to offer global agriculture and the challenges of poverty,
hunger, and climate change, because better alternatives are available.
[9]
5. Other farm technologies are more successful
Integrated Pest Management and other innovative low-input or organic
methods of controlling pests and boosting yields have proven highly
effective, particularly in the developing world.[10] Other plant
breeding technologies, such as Marker Assisted Selection (non-GM
genetic mapping), are widely expected to boost global agricultural
productivity more effectively and safely than GM.[11]
“The quiet revolution is happening in gene mapping, helping us
understand crops better. That is up and running and could have a far
greater impact on agriculture [than GM].” — Prof John Snape, head of
the department of crop genetics, John Innes Centre[12]
6. GM foods have not been shown to be safe to eat
Genetic modification is a crude and imprecise way of incorporating
foreign genetic material (e.g. from viruses, bacteria) into crops,
with unpredictable consequences. The resulting GM foods have undergone
little rigorous and no long-term safety testing, but animal feeding
tests have shown worrying health effects.[13] Only one study has been
published on the direct effects on humans of eating a GM food.[14] It
found unexpected effects on gut bacteria, but was never followed up.
“We are confronted with the most powerful technology the world has
ever known, and it is being rapidly deployed with almost no thought
whatsoever to its consequences.” — Dr Suzanne Wuerthele, US
Environmental Protection Agency (EPA) toxicologist
7. Stealth GMOs in animal feed — without consumers’ consent
Meat, eggs and dairy products from animals raised on the millions of
tons of GM feed imported into Europe do not have to be labelled.
Studies have shown that if GM crops are fed to animals, GM material
can appear in the resulting products.[15] As GM foods have been shown
to affect animals’ health, eating such “stealth GMOs” may affect the
health of consumers.
8. No one is monitoring the impact of GM foods on health
It is claimed that Americans have eaten GM foods for years with no ill
effects. But these foods are unlabeled in the US and no one has
monitored the consequences. With other novel foods like trans fats, it
has taken decades to realize that they have caused millions of
premature deaths.[16]
9. GM and non-GM cannot co-exist
GM contamination of conventional and organic food is increasing. An
unapproved GM rice that was grown for only one year in field trials
was found to have extensively contaminated the US rice supply and seed
stocks.[17] In Canada, the organic oilseed rape industry has been
destroyed by contamination from GM rape.[18] In Spain, a study found
that GM maize “has caused a drastic reduction in organic cultivations
of this grain and is making their coexistence practically impossible”.
[19]
The time has come to choose between a GM-based, or a non-GM-based,
world food supply.
“If some people are allowed to choose to grow, sell and consume GM
foods, soon nobody will be able to choose food, or a biosphere, free
of GM. It’s a one way choice, like the introduction of rabbits or cane
toads to Australia; once it’s made, it can’t be reversed.” — Roger
Levett, specialist in sustainable development[20]
10. We can’t trust GM companies
The big biotech firms pushing their GM foods have a terrible history
of toxic contamination and public deception.[21] GM is attractive to
them because it gives them patents that allow monopoly control over
the world’s food supply. They have taken to harassing and intimidating
farmers for the "crime" of saving patented seed or "stealing" patented
genes — even if those genes got into the farmer’s fields through
accidental contamination by wind or insects.[22]
“Farmers are being sued for having GMOs on their property that they
did not buy, do not want, will not use and cannot sell.” — Tom Wiley,
North Dakota farmer[23]

Corporate crimes
By Kunal Mehta

Introduction
Much of our lives and daily routines are affected by corporate
activities. To a great extent, companies provide the food we eat, the
water we drink, the necessities and luxuries of everyday living.
Increasingly, particularly with growing privatisation, it is not the
State that provides these amenities - but companies. Such companies
generate wealth for the economy and their shareholders and provide
employment for much of the population. Short of a revolutionary
restructuring of the economy and the political institutions of the
country, it is certain that the power and influence of companies will
grow and not diminish in the foreseeable future.
But, with great power comes great responsibility. Just as individuals
owe a duty not to harm or injure others in society without
justification, so do companies owe a duty not to poison our water and
food, not to pollute our rivers, beaches and air, not to allow their
workplaces to endanger the lives and safety of their employees and the
public, and not to sell commodities, or provide transport, that will
kill or injure people.
Corporate crimes
One was again reminded of the corporate crimes when on 19th July, the
Supreme Court of India ordered the government to pay a remaining
$325.5 million (15.03 billion rupees) due to Bhopal gas tragedy
victims. The U.S. based Union Carbide Company, now owned by Dow
Chemical Co., paid $470 million in compensation to victims in 1989.
But distribution of most of that money was held up by bureaucratic
disputes over the categorization of victims. At last on 19th July the
victims or their representatives got justice 20 years after the
tragedy took place.
The story goes back to the 1984 Union Carbide accident in Bhopal,
India, which released a cloud of methyl isocyanate (MIC), hydrogen
cyanide, and other toxins. Somewhere between 4000 and 8000 people died
at the time, and victims' advocates estimate that in total over 20,000
have died as a result of this largest industrial accident ever, with
1,50,000 suffering continuing injuries and medical problems.
The cause was extreme corporate malfeasance. The plant was not up to
minimal Union Carbide safety standards - large quantities of MIC were
unwisely stored in a heavily populated area, the refrigeration unit
for the MIC (which is supposed to kept at temperatures below 32 F) was
deliberately kept turned off to save $40 per day in costs, the safety
systems were dismantled, and the alarm system was turned off. This was
in spite of the fact that the same plant had earlier suffered
potentially lethal accidental releases of gases like the deadly nerve
agent phosgene.
There are a number of corporate crimes that have come into light now
days. One of the major havoc that is created in present times is
because of mysterious disappearance of corporations. Of the 5,651
companies listed on Bombay Stock exchange, 2750 have vanished. It
means that one out of two companies that come to the stock exchange to
raise crores of rupees from investors, loot and run away. Even big
names like ‘Home Trade’ (remember Sachin, Sharukh, Hrithik saying Life
means more) came up with huge publicity stunts but after raising
money, vanished into the thin air. About 11 million investors have
invested Rs. 10,000 crore in these 2750 companies. We have Securities
Exchange Board of India, Reserve Bank of India and Department of
Companies Affairs to monitor the stock exchange transactions but none
has documented the whereabouts of these 2750 odd companies suspended
from the stock exchange. Many of the promoters and merchant bankers
who are responsible for these are roaming scot-free. The market
regulators and stock exchanges are unable to penalize them or recover
their funds. The regulators have been able to identify only 229 of
2750 vanishing companies so far.
Corporations also commit a number of crimes against their own
workforce. With increasing globalization workers find themselves being
pushed against the wall and shrinking revenues for redressal. Now days
the debates and rage over corporate scams talks only of the interest
of shareholders. Nowhere is there a mention of the employee who
suffers the most. Take the case of public sector undertakings where
many irregularities can be seen in. Factories were opened in some
areas where the raw material was not available and where the location
was correct, imported machinery was defective. Lavishness on the part
of management was one of the factors, which led to these institutions
becoming sick. No doubt that the labourers suffers the most in such
cases. The plight of Mumbai’s textile workers is even worse. Legal
dues have not been paid to 2 lakhs jobless mill workers. Trade unions
are fighting with the reality of worker suicides and growing
unemployment and the worker’s families are struggling to get over
their misery, leave alone fight for dues from faceless management.
The government across the world have given a free hand to corporations
to exploit the natural and community resources, while depriving the
common people of their right on these resources. For instance, in
India, Corporations at Eloor, Kodaikanal and Gujarat have not only
destroyed the water and land resources in these areas, but also
impoverished communities by degrading their livelihood resources and
health. All these communities suffer from disasters similar to Bhopal.
Inaccessible to clean and safe drinking water was found to be a major
problem in all these areas. The companies either pollute the water
resources to an extent where it is no more portable or over exploit it
till the water table goes down or dry up the wells. A befitting
example could be of Coco Cola bottling plant in Kerala where the
company extract excess amount of water from the ground due to which
the water level has gone very low and the near by villages are
suffering from scarcity of water.
Much has been talked about the pollution created by corporations. A
train ride from Mumbai to Ahmedabad would be sufficient to realize the
seriousness of industrial pollution the companies cause in this Golden
corridor. It is important to note that most of the damages caused to
the environment is irreversible.
Adulteration and contamination of food items also have a prominent
place in the list of corporate crimes. Last year a PIL was filed by a
Delhi based NGO, Srishti, which focused on food safety and quality. It
pointed out the incidence of contamination through out the food chain,
from the production, marketing to the consumption end. The writ said
that consumers are ill aware of the consequences of such contamination
or about remedial measures. According to an ICMR bulletin reports,
residue data on pesticides on samples of fruits, vegetables, cereals,
pulses, grains, oils, eggs, meat, butter and cheese in India indicates
their presence in sizeable amount, this in turn affects the health of
consumers. Various studies conducted have shown that very high level
of extremely toxic pesticides has been found in human blood, fat and
milk samples in India. Last year, to one’s utter surprise, it was
found that many brands of so called ‘pure’ and ‘safe’ bottled drinking
water and also cold drinks contain deadly pesticides beyond acceptable
limits.
Also, have any one noticed that how much the convicted corporations
are involved into dirty game of politics. Corporate Crime Reporter, a
U.S. based legal newsletter published a report in July 2003 titled as
‘Dirty Money: Corporate Criminal Donations to the Two Major Parties.’
This report grew out of the question that how much money are common
criminal corporations dumping into the Republican and Democratic
parties in U.S.?
The report found that 31 corporate criminals gave more than $9 million
to the Democratic and Republican parties during the 2002 election
cycle, which runs from January 1, 2001 to December 31, 2002. These
corporate criminals gave $7.2 million to Republicans and $2.1 million
to Democrats. Many of these corporate criminals are large,
multinational corporations, with billions of dollars in assets.
To get a sense of this, let's look at the top two corporate criminal
donors to the Republican and Democratic parties. Archer Daniels
Midland (ADM) tops the list. ADM pled guilty in 1996 to one of the
largest antitrust crimes ever. The company paid a $100 million
criminal fine -- at the time, the largest criminal antitrust fine
ever. Same is the case in India. These corporate criminals give huge
sums of money to the political parties in return of favours from these
parties. Who suffers the most is the common man including the
shareholders and workers.

Holding Corporations responsible for their criminal acts
In India and internationally, laws to hold corporations accountable
are systematically being dismantled, even as corporations and other
agents of globalisation dictate policies of nations. The corporate
sector enjoys far more rights than the common people. With the onset
of the new trade regime, national laws are being changed to empower
corporations with the right to hire and fire at will, to get the first
right over natural and community resources.
Now it’s high time to put a control over these crimes. There has been
a debate as to whether a Corporation can be held criminally liable.
There are two theories regarding this- ‘Nominalist’ and ‘Realistic’.
Nominalist theory of corporate personality view corporations as
nothing more than collectives of individuals. In this an individual
first commits the offence; the responsibility of that individual is
then imputed to the corporation. According to Realist approach
corporations have an existence, which is to some extent independent of
the existence of its members. Here, the responsibility of corporation
is primarily. The ‘Realist’ theory looks more convincing and
practically applicable.
The argument in favour of corporate being criminally liable is that in
many cases it is the corporation itself, through its policies or
practices, that has done wrong and prosecution and punishment should
be directed at the real wrongdoer. In many cases there is no
individual who, alone, has committed a crime. It is the conjunction of
the practices of several individuals, all acting in compliance with a
company's sloppy or non-existent procedures, that has caused the harm.
Alternatively, in many cases companies have complex structures with
responsibility buried at many different layers within the corporate
hierarchy making it difficult, if not impossible, to determine where
the true fault lies.
The common law jurisdictions have adopted the approach and recognize
that corporations may be held criminally liable. However, they do
highlight the conceptual difficulty in applying a theory of criminal
liability based on a view of fault centered on the psychological
processes of humans to what is simply a fictional person. There is an
apparent need, now, to adapt the notion of fault to the structure and
particular modus operandi of corporations. The existing mechanisms
used to attribute criminal liability to corporations are but a partial
solution, and should be improved.
In so far as negligence as a fault element is concerned, it might be
necessary to provide that criminal negligence refers to a significant
departure from the standard of conduct of a prudent and diligent
corporation. Corporate negligence is established by proof of
negligence of its employees, agents or officers or, if no one
individually is negligent, that the body corporate’s conduct, viewed
as a whole, is negligent. This collective negligence may be
established by proof that the prohibited conduct was substantially
attributable to inadequate management control or supervision, or
failure to provide adequate systems for conveying information within
the body corporate.
The Doctrine of direct Liability (Theory of corporate organs): This
doctrine, which was specifically developed for the purpose of imposing
liability on corporations, seeks, in fact, to imitate the imposition
of criminal liability on human beings. The direct doctrine relies on
the notion of personification of the legal body. It identifies actions
and thought patterns of certain individuals within the corporation
called corporate organs who act within the scope of their authority
and on behalf of the corporate body, as the behaviour of the legal
body itself. Hence, the name of the doctrine: the theory of corporate
organs or the alter ego doctrine referring to these individuals as the
embodiment of the legal body. In its wake corporation can be rendered
criminally liable for the very perpetration of the offences,
resembling the liability imposed on a human perpetrator, subject to
the natural limitations that follow from the character of the
corporations as a legal personality.
But, the procedure to prove corporations criminally liable is, prima
facie, rather complex. If intention, knowledge or recklessness is an
essential ingredient of the offence, these fault elements must be
attributed to the body corporate if it expressly, tacitly or impliedly
authorized or permitted the commission of the offence. First, the
corporation's fault will be established (vicarious liability) if the
body corporate's board of directors intentionally, knowingly or
recklessly carried out the wrongful conduct, or expressly or by
necessary implication authorized or permitted the commission of the
offence. Second, the corporation's fault may be established by
evidence that a high managerial agent of the company intentionally,
knowingly or recklessly engaged in the relevant conduct or expressly,
tacitly or impliedly authorized or permitted the commission of the
offence. In this second case, however, the corporation will not be
liable if it proves that it exercised due diligence to prevent the
conduct. Third, the corporation's fault may be established by proof
that a corporate culture existed within the body corporate that
encouraged, tolerated or led to non- compliance with the relevant
provision. Fourth, the corporation's fault may be established by
proving that it failed to create and maintain a corporate culture that
required compliance with the relevant provision.
The notion of corporate culture as a foundation for corporate criminal
liability
Generally speaking, it can be said that corporate culture refers to a
"pattern of shared beliefs and values that give the members of an
institution meaning and provide them with the rules for behavior in
their organization". This rather broad notion can be used for many
purposes, and is helpful in analyzing a corporation's personality in
many respects. For the purposes of attributing criminal liability,
corporate culture refers primarily to the chain of command, the
decision-making structure and the general atmosphere concerning
obedience to the law. The following indicators are often singled out
as pointing to facets of corporate culture that are relevant in the
context of criminal liability.
First, the development within the corporation of clearly defined
responsibilities concerning the creation, evaluation and application
of standards and procedures designed to ensure compliance with the law
by employees would be a significant indicator of a corporate culture
that is heedful of compliance with the law. If, for example, the
corporate structure is so organized as to deprive senior managers of
the information they need to exercise such powers, this would indicate
a corporate culture that is designed to elude law enforcement.
Generally, deficient structures for the dissemination of information
within the firm would also be suspect. Indeed, providing that a
deficient corporate culture can be the basis for a charge of
intentionally committing a crime transforms into an intention what in
my opinion is simply negligence but it must be proved that the
corporate culture instigated, encouraged or led to the commission of
the offence or that the failure to maintain a law-abiding atmosphere
was deliberate.
Corporate Mens Rea Doctrine
It is often asserted that companies themselves cannot commit crimes;
they cannot think or have intentions. Only the people within a company
can commit a crime (Sullivan 1995). However, once one accepts that the
entire notion of corporate personality is a fiction - but a well-
established and highly useful one - there seems no reason why the law
should not develop a concomitant corporate mens rea fiction. Most of
the other doctrines - identification, aggregation etc. - involve
fictitious imputations of responsibility. The real question is not
whether the notion of a corporate mens rea involves a fiction, but
whether, of all the fictions, it is the one that most closely
approximates modern-day corporate reality and perceptions. While this
inevitably will raise problems of how to assess policies and
procedures to ascertain whether they reflect the requisite
culpability, such a task is not impossible. The answers might not be
easy, but at least this approach involves asking the right questions.
It is often argued in opposition to corporate criminal liability that
the imposition of fines provides no guarantee that delinquent conduct
will be deterred. The fines imposed on corporations are often minimal
in comparison with the devastating effects of their wrongful acts, and
virtually amount to a cost of doing business. But there is also a
concern that excessive fines can have perverse effects that may have
to be borne by innocent shareholders, creditors, employees or
consumers.
But, it should be remembered that the punishment of companies
decreases their overall wealth. Accordingly, shareholders and
employees have an incentive to encourage and monitor better corporate
practices. Costs can only be passed on the public to the extent that
the company remains competitive. Arguments that shareholders and
employees need protection must be outweighed by the greater societal
interest in ensuring the safety of employees, the public and the
environment.
Conclusion
In my opinion, there should be a distinct part of the Indian Penal
Code expressly covering corporations. Criminal sanctions, in my view,
are appropriate only if it is in fact the organization, its modes of
operation and its deficient structures that are singled out where they
produce unacceptable consequences that could have been avoided given
the resources and information at the corporation's disposal.
One of the main objects of corporate criminal liability is to ensure
that companies improve their work practices. If no individual who has
committed a crime can be identified and no mechanism for corporate
prosecution was to exist, the harmful practices would continue
unabated. Companies should be prosecuted and convicted for the same
general offences as individuals and subject to the same general rules
for the construction of criminal liability. The law should recognise
and give effect to the widely held public perceptions that companies
have an existence of their own and can commit crimes as entities
distinct from the personnel comprising the company. Prosecution of
companies, particularly when accompanied by media attention, can
provide a significant impetus to companies to improve their practices
or can prompt law reform to improve safety standards.

Uranium Corporation of India Limited: Wasting Away Tribal Lands
by Moushumi Basu, Special to CorpWatch
October 7th, 2009

Creative Commons Licensed: Adapted by Ionia Kershaw for Truthout.org
(via Flickr)

"I have had three miscarriages and lost five children within a week of
their births," says Hira Hansda, a miner's wife. "Even after 20 years
of marriage we have no children today." Now in her late forties, she
sits outside her mud hut in Jadugoda Township, site of one of the
oldest uranium mines in India.

The Uranium Corporation of India Limited (UCIL) operates that mine,
part of a cluster of four underground and one open cast mines and two
processing plants, in East Singbhum district in the Eastern Indian
state of Jharkhand. The deepest plunges almost one kilometer into the
earth.

Incorporated as a public sector enterprise under the Department of
Atomic Energy (DAE) in 1967, UCIL has sole responsibility for mining
and processing all of India's uranium. And since the strength of the
Jadugoda region's uraninite ore is extremely low, it takes many tons
of earth as well as complex metallurgical processes to yield even a
small amount of useable uranium oreâ€"along with tons of radioactive
waste, disposed of in unlined tailing dams.

UCIL processes the ore into yellowcake and sends it to the Nuclear
Fuel Complex in Hyderabad, where it is officially designated for use
in nuclear reactors. But it is an open secret that some of the nuclear
material becomes the key ingredient in India's nuclear arsenal. (India
is one of only three statesâ€"along with Israel and Pakistanâ€"that
are not signatories to the Treaty on the Non-Proliferation of Nuclear
Weapons. North Korea withdrew from the Treaty in 2003.)

Unhealthy Villages

Radiation and health experts across the world charge that toxic
materials and radioactivity released by the mining and processing
operations are causing widespread infertility, birth defects and
cancers. A 2008 health survey by the Indian chapter of International
Physicians for Prevention of Nuclear War (IPPNW), found that "primary
sterility was found to be more common in the people residing near
uranium mining operations area."

Jadugoda residents Kaderam Tudu and his wife, Munia, considered
themselves fortunate when their infant was born alive, until, "I found
that my baby son did not have his right ear and instead in its place
was a blob of flesh," says Tudu, a day worker in his late thirties.
Their son, Shyam Tudu, now eight, has a severe hearing impairment.

Even children who appear healthy are impacted. "The youths from our
villages have become victims of social ostracism," says Parvati
Manjhi, and cannot find spouses. "And a number of our girls have been
abandoned by their husbands, when they failed to give birth," Now
middle-aged, Parvati and her husband, Dhuwa Manjhi, who used to work
for UCIL, are childless.

Harrowing tales fill the region around the mines, and add irony to the
area's name, Jharkhand, which in the local tribal language means
"forest endowed with nature's bounties." If the lush land was the
indigenous population's boon for centuries, its rich mineral reserves
have become their bane. Six decades of industrialization has depleted
the forest cover, degraded the environment, displaced tribal peoplesâ
€"who along with Dalit ("untouchables") form an oppressed underclassâ
€"and devastated a way of life deeply interwoven with nature.

Despite India's economic boom and proximity to one of the country's
richest mineral reserves, the villages in Jharkhand are now among the
poorest in the country, according to the Center For Science &
Environment's (New Delhi) 2008 report "Rich Lands Poor People."

Uranium Corporation of India Limited in Jharkhand

UCIL's underground mines in Jadugoda, Bhatin, Turamdhih, Narwapahar,
and its open cast mine at Banduhurang extract 1,000 tons per day (TPD)
of uranium ore. Two underground mines in the pipeline at Baghjata and
Mahuldih will boost that amount. The ore is processed at the Jadugoda
and Turamdih mills with a combined capacity of 5,000 TDP.  The company
earned $64 million in 2007-08, and made a $3 million profit.

The 20-year lease for UCIL's mines was up in 2007, and a new
application is being processed. Under it, the company wants to add
6.37 hectares to tailing dam capacity and expand production, according
to UCIL Chairman and Managing Director Ramendra Gupta. This move
requires an Environmental Impact Assessment (EIA) and Environmental
Management Plan (EMP) drawn up by the Central Institute of Mining &
Fuel Research (CIMFR), along with a public hearing.

Addressing the affected community at the May public hearing in
Jadugoda, the company represented the local plans as "a marginal
expansion." But the UCIL website promises "a quantum leap in UCIL's
activities" that includes plans to "deepen the existing mines, expand
its processing facilities," and "not only opening new mines, but also
the development of the community around its operations."

While the company has created local schools and provides jobs and
social services, villagers who attended the hearing argued that these
provisions do not compensate for the health effects and destruction of
their way of life.

"Why are we being made to pay such a heavy price, for so many
decades"? Asks Hira Hansda, speaking of her three miscarriages and
birth to five infants that quickly died. Her husband Sonaram worked at
the tailing dam as a casual employee between 1984-87, and like many
villagers, he links the deterioration in local health conditions to
the arrival of the uranium mines. The last three surveys conducted in
the area found increased radiation levels.

Heavy Security at UCIL's Public Hearing Keeps Villagers Out

The public hearing on UCIL's new application took place at the heavily
fortified camp of the Central India Security Force (CISF) within the
UCIL colony at Jadugoda. Conducted by the Jharkhand State Pollution
Control Board, the proceedings were marked by restrictions on personal
liberties under sections of a law applying to situations with the
potential to cause civil unrest.

Leaving little room for the public or protesters, the hall was packed
with hundreds of UCIL workers and other company beneficiaries who held
placards reading: "When compared to hunger, pollution is a small
issue," and "Save UCIL."

Those who had lost their lands and health to the mines were physically
barred from the tent. Outside the proceedings, protesters shouted: "Do
not destroy our land," "No uranium, no uranium waste, no weapons, care
for the future." Many indigenous villagers waved the banner of the
Jharkhandi Organization Against Radiation (JOAR), winner of the
Germany-based Nuclear Free Future Award for its long crusade against
the hazards of uranium mining in Jadugoda. The protesters denounced
the hearing as "a farce" and demanded that it be immediately stopped.

Villager and JOAR president, Ghanashyam Biruli, issued the demands:
no new uranium mines, bring the existing mine under international
safety guidelines, return unused tribal land, provide livelihood and
rehabilitation to displaced people, clean up the contamination,
commission an independent study of environmental contamination and
health effects, and monitor water bodies to ensure that the
radionuclides do not seep into the aquifer that is the lifeline of
more than 100,000 people. The activists also argued that since the
country can buy uranium on the international market, there is no
compelling need to expand UCIL's capacity.

The real compelling need, they asserted, was protecting health and the
environment. The 2008 health survey by the Indian chapter of
International Physicians for Prevention of Nuclear War (IPPNW)
provided clear evidence, finding that:

* Couples living near the mines were "1.58 times more vulnerable to
primary sterility" with 9.6 percent of couples in study villages
unable to conceive after three years of marriage, compared with 6.27
percent in a reference (control) group.

* Birth defects followed a similar pattern with 1.84 times higher
incidence: "[B]abies from mothers, who lived near uranium mining
operation area, suffered a significant increase in congenital
deformities," according to the report. While 4.49 percent of mothers
living in the study villages reported bearing children with congenital
deformities, only 2.49 percent of mothers in reference villages fell
under this category." The national rate for people with disabilities
(including congenital deformities) is 3 percent, according to official
government statistics.

* Deformed babies near the mining operations are almost 6 times more
likely to die, with 9.25 percent mothers in the study villages
reporting congenital deformities as the cause of death of their
children. In the reference village, mothers reported 1.70 percent of
babies died of deformities.

* Cancer deaths were also higher: 2.87 percent of households in study
villages attributed the cause of death to be cancer, compared to 1.89
percent in the reference village.

These factors contributed to a lowered life expectancy. In the study
villages 68.33 percent of the population died before reaching the
state's average life expectancy: 62 years old.

UCIL Denies Contamination

Despite such alarming reports, radiation data are not made public
because they fall under the purview of the Atomic Energy Act of 1962.
UCIL / DAE (Department of Atomic Energy) also cites security concerns
for refusing to release data on health of the workers. But Buddha
Weeps in Jadugoda, a 1999 award-winning film by Shri Prakash
documented that, despite a law mandating regular monitoring, in the
last five- to ten-year period few workers underwent blood and urine
tests to assess the impact of radiation.

Independent scientists have confirmed the danger. Professor Hiroaki
Koide, from the Research Reactor Institute, Kyoto University, Japan,
sampled soil and air in the surrounding villages and documented that
"The circumference of tailing ponds is impacted with uranium
radiation. The strength of the radiation is of 10 to 100 times high in
comparison to places without contamination. ...There are places where
uranium concentration is high in the road or the riverside, and it is
thought that tailings are used for construction material," including
on villagers' houses." Tailings are production waste material that,
according to critics are unsafely stored, dumped, and used for
landfills, roads and construction.

UCIL Technical Director D Acharya denied that the company was
responsible for radiological contamination. "UCIL's safety and
pollution control measures are at par with the international
standards, comparable at any point of time," he said. The company is
dealing with naturally occurring materials, he noted, the very low
grade ore extracted is a minimal environmental hazard, and the company
is not enriching the ore in Jadugoda.

But tacitly acknowledging the risks, UCIL head, Gupta, noted in the
2008 Annual Report that "External gamma radiation, Radon
concentration, suspended particulate matters, airborne long lived
Alpha activity and concentration of radio nuclides- uranium and Radium
in surface and ground water, in soil and food items etc are monitored
regularly."

Although he presented no evidence, UCIL Technical Director Acharya
said that allegations of health problems are canards spread by anti-
uranium lobbies, and that the physical fitness of the employees can be
gauged the UCIL football team's success in winning the DAE tournaments
for the past five years.

"From time to time we have also conducted structured health surveys
and examinations, by independent sources," said Acharya. "One was done
by the erstwhile Bihar Assembly, about ten years ago, but the findings
are absolutely normal." (The area was part of Bihar at the time.) "The
effects of radiation are being constantly monitored by independent
watchdogs, and there are health physics experts who are always with
us, for round-the clock-vigil of the situation. Hence, there is really
no cause of concern," he added.

That is not the experience of many villagers, who link serious health
problems to the mines. Like many of the women in the surrounding
areas, Hansda's pregnancies were a time of terror. "It fills within us
fear and apprehensions of the possible ordeal that may be in store.
Who knows what would be the fate of the baby," she said.

edited , printed , published & owned by NAGARAJ.M.R. @ : LIG-2 / 761 ,
HUDCO FIRST STAGE , OPP WATER WORKS OFFICE ,
LAKSHMIKANTANAGAR ,HEBBAL , MYSORE -570017 INDIA cell :09341820313
home page: http://groups.google.co.in/group/e-clarion-of-dalit/ ,
http://e-clarionofdalit.blogspot.com/ ,
http://in.groups.yahoo.com/group/e-clarionofdalit/ ,
e-mail : nagaraj...@hotmail.com      ,  nag...@yahoo.com