CORPORATE CRIMES IN INDIA

S.O.S - e - Clarion Of Dalit - Weekly Newspaper On Web

Working For The Rights & Survival Of The Oppressed

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-judges ,

POLICE NOT REGISTERING COMPLAINT

http://sites.google.com/site/sosevoiceforjustice/police-not-registering-complaint-1 ,

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.

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