Despatches from the Supreme Court – Day 3

Blog from Shalini Sharma, Phd Candidate at SOAS who is currently on fieldwork in India studying the media experience and strategies of Bhopal Movement.

20-04-2011, DAY 3

The Court room was completely packed. Today there were many more law students present. In neat black and white uniforms their eagerness to merge as one among the many lawyers in black robes is quite visible. Their faces reveal their struggle to grasp the vocabulary of law. I identify with them. The court room proceedings are always in English. However, the exchange is mostly limited to the Lawyers representing the different parties and the Court and is often inaudible to people attending from the gallery. When I shared this with a journalist standing next to me he replied with a grin, ‘remember that we are present here but we do not exist’.

Mr. Salve, the Counsel of the accused, started his arguments challenging the maintainability of the curative petition filed by the government of India. He pointed out that the precedent on curative petition in Hurra Vs Hurra makes it very clear that for a curative petition to survive it had to be directed at a decision of the Supreme Court that had led to “irremediable injustice.” That is to say the only way left to correct the wrong done is by means of a Curative. And this is not the situation in this case, he argued.

He pointed out that while the 1996 judgment of the Supreme Court suggested that charges against the accused corporation and the officials should be revised it did not forbid the lower court from using the Criminal Procedure Code (CrPC) for pressing higher charges. He said that the Chief Judicial Magistrate (CJM) of Bhopal was free to commit the case to a sessions court for enhancement of charges. However, it will not be proper to have the sessions court going through the evidence present before the CJM to decide on the altering of charges now, he said.

Mr. Salve said, both CBI and Government of MP had filed revision petitions for revision of charges and were thus not entitled to file curatives in this court. This is because one cannot seek same relief from two different courts. By filing the revision the government has very clearly illustrated that the injustice due to 1996 order of the Supreme Court is remediable, he said. He strongly argued for dismissing the Curative Petition stating that the grounds required for standing a Curative do not exist in this case as all remedies to secure justice are yet not exhausted.

He apprehended that if the order of 1996 is set aside then the only course left will be- a fresh committal of the case and a retrial. Defending his client, he said that the UCIL and its officials should not be charged even under Section 304 Part A because they had nothing to do with design and running of the factory as it was under the control of its American parent Company. He said that his client, Keshub Mahindra was only a non executive chairman of the Indian company and had no control over the decisions made. He said that the Bhopal factory was not only designed and made by the Americans but also run by them and so while Americans had all the knowledge about the technology his client had none.

The court asked him whether or not the officials had received information or carried out any inquiry on the death of one of their workers Ashraf Mohammed in December 1981. Mr. Salve said that the report of Ashraf Mohammed’s death went directly to the Americans. At this point one of the judges remarked that this sounds as if Indians were puppets at the hands of Americans. The Chief Justice asked whether the board of Union Carbide India Limited had carried out any inquiry into the accident in which Ashraf Mohammed died. Mr Salve said that the board must have carried out an inquiry and pointed out that the Ashraf Mohammed was exposed to Phosgene and not MIC and it was like any other accident that might occur because workers go lax on safety rules. He stressed that there had never been a MIC leak prior to the 1984 disaster.

Mr. Salve continued to say that Dr. Vardharjaan the Government scientist on the causes of the disaster has stated in his report that some of the units of the plant were required to be made of stainless steel, that some of the valves should have been different, but how will my client know of this. The court inquired whether prior to the disaster there was a plan to dismantle the plant and sell it off. Mr. Salve said that there was some correspondence between the Hong Kong office (Union Carbide Eastern) and the local management but it was very preliminary and not a subject that was under serious consideration.

He said that the Criminal Procedure Code under Section 323 states that after enquiry CJM is fully authorized to commit all pre trial material to the sessions court with a suggestion that the case had to be tried under grave offences. It could have happened routinely without the government having to wait for a NDTV run campaign to start second thinking on criminal charges against the accused. The Court said that usually the Supreme Court does not alter the charges framed by lower courts. Usually the Supreme Court just quashes the charges and sends it back. Then the Court asked Salve whether there were other instances where the Supreme Court had altered charges framed by lower courts. Mr Salve said he would try and find such judgments but he held that the Bhopal Magistrate was legally free to ignore the Supreme Court judgment of 1996. Courts also asked Mr Salve to cite instances where on the basis of materials on records the lower court has decided on its own, notwithstanding what the Supreme Court has said. One of the judges shared his reservations and that the possibility of him finding such instances is very bleak. He also said that he had been a High Court judge and he could not have thought of going against Supreme Court order then.

Mr. Salve then rhetorically asked the court whether it would have entertained a curative petition filed by the accused 15 years after the Supreme Court decision. He said that if a retrial was ordered by the court it would deny justice to the accused because they may not be able to present defense witnesses and will be violating the Article 21 that protects accused’s Right to Life. He argued that the principal of “in debito justitiae” i.e justice as a matter of right followed in the curative petition applied to the accused as well. He said that the accused cannot be denied their legal right to cross examine the prosecution witnesses because now there is a higher charge against them. He said that this would be a violation of the accused’s right to justice.

He said that supposing on the basis of a revision petition the Supreme Court acquits someone, a curative petition cannot be allowed to reverse the acquittal. If there is a faulty judgment and it needs correction in the opinion of this court then that correction would be incorporated on a judgment on a similar matter, but on a different case. Mr. Salve argued that while the grounds of review could be the grounds of a Curative the reverse isn’t true. At which point, one of the judges pointed out that if this is the situation then there can never be a successful case for Curative.

Mr Salve stressed that the message that needs to go out is that we have a law and that law doesn’t bend for anyone. The process of trial would remain the same whether there is one death or 5,000. At which point the Court asked him what message will go out if we do not respond appropriately to 5,000 deaths. Mr Salve maintained that Curative is not the solution if it is the enormity of the incidence that is causing dissatisfaction. The matter is to be decided on the basis of Law and not mere facts. He stressed that we should not allow a media trial here.

Differentiating “mistakes” from “errors” he said that there can be an error in the judgment because of different reasons which lead to misapplication of law but such errors could not be corrected by the curative petition. The scope of the curative petition as laid down by Hurra Vs Hurra is limited to correcting “actus curae” i.e mistakes of the court whereby the process of the Court led to injustice. By this he referred to instances when some parties are not served notices or where a likelihood of bias/conflict of interest of judge presiding over the case is apprehended. None of these are demonstrated in this case; he said and called for the dismissal of the curative petition so that rule of law could prevail.

With this the daylong hearing came to an end. Today only Mr. Salve presented his case in defense of the Respondent No. 1 Mr. Keshub Mahindra. There are six more accused. It is expected that they will be heard in turns; however, broadly the position is same for all- Dismiss the Curative Petition and protect the rights of the accused. The matter will be now heard next week on Tuesday, 26th April.

I leave the Court with mixed feelings, weighing the right of the accused vs those of the victims. On an impulse I turn back to look at the building which apparently is shaped to project the images of scales of justice.

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