Dispatches from the Supreme Court – Day 1

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

13-04-2011, DAY 1
The morning started in the characterstic Bhopali style with unpredictable chaos. While Sathyu had to rush back home to get his identity proof, a mandatory requirement to enter the Supreme Court of India, Tim and I were left standing outside the chief court due to some goof up in the passes allotted to us at the Supreme Court’s reception office. Suresh and Santosh, support staff of Karuna- the young feisty lawyer representing the 5 survivors organisations, helped us in navigating the formalities that required us to fill a form, attach it with another form signed by an advocate on record and a photo id proof and then safeguard our bags, mobile phones, laptops outside the court. This is how we spent a good part of the morning session that started around 10:20 am before finally succeeding in making our way in.

I joined Abdul Jabbar of Bhopal Gas Peedit Mahila Udyog Sangathan (BGPMUS) and Jayprakash of Bhopal Gas Peedit Sangharsh Sahyog Samiti (BGPSSS) in the Public gallery. Soon Sathyu joined us. Stacks of Supreme Court reports arranged in an almost fence like fashion separated the public from the legal courtyard. The highest space was reserved for the five panel bench, the one immediately after came the senior counsels from prosecution and defendant side, followed by rows of lawyers, and then came the public gallery on both the left and the right that were packed with representatives of the victims, legal practitioners, law students, journalists and civil society representatives.

The matter is to be heard in the Chief Justice Court by a Constitutional bench which looks at issues of Constitutional importance. This one is supposedly one of the best benches comprising of- Chief Justice of India S.H. Kapadia, Justice Altamas Kabir, Justice R.V. Raveendran, Justice B. Sudershan Reddy and Justice Altaf Alam.

Senior Advocate Harish Salve, former advisor to the Prime Minister, and Senior Advocate Ram Jethmalani, recently in news for his offer to represent Binayak Sen in the court, represented the accused. Additional Solicitor General Advocate Indra Jaisingh represented the Union of India and Attorney General Ghulam Vahanavati is representing CBI. Adv Sanjay Parikh represented BGPMUS and BGPSSS. Senior Adv. U.U Lalit represented BGIA. Senior Advocates of both petitioner and defendant sides are supported by their younger colleagues referred to as Juniors in common language.

As we entered the Court, braving our way in through rows of people, we rapidly caught a fast exchange between the lawyers of the defendant, that of victims and the bench. Apparently, Mr. Salve had raised some objections with regards to impleadments being heard at this stage. However, the Court asserted that it will hear everyone as this is a unique case and everyone has the right to voice their grievances. This allowed impleadment by BGIA and others to be included. This means that the court has allowed BGIA to serve notice on various respondents. By serving notice, we mean that we can now send our applications to various parties to the case and expect them to take them into account and respond to them.

However, right at the start, the bench asked CBI for an explanation for the undue delay in filing the review petition. In response, Vahanavati argued that someone else had filed a petition challenging the 1996 order of the two-member SC bench diluting charges against the Indian accused. But, he said, that appeal was rejected. He admitted that the Union had made a mistake, and that the mistake could not be grounds for denying justice to the victims of the disaster. He admitted that CBI like any other agency is fallible. However in the wake of the public outrage over the 7th June Verdict, the CBI said it had looked more carefully into the matter and conducted some fresh investigations. Mr. Vahanvati mentioned how all the safety measures were compromised by UCIL at the directions of UCC-US. These compromises included not only the design of the plant but also running and maintenance of the same. This was done with the knowledge of the likely danger this act poses to the lives of the people. Referring to Salman Khan’s case of 2002, where the popular Indian actor was charged for killing a person by reckless driving in a drunken state, Mr. Vahanvati argued for reinstating the original charges as filed by CBI against the accused to 304-II of Indian Penal Code i.e Culpable Homicide not amounting to murder. These charges were diluted by Justice Ahmadi in a controversial judgement of 1996 to Section 304 (A) – or rash and negligent act. It was on the basis of this lowered charge that the maximum sentence of two years of imprisonment was awarded to the 7 accused on 7th June 2010 by the Chief Judicial Magistrate of Bhopal. Out of a total of eight accused individuals, one had died during the intervening years in which the matter was in being heard in the Court.

This September 13, 1996 judgement given by the Supreme Court of India is one of the key concerns before the Constitutional bench hearing the Curative petition currently. From the remarks and questions raised by the Judges it seemed that the main questions before the Court are:

A)Will they be undermining the earlier judgement by setting it aside?

B)What is the right course to ensure complete justice- Allowing this Curative Petition that is before them or dismissing it? Or should they go for a retrial?

C)If they go by the first then does this Curative Petition meet the required grounds? What will be its scope and parameters?

D)If they go by the second option i.e a retrial it would mean bringing back all the witnesses. Many of them might not be alive. Besides this would mean going through the entire process again which will result in a significant time passed before a judgement is reached. What will this mean for the victims?

E)After the 7th June Verdict, the accused filed an appeal while Union of India filed a revision petition in the High Court. In what way should the Court respond so that its decision is not undermining the powers of a lower court or violating the due process of Law?

Mr. Vahanvati in his argument made a case of reinstating the original charges as filed by CBI citing the gross miscarriage of justice. He argued that not only did UCC officials have prior knowledge of the possibility of an incident like MIC Gas leak; they deliberately decided to ignore the consequences of not acting upon this knowledge. Listing the safety measures that were either compromised or not put to use for cost cutting, the management’s failure in sharing information with the community on the highly toxic nature of MIC and possible preventive measures, and various observations as made by Varadrajan Committee, Mr. Vahanvati made a case that a cumulative series of things were done or left undone that amounted to illegal omission and made the event inevitable. When the Court asked if the accused had prior knowledge to these decisions Mr Vahanvati said that Mr. Mahindra was the Director of the Board of the Company and in that capacity he presided over all board meetings and received all reports including the safety audits. He referred to Hurra vs Hurra judgement by Supreme Court which laid grounds of Curative Petition in instances where injustice is irremediable. That is, there is no other way to correct a gross miscarriage of justice but through Curative petition.

Arguing that victims cannot be denied justice on account of procedural delay, Mr. Vahanvati urged the Court to hear the matter in the light of the highest tests that the Supreme Court is expected to apply here – judicial conscience and the desire to do complete justice. That is to say, the Court will apply its conscience particularly where it can be seen that the legal code, or some portion of it, is morally indefensible or unjust. That, he said, is not only important in this case but also to send out the right message when more and more industries are being set up in India and a likelihood that similar incidents can happen.

Expressing his disagreement with the Union of India, Mr. Salve asked the Court to dismiss the Curative Petition questioning its maintainability especially when an appeal and a revision petition are lying before a lower Court. He subtly referred to the discussion he had had with Mr. Vahanvati, outside the Court, and suggested a face saving offer to the Court. He said that since a revision petition, filed belatedly by the Centre against the dilution of charges, is pending in a Madhya Pradesh trial court the Apex court could issue a clarification saying the lower court would deal with the petition without being in any way “influenced” by the 1996 judgment. This will mean that the Top court will not have to hear the Curative Petition to review its 1996 order. At this point, Avi Singh, lawyer of the Bhopal victims stood up to object to this offer made by Mr. Salve. He said that no offer could be suggested to the Court that essentially precludes other parties especially the victims to whom the Curative Petition gives an opportunity to seek justice from the Supreme Court. An order cannot be passed on an exchange of notes between counsels, he said. This angered both Salve and Vahanvati. He also urged the Court to record all such submissions that are being made in the course of the hearing. Mr. Salve and Mr. Vahanvati interpreted Mr. Avi’s objection as “backroom deals” between the accused and the Union and raised strong objections. However, The Court dismissed them upholding victims’ right to raise their grievances through their Lawyer and assured all parties that a fair hearing will be given to all.

Thus came an end to the first day of the hearing and if it is anything to go by one can expect some fiery arguments and heated discussions in the Court in the future. As we moved out of the Court, I tagged behind Bhopal activists – Sathyu, Abdul Jabbar and Jayprakash who quickly exchanged notes and information. It seemed like I was waking up from a coma to remember some facts about Bhopal that are left forgotten and some that are deliberately played out.

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