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Dispatches from the Supreme Court – Day 2

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

19-04-2011, DAY 2

Having reached the Supreme Court in time and securing a place in the public gallery I finally got some time to take in the general ambience of the Court. I learnt that the building is shaped to project the images of scales of justice. With three wings- East, west and the Centre- the Supreme Court building stands tall with a 27.6 metre high dome. Centre is where the Chief Justice’s Court is, it is the largest of the Courts and this is where the Bhopal Criminal Curative Petition is currently being heard before a Constitutional bench.

Everyone stands as the judges enter the Court. Before taking their seats Judges bow to the people in the Court who bow in return. No one sits before the judges do so. The bench opens the hearing by asking the attorney general G.E. Vahanvati to continue his argument from the first day.

He argues on the maintainability of the curative petition against the 1996 order of Supreme Court given by Chief Justice A.M. Ahmadi and S.B. Majumdar. Reasserting the point he made during the first hearing, he pointed out that because the charges were diluted by the 1996 order the Indian subsidiary and officials of Union Carbide were convicted under milder sentences (304 A of IPC) than they should have and that the crime was actually deliberate negligence leading to death (304 Part II of IPC).

The attorney general read out the order given by Supreme Court in the case of Hurra vs Hurra on 10 April 2002. Through this judgement Supreme Court evolved the concept of Curative Petition. He said that this order allowed review petitions that would cure “irremediable injustice” in the “rarest of rare case” where the principal of “natural justice” had been violated and the conflict of interest of judges who passed the order had not been revealed. He also said that the powers of the Court are not limited by Hurra vs Hurra and it can invoke its inherent powers to do complete justice.

The attorney general argued for expansion of scope of curative petitions and said that given the large number of deaths and injuries in Bhopal it was a rarest of rare case and the victims have been denied justice because of the September 1996 order. He then presented other orders of Supreme Court where petitions similar to the nature of curative petitions had been filed and judgements have been passed on them. He also stated that the accused were very much aware that conditions of disaster existed. He referred to the report given by Dr. Vardharajan Committee who identified following five factors as leading to the disaster:
1 high reactivity of MIC,
2 too large storage tanks,
3. choice of substandard materials of construction,
4 inadequate system of monitoring and control and
5 lack of proper instruments.

Justice Aftab Alam asked what exactly makes the Bhopal case different to be considered as ‘rarest of rare’ cases. To this Mr. Vahanvati replied that over 5000 people have lost their lives and this was because of cumulative acts of commission and omission i.e things done and those left undone. He questioned that when the company knew that MIC was so toxic why didn’t it ensure safety. He said it is these decisions of the Company and its officials that made the disaster inevitable.

He also pointed that the 1996 order did not pass the test of criminal jurisprudence because the punishment, of two years that was finally pronounced on the accused, did not fit the crime.

Chief Justice Kapadia asked attorney general: Are you saying that the court set aside the order of 13 Sep 1996 and the charge of 304 Part II against the accused is restored. To this the attorney general said that all they are asking the Court is to remove the obstacle of 13 September 1996 which restricts the conviction to a lesser charge and let law take its course. He also said that the judgment of September 1996 was inconsistent and it left no option to the Chief Judicial Magistrate but to restrict himself to sentencing under the charge of death by negligence.

Mr Vivek Tankha appeared on behalf of Madhya Pradesh government. He said that the state government has had very little role to play. It seemed that the Court asked Mr. Tankha to limit his argument to legal issues as it was not going to pronounce anything on the merits of the case. Mr. Tankha argued that the work of criminal investigation was handled by the CBI. He also said that according to the state government at least 15000 people have died and not 5000. The permission of production of MIC that began on 5-Feb-1980 was given by Ministry of Chemicals and Fertilizers which is a central ministry. He said that several hundred thousand people have been permanently injured because of defects on all counts- design, structural and operational defects in the factory. He said that there were gas leaks even before 1984 and the disaster of December 84 was not a surprise for the management. Much before the 1984 leak, a worker Mohammed Ashraf Khan died succumbing to phosgene leak on 24-Dec-1981, he said. One of the Judges then asked the Counsel of MP State to restrict the case to only the most important facts and not indulge into every detail especially the ones that have already been put before the Court. Mr. Tanka responded by saying that judicious conscious- one of the highest test that Supreme Court seeks to apply to itself in order to do complete justice- gets affected by certain facts which in turn impacts the life of thousands. Not only evidences on record show that the Carbide officials had knowledge regarding the highly toxic nature of MIC and appropriate safety measures but also the fact that they chose not to apply this knowledge to ensure proper running of the plant. This in fact created a situation where the catastrophe was inevitable.

At this point the attorney for the accused, Mr Harish Salve, pointed out that the government nominees to the board of UCIL were never charged. Mr Tankha further stated that the 1996 order converted the disaster into an accident as if it came like a surprise to the management while the fact is that the management had prior knowledge of the likelihood of the disaster.

Mr. Tankha mentioned that the government of Madhya Pradesh had filed a revision petition before the session court in Bhopal for enhancement of charges from 304 A to 304 Part II and a appeal is pending in the High Court of Madhya Pradesh for enhancement of sentences. He said that in the event the court decides that a retrial, under graver charges, was necessary the government of MP will set up a special court with a special judge that will conduct the case on day to day basis and a decision could be reached without delay in a certain specified time period. To ensure this the State will fully cooperate with the CBI.

The lawyer for BGPSS and BGPMUS, Sanjay Parikh began arguments on the locus standi of the organizations in order to explain their right to intervene as petitioners along with the CBI and Union of India. He pointed out that the review petition against September 1996 order was not filed by the CBI but by the BGPSS, BGIA & BGPMUS. Just then lunch break was announced. It was abrupt but nevertheless a happy development.

The canteen at Supreme Court offers quite subsidized food which made me remember the food in the canteen of the Indian Parliament that Rachna and I would often have in July last year while Bhopalis were camping at Jantar Mantar opposing the 7th June verdict and two of us will make rounds of the Parliament to meet the MPs. An year later, we are in the Supreme Court comparing cost of a thali (plate full of meal) with that of one we had in the Parliament.

Some things appear almost predetermined for Bhopalis and among them the main one is that it is almost always in peak summers when Delhi is facing scorching heat that they are required to camp in close to one of the power corridors of the Capital to seek justice. This time is no different. I feel the hope, despair, struggle and determination visible on the faces of all the Bhopal activists present in the Court with an equally strange sense of trepidation. The others present in the Court, people like me, who have come to attend the hearing to either know more about the case or to witness a courtroom proceeding; to see how arguments are made in the court are often seen struggling to keep pace with the language of the law in order to understand the situation. It is in these shared moments of struggle that solidarity emerges. By now I know couple of journalists who are there to report on the case, young lawyers who come to the Court where nuances of CrPC are being debated in fine details, and the Law students for whom it is a glimpse into their future professional lives. We share notes in case any of us missed anything. We also share smiles and disappointment at the arguments made by different parties.

I said lunch came through as an abrupt development because so far the Court had only heard the petitioner and the interjections made by the defendant side. At that moment it seemed too much of a coincidence that lunch break came through just when a lawyer representing the victims stood up to make his case. Anyways, Mr Parikh picked up from where he had left and pointed out that the storage of MIC in large quantities was one of the main causes of the disaster and that all the accused had complete knowledge of this fact. He talked about the slack safety conditions and that it was made even more unsafe by shutting down the refrigeration unit. He asked for conviction of the accused under Section 304 Part II i.e culpable homicide and also called for day to day trials at a special court to add certainty to the delivery of justice within a given time period. He said that all fresh evidence required for the retrial can be presented by CBI and trial can be completed in six months.

The senior advocate Mr. U.U. Lalit who is representing five organisations- Bhopal Group for Information & Action (BGIA), Bhopal Gas Peedit Mahila Stationery Karmchari Sangh (BGPMSKS), Bhopal Gas Peedit Nirashrit Pension Bhogi Sangarsh Morcha (BGPNPSM), Bhopal Gas Peedit Mahila Pursh Sangharsh Morcha (BGPMPSM), Children Against Dow-Carbide (CADC) came next. He stated that applicant BGIA was also part of the review petition filed against the order dated Sep 1996 and has been assisting the prosecution for last 17 years. It is therefore essential that the case by them is also heard.

Mr. Lalit said that the order of 1996 made it an inevitable consequence that all accused were convicted under a lesser charge. He said that in the case of the accused corporation and officials had knowledge of imminently dangerous nature of the plant and the probability of causing death. Accordingly they needed to be held guilty of murder. He read out Section 300 of IPC that maintains that culpable homicide is murder when the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. He argued that It is in the interest of justice that the 1996 order should be set aside and the lower courts should be asked to apply their minds and decide whether the charges should be 304 Part II or 302 (murder). He also pointed out to the Court that while the 1996 order diluted the charge, to 304 Part A, the evidence brought before the CJM pointed towards graver offence. He also said that in the trial court judgment of 7th June 2010, the CJM expresses his anguish at the restriction imposed by 1996 order which charged the accused under Section 304 A. The Bhopal CJM felt his hands were tied. Justice Kapadia asked Advocate Lalit if there was the remedy that could be offered within the jurisdiction of the curative. He responded that it will take him a day to research and get back to the constitutional bench.

Most of us were surprised when Mr. Lalit made his argument. It was quite a different turn of events. While so far the debate was restricted to whether it should be Culpable homicide or deliberate negligence, this came through first as a shock only to settle down as a refreshing twist to the affair. Union of India had made a case for culpable homicide not amounting to murder by establishing knowledge. Lawyer of the accused defended by saying that his client had neither knowledge nor the power to act on the knowledge as it was a plant whose reins were controlled by American Multinational. In contrast to them, Mr. Lalit argued for charges of murder by indicating possibility of both knowledge and intention.

Now it was the turn of the defendant parties to argue their case. Mr. Salve, the senior advocate for Respondent 1, Keshub Mahindra, said that the curative petition must not be entertained in response to either public outcry or media outrage. He said that there are very stringent standards for curative petitions and there has to be evidence of “irremediable injustice” as a result of the September 1996 judgment. He said in the case of the accused UCIL and its officials the sentence under 304 A could have been altered by the Chief Judicial Magistrate by invoking Section 216 (altering of charges) of CrPc. He pointed out that the order of 1996 was legally not binding on the Chief Judicial Magistrate, Bhopal who convicted the officials and the company (7th June 2010) under Section 304. The CJM could have committed the case to the Sessions Court if he found the evidence to point towards graver sentence. Thus, the injustice if any could have been corrected. However it was already 4pm- time for the Court to break- so Mr. Salve stopped. He will continue his arguments tomorrow.

Outside the Court, sun was setting down and I saw Bhopalis engrossed in discussion with their lawyers. I too gathered my bags and books and started walking down the stairs. Through these same stairs I will be back tomorrow to the Chief Court when the sun will rise again.

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Bhopalis welcome curative petition in SC for compensation enhancement

February 28, 2011

Press Statement

Representatives of five organizations of the survivors of the Union Carbide disaster in Bhopal today welcomed the admission of the curative petition for enhancement of compensation by the Supreme Court of India. Holding the Government of India primarily responsible for the collusive settlement of 1989, they stated that the government’s curative petition does not contain correct figures of death and extent of injuries caused by the disaster. They expressed hope that the Court will take necessary steps to arrive at a compensation sum based on correct figures of the impact of the disaster.

 

Rashida Bee a survivor and leader of one of the five organizations said that the figure of deaths presented by the Indian government is far lower than that reported by government research agencies. She said that statistical projections based on the mortality rates reported by the Indian Council of Medical Research and the Centre for Rehabilitation Studies show that the figures of exposure related death were five times more than that mentioned in the curative petition filed in the Supreme Court. She pointed out that registration of exposure related deaths was arbitrarily stopped in 1997 while the Centre for Rehabilitation Studies reported 436 deaths attributable to toxic exposure in 2000.

 

Another leader Balkrishna Namdeo pointed out that essential tests such as Pulmonary function test, exercise tolerance test and urinary thiocyanate tests were carried out on less than 10 % of the claimants as a result of which several hundred thousand victims were wrongly adjudged as having suffered only temporary injury. He said that while ICMR’s study reported 30 % of the victims to be suffering from mental illnesses, no claimant was assessed for mental injuries.

 

Safreen Khan of Children against Dow Carbide said that in the curative petition, the government had failed to mention that children born after the disaster were also entitled to compensation. She pointed out that according to studies published in international peer reviewed journals such as the Journal of American Medical Association and American Journal of Industrial Medicine, children born to gas exposed parents have suffered growth and development disorders.

 

According to Rachna Dhingra of Bhopal Group for Information and Action, the Indian government had wrongly claimed compensation for contamination of soil and ground water in the curative petition that was focused on the December 1984 gas disaster. She pointed out that the toxic contamination was unrelated to the gas disaster and was a result of routine and reckless dumping of hazardous waste by Union Carbide. She said that if the Indian government is sincere about making the company pay for the environmental and health damage caused by toxic contamination, it should join the ongoing litigation in the US federal court.

 

Rashida Bi,Bhopal Gas Peedit Mahila Stationery Karmchari Sangh

94256 88215

Nawab Khan,Bhopal Gas Peedit Mahila Purush Sangharsh Morcha

9302792493

Balkrishna Namdeo,Bhopal Gas Peedit Nirashrit Pension Bhogi Sangharsh Morcha

9826345423

Satinath Sarangi, Rachna Dhingra,Bhopal Group for Information and Action

9826167369

Safreen KhanChildren Against Dow Carbide

 

9303831487

 

 

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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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