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

26-04-2011, DAY 4

Today, to me it seemed that Mr. Salve essentially repeated the arguments he had made on the last hearing. He started from where he had left the Court last time- distinction between mistakes and errors. He said that, in accordance with the order given in Hurra vs Hurra, a curative petition is allowed only when the judgement is wrong on account of the acts of court. When an error is accepted as mistake of the court then it is court’s duty to rectify it. This is derived from the maxim of actus curae which means that an act of the court shall prejudice no one. Hence in such a case Court says, “yes we did a mistake” and admits a curative petition. These mistakes arise from violation of natural justice and the bias of the judge/s. However, in this particular case none of the two is apparent hence the curative is not admissible.

Explaining this further he said that Union of India in its curative petition has not stated violation of natural justice as a ground for seeking curative. Also, it can’t be said that bias of a judge is apparent.

Besides, the accused should not be made to suffer due to mistakes that the court has committed, he argued and cited certain judgements of Supreme Court. In no circumstances can one allow the violation of rights under Articles 14 and 21 that the Constitution gives to all its citizens including the accused. Article 14 ensures equality before law or equal protection of laws. Article 21 ensures that no person shall be deprived of his life or personal liberty except according to the procedure established by law.

He also pointed out that not hearing a potentially aggrieved party is not sufficient condition for admission of a curative petition. It has to be established that not hearing the aggrieved party has actually resulted in abuse or miscarriage of justice. Thus he argued that miscarriage of justice can be a consequence if a curative petition is allowed without hearing but is certainly not a ground for allowing curative petition at the first place.

He insisted that proper procedure of law should be followed in all circumstances. He raised following points:

a)This court cannot bypass the process by admitting and acting upon the curative petition when the matter regarding the appropriate section of the Indian Penal Code (IPC) under which the accused should be charged is already placed in the Bhopal sessions court.
b)It is important that Principle of finality of orders is held. He said curative petitions can be allowed only on a narrow scope because the principle of finality of orders is equally important.
c)He said that by asking the court to direct that the charges against the accused be altered to 304 Part II, the prosecution (CBI) is asking the Supreme Court to look at the evidence that is currently pending on appeal and revision before the Bhopal courts and this is procedurally not correct.

Mr. Salve then took the judges through Paragraphs 9, 15, 33, 39, 47-50 of the Hurra Vs Hurra judgement. These mainly dealt with the question- can the jurisdiction of the Apex Court, under Article 32 of the Constitution, be invoked to challenge the validity of a final judgement/order passed by this Court after exhausting the remedy of review under Article 137 of the Constitution? Hr argued that it will create a bad precedence if the highest court of the land readily overruled the view expressed by it in earlier cases.

He then said that curative petitions are not designed to revisit the judgements of the court and they are only meant to address mistakes in the way decision was made. He said that mistakes are different from saying that the judgement was wrong. For correction of errors in matters of criminal justice two issues are important- review and jurisdiction for review. If the court has made a mistake, the process of review/revision are open for remedying them. Curative petitions are remedies only for actus curae i.e when mistakes are made by the courts and the correction is done by recalling the order. He repeated that it is the violation of Principle of Natural justice and not gross miscarriage of justice which is a ground for a curative petition. Moreover, He pointed out, the judgement of 1996 has nowhere prohibited the lower court judge from sentencing under charges higher than 304 Part A and so no charge is to be made out against the accused. With this concluded his argument.

Since it was already 1:00 pm the court broke for lunch. In the canteen we were surprised to find that a world exclusive report by Times Now, one of the key English national television channels in India, showed Julian Assange claiming that Indians more than any other nationality in the world have accounts in Swiss banks thus debasing Indian rupee. Lunch time always passes quickly and so soon we found ourselves walking back to the Chief court. Mr. Jayprakash, of Bhopal Gas Peedit Sangharsh Sahyog Samiti (BGPSSS) was already there. He had been furious that so little time was given to the victims and that too only on the first day. Since then it had been mainly accused who had been given the time to argue their case. Mr. Salve, representing Keshub Mahindra, alone argued for 1.5 days. I ask JP about Abdul Jabbar (BGPMUS) who shared that he had not been keeping well however he is following the case from Bhopal and is updated on it regularly.

Now it was Senior Advocate Mr. C.U. Singh representing Respondent No. 3, Mr. Vijay Gokhale, who started his argument by saying that while he agreed with the arguments made by senior advocate Harish Salve, he only wanted to add a few more nuances to it. He pointed out that curative petition was for the purpose of correcting mistakes committed by the court for a very limited species of judicial error. In passing the judgement on Hurra Vs Hurra the court was cognizant that there were constitutional and statutory provisions for addressing grievances but what happens when that provision is exhausted. In such cases it is only when the court finds an error that shakes the judicial conscience that a curative petition be allowed.

He further argued that that it is only in a case where review under Rule 137 of the Supreme Court has been invoked by the party and the Supreme Court has disposed off the case only after that can a curative petition be allowed. When it can be shown that the court has committed an error and despite pointing out that error in the review petition the court does not address the grievance only on those cases curative petition would be allowed. However, he argued, CBI/Union of India is not a party which has invoked a review that was disposed off by the Court without hearing. This is a case where remedy in form of review always existed by the party decided not to use it for over 15 years after the 1996 order. The grounds for a curative requires error on the face of the record, he said. At this point a Judge remarked that this is a case of errors on the face of the record and something more.
He then stressed that a Curative can only be available to a party which has filed a review petition. He pointed out that grounds in which review petition is maintainable are different from the grounds in which curative petition is maintainable. He said review petitions were meant to address the content of judgements and correct errors while curative petitions addressed grievances caused due to the process by which judgement was reached and corrected “mistakes”.

At this point Judges said that by saying so he is essentially contradicting the case made by Mr. Salve who had argued that there are grounds of review and there are certain other grounds for a curative while what Mr. Singh is saying is that the grounds of review and curative are same with a precondition that a review should have been filed by a party. Following this discussion with judges, Mr. Singh agreed that the decision on Hurra Vs Hurra was illustrative and not exhaustive (ie. it can be applicable to much wider range of cases).

The judge then read out the paragraph from Hurra vs Hurra, which Mr. Singh had himself read out earlier, and argued that this can be read as meaning that only a nonparty can file a curative. However since a review that has been disposed off in circulation is a necessary precondition to a curative it implies that the stage of a curative can never be reached because a review as argued by Mr. Singh is filed by a party while a curative by a non party.

Mr. Singh did not address this argument by Court and instead pointed out that the CBI had not filed a review petition after the 1996 judgement therefore it was not entitled to file a curative petition. The judges pointed out while CBI had not filed the review petition the NGOs had. Mr. Singh then pointed out that the review petition of NGO’s was heard and then dismissed so there was no violation of principles of natural justice. Then the Additional Solicitor General, Indira Jaisingh read the March 1997 order in which review petition filed by the NGO’s was dismissed without hearing (by circulation). At this Mr. Singh pointed out that the NGO’s were not the aggrieved parties. This was countered by Advocate Parekh stating that the NGO’s represented the victims and therefore was the aggrieved parties.

Mr. Singh then came back to an earlier argument that following the 1996 order no applications were ever made for enhancement of charges before the CJM court by the CBI or the government of MP. He said that the appeals filed by the Government of MP and CBI against the order of 7th June 2010 clearly mention that the Supreme Court order of 1996 does not stop the lower courts from enhancing the judges. Hence through their own actions the CBI and government of MP have shown t hat there has been no irremediable injustice which is the necessary condition for the curative petition to be admitted.

The CJI at this point stated that the CBI may feel that the session court would also consider itself bound to this order just as the Bhopal CJM’s court which felt itself bound by the ‘96 judgement (with regard to the appropriate sections of IPC under which accused could be charged). He wondered whether a clarification from the Supreme Court stating that the order of 1996 did not prohibit a lower court from framing a higher charge than 304 if appropriate under IPC. To this, the Senior Counsel responded by saying that the grounds of a curative are limited and not even applicable in this case. The CJI pointed out that the Court is conscious of its powers and how best to exercise that power. He said, that this court if not so powerless that even in cases of manifest injustice it will restrict itself only to the grounds of bias and natural justice. He stressed that when we have extraordinary situations staring at us we can’t restrict ourselves only to these grounds and none other. He then pointed out that 1996 order was an unusual order. He said that this is an unusual case where an unusual judgement was given in unusual circumstances. He said that “This court does not pass such orders” and if the senior advocate has objections to Court’s observation that he should show that the order was a usual one by giving examples of similar such orders. Or the counsel of accused must show that by issuing a clarification in form of a curative to Sessions Court so that it does not interpret the 1996 order as binding, the Apex court will be against the law. He then pointed out that one of NGO represented by Mr. Uday Lalit is now seeking enhancement of charges from 304 A (manslaughter) to 302 (murder). At this the Chief Justice clarified that Mr Lalit was merely seeking a clarification on the 1996 judgement so that the case could be transferred to lower courts leaving them to apply their own mind to decide on the charges depending on the merits of the case.

Today’s proceedings jolted everyone including me whose illusions of Courts being passive receiver of Lawyers’ arguments, courtesy mainstream movies, just came down in one go. I am not sure what the fate of this case eventually would be but certainly a courtroom is not always a place where you are bowling alone rather one that sometimes throws the ball back at you saying- Sorry, not allowed!

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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.

Continue reading Dispatches from the Supreme Court – Day 3 →

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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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