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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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Mr Justice Ahmadi does the decent thing

Mr Justice Ahmadi, the Supreme Court justice who controversially reduced criminal charges against the Indian accused in the Union Carbide Gas Tragedy trial, has resigned. Cynics may say that in doing so he hopes to escape further scrutiny of his actions in favour of Union Carbide Corporation, at the time an absconder from the same case.

In response to UCC’s failure to appear in the Bhopal court, its assets in India, including its majority shareholding in Union Carbide India Limited, were seized by the court.

But in February 1994 Mr Justice Ahmadi overruled the Bhopal court and permitted UCC’s shares to be sold. The proceeds were to be used to create a super hospital for the gas victims. Upon Ahmadi’s retirement from the Supreme Court, he became Chair of the Trustees of the richly endowed Bhopal Memorial Hospital Trust, which his own decision had brought into being.

Survivors’ organisations allege that Ahmadi’s action effectively allowed Union Carbide Corporation to escape from India and Indian justice by wiping the Bhopal asset off its books. Meanwhile the lucratively endowed hospital over which Ahmadi subsequently presided was involved in a string of controversies involving the bad treatment of gas victims, who were reportedly referred to by hospital staff as “gassies”. Gas victims were also given substandard medications and turned away in favour of rich paying patients.

People sick from the water contamination were not treated at all, while doctors enjoyed a lavish swimming pool and other luxuries.

Ahmadi resigned as Chair of the BMHRC on June 20, 2010, less than two weeks after the Bhopal verdict and the public anger over the lenient sentencing based on the charges he had reduced to the level of a street traffic accident. No doubt he hoped that this would forestall media scrutiny of his actions in letting Union Carbide off the Bhopal hook.

The Supreme Court has now taken steps wind up the Trust and run the hospital directly. In accepting Ahmadi’s resignation letter, the bench said it appreciated the “good service” rendered by Justice Ahmadi in running the trust for the last 12 years.

Justice Ahmadi was appointed as the chairman of the BMHT on May 15, 1998. Following a Supreme Court order of March 1992, Union Carbide Corporation set up a trust fund in London and endowed it with the princely sum of £1,000. Sir Ian Percival, former attorney general under Margaret Thatcher, was appointed as its sole trustee. All remaining money came from the sale of the UCIL shares and grants of land by the then Madhya Pradesh government. After the death of Percival, the Bhopal Memorial Hospital Trust was constituted with Ahmadi presiding.

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Talking points: why justice cannot prevail

According to Eveready Industries, the successor to Union Carbide India Limited (UCIL), there was never any danger of a judgement against the company, consequently no need to provide financially for that eventuality. Whence comes this overweening confidence?

“Trial proceedings before the Chief Judicial Magistrate, Bhopal, on the modified charges framed under the directions of the Supreme Court that commenced in September 1997, are yet to be concluded. As per advice of legal counsel, allegations against the Company are without any firm basis and possibilities of proceedings against the Company, succeeding are extremely remote. Since the charges are very likely to fail, no provision is necessary at this stage.”

Unaudited Standalone Financial Results (Provisional) for the Quarter and year ended March 31, 2010

Will justice be done in Bhopal on June 7, 2010? Read on.

Qu. 1. Will justice be done in Bhopal on June 7?

Justice in Bhopal will be done only if the individuals and corporations responsible for the death of over 25 thousand and toxic exposure and damage to over half a million people are punished in an exemplary manner. The punishment accorded to the individual corporate officials and the corporations must be of such that it deters other corporations and corporate officials from being recklessly indifferent to human life and health.

We think that even if the verdict on June 7 is fully against the nine accused, justice will not be any where near done on the world’s worst corporate massacre.

Firstly, the prime accused in this case are Union Carbide Corporation (UCC), and Warren Anderson and both are absconding from Indian courts since 1992. In the last 18 years, the CBI has not taken the tiniest step to get the authorized representatives of UCC, USA extradited and has made only one unsuccessful attempt in 2003 to get Anderson extradited. The third foreign accused, Union Carbide Eastern Limited, Hong Kong, deregistered itself in 1992 without ever appearing in court and the CBI has not taken any action against this absconding accused. Only a concurrent trial of the foreign accused can adequately address the nature and extent of the crimes committed in the disaster in Bhopal.

Secondly, the charges against the accused are much weaker than they should be. There is ample evidence that individual officials and the corporate boards demonstrated reckless indifference towards the lives and health of the workers in the factory and people in the city. They were manifestly aware that the technology employed in Bhopal was exceptionally hazardous, that cost cutting measures had made it more hazardous still, that 30 major hazards had been identified through a safety audit and that safety and maintenance had been run down to a threadbare basis in advance of an intended sell-off. Yet the Central Bureau of Investigation (CBI) decided to charge Union Carbide and its officials only with criminal negligence.

For their criminal indifference to human life and health, Union Carbide and its officials should have been charged with culpable homicide (Sec. 300 Part IV of Indian Penal Code punishable by life imprisonment) for running the factory knowing that it was so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death.

Thirdly, because of an unjust order of the Supreme Court and the CBI’s inaction, the criminal charges against the Indian corporation and its officials have been further diluted. The order of Justice A M Ahmadi delivered on September 13, 1996 brought down the charge from Sec. 304 Part II of Indian Penal Code (IPC) to Sec. 304 A of the IPC without considering the evidence of the culpability of Union Carbide India Limited and its officials. By reducing the Bhopal disaster to the equivalent of a traffic accident the prison term for the crimes of Bhopal was brought down from 10 years to 2 years. Further, a conviction under Sec. 304 A, does not necessarily lead to imprisonment. It could well be reduced to criminal fines.

Finally, because the CBI has done a shoddy job of prosecuting the Indian corporation and its officials, it is very doubtful that the verdict on June 7 will be fully against the accused.

2. How has the CBI fulfilled its role as a prosecutor?

The CBI has done a shoddy job of prosecuting the Indian and the foreign accused.

a) Despite the fact that the documentary evidence is all available, the CBI has failed to present evidence :

– that demonstrate that UCC, USA and Warren Anderson were well aware in 1973 that the technology for the MIC plant in Bhopal was “untested”

– that show that the design of the Bhopal plant was substantially different and inferior in terms of safety when compared to the MIC plant owned by Union Carbide in Institute, West Virginia, USA.

– that establishes that Keshub Mahindra and other officials knew or should have known about the hazardous design of the plant and the additional hazards due to design modifications.

– that links each of the accused to deliberate acts undermining operational safety such as rewriting of operation manuals, decommissioning the crucial refrigeration unit and eliminating the maintenance supervisor from most work shifts.

– that demonstrate that UCC, UCIL and its senior officials were indifferent to the injuries caused to people in the neighbourhood communities due to routine leaks in the factory prior to the disaster in 1984

b) The CBI has also failed to

– produce the three absconding foreign accused in India court.

– stop accused Union Carbide Eastern Inc., Hong Kong from “disappearing”.

– visit the Institute, West Virginia plant to document the design differences between the two plants that would show that the Bhopal plant was deliberately under designed.

– deliver summons and execute arrest warrants despite being India’s Interpol agency.

– prevent the sale of shares of UCC, USA in UCIL in 1994 thus loosening the grip of the Indian court over the absconding corporation.

– appeal against the order of the Supreme court that diluted criminal charges against Indian accused.

– take action against the sale of Union Carbide’s intellectual property in India while the corporation is absconding from justice.

– make Dow Chemical, USA, current owner of Union Carbide, appear in the Bhopal court despite clear orders.

3. Why did the case against the Indian officials take so long?

The verdict against the Indian accused is now expected 25 years after the disaster in 1984. The CBI filed charges only in 1987. From 1989 to 1991 it was quashed by the Supreme Court’s order on settlement. From 1993 to 1996 the matter was under revision by the State High Court and the Supreme Court which diluted the charges from culpable homicide to death by negligence.

The case involved examination and cross examination of 178 prosecution witnesses and 8 defence witnesses and presenting over 3000 documents before the court. Hearings in the case were usually scheduled once every month but very often there was a gap of two to three months between hearings.

Repeated demands of survivors’ organization to set up a Special Prosecution Cell for effective and quick prosecution was turned down by the government.

4. What needs to be done to bring the absconding accused to trial?

As the Minister in charge, the Prime Minister must:

– create a Special Prosecution Cell in the CBI for effective and timely action on extradition of foreign accused and collection and presentation of evidence against the foreign accused.

– direct CBI to move on extradition of authorized representative of UCC and resend extradition request for Warren Anderson.

– direct CBI to follow the assets of Union Carbide Eastern Inc. to ensure that the representatives of the accused corporation face criminal trial.

– direct CBI to take action on illegal trading of UCC technology in India.

– direct CBI to take legal action so that summons issued against Dow Chemical, USA can be delivered.

Above all, there is need for sea-change in the political will of both the US and Indian administrations for broad assistance and mutual cooperation on the criminal prosecution of the foreign accused.

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Survivors 5, Vultures 0

In a comprehensive victory for Bhopal survivors, the Indian Supreme Court today affirmed that unpaid compensation money amounting to £187 million (€270 million, US$343 million), belonged to the survivors and to them alone. The court dismissed applications by the government of Madhya Pradesh, the Bharatiya Janata Party (BJP), Union Carbide’s Bhopal Memorial Hospital Trust and two other organisations, all of whom were hoping to grab a share of compensation money which has been sitting in a Reserve Bank of India dollar bank account for the last fifteen years.

Earlier this year survivors’ organisations petitioned the Supreme Court to order the sum, including accrued interest, to be distributed among the people for whom it had been intended, many of whom are chronically ill, unable to work and living on the edge of the abyss. The petition was granted by the Supreme Court on July 19, but distribution has been delayed by a blizzard of opportunistic applications from others who never had any right to the money.

With urban civic body elections due to take place in Bhopal next month, the BJP political party engaged in a bit of voter-massage by demanding that the money be distributed also in parts of the city that were not affected by the gas disaster. Their application was dismissed.

Union Carbide’s Bhopal Memorial Hospital Trust, which is rich enough to provide a swimming pool for its staff, but which has often turned away gas victims who do not have the right paperwork, also had its application turned down.

2,000 Bhopalis, who had gathered in Delhi to demonstrate outside the Indian parliament were tonight rejoicing. You can see the rare sight of smiles on Bhopali survivors’ faces by clicking the link below to the article, which includes the official press release.

 

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Supreme Court Says Money is for Survivors

Press Statement
issued by
Bhopal Gas Peedit Mahila Stationery Karmchari Sangh
Bhopal Gas Peedit Mahila Purush Sangharsh Morcha
Bhopal Group for Information and Action
Bhopal ki Aawaaz

SUPREME COURT SAYS MONEY IS FOR SURVIVORS

The Supreme Court of India today gave a decision that the distribution of the balance of compensation amount of over Rs.1567 Crores on a pro-rata basis should commence from November 15, 2004. Five interim applications presented before the Supreme Court were dismissed.

Continue reading Supreme Court Says Money is for Survivors

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