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

27-04-2011, DAY 5

Today was a busy day inside the court. The discussion in last few days revolved around the scope of a curative, its ground and whether by admitting a curative the Apex court will commit a breach of law in anyway. While the prosecution had argued essentially in favour of admitting a curative making a case of palpable and irremediable injustice, the defendants have called for ‘No Charges’ and dismissal of curative as it is non maintainable . However yesterday the court argued with the defendant stating Bhopal case as unusual in which an unusual order was passed in unusual circumstances. This is where Siddharth Luthra, counsel for Kishore Kamdar, J. Mukund and S.P. Choudhary , picked up his argument from. He argued that the reason and circumstances in which the decision to file a curative has been taken seem to be politically motivated. He argued that,

1. Not only the basis of curative petition, as argued by prosecution, is incorrect: He explained that in the curative petition the petitioners have called for enhancement of charges to 304 Part II from the charge of 304A mentioned in the 1996 order. But, no such directions have been sought with regard to the enhancement of charges from IPC 336 & 337 to IPC 324 &326 as the accused were originally charged with. This, he argued, shows that the petition was inconsistent as the element of “knowledge” was invoked for revision of charges from 304A to 304 Part II, but this element was not invoked for charges under assault and grievous assault.

2. But also, this basis is extraneous for the use of inherent powers of the court: He said that the manner in which curative petition originated placed it outside the scope of Hurra Vs Hurra. The decision to file the curative decision was a political decision taken by the Group of Ministers on Bhopal following the outcry in response to the 7th June 2010 verdict in the criminal case. He presented the minutes of Group of Ministers (GOM) and different dates on which CBI and the Government of MP filed revision and appeals in the Bhopal court. He said that the CBI’s petition follows the decision of GOM and demonstrates that CBI is not an independent body.

3. And the premise on which petitioner says that the order of 1996 is wrong – element of knowledge – is incorrect too: He said one of the key arguments of CBI is that the accused had knowledge that their acts would cause danger to life and health. However he argued that Section 304 A also assumes knowledge with regard to rash and negligence. At this point the Chief Justice reminded Advocate Luthra that the court was not going into the merits of the case.

4. And will violate Accused’s right to speedy trial if allowed to admit the curative: Presenting the history and timeline of the case Advocate Luthra then said that any direction from the court at this late stage of the case would be unfair to the accused. He argued that by admitting the curative petition the court has violated the constitutional right of the accused under Article 21 of the constitution. The Chief Justice repeated his observation that the 1996 order was an unusual order and asked Mr. Luthra whether he could produce any other order of the Supreme Court that was similar to the 1996 order in order to say that it was a usual one.

Mr. Luthra argued that while they agree that the incident was an unfortunate one but this cannot be taken as the basis of invoking a curative. The accidents happen day in and day out, he said. However, if a curative is allowed it will cause prejudice to accused more than the other side. He argued that a mere apprehension regarding knowledge of likelihood of act is not a ground for curative. To this, CJI replied, ‘I think it is.” Mr. Luthra said, it is a callus basis that doesn’t follow from law. Even if a curative has to be excercised it has to be through due process and not by affecting the right of the accused. It is then that the CJI repeated with emphasis that what they want from the Senior Counsel is to demonstrate with proper references to earlier Supreme Court cases that by issuing a clarification to the sessions court, regarding the 1996 order stating that the observations made by Supreme Court in that judgement are in no way bar to the lower court from framing a higher charge if merits of the case prove so, this Apex Court will either be going against curative petition or violating the procedure of law. He said that our comments on the basis that 1996 order was an unusual order passed by this court, if you are saying it was a usual one then guide us to proper references. Mr. Luthra said that all they are asking the court is to consider that the clarification will have consequences for the accused. With this he put his case to rest.

Then Advocate Amit Desai began his arguments on behalf of respondents. He said he had only two small points to make. The first thing that he addressed was the issue of whether a clarification could be issued by the Supreme Court with regard to 1996 order. He said that the question was whether the CJM had misunderstood the 96 order and if indeed he had this could be corrected by appeal and for that a curative petition was not required. He pointed out that not the CJM had the powers to commit it to sessions for adequate charges till the day of judgement but he was aware of his powers. By issuing a clarification to the lower court and treating a curative like an appeal this Court will in effect be bypassing the entire procedure causing prejudice to the accused setting a bad precedence. He said that even if the magistrate understood his powers in the lower court if this case now goes for trial then there will be ample power to alter, argue, or modify the charges in the journey regarded as the one leading to truth.

The CJI asked, if according to him the 1996 order was an unusual order. Advocate Desai replied that usually under CrPC (Criminal procedure code), it is only the trial courts that frame charges. However it is possible that the 1996 order suggested specific charges to avoid multiplicity of proceedings. He said that the CBI in its submissions before the Bhopal CJM’s court had talked about criminal neglect “culpable negligence”, “deliberate negligence” and had not made any statements that said that 304 part II was the appropriate charge in the opinion of the prosecution which it is now seeking.

It is then that the CJI said that the court is going by curative petition jurisdiction only and is aware of the limitation that it can’t set out an appeal. He asked Mr. Desai if issuing a clarification is any way violating law. Mr. Desai disagreed with the idea of the court issuing a clarification and said that declarations explaining what the law was do not fall within the jurisdiction of curative petitions. He said a clarification intended by the court to clear a certain misunderstanding is tricky as it is in some sense law and in some sense only a perception that is being created. This is so because section under which charges were framed and that led to the final order are very clear. Admitting a curative on grounds other than the curative jurisdiction has the potential to be misunderstood by appellant court and that will set out a bad precedence. He therefore called the court to dismiss the curative.

Then Advocate C.U. Singh briefly got up to point out that prosecution has not made the argument that the 1996 order was an unusual one. He said that in the curative petition the CBI had mentioned no grievances against the framing of charge 304 A by the Supreme Court in 1996. He said, that because the CBI filed for 304 (II) but made arguments that hold for 304 (A) it is for this reason that the court in 1996 corrected the sections. Now CBI is citing “quashing” of charges as the error resulting into gross miscarriage of justice without explaining that it is due to their arguments that the court had quashed those charges at the first place. This cannot be considered as the mistake of the court. He further argued that the case of accused is that of no charges while 304 (A) admitted charges of deliberate negligence against them thus tying the hands of the accused. The prejudice from 1996 order is towards accused and not towards the other side. With this brief but strong interjection he put his case to rest.

The courtroom turned quiet as the Senior Advocate Jeethmalani stood up to argue his case. He explained that he was appearing for Prof. Upendar Baxi, who in his opinion was the greatest teacher of the law and was interested in Bhopal from day one and had produced two famous books on legal aspects of Bhopal. He said since Prof. Baxi is away he is presenting his case through another illustrious research scholar Mr. Ramachandra Swami. He said Professor Baxi is not so much worried about what charge accused should face, rather his concern is deeper. And that this deeper concerns results from the fact that the Government of India who had betrayed the victims by settling on a significantly less compensation amount is today arguing for a curative citing gross injustice. He explained that Government of India by legislation divested all victims of their legal right to sue and became trustee (by enacting Bhopal Act in 1985) of the survivors. After preliminary skirmish on behalf of all victims, litigation was conducted in India and the compensation was fixed at $3.3 billion. The claims were finally settled at 1/7th the amount. He said that it is still not known who actually signed the settlement deal or how it was reached. At this point the court asked if Advocate Jeethmalani’s was going to make any submission on criminal matter and he responded he was coming to that point. Then the CJI pointed out that the civil curative was going to be listed immediately after the criminal curative hearings were over, subject to service (only after notices have been given and received by Union Carbide Corporation –USA and Dow Chemical Company-USA, who are respondents in the case) to all parties. Advocate Jeethmalani then said that in the case of the disaster the Union of India was more guilty than anybody else and Union Of India is liable to pay compensation because they are guilty of selling out in the settlement. He said that once a judgment has gone through review or the procedure of review was not invoked, the judgment attains finality. The court must only recall a judgment in which the affected parties were not heard and principles of natural justice were not followed and/or where there was evidence of bias of the judge. He said that 1996 judgment attained finality when the review filled by the Bhopal survivors organizations was dismissed in 1997 and no appeal was filed against the review in the thirty day period. He said that if the charges are altered there has to be a fresh trial and it is quiet possible that neither 304 Part II nor 304 A can be proved in the retrial.

He said that the government of India has the powers and duties of supervision to prevent such industrial disasters and that victim can argue that the Government of India is guilty of criminal breach of trust. He said that the victims are not bothered whether the accused go to jail for 2 years or 5 years, they want more compensation. He said that what will come of bring an 88 year old accused (Warren Anderson) to trial?

Mr. Jethmalani said that the 1996 judgment was not assailable. He said that the Sections dealing with culpable homicide require establishment of intent and no body will agree that a non executive chairman of a company intended to cause the disaster. He said that CBI would be lucky if they can sustain a charge of 304 A. He said that this is a case where judicial conscience has to be sharp. And so what should shock your conscience is not 1996 order but the process leading to the 1989 settlement. He said when there is fraud and corruption involved element of knowledge cannot be invoked. Union of India has filed a case in capacity of representing victims and being an aggrieved party however this, he said, is only a theory and not a reality.

At this point the court broke for lunch. Before leaving CJI announced that today was the last day of hearing for criminal curative and will close to any further argument at 4:15pm. This unsettled the prosecution side especially the victim groups who have only spoken once through their Lawyers Sanjay Parikh and Uday Lalit, on the second day, and that too for not more than 15 minutes each. Mr. Jethmalani was to continue after the lunch. Attorney General told the court that he needs at least an hour to finish his argument. Victims lawyers intervened and asked the court for more time. Court reiterated that it will only hear the matter till 4:15pm. This effectively left no scope for the victim groups to present their case.

After the Lunch, Mr Jethmalani resumed his argument. He said that there is a need for an inquiry into how the settlement was arrived at. Any enhanced compensation should be given by the Government of India and all the related bureaucrats/officials of that time. He referred to House of Lords in England to say that finality of judgment is important to establish the practice of multiplicity of courts. Mr. Jethmalani , repeated that even though he is sitting in the defendant side he is not helping the accused but the victims. He argued that if for 24 years you had been telling a person that you not guilty of culpable homicide but now you want him to be charged under the same this situation calls for a de novo trial. This he said is the biggest opportunity for the victims. He further added that no part of evidence could be used except for the purpose of contradiction. I was still considering the argument made by Mr Jethmalani in my head when a Bhopal activist remarked, ‘if he is not helping the accused then why is he saying that the evidence should go. Evidence has to be judged on the substance in it and not merely on the basis of being on record. What is on record is just a material.’

He argued that a curative be dismissed because:

A) It is not the case of prosecution that they have discovered any fresh evidences
B) An error on the face of the record has not been found
C) The only grounds made by the prosecution don’t give reasons sufficient to allow a curative.

He concluded his case by saying that on one hand wrongness of a judgement is not a ground for curative and on the other hand a shocking injustice is an additional requirement and not a requirement by itself.

After him, Attorney General Mr. Ghulam Vahanvati argued strongly for the maintenance of the curative petitions and responded to some of the arguments presented by Advocate Salve. He said that Advocate Salve argument against the curative petition originated in misreading of Hurra Vs Hurra judgment. Hurra vs Hurra intended to raise the Court’s sensibility of justice to new levels. He said that the Supreme Court has a constitutional mandate to do justice under section 141 & 142 of the constitution and these could not be whittled down. He stressed that “situations” may arise in the rarest of rare cases where the duty to do justice overrides the principal of finality. He said that declining to reconsider the 1996 judgment would cause oppressive injustice. He said that conscience comes from values and not mere law. At this point the Court asked whether the injustice caused by the 1996 order was irremediable. He said that 1996 order is quiet unambiguous with regard to the charge against the accused and the lower courts have fully followed the order because no court in the country can go contrary to the Supreme Court directions. He said that the law must change its dynamics in relation to society. When something seems incorrect, disturbing and needs to be put right, that is is the test for judicial conscience. No act of court or irregularity can come in way of justice. This requires us to come to a balance between the principle of finality of an order and the principle of opening doors for justice. He then made some references to argue that nothing in the rules should be seen to limit the powers of the court whose only mandate is to do complete justice.

Then Additional Solicitor General, Harin P. Raval read out several case laws to argue that the conviction under 304 A could stay while retrial was ordered for graver charges. He argued for 7th June 2010 conviction to stand.

It was 4:30 pm by the time Mr. Raval concluded. Possibly, The need to present their side and the desperation to not go unheard by the Court, made Advocate Parikh representing BGPSS, BGMPUS (survivor organizations) stand up. He said that the element of knowledge that lawyer of the accused are denying was not constituted in a day. Rather it always existed. This I understand as meaning that the accused always knew of a possibility of a disaster even if they might not have known that it would happen on that particular day. It is not a matter of act on that day but instead of an act resulting into that fateful night. He said that a mere clarification of the 1996 order by the Supreme Court will not be a sufficient remedy and that judgment has to be set aside and directions need to be issued for expedited trial of the accused so that matter can be disposed off in 6 months.

Following Mr. Parikh, at Court’s behest, Advocate Avi Singh represent BGIA, BGPMSKS, BGPMPSM, BGPNPBSM, CADC (five survivor org) pointed out that as per the decision on Zahira Sheikh victims should not be made to suffer mistakes caused by the prosecution and called for a delicate balancing between rights of the accused and the rights of the victims. He said that court needed to ask two important questions

First, If this is a rarest of rare case that shocks the judicial conscience on the facts and circumstances of the judgments and its effects?

He said that we accept that CBI made a mistake in not filing for a review in time. This, prosecution had itself admitted to the court on the very first day. Having said this, he asked, Should the remedy be fashioned to remedy the manifest injustice and error of the 1996 impugned judgement only, or also the manifest injustice suffered by the victims due to the 1996 impugned judgement? Isn’t it court’s duty to secure justice for victims when even the prosecution failed in seeking the same for them?

He pointed out that the court is not sitting on an academic exercise for which merely issuing a clarification would be enough. Rather, court was within its powers under Article 42 of the constitution to give a decision in this case and he sought a decision in which the 1996 judgment is set aside and Bhopal sessions court is directed to frame charge without constraint, on the basis of the evidence and the current conviction (under 304 A) be allowed to stand.

With this the final hearing on the criminal curative petition came to an end. The court instructed any rejoinder or additional submissions to be submitted within a week. The Court is on summer vacation till July. The matter on civil curative will be heard after the summer vacations.

Outside, I could see Lawyers discussing the likely decision of the court, which is likely to come after the summer vacations, some were busy in heated debate while others appeared calm possibly weighed down by apprehensions. It is not an easy case they say. But didn’t Mr Jethmalani argued in the court that hard cases lead to bad judgments. Still there were others who seemed a bit more upbeat and were discussing the proceedings in a lighter vein. Needless to say, that all of us left the court but what happened inside the court is still lingering in our minds.

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