Tag Archives: Legal

Survivors’ Letter to Prime Minister Re: Petition for Additional Compensation

August 1, 2014

Honourable Prime Minister,

Government of India, North Block, Raisina Hill,
New Delhi 110 011

Subject: Urgent Directions for Filing of Application for Amending Civil Curative Petition No 345-347/2010 for Additional Compensation before Supreme Court on August 5, 2014.

Dear Sir,  

On behalf of the survivors of the December 1984 Union Carbide gas disaster in Bhopal we wish to draw your urgent attention to the hearing of the Curative Petition filed by the Government of India on December 3, 2010 that is scheduled to be heard on August 5, 2014.

For the last several years we have attempted to apprise the Prime Minister’s office that the figures of exposure related deaths and injuries in the Curative Petition filed by the Government of India are wrong and without any basis.

The government’s curative petition mentions a figure of 5,295 deaths caused by the disaster, which happens to be one fourth of the figures of death reported by Indian Council of Medical Research (ICMR) in its epidemiological report published in 2004. Likewise, the petition mentions that 93 % of the victims were only temporarily injured which is against the findings of the ICMR.

You can stop a great injustice being done to the Bhopal victims by issuing directions for filing an application before the Supreme Court on August 5, 2014 for amendment of the Curative Petition. Figures based on ICMR’s scientific research can then be incorporated in the amended Curative Petition.

We request you to issue directions to concerned officials in the Ministry of Chemical & Fertilizers for filing an application before the Supreme Court for amendment of the Curative Petition on August 5, 2014.

 

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Important Legal Developments

As you may be be aware, Dow Chemical/ Union Carbide are still embroiled in a number of legal cases surrounding the Bhopal Disaster. Dow chooses to maintain that a ‘full and final settlement’ was made, back in 1989, but that is simply not true and there have now been important developments in two of the outstanding cases.

Curative Petition

A ‘curative petition’ will be heard in India’s Supreme Court. It aims to address inadequacies within the 1989 civil settlement (U.S. $470 million) and a hearing date has been set for September 2nd 2014. </br></br>

The Indian government is seeking an additional amount of up to $1.24billion, based on higher figures for the dead and injured, but the Bhopal survivors groups are quoting the Government of India’s own previously published numbers, which are considerably higher, and would raise the required settlement amount to $8.1billion.

Criminal Case
Union Carbide (US) has never answered the criminal charges outstanding against it. The charges are very serious, being of ‘culpable homicide’. Since the 2001 takeover, Dow Chemical has been refusing to present Union Carbide to the courts. The Chief Judicial Magistrate in Bhopal has now issued a summons to Dow Chemical requiring it to explain why Union Carbide has repeatedly ignored its own summons to the criminal court.

We hope that the summons will be accepted, in the very near future, and, if so, this court hearing might take place within the next three months.

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Survivors ask Chief Minister to withdraw false cases

DOWNLOAD THE LETTER IN THE ORIGINAL HINDI

 

To,
The Chief Minister
Government of Madhya Pradesh
Mantralaya, Vallabh Bhawan
Bhopal, M.P.

25 January 2012

Sub: Application for withdrawal of criminal cases against over 2000 gas victims in connection with the incident of violence on the 27th anniversary of the Union Carbide gas disaster in Bhopal.

Respected Chief Minister,

We, five organisations of victims of the Union Carbide disaster in Bhopal and their supporters are sending this letter to you with the hope that you will consider the facts and arguments regarding the incident of violence on 27th anniversary of the gas disaster (3 December 2011) presented below and arrive at a rational and just decision and accordingly issue directions for appropriate action.

1.The following facts related to the protest action by survivors under the leadership of us, five organizations on December 3, 2011 deserve consideration

A.The protest was centered on a legitimate demand
Through this protest, we were demanding that the governments at the centre and state carry out necessary corrections in the figures of deaths and injuries caused by Union Carbide based on figures of Indian Council of Medical Research (ICMR) and hospitals meant for gas affected people in the curative petition filed in the Supreme Court.

We were only demanding that the governments at the centre and state act honestly towards obtaining proper compensation from the American companies and the first demonstration of this would be the presentation of correct figures in the curative petition pending before the Supreme Court because currently the figures are much lower than actual and are wrong.

We were not pushing for some new figures. All we were doing was seek revisions in the curative petition on the basis of findings of the scientific institutions and medical documentation of the government’s at the center and the state.

B.We had communicated this demand to the state government in July 2011, but for six months we received no reply. We had sent letters to your office on 25 July 2011, 17 October 2011 and on 19 November 2011 demanding revision in the figures of death and injury as presented in the curative petition before the Supreme Court by the state government. However we did not receive a single reply to any of the letters.

Likewise, we received no response to the letters we wrote to the Chief Secretary on 28 October 2011 and 19 November 2011 and that sent to the Principal Secretary, Bhopal Gas Tragedy Relief and Rehabilitation Department on 19 November 2011.

C.This demand is being raised by us to protect the legal rights of the gas victims. All victims of the disaster of 3 December 84 in Bhopal have the legal right to be adequately compensated for the physical and mental injuries caused by the disaster.

Through the Bhopal Act of 1985, the Government of India arrogated to itself sole powers to receive compensation from Union Carbide. In 1985 the Government of India sought $3.3 billion as compensation under the Act. In 1989 the central government, without consulting a single victim entered into a settlement with the American company for $470 million which was approved by the Supreme Court on 14-15 February 1989. Because of the paltry settlement amount, 93% of gas victims received only Rs 25000 as compensation.

The state government also had an important role in the violation of the legal rights of Bhopal gas victims. To justify the low settlement amount, the Claims Directorate of the state government followed a faulty system of injury assessment and pronounced 93% of the gas victims as having suffered only temporary injury.

At the June 2010 meeting of the Group of Ministers on Bhopal (composed of ministers from both the state and central governments) it was accepted that the legal rights to adequate compensation of the Bhopal victims had been violated. The Group of Ministers decided on presenting a curative petition before the Supreme Court to obtain additional compensation from the American companies and this decision was subsequently implemented. Regrettably, in both the curative petitions the figure of death is about four times less than the actual and 93% gas victims have been said to be only temporarily injured. It is worth mentioning that Union Carbide’s own document says that damage caused by MIC gas is permanent, not temporary.

Clearly if corrections are not made in the curative petitions on the basis of scientific figures available with the government, once again Bhopal gas victims will be denied their legal rights. If correct facts are not placed before the court, even if the court is committed to justice, a correct judgment is not possible.

D.Our demand is for protection of the constitutional rights of the gas victims.
In the meeting of the Group of Ministers on June 2010 described above, following the admission that Bhopal gas victims have received inadequate compensation it was decided that families of the deceased and those victims with serious injury would be paid ex gratia amounts as relief.

This decision taken by ministers of the central and state governments was clearly against the fundamental constitutional rights of 93% of the victims (Right to Equality, Right to Life, Right to Justice). In the last 27 years because of the utter failure of the central and state governments in providing medical care and economic, social and environmental rehabilitation, majority gas victims are denied their basic needs and this discrimination against them in payment of ex-gratia amounts is clearly unconstitutional. It is worth mentioning that following from the decision by the Group of Ministers on Bhopal 5,27,000 out of 5,74,000 who had earlier received only Rs 25000 as compensation were denied any ex gratia amount and the state government has not taken any steps regarding this.

E.The protest action for legitimate demand on December 3, 2011 was peaceful.
We had called for peaceful Rail Roko on December 3 2011 in which thousands of gas victims took part at six places between Subash Nagar railway crossing and Nishatpura. In five out of these six places – Nishatpura, Kainchi Chhola, Chhola Naka, Berasia Road Crossing and Bharat Talkies overbridge there was no breach of peace at all. Only at one spot, Barkhedi-Aishbag railway crossing, there was violence that was initiated by District administration and police officials about which we will present facts later. We would like to bring to your attention that to ensure that protest on December 3, 2011 remained peaceful we had explained the method of peaceful protest to the gas victims through a video film that was screened in different communities over a period of one and a half month.

F.Our peaceful protest was pre announced and the administration had sufficient notice.
As has been said above in Para A, we five organisations have given detailed information regarding our demand to the state government since July 2011. In addition, through our rally of July 25 2011, successful Bhopal bandh on 11 October 2011 and several press conferences, we have provided detailed information related to our demand and on protest actions organized by us to secure this demand.

With regard to the rail roko protest organized on December 3, 2011 we had announced it at a press conference on 17 October 2011 and we had conveyed this information in our letters to the state government on 28 October 2011 and 19 November 2011. Had the state government responded to any of our letters in the six months or discussed the matter with us in the month following the announcement of rail roko, possibly there would have been no need for a rail roko. In this regard it is indeed regrettable that the Collector invited us for a discussion on rail roko protest on December 2, 2011 but he refused to take responsibility to organize a meeting for us with the official of the state government who could take a decision on the matter.

G.We had done our best to ensure that rail passengers are troubled as little as possible because of our rail roko. Three weeks prior to rail roko protest we bought Google Ads and through that and through our website publicized the proposed protest action requesting potential passengers to change their journey date or route. Over 2,00,000 people have read our announcement and advice on the internet. Additionally gas victims participating in the rail roko action reached food and water to the passengers on a large scale.

2.The following suggest that District administration and police officials are primarily responsible for the incident of violence at one out of six protest spots on December 3, 2011.

A.Lack of preparation.
As has been mentioned above, because we had made prior announcement and the preparation for the protest action were all in public, the District administration and police officials had more than enough notice for adequate preparation. Despite this there was serious negligence in this respect. Lack of preparedness is a significant reason behind irregularities committed by the officials at the place of incident and this has been taken in cognizance by the State Human Rights Commission that has sought answers from concerned officials.

B.Lack of Patience
After the rail roko protest action began on December 3, 2011, the Collector asked one of our colleagues, Mrs. Rashida Bee to come for a meeting with the Chief Minister with 10 persons. Mrs. Rashida Bee sought ten minutes time from him so that she could discuss it with other organisation leaders. However the Collector could not wait for ten minutes and ordered cane charging in 3 to 4 minutes thus, initiating violence.

C.Taking away the PA system
It is worth mentioning that on 3 December 2011 the means to establish communication with the protestors was the PA system which was taken away by the police following orders from the officials just before the cane charge. After police began the violence we leaders were not able to pacify those protestors who had resorted to counter violence as self protection.

D.Cane charge without warning
As been mentioned above in Para A & B because of lack of preparation, required patience and knowledge of established rules, the Collector gave an order of cane charging without any warning. The State Human Rights Commission has asked questions in this regard that remain unanswered till date. The first protestors to be beaten up and left bleeding were the old women who were taking part in peaceful protest. The young men who came forward to save the lives of these old women were also beaten with sticks which was the reason for eruption of violence.

E.Profanities by police officials
Before sticks started raining on the protestors the city Superintendent of Police, Mrs. Monica Shukla publicly abused the women and used humiliating language against the protestors for which there are several eye witnesses.

F.Stone pelting by police
Following the order of cane charging a few people, in order to protect the old women and themselves, threw stones at the police. In response to this, the police resorted to stone pelting in a huge scale about which we have substantial photo and video evidence.

G.Tear gas and firing without warning
Following cane charging and stone pelting by the police, tear gas shells were burst without warning that lead to critical injuries to a 14 year old Daud Ansari causing grievous hurt.

H.Police setting fire to vehicles
Several government and public vehicles were set on fire on 3 December 2011. According to a reliable witness a policemen standing next to her handed over a piece of cloth to man who had covered his face with handkerchief and asked him to set a particular vehicle on fire. We have a photograph of the man with his face covered with a handkerchief.

I.Police entered people’s homes, beat them and caused damage to their property after the incident of violence.
We have reliable witnesses and evidence that show that one hour after peace was restored in the area, 40-50 policemen entered some 20-25 houses in Umrao Dulha Bag near Gol Kabristan and beat up people with sticks and kicked them. The policemen damaged furniture and broke doors and windows and smashed 10-15 vehicles parked outside.

J.The police arrested innocent people in an illegal manner.
Following the incident of violence, 14 persons who were gas victims themselves or children of gas affected parents were arrested by the police. They were beaten badly with sticks in presence of several eye witnesses and many of them were also beaten up at the police station. The arrested persons were not informed about the charges against them and they were not allowed to contact their family members and lawyers. They were stripped to their underwear at the police station and were not provided with any food or protection from cold.

3.District administration and police officials are themselves aware of their role in the incident of violence on December 3 2011.
It is worth mentioning that since the incident of December 3, 2011 the District administration and police official are busy trying to defend themselves and suppress facts. This is the reason why despite repeated questioning by the State Human Rights Commission the Collector and police officials have not responded to a single question. It is worth mentioning that in order to receive answers to these questions the Commission has sent reminders.

The defensive posture assumed by the District administration and police officials is further evident by the fact that despite our personal and public requests the police officials have not presented a single photographic or video evidence to support the allegation that any of the named accused (leaders of our organisations) were either involved with violence or with instigating violence.

4.Action under severe sections are being undertaken to cover up the irregularities and misdeeds of the police.

Legal action is ongoing against 14 persons under 17 criminal sections including Section 307 (murderous assault) and because of the following reasons it is prima facie evident that the accused were not part of the violence.

A.6 of the 14 people who are in jail for last one and a half month have got documentary evidence to establish that they were away from the scene of violence and at their workplace during the incident of violence. 1 among the 6, Pooran Vishwakarma lost his father while he was in jail and he was let out on parole for just three hours four days after his father’s death.

B.Two other persons have got documentary evidence to show that they were busy in preparations for their sister’s wedding that same evening. Both of them were arrested at a petrol pump 1km away from the place of incident with their motorcycle.

C.None of the 14 persons arrested have any previous criminal charge against them.

5.17 grave criminal sections against 2000 gas victims including 35 named accused are without any basis.

Because of the following reasons, the criminal cases against the gas victims are prima facie baseless, faulty and ill motivated.

A.The named accused include gas affected women who are sick and above 80 years of age and incapable of committing crimes described in the FIR (stone pelting, use of sticks, use of firearms and country made guns, setting fire to vehicles, using sharp edged weapons and causing destruction to public property).

B.The named accused include 17 yr old Safreen who is a child of gas affected parents and is herself sick from being exposed to contaminated ground water and is unable to commit the crimes described above.

C.The named accused include 8 women, many of whom are above 60 years age, who had been arrested and sent to jail prior to the incident of violence.

D.The named accused includes persons who were not at the scene of violence before, during or after the incident. There is video evidence with the police that establishes that one of these persons was 4 kms away from the scene of violence.

E.The First Information Report (FIR) lists weapons (sticks, sharp edged weapons, country made guns, firearems) which are not seen in any of the photos or videos while the police claims that the entire incident has been videographed.

With regard to the facts and arguments presented in Para 1-4 above, we would like to clarify that we have substantial evidence and documents to substantiate each and every fact and argument presented. We have attempted to make this letter as brief as possible keeping in mind your busy schedule. However a few important documents related to the criminal cases against gas victims are being appended.

Finally on behalf of the victims of the world’s worst industrial disaster we request you to set up an independent and impartial inquiry on the incident of violence on 3 December 2011 described above as per your promise.

We hope that till such an inquiry is initiated you will give rational and just direction for withdrawal of criminal cases against the arrested persons and 2000 gas victims.

Awaiting your reply, we remain
Thanking You

Sincerely

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

Satinath Sarangi, Rachna Dhingra, Bhopal Group for Information and Action
9826167369

Safreen Khan, Children Against Dow Carbide

Enclosures: 1. First Information Report of 6 cases
2. Information on arrested persons

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Govt of India follows Union Carbide’s suggestions instead of ICMR findings in giving compensation

Press Statement                                                                        23-July-2011

At a press conference today five organizations working for the victims of the December ‘84 Union Carbide disaster accused the central and state governments of downplaying the damage caused by the American company in the curative petitions filed in the Supreme Court. The organizations demanded that in place of Rs 3,000-6,000 crores the government should ask Union Carbide and its current owner Dow Chemical to pay over Rs 37,000 crores for deaths and personal injuries. The organizations stated that they will start agitations in support of this demand from July 25.

The organizations said that the injury categories assigned to the victims were unscientific and without basis and demanded that the government seek at least Rs 6 lakhs as compensation per victim from Union Carbide.

Satinath Sarangi of Bhopal Group for Information and Action said that recently their organizations have obtained TOP SECRET DOCUMENTS that show that Union Carbide was proposing a settlement within three months of the disaster. He said that because of its collusion with the American company, the Indian government introduced injury categories and later paid the minimum amount of Rs 25,000 as compensation to 94% of the victims with lifelong injuries by arbitrarily assigning them temporary injury category. Satinath said that Union Carbide had proposed payment of Rs 1 lakh for each death and six years later this is the amount that the government actually paid the Bhopal victims.

Balkrishna Namdeo of Bhopal Gas Peedit Nirashrit Pension Bhogi Sangharsh Morcha said that on the basis of the figures published by the government’s apex medical research organization, Indian Council of Medical Research, at least 20,0000 people have died till 2009. He said that ICMR’s research shows that between 1984 and 1989 there were 3500 spontaneous abortions as a result of gas exposure and these need to be included in counting disaster related loss of life. Namdeo said that in the curative petition filed in the Supreme Court, the government has gone against the findings of its own research agency and presented a ridiculously low figure of 5295 deaths as a consequence of the disaster. See attached Tables on Compensation and Categories.

Rashida Bee of Bhopal Gas Peedit Mahila Stationery Karmchari Sangh who is involved with rehabilitation of children of gas affected parents with congenital malformations, said that in the curative petition the government has not asked for any compensation for damages caused to the next generation of victims. She said that studies published in international scientific journals such as the Journal of American Medical Association and the American Journal of Industrial Medicine show that the poisons of Union Carbide have affected the next generation too. Rashida Bee pointed out that in October 1991 the Supreme Court had directed the Indian government to provide medical insurance coverage to the next generation of victims but this order remains to be implemented.

The organizations stated that the basis of the curative petitions filed by the central and state governments is that the figures of death and injury presented in 1989 were not correct. However these figures have not been corrected in the current curative petition so that the Supreme Court cannot provide justice to the Bhopal victims even if it wants to. The organization said that for the last one year they have been writing to the Prime Minister and Group of Ministers on Bhopal on the specific issue of deaths and health damage caused by Union Carbide in Bhopal but they have not received any response so far.

Rashida Bi,
Bhopal Gas Peedit Mahila Stationery Karmchari Sangh

Nawab Khan
Bhopal Gas Peedit Mahila Purush Sangharsh Morcha

Balkrishna Namdeo,
Bhopal Gas Peedit Nirashrit Pension Bhogi Sangharsh Morcha

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

Safreen Khan
Children Against Dow Carbide

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Dispatches from the Supreme Court – Day 5

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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