Bhopal as a parable of compromise
(published in The Economic Times, June 11, 2010)
Even a child with an elementary sense of justice is bound to be outraged by the verdict by the chief judicial magistrate's court in Bhopal on the criminal case involving the various top officers of the Union Carbide India Ltd. Those who caused the death of over 20,000 people (3,800 in a single night and the rest over the years) and were responsible for several more thousands suffering from respiratory diseases and more with congenital disorders have been “punished” with two years in jail; to rub salt over the wounds, all of them were enlarged on bail within minutes after the verdict.
Former Chief Justice A M Ahmadi, meanwhile, claims he was helpless when he ordered that the accused in the case be dealt with only under Sec 304-A and not under Sec 304-Part II in the year 1996. Well. The point is that Justice Ahmadi was not helpless as he claims. On the contrary, the ambit of Sec 304-Part II was settled beyond doubt at that time.
The Supreme Court, in the Dalip Singh vs State of Haryana case (AIR-1993-SC-2302 ) had convicted under Sec 304-Part II. The case involved the death, in custody, of a man alleged to have stolen a buffalo, consequent to the physical torture by an SI of police and two constables. All three were convicted under Sec 304-Part II even though they did not intend to kill the poor man but ended up killing him in the course of beating him in the cell. Similarly, in S Mohanachandran vs State of Kerala (AIR-1994-SC-565 ), the Supreme Court held as proper conviction under Sec 304-Part II. This was a case where a victim of custodial violence was admitted to a hospital by the police themselves but the victim died.
The principle in both these cases was clear and as enunciated in Sec 304-Part II: that mere knowledge that the act will lead to the death of the victim was enough and it is not necessary to establish the intention to kill. And once it is clear that the accused was aware that an act would cause the death of the victim and irrespective of whether he intended to kill, the accused was liable to be convicted for imprisonment up to a period of 10 years and fine. This is what the law said when Ahmadi held (on September 13, 1996) that the eight accused be tried only under section 304-A and struck down the charge sheet under Sec 304-Part II, he was certainly in the wrong.
The eight accused, after all, were in the know that methyl iso cyanate gas was lethal and that it would kill a large number of people if it leaked out of the tank. The Varadharajan Committee had also established that the antidote to this poison that must have sprayed immediately after the toxic gas leaked did not happen because the officers had disengaged it as cost-cutting measures. In other words, they knew that their acts would cause the death of a large number of people and that happened in the night of December 2-3 , 1984. Such knowledge is expected from the executives of a plant as much as one would expect policemen to know that a person, beaten up by them, day after day or someone whose head is banged against the wall is likely to die.
The point is that the least that must have been done in the area of criminal cases on Bhopal was a trial under Sec 304-Part II and thus ensure a conviction of 10 years in jail. Justice Ahmadi ensured that this did not happen for reasons known only to him! Let us not blame the clerk in the Supreme Court who posted the case (Special Leave Petition by the eight convicted now) before Justice Ahmadi's bench!
There is also the bitter truth about the compromise brokered by Justice R S Pathak on February 14, 1989 (he was the Chief Justice of India on that day) between Union Carbide and the government of India by which the American MNC paid just Rs 705 crore to ensure that all criminal and civil cases against the corporation were dropped. It was a shame even then and the victims had to fight fresh battles to revive the case on which the verdict came last week. The compensation amount was a pittance given the magnitude of the damage. But then, the settlement was sanction by our own Supreme Court! Let us remember that the government of India, headed at that time by Rajiv Gandhi, was a party to that settlement.
This being the case, how does one blame Arjun Singh, under whose nose Warren Anderson managed to be let out of the jail on December 7, 1984, within seven hours after his arrest the same day. It may be noted here that most of the dead in the tragedy were not even cremated before Anderson was let off on bail and allowed to fly out of Bhopal in an aircraft that belonged to the Madhya Pradesh government. Arjun Singh, one may presume, acted under instructions from his bosses in New Delhi. Their concern must have been foreign investments in India, if not kickbacks into their accounts in the banks in Switzerland and in the Channel Islands.
The CBI that investigated the case after December 9, 1984, could not have worked wonders where Arjun Singh, the powerful chief minister of Madhya Pradesh failed. The CBI too acts under instructions. The CBI could not have gone against the Supreme Court judge Ahmadi's wisdom. Well. Chief judicial magistrate Mohan Tiwari could not have done anything more than what he did on June 7, 2010 given the case before him. He could have resigned his job in protest and allowed another judge to do what he did if he had that kind of conscience.
But then, Justice Ahmadi could have acted otherwise in 1996 and held that charges under Sec 304-Part II were in order. Arjun Singh could have acted in such manner that Anderson did not go away from Bhopal on December 7, 1984. Rajiv Gandhi could have instructed those concerned against signing a settlement that reduced the compensation to such low levels and also bartered away the right to pursue the civil and criminal cases. Chief Justice R S Pathak could have refused sanction to such a settlement. His Lordship would have been held in high esteem by the ordinary people of India and the victims in Bhopal for that.
All of them compromised and allowed the MNC and its men get away with murder! An antinational act by all means. But who will hold them guilty and inflict the punishment to such an act?
(published in The Economic Times, June 11, 2010)
Even a child with an elementary sense of justice is bound to be outraged by the verdict by the chief judicial magistrate's court in Bhopal on the criminal case involving the various top officers of the Union Carbide India Ltd. Those who caused the death of over 20,000 people (3,800 in a single night and the rest over the years) and were responsible for several more thousands suffering from respiratory diseases and more with congenital disorders have been “punished” with two years in jail; to rub salt over the wounds, all of them were enlarged on bail within minutes after the verdict.
Former Chief Justice A M Ahmadi, meanwhile, claims he was helpless when he ordered that the accused in the case be dealt with only under Sec 304-A and not under Sec 304-Part II in the year 1996. Well. The point is that Justice Ahmadi was not helpless as he claims. On the contrary, the ambit of Sec 304-Part II was settled beyond doubt at that time.
The Supreme Court, in the Dalip Singh vs State of Haryana case (AIR-1993-SC-2302 ) had convicted under Sec 304-Part II. The case involved the death, in custody, of a man alleged to have stolen a buffalo, consequent to the physical torture by an SI of police and two constables. All three were convicted under Sec 304-Part II even though they did not intend to kill the poor man but ended up killing him in the course of beating him in the cell. Similarly, in S Mohanachandran vs State of Kerala (AIR-1994-SC-565 ), the Supreme Court held as proper conviction under Sec 304-Part II. This was a case where a victim of custodial violence was admitted to a hospital by the police themselves but the victim died.
The principle in both these cases was clear and as enunciated in Sec 304-Part II: that mere knowledge that the act will lead to the death of the victim was enough and it is not necessary to establish the intention to kill. And once it is clear that the accused was aware that an act would cause the death of the victim and irrespective of whether he intended to kill, the accused was liable to be convicted for imprisonment up to a period of 10 years and fine. This is what the law said when Ahmadi held (on September 13, 1996) that the eight accused be tried only under section 304-A and struck down the charge sheet under Sec 304-Part II, he was certainly in the wrong.
The eight accused, after all, were in the know that methyl iso cyanate gas was lethal and that it would kill a large number of people if it leaked out of the tank. The Varadharajan Committee had also established that the antidote to this poison that must have sprayed immediately after the toxic gas leaked did not happen because the officers had disengaged it as cost-cutting measures. In other words, they knew that their acts would cause the death of a large number of people and that happened in the night of December 2-3 , 1984. Such knowledge is expected from the executives of a plant as much as one would expect policemen to know that a person, beaten up by them, day after day or someone whose head is banged against the wall is likely to die.
The point is that the least that must have been done in the area of criminal cases on Bhopal was a trial under Sec 304-Part II and thus ensure a conviction of 10 years in jail. Justice Ahmadi ensured that this did not happen for reasons known only to him! Let us not blame the clerk in the Supreme Court who posted the case (Special Leave Petition by the eight convicted now) before Justice Ahmadi's bench!
There is also the bitter truth about the compromise brokered by Justice R S Pathak on February 14, 1989 (he was the Chief Justice of India on that day) between Union Carbide and the government of India by which the American MNC paid just Rs 705 crore to ensure that all criminal and civil cases against the corporation were dropped. It was a shame even then and the victims had to fight fresh battles to revive the case on which the verdict came last week. The compensation amount was a pittance given the magnitude of the damage. But then, the settlement was sanction by our own Supreme Court! Let us remember that the government of India, headed at that time by Rajiv Gandhi, was a party to that settlement.
This being the case, how does one blame Arjun Singh, under whose nose Warren Anderson managed to be let out of the jail on December 7, 1984, within seven hours after his arrest the same day. It may be noted here that most of the dead in the tragedy were not even cremated before Anderson was let off on bail and allowed to fly out of Bhopal in an aircraft that belonged to the Madhya Pradesh government. Arjun Singh, one may presume, acted under instructions from his bosses in New Delhi. Their concern must have been foreign investments in India, if not kickbacks into their accounts in the banks in Switzerland and in the Channel Islands.
The CBI that investigated the case after December 9, 1984, could not have worked wonders where Arjun Singh, the powerful chief minister of Madhya Pradesh failed. The CBI too acts under instructions. The CBI could not have gone against the Supreme Court judge Ahmadi's wisdom. Well. Chief judicial magistrate Mohan Tiwari could not have done anything more than what he did on June 7, 2010 given the case before him. He could have resigned his job in protest and allowed another judge to do what he did if he had that kind of conscience.
But then, Justice Ahmadi could have acted otherwise in 1996 and held that charges under Sec 304-Part II were in order. Arjun Singh could have acted in such manner that Anderson did not go away from Bhopal on December 7, 1984. Rajiv Gandhi could have instructed those concerned against signing a settlement that reduced the compensation to such low levels and also bartered away the right to pursue the civil and criminal cases. Chief Justice R S Pathak could have refused sanction to such a settlement. His Lordship would have been held in high esteem by the ordinary people of India and the victims in Bhopal for that.
All of them compromised and allowed the MNC and its men get away with murder! An antinational act by all means. But who will hold them guilty and inflict the punishment to such an act?
posted by Krishna Ananth at
11:55 PM
7 Comments:
Till date, I have not read any writer displaying 100% courage in writing. Having the courage to call spade a spade requires courage and conviction too. Apart from you having the guts to write that, what gladdened me most was the role played by E T. From where did the ET get / derive so much of courage. E T generally adopts pro-establishmentin stance / line, come what may.
You have hit the nail on its head, when you so emphatically state, and I quote "All of them compromised and allowed the MNC and its men get away with murder! An antinational act by all means. But who will hold them guilty and inflict the punishment to such an act?" Hats off to you Mr V Krisha Ananth, and congratulations.
I tried my level best to get a fix on you,i.e. to ascertain who you might be and your other details. The only plausible result that kept popping up repeatedly was of a Assistnt Editor in The Hindu Newspaper. But when I correlate the result of the search with this 'Permanent Revolution' portal, it does not quite jell.I am flummoxed to tell you the truth.
If you are actually and truly from The Hindu, I salute you for the trail blazing article but beyond that, No.
The reason being, I do not like N Ram's selective way of revealing State Secrets and the way he ran a campaign decrying,ridiculing, lampooning former CEC Shri Gopalaswami........... et al.There is enough exchange of emails with the previous Readerseditor, whom I used to lovingly call as "Conscience Keeper"............
Part - I
Let me repeat what everyone says about Indian judcial system: Law is an ass in India. What happened in UC Case is not an exception but the norm. If the judgement was anything other than what came out of this one, it would have been a shock to me. The existence or non-existence of the legal system makes no difference to the citizenry. This is the country where access to cheques/bottles/cheap women can buy/give you justice. I can cite a thousand legal pronoucements that can just contradict with one another in India.
The Indian judicial system is so porous that even best of the judgements can make the fatwas from Darul Ifta Deoband look so progressive and modern. I could rather live with these fatwas than with the legal pronouncements from these courts. From the bottom to the top of the judciary, it is a comedy club. People devoid of commonsense enter into judciary believing that here they can flourish as they need to compete only with idiocy and not intelligence. It is also true why on earth would anyone, even with single digit IQ, would enter into law school to study with the thugs/criminals/anti-nationals/womenisers/molestors. These 420s assault petitioners and still claim one crore as compensation for being "victims" from the Chief Comedian of India. The only criteria for this Chief Comedian to be so is not his laurels, but his inability to cut off from his umbilical cord of being a dalit. If it was any other country, these thugs would have been deprived of their offial/legal licenses to be thugs/criminals/anti-nationals/womenisers/molestors. Why donot we have gulags/gas champers in India?
"...that mere knowledge that the act will lead to the death of the victim was enough and it is not necessary to establish the intention to kill..." The next time an automobile manufacturer sells a car in India, they should also sell a fire engine with it. What next, selling a car with fire engine and training the buyers to be doctors themselves. Thanks Krishna for citing the Dalip Singh vs State of Haryana case to conclude that independent India, surprisingly, did not waste not more than 50 years to clear the ambiguity involving the ambit of Sec 304-Part II. Who said commonsense does not prevail in Indian judiciary? Now, it is time to move on to remove the next ambiguity. Could you please tell these legal luminaries, who are currently (justifiably with the support of BAR councils) busy throwing stones/chairs and fighting the turf battle with police in from of the Chief Comedian of India, to come inside to resolve/discuss the next ambiguity? So what even if it 50 years, atleast one ambiguity can be resolved (though not beyond doubt most of the times). Unless you restucture this comedy club called Indian judiciary, this norm cannot be reversed. Given this rate, I doubt anything more (than one) coming out of this anytime soon, atleast in my life.
Part - II
You have to me mindful of what you write even it is in a blog when you say "Justice Ahmadi ensured that this did not happen for reasons known only to him!" Though you know, and blindly believe, that judiciary is 'S'upreme in India and does not tolerate anything remotely resembling criticism, you still made this statment. You might get pulled up for 'contempt of court' for showing utter disrespect for the judicial pronouncement of Justice Ahmadi. Though the Indian judiciary does not expect you to pen a poem eulogising him, the least you could do, for being a part of this crack heads gang, is not to suspect his motive. Atleast we do not have this constraints as I am not a privileged member of this thoughtful fraternity.
The Indian judiciary needs to understand it is a legal arbitrator on disputes and its opinion is sought only on issues where legality is in doubt. There are so many pronouncements (of the recent past) in which its roles have gone beyond its role of being an legal interpreter: daming issues even before looking at them (for petty reasons - No wonder the judge famed for his commments on Nero has been given a berth in Rajya Sabha). People (and society at large) does not expect the judiciary and its despots to tell the people what is right or wrong. There are already laws in the country which are already written taken into account various wrongs and rights. Unfortunately, it is the responsbility of these despots to interpret these laws to different situation. If these despots believe that the laws adequately not reflect this (as the laws had extensively been copied from other countries), you need to go to work on these laws rather than pronouncing conflicting verdicts.
Why did Justice R S Pathak agreed to be a broker (it is not known what is he trying to broker?, who requested him to do that?, and what powers did be wield to do that?). If the government of the day agreed to broker an issue (no observant questioned his ability to be a broker) and agreed to take the compensation and the agreement had the sanction of the Comedy Club of India (who gave them the power to sanction the agreement?) why to moan about reviving this now. If the issue was about "The compensation amount was a pittance given the magnitude of the damage", then discussions should be about discussing the inadequacy of compensation and not the quantum of punishment. If the courts gave Anderson bail and the state/central government had willfully released him, and Justice R S Pathak agreed to work beyond his remit to negotiate compensation, why to even initiate the legal proceeding. The blood money is for the blood spilled.
Indians have come out sore loosers in this Bhopal episode. The cardinal principle of law in the country where I live in is that you cannot try a person twice unless you have a new evidence coming up to necessitate the second trial. But I donot see a case for second trial anywhere in the entire episode. At everystage I see a willful negligence on the parts of everyone involved: courts, governments, 'ever-observant' media, political parties, etc., The sufferings of Bhopal victims should only be ascribed to these parties and not to Anderson and his company. Why bother to bring him to India, if he is going to be punished only for two years. It is neither a punishment nor a deterrent. Don't expect anything better to come out of retrial. Better take the blood money and shut f..ck up. Let us focus more on the need of the hour: IPL - 3.
To Mr. Luthria:
Sir, I did work for The Hindu until February 2004.I do see the reasons behind you not liking the paper but then, every newspaper has its own right to do what it does or does not do. I do not share your views about the ET for the same reason. I remember the sequence of events involving CEC Gopalswami and had written about that in The New Indian Express.
To Polpot65:
I did not make sense of what his/her posts meant to convey. If it is intended to say that there is no sense in my post, I don't mind that. If it is to say that the there is no sense going to the courts, I leave it to the victims of the gas leak; they have been fighting the battle all these years and people like me have only stood by with them. If it is meant only to convey his/her own apprehensions that I may be hauled for contempt, my message is don't worry i shall take care of that. If it is anything else, be that as it may. cheers.
Hi,
I came across a few things that you had written in other fora. Since I am working on a reportage on Indian politics and society, I would be interested in hearing your views on a couple of issues (mainly relating to democracy, inequality, social tensions), if you are interested in sharing them. I am currently working from Sweden, so would it be possible for me to send questions via email or call you on the phone?
I am currently operating as some sort of freelance journalist. Previously worked for the UN in Bangladesh. Now in Sweden.
Best regards,
Magnus Lundgren (you can contact me on lundgren.magnus@gmail.com)
Just came across your blog by chance and thought I would comment. You are missing the point about sec.304(II). The distinction between culpable homicide amounting to murder and negligence is that in the former, the proximate cause of death is a deliberate, affirmative act that led to the death whereas in the latter, it is the failure to discharge an obligation that caused the injury/death to the person. The examples you cite bear this out too. In both cases, the victim was tortured/beaten - it was that which caused his death. The intention may not have been to kill, only to hurt but they are responsible for the outcome. In the Bhopal gas case, the charge is that the company failed to fix inadequacies in the running of the plant - there were faults that ought to have been rectified but were not because of which the accident was much more catastrophic than it otherwise would have been. That amounts to negligence, not culpable homicide. In fact, since the government never asserted that the company's negligence was the primary cause of the incident, one could even say that the negligence factor was only contributory and therefore deserved a smaller penalty than what the magistrate court awarded.
It seems to me that the basic grievance here is not that it was the wrong charge but the penalty is too small. I do not see much merit in the argument at all since the gravity of the offence should not be confused with the nature of the crime.
Dear Satish,
I beg to disagree.And I wish Justice Ahmadi does not get to read your legal notes.
The point is that 304-II deals with culpable homicide and it is legally sustainable to argue that those who ran the plant were guilty of that crime and not just guilty of negligence as Justice Ahmadi held.
And that is what the GOI is now talking about while talking about a curative petition.
Let me stress that it was not negligence but an act despite knowing that the gas could leak and kill people. It may not have been a conspiracy but 304-II DOES NOT require a conspiracy.
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