Supremely fallible

The present ruling by the Supreme Court of India on the Bhopal Gas Disaster questions the finality of its own orders.

On 11 May, the Supreme Court of India dismissed the curative petition filed by the Central Bureau of Investigation (CBI) to recall the 1996 judgment of the Court quashing the charge of ‘culpable homicide not amounting to murder’ and declaring that the lesser offence of ‘death by rash and negligent act’ was made out with regard to the 1984 Bhopal Gas Leak. While doing so, it also observed that the Chief Judicial Magistrate (CJM) in Bhopal, the capital of the state of Madhya Pradesh, was mistaken in thinking that the 1996 Supreme Court judgment, which quashed the ‘culpable homicide’ charge, was binding and therefore, forbade him to alter the charge himself in exercise of powers under the Criminal Procedure Code (CrPC).

At the time of the gas leak on the night of 2-3 December 1984, Keshub Mahindra headed Union Carbide Corporation (UCC). The noxious fumes killed thousands and maimed more, with continuing ill-effects to this day. However, convicting Mahindra and others accountable for India’s worst mass disaster took 26 years. In June 2010, the Chief Judicial Magistrate finally sentenced the convicted, but for only two years in prison. It was the maximum sentence imposable under Section 304 A of the Indian Penal Code (IPC) for ‘death by rash and negligent act’. The minor nature of the offence, under which the accused were tried and convicted, meant that bail was immediately granted. Today, while Mr Mahindra remains the comfortable Chairman of Mahindra & Mahindra, India’s largest SUV manufacturer, the survivors in Bhopal lead a pitiable existence in pain, with paltry compensation and inadequate medical facilities. Over the years, increasingly more persons have died from effects of the leaked Methyl Isocyanate (MIC) gas.

The verdict, unsurprisingly, led to mass protests by the survivors. The central government, which had not heeded pleas for diligent prosecution until then, succumbed to public pressure. In August 2010, fourteen years later, the Central Bureau of Investigation (CBI) filed a curative petition assailing the 1996 dilution of the charges from the ‘culpable homicide not amounting to murder’ to ‘death by rash and negligent act’ by the Supreme Court. The CBI argued that there was adequate evidence constituting the former offence and that the Court committed a serious error in quashing the charge of culpable homicide under Section 304 Part II of the IPC. The CBI also concluded that the Chief Judicial Magistrate (CJM), Bhopal, had enough material to commit the case to a Sessions Court for trial for culpable homicide. However, the categorical finding recorded in the Supreme Court’s binding 1996 judgment barred the CJM from exercising his power to alter the charge.

Déjà vu
The curative petition filed under public pressure invokes a feeling of déjà vu. Back in 1984 the tremendous public outrage and protest after the disaster forced a reluctant government to lodge a First Information Report and initiate criminal proceedings. The predominant attitude of the government so far seems to have been of concern that it should not ruffle the feathers of multinationals. The arrest of Warren Anderson, then Chairman of Union Carbide Corporation (UCC), on 7 December 1984, consisted of being comfortably ensconced in the company guest-house and released on a bond of INR 25,000 the same day. Even conditions such as remaining in the city and depositing the passport in court, routinely imposed while granting bail were not sought by the prosecution in a case where the likelihood of the accused fleeing the jurisdiction of the court were high. Instead, the State government well protected Anderson from the media glare and flew him safely to New Delhi in an official aircraft. Since then, the farce of an ‘untraceable’ disappearance of a well-known individual such as Anderson is still in act.

In 1985, the Government of India (GOI) enacted the Bhopal Gas Tragedy (Processing of Claims) Act arrogating to itself the exclusive rights to represent and act on behalf of the survivors/victims of the Gas Leak disaster. Thereafter, the GOI proceeded to enter a settlement for a completely inadequate and paltry sum of USD 470 million with UCC. In 1989, the Supreme Court endorsed this proceeding, citing ostensibly, on grounds and in view of ‘the enormity of human suffering occasioned by the Bhopal Gas Leak Disaster and the pressing urgency to provide immediate and substantial relief to [its] victims’. Subsequently, the Claims Tribunals awarded measly sums as compensation to the survivors and the beneficiaries of the victims while the bulk of the money remained intact until 2004. Even then, a few hundred dollars was distributed to over 500,000 claimants.

As part of the settlement with UCC, the GOI, shockingly, agreed to drop all criminal charges against the corporation. Even though serious charges like culpable homicide are not compoundable under Indian law and cannot be quashed by an agreement between the parties, the Supreme Court affixed its seal of approval on the Settlement. Strident protests and review petitions resulted in the Indian Supreme Court setting aside the part of the ’89 Settlement quashing the criminal charges with regard to the Gas Tragedy.

In the criminal proceedings the CJM took the view that the offence of culpable homicide not amounting to murder was made out and committed the case to the Sessions Court. Subsequently, on 8 April 1993, the ninth Additional Sessions Judge of Bhopal framed charges under Section 304 part II of the IPC. Although in 1995 the Madhya Pradesh High Court dismissed the appeal of the accused, the Supreme Court in 1996 reduced the charges of ‘culpable homicide’ to a case of ‘death by rash and negligent act’, usually used for traffic accidents. Then in 1997, the Supreme Court dismissed review petitions filed by organizations of survivors. Amidst this background the CBI had submitted its curative petition.

Instead of dismissing the petition outright on the ground that it came 14 years too late, the Supreme Court chose to entertain the petition, raising hopes of justice among the survivors. Eventually, on 11 May, it did dismiss the curative petition citing two reasons: The CBI did not question the 1996 judgment for 14 long years, and it did not support the application and the review petition, asking to raise the level of the charge to section 304 Part II IPC, by the survivors.

Catch 22
Remarkably, the Supreme Court also clarified that the 1996 judgment was not binding on the CJM, suggesting that the Magistrate had misread the Judgment. The Court stated that the 1996 ruling was based on materials at the stage of the ‘framing of charge’; if additional evidence came on record, the Magistrate was free to exercise power under the Criminal Procedure Code (CrPC) and proceed to alter the charge. It is important to keep in mind that the framing of charge takes place after the charge sheet has been filed in court. The charge sheet is the culmination of investigation and contains all the evidence collected against the accused. It is difficult to follow the Catch 22 reasoning offered by the Court. The Magistrate did exercise powers under CrPC when in 1993 it committed the case to the Sessions Court under Section 304 Part II IPC. The 1996 Judgment struck down this charge and held that only the lesser one under Section 304 A of the IPC was applicable. The 11 May 2011 judgment of the Supreme Court offers the fig leaf of the material present at the stage the 1996 judgment, as the justification for altering the charge to death by rash and negligent act.

During the 1996 judgment, one of the materials presented at the stage of the ruling was the 1982 report by a team of UCC experts from the United States. The report entitled ‘Operational Safety Survey Report’, published after an examination of the Bhopal plant, clearly indicated the potential for the release of toxic materials in the phosgene/MIC Unit and storage areas either due to equipment failure, operating malfunctions or maintenance problems. The report also recorded the potential for contamination, overpressure, or overfilling of the Sevin MIC feed tank. In its list of potential sources of leakage, it had even included the contamination of the feed tank with material from the vent gas scrubber – the source of the Bhopal Gas Disaster. The deficiencies pointed out as early as 1982 were not corrected leading to the 1984 Gas Leak.

Post-disaster, a team headed by Dr S Vardarajan, then Director General of Council for Scientific and Industrial Research (CSIR), studied the scientific and technical aspects of the plant and submitted a report to GOI. Among the various defects, the report lists, in particular, problems with the storage tank, and instrumentation and control system. It points out that the volatile and toxic MIC was not kept at the required temperature or pressure. Neither was a high-pressure alarm system installed to alert the operators about the pressure build-up. In addition, large quantities of MIC were needlessly stored for long periods of time; precautionary steps in design and construction were insufficient; warning systems were inadequate; and quick effective disposal of material exhibiting instability was lacking – all of which led to the leakage.

Evidence also suggested that the plant was making loss and therefore, was to be dismantled and shifted out of India. The owners and management were no longer interested in having it function safely. The offence of ‘culpable homicide’ requires the knowledge – but not the intention – that the act is likely to cause death. At the stage of the framing of charge, the court does not have to examine the evidence in detail; it merely has to see whether a prima facie case can be made. At the time of the 1996 ruling by the Court, the report submitted by the experts from the United States and the findings from the Vardarajan Committee clearly suggest that the running of the plant in the stage it was, was likely to cause death. The 11 May order refused to acknowledge any error on the part of the Court in 1996.

The CBI has declared that it will seek early hearing of the appeals. Unfortunately, the fact that the trial court verdict came after 26 years does not inspire much confidence in the processing of the case at the appellate stages. The court saga of the Bhopal Gas Disaster highlights the inadequacies of the Indian legal system in handling matters of liability, compensation and punishment at times of industrial disasters. This has implications for the areas of civil and criminal liability in the controversial Civil Nuclear Liability Bill. Governments and courts need to prioritize lives and safety of their citizens, rather than being unduly concerned about displeasing multi-national corporations and foreign investors. They can start by admitting their error in judgment.

Rakesh Shukla practices law at the Supreme Court of India, New Delhi

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