25 years and still waiting


Vidya Subrahmaniam IN THE HINDU DECEMBER 2, 2009

The Anderson saga is one more reminder that the powerful can always count on official help.

In the fall of 2002, Greenpeace campaigner Casey Harell paid a surprise visit to the New York State private estate of Warren Anderson, and found him living a “life of luxury”. Nothing odd about the discovery except that in the eyes of the law Mr. Anderson was untraceable, and had been so since 1992 when an Indian court, exasperated by his refusal to heed multiple summons for trial, declared him a fugitive from justice.

Mr. Anderson was chairman and chief executive officer of the United States-headquartered Union Carbide Corporation (UCC) at the time of the lethal December 2-3 methyl isocyanate leak from Carbide’s pesticide plant in Bhopal and faced charges on many counts, including culpable homicide. The UCC chief, or “Accused no 1” in a December 1, 1987 chargesheet filed by the Central Bureau of Investigation against him and 11 others, including UCC, USA; Union Carbide (Eastern), Hong Kong; and Union Carbide India Limited (UCIL), had been placed under house arrest soon after the disaster but won his release on a promise to return to India to stand trial.

Neither Mr. Anderson nor Carbide would turn up in the Indian court and for obvious reason. The toxic gas leak had caused a human tragedy of unprecedented proportions: Around 4,000 (unofficially 8,000) immediate deaths and over a lakh people permanently disabled. In the years to come, the death toll from long-term exposure would mount to 20,000, tens of thousands of children would have birth defects, and many millions would fall gravely ill from drinking water contaminated by the massive amounts of chemical waste dumped in and around the Carbide factory grounds. UCC and its CEO would have had hell to pay had they chosen to face charges.

Mr. Anderson had been in hiding for ten years when Greenpeace, and before that a British newspaper, tracked him down. Mr. Harell would remark after the meeting: “If a team of journalists and Greenpeace managed to track down India’s most wanted man in a matter of days, how seriously have the U.S. authorities tried to find him in all these years? The U.S. has reacted swiftly on curbing the financial corporate crimes of Enron and WorldCom, but has clearly not made much of an effort to find Anderson, responsible for the deaths of 20,000 people in India.”

The searing comment underscored the dubious role played by the world’s most powerful democracy in protecting the key perpetrator of the world’s worst industrial disaster. Seventeen years after he was proclaimed an “absconder”, Mr. Anderson, now 88, continues to elude the long reach of the law. However, it is not just that the wheels of justice showed no inclination to move in the U.S. The Indian government has been no less lethargic in bringing Mr. Anderson to justice. It sent out a formal request for his extradition in May 2003, close to two decades after the crime. As Bhopal activist Nityanand Jayaraman would tell The Hindu on the 25th anniversary of the gas leak: “In the case of Anderson, the [Indian] government’s heart is just not on the job.”

Indeed, the Bhopal saga is a painful reminder of the unconscionable way justice plays out for the poor in this country — with victims fighting a battle so long and hard that justice has little meaning when it finally arrives. Following an unjust settlement reached between Carbide and the Indian government in 1989 (the Indian government sued the corporation for $3 billion but settled for 15 per cent of the amount), survivors were awarded a lifetime average compensation of Rs.25,000, far below international compensation standards. But even this meagre amount would reach the awardees after long delays, protracted red tape and bribes paid to lawyers, middlemen and touts. Compensation would not reach some survivors until 2005, and till date no compensation has been awarded to those born with disabilities and those drinking contaminated water.

The struggle for compensation at least got somewhere, unlike l`affaire Anderson which shows no signs of coming to fruition. In all these years, the gas leak survivors have got used to being told that they must move on, that they must put their tragic past behind them. It is a familiar story. Sikh victims of the 1984 pogrom have heard this nugget of wisdom as have Muslim victims of Ayodhya 1991 and Gujarat 2002. It is as if the perpetrator of a criminal act somehow becomes less guilty if he holds out long enough.

Astonishingly, this was the official stand taken by the Indian government with regard to Mr. Anderson. On August 6, 2001, then Attorney-General Soli Sorabjee advised the Vajpayee government in writing against pursuing Mr. Anderson’s extradition. He argued that it would be difficult for the Indian government to satisfy the “probable cause” requirement necessary for securing Mr. Anderson’s extradition. As the phrase itself suggests, “probable cause” means something more than a mere suspicion but less than the quantum of evidence required for conviction.

Mr. Anderson exercised managerial control and supervision over the operations of UCIL, he approved and ratified the standards in design, safety and operations at UCIL, which were far inferior compared to UCC’s plant in West Virginia, he knew that Carbide had sent a team to inspect the Bhopal plant before the disaster which noted leaking valves in the plant and warned of the “potential for the release of toxic materials”. To show Mr. Anderson prima facie guilty of a grossly irresponsible act that killed, maimed and continues to cause grievous hurt to millions of people was hardly a huge challenge.

Mr. Sorabjee thought otherwise. Worse, he also pointed to “humanitarian considerations” likely to be cited by the U.S. government against Mr. Anderson’s extradition. “The reasons are humanitarian concerns, such as Mr. Anderson’s age, said to be 81 years old, and [his] health and length of time that has elapsed, almost 17 years, between the event and the Indian government’s decision to make a formal request for extradition.” In other words, it was the fault of the victims that Mr. Anderson had grown old while the Indian government took its own time — despite countless petitions to successive governments and prayers before the Bhopal District Court — to take up the extradition question with the U.S. government.

Yet the more the government dithered, the stronger was the survivors’ determination to fight to the end. They organised themselves under various banners and fought simultaneous battles on many fronts — in India as well as in the U.S. Each setback spawned a further round of protest marches, hunger strikes and petition-making. In November 1999, survivor organisations filed a class action suit against UCC and Mr. Anderson in the Southern District Court of New York, charging them with violating international human rights law, environmental law and international criminal law. Federal Judge John F. Keenan would twice throw the case out before agreeing to hear the case again following a partially successful appeal in the Second Circuit Court of Appeals (New York).

A fresh twist in the case came with the 2001 acquisition of UCC by The Dow Chemical Company. The latter persisted with the lie that it had acquired the assets of UCC without its liabilities. It also refused to surrender Carbide (now its subsidiary) for trial. To add insult to injury, Dow also landed law suits on protestors who besieged its offices in India, shouting, “Dow, you now have Union Carbide’s blood on your hands”. Dow claimed $10,000 in compensation for alleged loss of work resulting from the demonstrations.

In all this, the CJM’s court in the Bhopal District Court remained as the lone flicker of hope for the Bhopal gas survivors. The court struck blow after blow for them. From the 1988 letters rogatory issued to the U.S. administration seeking permission for the CBI to inspect the safety systems at UCC’s West Virginia plant to proclaiming Mr. Anderson an absconder in 1992 to persistently seeking information from the CBI on the status of extradition proceedings to quashing the agency’s 2002 attempt to dilute the charge against Mr. Anderson from culpable homicide (punishable with imprisonment up to 10 years) to criminal negligence (punishable with imprisonment up to two years), the District Court was as pro-active as the Indian government was laid back.

The CBI’s 2002 attempt at dilution of charges was of a piece with Mr. Sorabjee’s 2001 advice to the government against seeking Mr. Anderson’s extradition. However, with the Bhopal magistrate standing firm, the CBI was left with no option but to request the Ministry of External Affairs to seek Mr. Anderson’s extradition, which the MEA did, obviously reluctantly, in May 2003.

In July 2004, the U.S. government expectedly rejected the Indian request. It stated that the request did not meet the requirements of Article 2(1) and 9 (3) of the extradition treaty between the U.S. and India.

What now? On July 22, 2009, the CJM’s court in Bhopal issued a fresh warrant of arrest against Mr. Anderson, and ordered the CBI to produce him before the court for trial. Unfortunately, the meandering path the case has taken so far gives no cause for hope. Indeed, it is difficult to believe that the Indian government, even less its U.S. counterpart, will persuade the 88-year-old “Accused no 1” to come to India one last time — to stand trial for a crime he committed a quarter of a century ago.

In reverse gear

The issues raised by a two-judge bench have the potential to undo many reformative steps taken by the apex court

M J Antony / New Delhi December 02, 2009, 0:27 IST IN THE BUSINESS STANDARD

Judicial activism has faced several assaults from politicians and bureaucrats ever since the Supreme Court became affirmative.But the sad part is that it has had to also face onslaughts from within.

When the public interest litigation movement was in its infancy, a bench of strict constructionists one morning brought up 10 questions that would have choked its growth in coils of conservative interpretation of the Constitution (Sudip Mazumdar vs Union of India). However, some years later, another bench deftly deflected the attack by “disposing of” the case without answering the loaded questions, and the movement advanced with renewed vigour. Citizens applauded it.

Recently, another bench drafted a set of questions that threatened to weaken the Supreme Court, which is said to be the mightiest under any democratic system. The thrust of this new lot was to restrict the powers of the court and leave the executive and the legislature alone on the ground of “separation of powers” (University of Kerala vs Council of Principals). This doctrine itself is undefined and has been a subject of constant debate among jurists for about seven centuries now. The Constitution of India does not recognise strict separation of powers.

In this case, a bench had earlier set up a committee of distinguished educationists and others to study the conduct of student union elections in view of criminalisation of student politics. The panel made some recommendations which the court asked the authorities to implement. When the matter came up before the bench mentioned earlier, the whole course of the case took a different turn. This bench raised complex constitutional questions. In its opinion, the court could neither legislate or take over executive functions, nor act as an “interim Parliament”.

The two-judge bench formulated several issues regarding separation of powers and the power of the court to direct executive authorities to implement its recommendations. It asked the Chief Justice to set up a Constitution Bench to address those issues. This could result in a giant leap backwards on several counts.

The question whether a two-judge bench can refer questions directly to a Constitution Bench, thus violating the court’s own practice and discipline, is only procedural. But the most worrisome aspect of the order is that it has the potential to undo many reformative steps taken by the Supreme Court all these decades. The famous Vishaka case (1997), for instance, laid down rules to protect women at workplace. In the absence of government action, the duty fell upon the court to “legislate” the rules. The government did not protest, and women welcomed it. If the court now reverses its policy, the judgment would have to be reviewed.

The government quivers at the thought of passing a legislation to enable and regulate adoption of orphans. But it was the Supreme Court that “legislated” rules in this regard. The government has since been merely following the norms set by the Supreme Court judgment in the LK Pandey case (1987) — it has not passed a law even after decades. Some other fields in which the court has taken affirmative steps are environment, unemployment and poverty alleviation. The nation welcomed the court’s initiative as the executive and the legislature had failed to enforce the fundamental rights of the citizens.

The view of this two-judge bench contradicts the established opinion in scores of judgments delivered by larger benches. In the C Ravichandran Iyer vs AM Bhattacharjee case (1995), the court said that the role of a judge is not merely to interpret the law but also to lay new norms of law and mould the law to suit the changing social and economic scenario to make the ideals enshrined in the Constitution a meaningful reality. Society demands active judicial role which was earlier considered exceptional but is now a routine. This view has not so far been doubted in any later judgment.

Renowned jurists have long accepted the role of judges as law-makers. John Austin said: “I cannot understand how any person who had considered the subject can suppose that society could possibly have gone on if judges had not legislated, or that there is any danger whatever in allowing them that power which they have in fact exercised, to make up for the negligence or the incapacity of the avowed legislator.”

The legal system in England, which has been adopted by India and other common-law countries, is based largely on judge-made law until around the 17th century. US Supreme Court judges recently observed that not only their court, but even the subordinate courts make laws because there are situations which are not covered by any law and the judges have to fill up the crevices. The questions now posed in the Kerala University case, therefore, appear not only redundant but also incapable of answers.

Everything for justice


Any judge who seeks immunity from truth under the cover of the robe robs the rights of We, the People of India.

The Prime Minister and the Chief Justice demand more number of courts — in their thousands. This is part of the pathological arrears syndrome. The truth is: more courts, more arrears, more lazy judges, more examples of Parkinson’s Law and Peter Principle. The real cause of the escalating arrears is the absence of accountability and transparency.



The correctional strategy is an effective Appointments Commission in place of the dubious collegium, a vigilant Performance Commission, and periodic collegiate updating of jurisprudence. There is also a need to sensitise judges about socio-economic and political problems, to pare down redundant dockets and prolix hierarchy, streamline procrastination and ensure better-behaved precocity. On the whole, the Victorian system of justice administration should be eliminated and a transformation should occur. There should be periodic Law Reform Commissions whose recommendations are implemented by high-power judicial committees. There should be more itinerant decentralisation, evening courts, creative realism and a critical assessment of the curial hierarchy and public debate of judgments.

For more disposals, early finality and inexpensive justice, the purposeful therapy is not the arithmetical illusion of judicial numbers but intelligent selection of the robed brethren, of result-oriented technology, and summary procedure. One capable judge with sound social philosophy is a better instrument of justice than a dozen mediocre, indolent ignoramuses who will merely add to the adipose of the system.

The Bar contributes to the locomotion of the justice system. Typically, an American attorney delivers better arguments in 30 minutes than a Senior Advocate would do over three days in an inert Indian court. An efficient Bar is more promotive of the celerity of judicial disposal than an elaborate precedent — in a crowded, paper-logged, forensic, prolonged-performance system. The strategy of judicial excellence is not a play with numbers, or a game of hiding assets or delaying the delivery of judgments. The Supreme Court, which is inordinately the fifth deck of a poor system of justice, is infallible for the rich because it is final; not because it is wise, humanist and compassionate or within the reach of the poor.

The Chief Justice claimed that he had the title to represent the entire judicature, claiming an unknown power oblivious of the fundamental fact that he is only first among equals and can be overruled by just two of his brothers. It was a joy to read of the daring move of the judges together asserting the transparency principle, defying the chief and deciding to make their assets public. To hide is to arouse suspicion and suspicion is the upas tree under whose shade reason fails and justice dies.

Any judge who seeks immunity from truth under the cover of the robe robs the rights of We, the People of India, the sovereign of Bharat. Secrecy is unbecoming of the curial fraternity and shall be exposed if they justify their freedom from revelation from the People of India. The transparency of the socio-economic condition of the judges is not negotiably fundamental in any civilised system of justice. The court is an open book and if the Bench seeks an iron curtain between its economic interest and the litigant community it is violative of glasnost.

All’s well that ends well. The huge majority of the judges of the Supreme Court had to save their reputation, dignity and integrity over the most powerful constitutional institution. The Chief Justice of India is the noblest office of justice and is ordinarily infallible, but the court as the whole is supreme and is governed by perestroika and glasnost. What a wonder that the whole court has upheld the finest doctrine of openness. Nothing to hide, everything for justice.

This is why India holds in hallowed reverence the administration of justice. Never in the field of human conflict was so much owed by so many to so few. Fundamental rights, human values, sacred duties, peace and stability are governed by the performance of the court (Article 41).The best judge has nothing to hide and everything to discover without fear or favour and do justice to everyone, be he high or humble, without affection or ill-will.

Futile assertion

The pity of it is that the Chief Justice made a case when he vainly made a futile assertion that judicial assets are a hidden treasure. No, he made a mistake. But the full court saw the wisdom of judicial assets being responsibly disclosed to serious citizens under accountable conditions, not to frivolous busybodies. The chief may be forgiven because even the great could go wrong.

It was Emerson who wrote: “Is it so bad then to be misunderstood? Pythagoras was misunderstood, and Socrates, and Luther, and Copernicus, and Galileo, and Newton, and every pure and wise spirit that ever took flesh.”

In our murky world of gloom, greed and agony, our duty is to save the country by means of a compassionate recipe a la Vivekananda: “Feel, my children, feel for the poor, the ignorant, the downtrodden; feel till the heart stops and the brain reels and you think you will go mad. We talk foolishly against material civilisation. The grapes are sour? Material civilisation, nay even luxury, is necessary to create work for the poor. Bread; I do not believe in a God who cannot give me bread here, giving me eternal bliss in heaven. Pooh; India is to be raised, the poor are to be fed, education is to be spread, and the evil of priestcraft is to be removed? more bread, more opportunity for everybody?.”

The awakened robes have righted the absurd wrong of the chief. I salute you for overruling the jejune wrong; the jurisprudence of concealment is corruption. Corruption is the power of the rich. The robe shall not permit to be robbed by the rich.

It is better to be ultimately right than consistently wrong. To conceal the truth with regard to assets is unbecoming of fiat justicia, civilised justice, justices and justicing. Sorry, chief. You still can hold a kindly light amid the encircling gloom. No more darkness, but light. You are still the leader of luminous law and untainted truth, without fear or favour.

The syndrome of judicial arrears

By Justice V R Krishna Iyer in THE HINDU

The Chief Justice of the Supreme Court has been repeatedly urging that we must have thousands more as members of the judiciary as the solution to the problem of arrears. But that will only be a remedy which could aggravate the malady. This is a mediocre recipe that could prove counter-productive.

Man’s capacity for justice makes democracy possible, but man’s inclination to injustice makes democracy necessary.

Reinhold Niebuhr

When justice is denied by any society, including a socialist, secular and democratic one as in India, expectations darken into depression. Then that depression turns into dread, dread transforms itself into despair and despair evolves into explosive terrorism. State violence as an instrument to suppress terrorism is futile: after a time the bitterness and revengefulness that is generated will seek to overthrow those very forces that control state power — call it fascism, naxalism, Maoism or whatever. This dangerous deterioration of democracy into bedlam terrorism is hastened when access to justice ceases to be a reality and the only alternative is violence. When the rule of the robes proves a mirage, the rule of robbery gets support and sanction.

The way to eliminate this ghastly syndrome is not more state force but making the system of justice, justices and justicing truly accessible to the have-nots by means of radical judicial reform that is decentralised and democratic. If this does not become possible, the suffering people may leave the courts and take to the streets. This social strategy and humanism are what we need if noxious, nocent violence is to surrender to truth, justice, equity and egalite, the majestic values of the Mahatma. Rowlatt or Chowri Chowra or Naokhali, or Gandhian courage — which do we need? Here is the critical issue. Is our justice system jejune, and have the robes been robbed of their reality?

How shall we transform our judicative process? The Executive has force at its command and the Legislature is incompetent to make meaningful laws but has the backing of the masses who voted for its members. The judiciary has the bench to sit on and the authority of the Constitution to back it. If its verdict is ignored, it has no means to enforce its rulings. Sans justice, judges are powerless power.

What is wrong with our courts that they have lost their credibility and prestige? Corruption has crept in. Forensic morals have been jettisoned and no longer form their inviolable virtue. More than all else, delay of dockets and Himalayan arrears frustrate the hope of justice from the forensic process. While the system is accessible and open to the rich and those from the creamy layer, the under-privileged have no money and are priced out of the institution. The Bar, an indispensable factor in the adversarial system, is too expensive for the lowly and the forlorn. The fees and the formalities make the law too dear for the have-nots. The hierarchy adds to the cost, the delay and the uncertainty of the final verdict.

Appeals upon appeals make justice through litigation inordinately dilatory and costly, and the law becomes the last means for the aggrieved to get relief. One appeal is necessary, two is too much, but we have four or five decks to spiral up. The litigant has only one life but litigation has several lives to see its end. Judgments typically take years to pronounce and some judges do not pronounce any judgment at all. They would seem to be unaccountable since there is no Performance Commission in operation.

Another great deficiency is that a collegium that is untrained in the task, selects judges in secret and bizarre fashion. There could be room for nepotism, communalism and favouritism in the absence of guidelines. The selection process excludes the Executive. Nowhere in the world do we have judges alone selecting other judges. The collegium is a disaster: the P.D. Dinakaran episode is an example. A new code by a constitutional chapter has become an imperative. Appointment is a desideratum.

What we now have as weaknesses of the system is Parkinson’s Law and Peter Principle. The first creates vacancies after mediocre judges cause arrears to mount. The second elevates officers to the highest level of their incompetence. Even if you have 10 times the present number of judges, so long as there is no accountability, the arrears will multiply, the judicial budget will escalate and the disgrace of the judiciary will grow. A revolution is necessary and a sense of scientific spirit and reason is needed if the judicature is not to become a caricature, or a torture of the right to justice.

If our Founding Fathers are not to be betrayed, we need at once a judicial-constitutional code including a scissoring of the hierarchical syndrome. Or be prepared for a revolution. The unknown collegium, judges expanding their own breed, creating arrears more than anywhere else in the world, and other pathologies promoting a self-operated system…

Is India so bereft of statesmanship that it cannot create a swadeshi-swaraj judicature? A spiritual-natural synthesis carrying out Bharat jurisprudence and justice system must be the operation of the next Parliament.

Did not Jawaharlal Nehru assert that the Supreme Court is no third chamber of the House? Did not Franklin D. Roosevelt tell the American Supreme Court that if it did not serve the nation’s interest he will pack the court? Let us not therefore allow the Indian courts to refrain from the tryst with destiny or go back on the grand Preamble of the Constitution. We, the People of India, shall not allow the judges to produce a pathological syndrome of seppuku.

I am critical of the great institution of justice of which I was a member during the best part of my life. But as Oliver Wendell Homes, the great American judge, said while criticising his judicial system, it would be less than fair if I do not constructively and correctively criticise the system of which I was a part if I see some dark drawbacks therein. My purpose is only to improve the system, never to denigrate it.

The Berlin Wall has fallen. Leningrad and Stalingrad is no more on the map of the Soviet Union. Nelson Mandela and Mahatma Gandhi, prisoners under the empire, have become Fathers of the Nations. Why not the Indian judiciary, patterned after the British, change and become truly swadeshi and Indian?

Judges have a heavy responsibility in the matter of chronic docket arrears. Nowhere in the world except in India does litigation last up to half a century in some instances. The art of fast disposal of cases would seem to have become alien to the judges, who do not know the strategy of having a brief hearing and delivering the judgment in a few days. A leisurely, jocose and even bellicose style, a high-and-mighty bearing, and slow and endless arguments are hampering the competent performance of the judges. American judges allow half an hour and no more. Look at the discipline that this writer showed in the stay proceedings of the Indira Gandhi case. Originality, imagination and talent have become scarce commodities. These are mostly covered up by demands for 10 times more of incompetent judges and none to expose them for fear of being hauled up for contempt.

The Chief Justice of the Supreme Court has been repeatedly urging that we must have thousands more as members of the judiciary as the solution to the problem of arrears. But that will only be a remedy which could aggravate the malady. This is a mediocre recipe that could prove counter-productive.

This view is supported by two great Indian jurists. M.C. Setalvad commented in his autobiography My Life (1970) on the statement of Dr. K.N. Katju, when he was Home Minister, that the “greater the number of judges in court, the lesser the rate of disposal for each judge. Though one may regard this as an overstatement, it is undoubtedly true that a larger judicial personnel frequently makes the courts cumbrous and slow moving.” He added: “What is needed is the appointment of really able persons who can rapidly and satisfactorily deal with the accumulation of work.”

Likewise, M.C. Chagla observed in Roses in December: “To my mind the solution is simple. See that the men you appoint are proper ones. Find judges with an alert and active mind. What is more important, pay the judges better, give them a better pension, and enforce better conditions of service. The usual solution put forward is to increase the number of judges. But if the men selected are not really competent, Parkinsons’ Law will come into play. The more the judges, the greater will be the load of work.”

It is time we had an effective executive which will call the bluff when judges invent alibi to explain away their incompetence and absence of integrity. An investigation into the entire higher judiciary may well weaken our faith in the integrity and incorruptibility of their lordships.

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