Flawed process

V. VENKATESAN IN THE FRONTLINE

An application filed by intervener organisations fails to convince the trial court about the merits of ordering a fresh trial in the Bhopal gas case.

THE judgment of the Chief Judicial Magistrate (CJM) Mohan P. Tiwari convicting seven accused in the Bhopal gas tragedy case and sentencing them to two years’ imprisonment has provoked outrage, with activists saying that the punishment is disproportionate to the enormity of their offence.

It is pointed out in defence of the CJM that his hands were tied in view of the Supreme Court judgment on September 13, 1996, diluting the charges against the Indian accused in the Keshub Mahindra case. The Indian accused in the Bhopal disaster criminal case challenged the order framing charges against them and fought the case up to the Supreme Court.

The Supreme Court obliged them by converting their offence from culpable homicide not amounting to murder (Section 304 Part II of Indian Penal Code) to rash and negligent act causing death (Section 304 A IPC). While the punishment for culpable homicide is up to 10 years’ imprisonment, the maximum sentence that could be awarded for rash and negligent act is only up to two years.

A little background to this case may be useful. On April 8, 1993, the Ninth Additional Sessions Judge, Bhopal, W.A. Shah, framed charges of culpable homicide against the nine Indian accused. The Indian accused filed revision petitions in the High Court at Jabalpur. The High Court dismissed these petitions on August 1, 1995. The accused then filed special leave petitions against the High Court order in the Supreme Court.

The plea of the accused was that the charges framed were legally unsustainable on the basis of the material available at that stage. To get relief, the accused relied on Section 227 of the Code of Criminal Procedure (Cr.PC), which lays down that “if, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing”.

The Supreme Court pointed out that at the stage of framing the charge the court was required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. The court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

An accused can be charged for an offence of culpable homicide not amounting to murder if it is alleged that he committed the act with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death.

Section 299 of the IPC defines culpable homicide. It lays down that “whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide”.

Consequently, the material relied upon by the prosecution for framing a charge under Section 304 Part II must at least prima facie indicate that the accused had done an act that caused death with at least such a knowledge that he was by such act likely to cause death. The entire material which the prosecution relied upon before the trail court for framing the charge, according to the Supreme Court Bench comprising Justices A.M. Ahmadi and S.B. Majmudar, could not support such a charge unless it indicated prima facie that on that fateful night of December 3, 1984, the plant was run at Bhopal by the accused with the knowledge that it was likely to cause deaths of human beings.

The Bench further reasoned that even assuming that it was a defective plant and the factory was dealing with a toxic and hazardous substance like methyl isocyanate (MIC), the mere act of storing such a material by the accused could not even prima facie suggest that they had knowledge that they were likely to cause the death of human beings.

The Bench felt that the voluminous evidence led by the prosecution at least prima facie showed that the accused could be alleged to be at least guilty of a rash and negligent act. The Bench concluded so even though the then Additional Solicitor-General, Altaf Ahmed, submitted that there was ample material produced by the prosecution in support of the charge-sheet, which clearly indicated that all the accused shared common criminal knowledge about the potential danger of the escape of the lethal gas, MIC, both on account of the defective plant, which was operated under their control and supervision in Bhopal, and also on account of the operational shortcomings detected by the expert committee (Varadarajan Committee) constituted by the Central government for the purpose of identifying the causes of the disaster.

The prosecution had also relied on the Operational Safety Survey Report dated July 28, 1982, prepared by a team of experts of Union Carbide Corporation (UCC), which showed that there were a number of deficiencies in the maintenance of the MIC unit.

Neither the order framing charge nor the verdict of the apex court Bench referred to several of the pre-disaster facts that showed that from 1981 there had been accidents involving the leakage of gas from the Bhopal plant of Union Carbide India Limited.

On the contrary, counsel for the accused conceded before the Supreme Court in this case that the accused did have prior knowledge of the disastrous consequences of the escape of MIC into the atmosphere. They admitted that the accused knew that MIC was a very highly volatile and dangerous material which had to be properly kept so that it may not spell disaster once it got converted into poisonous gas and if such gas escaped from the factory. Their only contention was whether there was any prima facie evidence to show that the appellants or any one of them was in any way responsible for this tragedy, which in their view was an act of God for which no human being was responsible (emphasis added) .

The Central Bureau of Investigation (CBI) was not willing to file a review petition in the Supreme Court after the Bench gave its ruling. The Supreme Court dismissed the one filed by the Bhopal Gas Peedith Sangharsh Sahyog Samiti (BGPSSS) without a reasoned order on March 10, 1997.

It is in this context that the application filed by the intervenor organisations before the CJM on April 26 suggested a window of opportunity for the CJM to circumvent the limitations of the Ahmadi-Majmudar judgment. In their application, the BGPSSS and the Bhopal Gas Peedit Mahila Udyog Sangathan (BGPMUS) sought directions under Section 216 of the Cr.PC. Under this section, any court may alter or add to any charge at any time before the judgment is pronounced.

If the alteration or addition is such that proceeding immediately with the trial is, in the opinion of the court, likely to prejudice the accused or the prosecutor as aforesaid, the court may either direct a new trial or adjourn the trial for such period as may be necessary.

The BGPSSS and the BGPMUS claimed in their application that they had repeatedly brought to the attention of the prosecution and to the CJM the fact that the prosecution was conducting the trial without placing certain vital primary evidence before the court regarding adoption of substandard and under-designed safety systems in the MIC unit at the plant in gross violation of stipulated safety norms.

The court’s attention was drawn to a letter rogatory issued to the United States government on July 6, 1988. The letter rogatory had sought permission for the CBI to conduct a comparative study of the safety systems installed and operated at the MIC unit of the UCC’s plant at Institute, West Virginia, U.S., with similar systems that were installed and operated at the UCC’s Bhopal plant.

These organisations told the court that the CBI had not taken any action to execute the letter rogatory. An investigative report on the comparative status of the safety systems that had been installed and operated at UCC’s Institute and Bhopal plants could have helped the court decide whether or not dual safety standards had been adopted by UCC with the full knowledge of UCIL.

They also told the court that the Bench’s judgment was flawed and was based on limited materials available before it. During the trial, however, more evidence emerged, which contradicted the conclusions of the Bench. During the past four years, over 178 prosecution witnesses and about eight defence witnesses deposed before the trial court, and substantial additional oral and documentary evidence regarding the case was submitted to the court.

They alleged in their application that the trial court had not properly dealt with answers to the following questions: a) Who decided to store MIC in bulk quantities in large storage tanks? b) Who installed substandard and under-designed safety systems in the MIC unit? c) Who was responsible for not preparing emergency evacuation plans? d) Who was responsible for not appraising the local administration and people about the consequences of exposure to MIC? and e) Who was responsible for failing to maintain nitrogen pressure in tank No. 610 from October 22, 1984, onwards and, thereby, allowing foreign bodies to enter the tank and contaminate the MIC?

Irrefutable evidence

On February 22, 2010, in the course of the hearing, the trial court came across irrefutable evidence provided by defence witness No.8, T.R. Raghuraman. He said that on January 7, 1982, Warren Woomer, the works manager at UCIL, Bhopal, had taken the decision to shut off the refrigeration system. According to him, this was evident from the Technical Instruction Note (Document No.37 dated January 12, 1982, exhibit no.46), which the prosecution had submitted as evidence before the court.

He also revealed that the UCC’s inspection team that prepared the Operational Safety Survey Report in May 1982 had not opposed that decision. Neither accused No.5, J. Mukund, who succeeded Warren Woomer as works manager, nor any of the other accused officials of UCIL did anything to reverse the shocking decision, which left huge quantities of MIC in the storage tanks not at 0sup Celsius as stipulated but at ambient temperature, which always ranged between 15o Celsius and 40o Celsius.

In the light of this overwhelming evidence, which was not before the Supreme Court, these organisations argued that it could not be said that the accused officials of UCIL did not have prior knowledge about the disastrous consequence of their acts of commission and omission. For example, UCC’s brochure titled “Methyl Isocyanate” (New York, July 1976), which the prosecution produced as evidence before the trial court, clearly stipulated that MIC should be stored by “maintaining a tank’s temperature below 15oC (about 60oF) and preferably at about OoC (32oF)” (page 7).

The brochure also stipulated that: “Although drums are typically stored at ambient temperature, bulk systems must be maintained at low temperature. With bulk systems, contamination is more likely than with tightly sealed drums. The potential loss is much greater too. The low temperature in a bulk system will not eliminate the possibility of a violent reaction, if contamination occurs. It will, however, increase the time available for detection of the reaction and safe disposal of the material before the reaction rate reaches a dangerous speed” (page 9).

The brochure had further warned that “stringent precautions must be observed to eliminate any possibility of human contact with methyl isocyanate” (page 26).

UCIL’s “Operating Manual Part-I – Methyl Isocyanate Unit” (October 1978), which the prosecution produced as evidence before the trial court, warned as follows: “…[i]t must be foremost in everybody’s mind that there is a probability of injury or accident round the corner. But these can be avoided if all are safety conscious and follow safety procedures strictly. Safety is our prime need. All chemicals like MIC, phosgene, HCl, CO, chlorine, MMA, chloroform and caustic soda, etc., however hazardous they are, can be handled safely by knowing the correct procedure. There is a correct way of handling them and there is ‘No Short Cut’. Any carelessness in operation will endanger you, your colleagues and everybody around you” (page 122).

Contrary to the stringent requirements of keeping the MIC storage tank definitely below 5oC, it is an admitted fact that nearly 90 tonnes of MIC had been stored, with the full knowledge of the accused UCIL officials, under ambient temperature (that is, above 15oC and up to 40oC) from June 1984 or even earlier. Therefore, it is amply evident that all the accused officials of UCC and UCIL were fully aware of the disastrous consequences of the decision to shut off the refrigeration system in complete violation of stipulated safety norms, despite knowing fully well that those safety norms had to be observed “ stringently ”.

In their application, both the BGPSSS and the BGPMUS said that they were aware that amending the charges against the accused to 304 Part-II and other relevant sections of the IPC on the basis of overwhelming evidence against them would entail further trial. However, they said that it was a necessary process in the interest of justice because justice should not only be done but also be seen to be done. Rather than consider this application on merit, the CJM dismissed it, saying he was bound by the Supreme Court’s 1996 judgment.

http://www.flonnet.com/stories/20100702271301000.htm

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Legal paradox

V. VENKATESAN IN THE FRONTLINE

The case of the absconding foreign accused, which is still pending, reveals an eagerness among their Indian friends to help them.

PARADOXICALLY, the title of the case decided by the Chief Judicial Magistrate, Bhopal, Mohan P. Tiwari, on June 7 reads as State of Madhya Pradesh through the Central Bureau of Investigation vs Warren Anderson and others. But the CJM had nothing to say in his verdict about the role of the prime accused, Anderson, in the Bhopal gas disaster, beyond mentioning his and his father’s name in the very first sentence: “Sri Warren Anderson, s/o Sri John Martin Anderson, former Chairman, Union Carbide Corporation, Danbury, Connecticut, USA.”

Anderson is shown as an absconding accused along with two other absconding accused: Union Carbide Corporation (UCC), Danbury, United States, and Union Carbide (Eastern), Hong Kong. Curiously, Tiwari considered it necessary to explain the role of each of these corporations though ultimately he did not punish them.

Union Carbide India Limited (UCIL) was a subsidiary company of UCC and UCE was UCC’s regional office. UCIL was incorporated on December 24, 1959. UCC was a major shareholder with 50.9 per cent of the shareholdings. UCC nominated its own directors for the board of directors of UCIL and exercised strict financial, administrative and technical control over the company.

On November 13, 1973, UCIL entered into an agreement with the parent company, according to which UCC had to provide UCIL the best manufacturing information then available. This necessitated that UCC supply design, know-how and safety measures for production, storage and use of methyl isocyanate (MIC), which ought to have been an improvement on the factory in the U.S., on the basis of the experience gained there, Tiwari noted in his judgment.

The case of the absconding foreign accused is still pending before the CJM under Miscellaneous Judicial Case (MJC) No.91/1992. Tiwari failed to make an important correction in the title of Cr. Case No.8460/1996 which he decided. It should have read State of Madhya Pradesh through the CBI vs Keshub Mahindra and others, and the list of accused on the first page should not have carried the names of the absconding accused. This key omission erroneously conveys the impression that the trial against Anderson and the foreign corporate accused is also over.

In 1989, the Supreme Court-inspired unjust settlement not only foreclosed further compensation to the victims’ families but ended all the criminal cases against the accused. However, confronted with the erosion of credibility due to a sustained legal campaign by activists, who filed review petitions against the settlement, the Supreme Court revived the criminal proceedings against the accused in 1991. Meanwhile, the foreign accused continued to be absconding.

Declaring them as proclaimed absconders, the CJM, Bhopal, attached the 50.9 per cent shares UCC held in UCIL. However, the Supreme Court came to their rescue by lifting the attachment and permitting the shares to be sold to raise money for the construction of a hospital by the Bhopal Hospital Trust (BHT), a body UCC had created in order to frustrate the attachment. Thus, in 1996, the Supreme Court directed that out of the attached amount, a sum of Rs.187 crore be released for the construction of the hospital.

The CJM, Bhopal, granted bail to Anderson on December 7, 1984, before he fled India with the help of the governments, both at the Centre and in the State. He was arrested by the police in the normal course when he came to Bhopal in the aftermath of the disaster, and he managed to evade the due process of law once he left India.

The separation of cases against the Indian and the foreign accused happened under curious circumstances. The trial of the Indian accused was separated and committed to the sessions court since the charge against them initially was culpable homicide not amounting to murder, and only a sessions court could hear cases in which the accused faced such a charge. Although the charge against the foreign accused was also culpable homicide, they remained absconding, and hence the case against them, too, remained in the court of the CJM. The Supreme Court’s decision in 1996 diluting the charge against the Indian accused from culpable homicide to the simple offence of causing death by rash and negligent act led to the return of the cases against the Indian accused to the CJM.

The Supreme Court’s 1996 decision led to another paradox. The foreign accused, despite and because of their absence from the trial, continued to face the charge of culpable homicide, whereas the Indian accused had the advantage of having their charges reduced by the Supreme Court even before the trial began because they challenged the charge of culpable homicide. The foreign accused, because of their continued absence from trial, did not challenge the charge of culpable homicide.

The Supreme Court’s decision, for some strange reason, appeared to have persuaded the CBI that the foreign accused might after all not evade the Indian legal process if they were treated on a par with the Indian accused. In this, both the CBI and those in power shared a similar perception. On July 31, 1998, the Attorney-General, Soli J. Sorabjee, gave a written opinion to the Legal and Treaties Division, Ministry of External Affairs, on “whether a request by the Government of India to the Government of the U.S.A. for the extradition of Warren Anderson would be consistent with the requirement of the Extradition Treaty between India and the U.S”.

According to S. Muralidhar, then a Supreme Court advocate (now a judge in the Delhi High Court), Sorabjee advised wrongly that the reasoning of the Supreme Court in the Keshub Mahindra case in 1996 would apply to Anderson as well. Justice Muralidhar wrote this in a report, prepared for the Fact-Finding Mission on Bhopal in October 2004, before his appointment as a judge. This report was subsequently published as a Working Paper by the International Environmental Law Research Centre, New Delhi. (The paper, ‘Unsettling Truths, Untold Tales’, can be downloaded at http://www.ielrc.org/content/ww0405.pdf).

Sorabjee had opined that any extradition request for Anderson would have to be limited to Section 304A of the Indian Penal Code (causing death by rash and negligent act) under which a maximum sentence of just two years’ imprisonment could be awarded compared with 10 years’ imprisonment for the offence of culpable homicide.

In Sorabjee’s view, the offence of causing death by rash or negligent act is covered by the offence of manslaughter referred to in Article 3 of the Extradition Treaty, and the evidence collected did not appear to be sufficient at that time. Both Sorabjee and a U.S. Solicitors’ firm, M/s Verner, Liipfert, Bernhard, McPherson and Hand, Chartered, whom the Government of India consulted, shared the view that there were missing evidentiary links regarding the knowledge of Anderson about the cause of the gas leak, and without these links the Indian government would not be able to convince a U.S. court about its case for extradition. Sorabjee wrote in his opinion on August 6, 2001, that he was not sanguine that at the end of the day the requisite evidentiary material would be forthcoming. According to him, Anderson’s age of 81 years (in 2001) and the lapse of 17 years since the disaster were weighty and relevant considerations for the U.S. State Department to refuse India’s request for his extradition. Therefore, he advised the government not to pursue the extradition of Anderson.

However, in an interview to this correspondent in 2001 ( Frontline, January 18, 2002), Sorabjee not only conceded that the 1996 Supreme Court judgment in the Keshub Mahindra case would not apply to Anderson but regretted that he advised the Government of India not to pursue the extradition of Anderson. More important, he said that his opinion did not bar the government from pursuing the extradition, if it wanted to.

That both the government and the CBI were looking for an excuse to abandon the extradition proceedings became clear when the CBI on May 24, 2002, filed an application before the CJM, Bhopal, that the earlier non-bailable warrant issued under Section 304-II IPC (culpable homicide) was not relevant and that a fresh non-bailable warrant was required to be issued against Anderson under Section 304A IPC. The CJM, Bhopal, rejected the CBI’s prayer on August 28, 2002. Similar non-bailable arrest warrants were, however, not issued to the two accused foreign corporations, which were absconding, because it was felt that corporations – which are juristic personalities – could only be legally fined, not arrested.

In 2004, when the U.S. government officially rejected the Indian request to extradite Anderson, because it did not meet the requirements of the Indo-U.S. Extradition Treaty, the Indian government missed an opportunity to challenge the U.S. decision by seeking the grounds for rejection and countering them.

At one stage, the CJM’s court showed some interest in seeking the liability of the Dow Chemical Company, which has inherited UCC’s assets. It decided to serve notice on Dow Chemical, U.S., which challenged it in the High Court at Jabalpur through its Indian subsidiary and obtained a stay on the notice. The stay order granted by the High Court was erroneous because the same Indian subsidiary of Dow had opposed the notice from the CJM, Bhopal, that it was a different entity from Dow Chemical, U.S. The CJM accepted its argument and directed that notice be served on Dow Chemical, U.S.

The High Court’s stay on the matter only led to the separation of the cases of the foreign accused from that of the Indian accused. Whenever the High Court lifts the stay, it will help the CJM lift the corporate veil to punish the guilty.

http://www.flonnet.com/stories/20100702271301300.htm

Judicial hurdles

V. VENKATESAN

The Central Information Commission decides to appeal against a judgment of the Delhi High Court that threatens to disrupt its smooth functioning.

Wajahat Habibullah , Central Information Commissioner

Wajahat Habibullah , Central Information Commissioner

SHAILESH GANDHI, a Central Information Commissioner, recently said the Right to Information (RTI) Act faced a serious threat from the government and the judiciary. His warning came in the context of the woefully inadequate government-sanctioned resources and the number of stay orders issued by High Courts on the orders of State and Central information commissions. A recent judgment in the Delhi High Court questioned the power of the Central Information Commission (CIC) to enact regulations. The CIC has decided to appeal against this judgment in the Supreme Court.

On May 21, the judgment delivered by a Division Bench of the Delhi High Court in Delhi Development Authority vs Central Information Commission & Another created uncertainty over the smooth functioning of the CIC. The Bench comprising Justices Badar Durrez Ahmed and Veena Birbal struck down the rules on procedures for deciding appeals before the CIC under the RTI Act saying the Chief Information Commissioner had no power to enact such regulations. The Delhi Development Authority (DDA) had sought the quashing of the Central Information Commission (Management) Regulations, 2007, enacted by the Commissioner.

Section 12(4) of the RTI Act stipulates:

“The general superintendence, direction and management of the affairs of the CIC shall vest in the Chief Information Commissioner who shall be assisted by the Information Commissioners and may exercise all such powers and do all such acts and things which may be exercised or done by the Central Information Commission autonomously without being subjected to directions by any other authority under this Act.”

Section 15(4) of the Act gives similar powers to the State Information Commissions.

Interpreting these provisions, the Delhi High Court held that the Chief Information Commissioner could, arguably, prescribe regulations concerning its own internal management. “He cannot promulgate or prescribe any regulations which impinge on the substantive or procedural provisions stipulated under the RTI Act and the Rules…. The Chief Information Commissioner is a creature of the statute and unless the statute creating him invests him with a specific power, he cannot claim to exercise such power,” the Bench said.

The Bench held that the RTI Act did not confer any power upon the CIC to make regulations, much less regulations that encroached upon the rule-making power of the “appropriate” government under Section 27 of the Act. This is because, as the court claimed, the Chief Information Commissioner does not fall within the definition of “appropriate government” or the “competent authority”. In other words, the Chief Information Commissioner has no power to make rules under Sections 27 or 28 of the Act. These provisions empower the “appropriate government” and the “competent authority” to make rules to carry out the provisions of the RTI Act.

The Bench further said that even if it were assumed, and merely as an extreme conjecture, that the Chief Information Commissioner did have the power to make such “rules” in the guise of “regulations”, the power had not been notified in the official gazette. They had also not been laid before the Houses of Parliament as provided under Section 29 of the RTI Act, it said. The Bench ruled that therefore the “regulations” framed by the Chief Information Commissioner could not be regarded as having any legal sanctity or validity.

While the High Court’s judgment probably points to a flaw in the implementation of the RTI Act, which is curable if the stakeholders evince interest, the CIC’s intervention in this case certainly has its merits.

In the complaint of an RTI applicant, Dr Sarabjit Roy, the CIC found enough grounds to enquire into the matter of the DDA’s compliance with Section 4 of the RTI Act. The key provision enables suo motu disclosure of information by the authorities on the department’s official website.

Effective compliance with this provision gives RTI applicants the opportunity to find the answers to the questions they proposed to send to the information officers. This lessens the work of the authorities, who, in the absence of compliance with Section 4, may be overburdened with RTI applications seeking answers to basic questions concerning facts regarding the functioning of a department.

On September 29, 2009, the CIC appointed a committee of three persons to go into the details of the servicing of the RTI Act by all wings and sections of the DDA. It was asked to submit its report within 45 working days. The members of this committee were Sujatha Chaturvedi, Director, Ministry of Urban Development; Dunu Roy of the Hazards Centre, New Delhi; and Pankaj K.P. Shreyaskar, Joint Registrar, CIC, Member Secretary.

Before making his complaint to the CIC regarding the DDA’s non-compliance with Section 4 of the RTI Act, Sarabjit Roy had claimed a few reliefs in his RTI battle with the DDA regarding the ongoing modification of the Master Plan of Delhi for 2021. Among the reliefs were the following: a direction by the CIC to the DDA to deposit records with the CIC, the appointment of a single Public Information Officer, redesigning of the application form, provision of copies of 17 manuals to Roy by the DDA, and payment of compensation to Roy. Before the CIC’s intervention, the DDA had not put out on its website even the Acts and Rules relevant to its functioning.

On July 24, 2009, the CIC observed that the DDA, in an effort to demonstrate compliance, had uploaded the information on its website, but it was incomplete and disorganised, which resulted in confusion rather than clarity. Therefore, the CIC directed the Vice-Chairman, DDA, along with the Principal Commissioner-cum-Secretary, DDA, to appear before it on September 3, 2009, to discuss the scope for further inquiry. However, on that day, the Vice-Chairman, DDA, failed to appear before the CIC, which drew adverse inference from his absence and appointed the three-member committee. The DDA challenged the CIC’s powers in the case before the High Court.

The CIC claimed it had the power, under Regulation 20, to appoint a committee to inquire into the DDA’s non-compliance with the RTI Act. The High Court held that the CIC could not delegate its power of inquiry under Section 18 to some other person or a committee of persons. Therefore, it found Regulation 20 to be in clear and gross violation of the RTI Act. The High Court also held the entire set of regulations as illegal.

Consequences of order

This omnibus ruling had several consequences. The court said compensation had to be linked to the loss or other detriment a complainant suffered. The court disapproved of the CIC’s claim that in addition to awarding compensation to complainants, it could impose costs as it deemed fit on authorities who illegally denied information.

Regulation 22 enables the CIC to pronounce its orders in one of its sittings or on its website or communicate them to the parties concerned. The High Court, however, held that the CIC had no option but to pronounce its orders in open proceedings.

The CIC has nine Information Commissioners, including the Chief Information Commissioner. One of the provisions in Regulation 22 treats an order pronounced by a “single” Commissioner or by a “Division Bench” (two Commissioners) or by a “Full Bench” of three or more Information Commissioners as the decision or order of the CIC. The High Court, however, held that the RTI Act or the rules made thereunder did not enable the CIC to constitute Benches.

Regulation 23 enables the Chief Information Commissioner to decide as he thinks fit an application for special leave to appeal against or for a review of the CIC’s decision. The High Court held that the CIC could not, through the regulations, assume the power to decide on review or grant of special leave to appeal.

The High Court observed that the CIC was not a court, and certainly not a body which exercised plenary jurisdiction. Therefore, it held that the CIC had no power to summon any person except to give evidence or to produce documents. The CIC was thus wrong in drawing an adverse inference from the absence of the DDA Vice-Chairman in the proceedings held on September 3, 2009, the High Court held. The court set aside the CIC’s order to set up an inquiry committee to examine the extent of the DDA’s compliance with Section 4 of the RTI Act, and quashed the CIC’s Regulations as being ultra vires the RTI Act.

Uncertainty

The High Court’s judgment created uncertainty over the smooth functioning of the CIC, with media reports indicating that some Information Commissioners sitting as Benches stopped taking petitions fixed for hearing before them.

Many RTI activists blame the Department of Personnel & Training (DoPT), the nodal government agency that handles the RTI Act, for creating hurdles by raising trivial clarifications through its circulars and letters. One letter, No.1/1/2009-IR dated 22.05.2009, from the DoPT to the CIC challenged the constitution of Benches by the Chief Information Commissioner.

Some RTI activists have, therefore, suggested crucial reforms to strengthen the RTI Act. They have suggested the repeal of Sections 27 and 28 of the Act, which give appropriate governments and competent authorities the power to frame their own rules, because they have been grossly misused.

Observers say it is impractical to expect all the Information Commissioners together to hear appeal petitions filed before them. Therefore, they say, the Chief Information Commissioner should have the power, as the head of a quasi-judicial body, to constitute Benches as he deems fit to ensure the smooth functioning of the CIC.

The minutes of the CIC’s meeting held on May 25 show that it discussed the Delhi High Court’s judgment and resolved to seek the advice of the Attorney General on some points in it. The CIC also resolved that the DoPT should be requested to notify expeditiously the amended rules already recommended so as to facilitate the continued smooth functioning of the Commission. (The CIC has not disclosed the amendments to rules it has recommended.)

On June 1, however, the CIC decided to appeal against the Delhi High Court’s judgment in the Supreme Court taking into account a conflicting judgment by the Patna High Court in November 2009.

The Patna High Court had held that the State Chief Information Commissioner had the discretion to decide how to manage the affairs of the Commission, including entertainment and disposal of appeals. More important, it found nothing wrong with the Bihar State Information Commission (Management) Regulations, 2007, which allows Information Commissioners to sit singly while disposing of cases before them. It held that it was not necessary for all members of the Commission to participate jointly in all its functions.

http://www.flonnet.com/stories/20100702271303400.htm

Fourth catastrophe

BY UPENDRA BAXI IN THE FRONTLINE

THE recent decision of Judge Mohan P. Tiwari is viewed as awarding a piffling punishment and lavish due process treatment by granting bail to the convicted seven UCIL officials. The Bhopal-violated communities of suffering and rightless people already see in this the Fourth Bhopal Catastrophe in the making. I avoid the term Bhopal ‘victims’, because it denies the unprecedented heroic agency and struggle of the Bhopal-violated. They cannot help wondering why the current media and popular outrage was not at hand in the first three catastrophes. The DNA of the fourth catastrophe needs to be decoded via some consideration of the executive and judicial authorship of the preceding three catastrophes.

The First Bhopal Catastrophe

This occurred on December 3, 1984, with the explosive escape of 47 tonnes of methyl isocyanate (MIC) from the Union Carbide Corporation (UCC) and Union Carbide India Ltd (UCIL) factory/plant located in a densely populated area in Bhopal. UCC was a majority shareholder and for all purposes made key operational decisions concerning the ultra-hazardous manufacture, storage and safety, in blithe disregard of the best industry standards and of good corporate governance.

The pre-trial discovery proceedings before United States District Judge John F. Keenan, where for the first time a sovereign post-colonial state dared to sue a mighty multinational corporation for causing an unprecedented mass disaster, fully establish the fact that UCC preferred systematically to ignore early warning signals of the potential of massive toxic release, specially demonstrated by the 1982 gas ‘leak’ that killed two workers and its own subsequent in-house safety audit report that stressed the urgency of the need for adequate safety systems at the Bhopal plant replicating the state-of-the-art digitalised safety systems of the UCC West Virginia plant, which produced and stored minuscule amounts of MIC compared with the Bhopal plant.

It is also worth recalling that the plant was declared ‘safe’ by the then Chief Minister of Madhya Pradesh, Arjun Singh, whose culpability now begins at last to be as seriously discussed as that of the UCC Chief Executive Officer Warren Anderson. Incidentally, the Bhopal-violated heard from Jairam Ramesh, the current Union Environment Minister, on the eve of the ‘Silver Jubilee’ of the first catastrophe that neither the subsoil nor the water was contaminated by the residual toxicity of the MIC explosion! Eminent political leaders who criticise Bhopal activists for dramatising the environmental risk still aggravating the plight of the Bhopal-violated see no harm in minimising the long-term lethal potential of Bhopal 1984. A silver lining in the toxic cloud over the Bhopal-violated flickered bright but only briefly. Via the Bhopal Ordinance, and later the Act, some of us were able to persuade the Union of India to assume the responsibility of prosecuting UCC in a U.S. court since it claimed that it was no longer under Indian jurisdiction. Judge Keenan described the first catastrophe as the largest peacetime industrial disaster, less colourfully than Justice Krishna Iyer, who was to name it “Bhoposhima”.

The final result of this endeavour was to bring UCC back under Indian jurisdiction. Ironically, while the Union of India argued that its own legal system was not geared to deliver justice to the Bhopal-violated, Judge Keenan insisted that it would constitute legal “imperialism” were he not to recognise that the Indian judicial system had the capacity to stand “tall” before the entire world.

Thus Judge Keenan, while constraining the UCC submission to Indian courts, was careful to subject any future UCC liability to a later determination by the New York equivalent of our “small causes” courts, leaving it to decide whether due process was accorded to UCC in the Indian trial process.

It was this factor that the Indian UCC attorneys so cleverly deployed to secure the Supreme Court of India settlement orders, serving the ultimate end of immunity and impunity of MNCs, CEOs and their counterparts among the top echelons of political and adjudicatory leadership.

The Second Bhopal Catastrophe

The Supreme Court settlement orders mark the beginning of the end of the constitutional idea of India.

Not merely did the Supreme Court settle the UCC liability to $470 million against the Union of India’s damage claims of $3 billion-plus, but it further sought to justify this amount and the grant of complete immunity from any criminal liability for UCC and its global affiliates. Later, of course, given the exertions of the Bhopal-violated, the court, on review, cancelled this immunity, though leaving cruelly intact the meagre amount thus sanctioned for hundreds of thousands of survivors whose real-life needs for health care and livelihood were thus rendered of little serious regard.

Further, the court fully legitimises the denial of the presence and voice of the Bhopal-violated as a constitutional necessity, as it were! The settlement orders denied even an opportunity of hearing to the Bhopal-violated parties to the case. The trend continues to grow. For example, on February 14, 1994, when Justice A.M. Ahmadi allowed the sale of UCC shares to the UCIL, he declined to hear the Bhopal-violated petitioner-parties before him. Even as late as June 7, 2010, some Bhopal-violated parties were denied entry into the precincts of the court, and the “integrity” of the judicial process had to be enforced by the imposition of prohibitory orders, denying even a modicum of their presence on a judgment day!

The Third Bhopal Catastrophe

I name thus the multifarious, even nefarious, “bureaucratisation of justice” practised by the tribunals established for the disbursement of compensation. The Bhopal-violated people are subjected to some staggering burdens of proof concerning their severe multiple injuries, thus reducing their eventual compensation, when not altogether denied, to the lowest possible amount! Further, the tribunals made impossible demands for evidence of “genuine” claims, as opposed to “fake” ones, even to the point of cruelty, casting the burden of proof requiring full evidence of people who participated in the funeral processions, lest even the MIC-affected people manipulate the evidence of death certificates!

As if this were not enough, the violated people were required to demonstrate the nature and extent of the injury beyond a shadow of reasonable doubt! No wonder, then, that a large number of the violated people either still await compensation or are denied their rightful share of it. Further, even as late as mid-2010, the Bhopal-violated have been denied the dignity of any full Supreme Court invigilation of the arbitrariness, callousness, and injustice of the administration of compensation disbursement, aggravating the Third Catastrophe.

Things would have been different indeed

If the same media and popular outrage had been articulated on February 14-15, 1989, when the Supreme Court passed the judicial settlement orders, or when the court declined to admit that the settlement amount was grossly inadequate, it would probably have ameliorated the suffering of the Bhopal-violated.

Public opinion should have come down heavily on the Supreme Court decision of September 13, 1996, in which the court diluted the charges against UCIL officials on the grounds that the principal responsibility lay with UCC rather than UCIL officials. Public outrage was also called for on July 13, 2004, when the U.S. government rejected the entirely justified pleas for the extradition of Warren Anderson on the grounds that no charges had yet been framed against him. The Bhopal court’s decisions declaring him and an official of UCC Eastern as proclaimed absconders and the failure of successive Central governments to bring them to book did not shock the ‘nation’ as much as the current decision! Perhaps, all over again, political parties and their leaderships now seek to fall over each other as the best defenders of the “victims”.

The first and now the second generation of Bhopal-violated know well, in their blood and bones, that the Indian ruling classes are the great descendents of Professor William Dicey who practise to a point of perfection his advice that one must never weigh “the butcher’s meat in diamond scales”. The question is how and why the mass media, trade unions, and activist communities, barring valiant exceptions that prove the rule, remained so indifferent for about 25 years. As against the political and public outcries, Judge Tiwari proceeds with great care in deciding the only issue before him: whether the accused were guilty under Section 304-A of the Indian Penal Code. He had no jurisdiction to go beyond what the Supreme Court mandated by way of criminal proceedings. There was little that the judge could have done other than to proceed within the confines of the indictment.

He holds that “in determining negligence” under the Section mens rea has no place and “knowledge (of likely harm) is enough to constitute the offence”. He rejects the pleas that expert evidence, even when verified by examination and cross-examination, may not be the basis of conviction. Further, the learned judge maintains that his decision to convict the key officials of UCIL did not involve any extension of vicarious liability for the acts of other persons; rather they were culpable for acts of gross negligence as they failed to do what they should have done concerning the parlous condition of the plant and safety systems.

Judge Tiwari further dismisses the plea of leniency in sentencing the seven UCIL officials to a two-year imprisonment under Section 304-A, IPC, and a one-year sentence under Section 338/35 IPC, with varied associated fines. The concluding paragraph of the judgment preserves intact every part of the case and the archives until the appearance before the court of the absconders Warren Anderson and UCC and its subsidiary UCC Eastern.

A fourth catastrophe in the making

The UCIL seven are most likely to prolong further reconsideration, review, and reversal of this verdict, all the way to the Supreme Court. They are also likely to press their plea that their conviction is based on some version of vicarious liability for either the acts of UCC or the defaults of their employees. Already, Justice Ahmadi has reportedly stated the day after the decision that outside conspiracy or abetment, Indian law does not provide for vicarious liability for the gross negligent acts of others. Already, it is being reported that the Government of Madhya Pradesh is seeking enhanced sentence. Given the fact that successive regimes in Madhya Pradesh have been UCC-friendly rather than solicitous of the Bhopal-violated, this move must be received with an Everest of salt. Further, some hasty appeals and revisions by activist lawyers and Bhopal-violated communities may unwittingly reinforce the case for the UCIL seven.

In the process, all over again, the suffering of the Bhopal-violated communities will again become sub judice. Even worse, the authors of their tragic fate may eventually resume a life of immunity and impunity.

Alternative moves ahead?

If so, the most important question is how to prevent the fourth catastrophe from fully unfolding.

To be sure, a first step would be to name and shame each and every elected official and civil servant complicit with the UCC assault on the Bhopal-violated. The elected officials must be debarred by a change in the Representation of People’s Act from holding any public or constitutional office and civil servants thus named must be denied all forms of superannuated service in public or private sector, and their pensions should be reduced at least by half. We must demand that the Union of India make good its claim of $3 billion-plus (minus the settlement amount, if so required, but with compound interest) to the Bhopal-violated community, to be disbursed by a citizens’ trust by way of relief and rehabilitation of at least the first- and second-generation Bhopal-violated. Given the proud boast of the high annual GDP growth, this remains far from an insensible public demand. Additionally, an annual corporate Bhopal tax/levy should assist the present as well as the future needs of the Bhopal-violated.

Replacing the current standard Bhopal clause now included in every agreement of foreign investment limiting or eliminating liability for mass disasters, we should think of an alternative provision that requires all investors and MNCs to contribute annually a certain percentage of their net profits to a superfund that would respond to at least the minimum needs of those adversely affected.

In the interim, the 24/7 mass media should dedicate a percentage of their advertisement revenues to a public trust that will further engage the tasks of health care and livelihood rights of the Bhopal-violated. The media, chastising now, and rightly so, politicians who thrive parasitically on the windfall of toxic capitalism, would carry greater credibility with suffering Indian humanity were they to do this. After all, massive profits are made by making a commodity of human and social suffering.

More fundamentally, we need to think of the Bhopal catastrophes in terms of cross-border nomadic practices of MNC “terror”. The United Nations now begins to describe “terrorism” as a political project in which non-state, yet state-like, actors deploy asymmetrical and indiscriminate violence against innocent civilians with the aim to overawe lawfully elected governments or to transform state policies. Even as we condemn insurgent violence everywhere on the planet, we should begin to think of ways in which ‘terrorist’ forms of corporate governance may at least be held answerable to indictments of crimes against humanity. Warren Anderson is no way a counterpart of Osama bin Laden, until you listen to the voices of suffering humanity affected by their comparable predatory ventures. The Bhopal-violated are indeed close cousins of the victims of 9/11 and 26/11.

How may we name and think through the commonalities and differences amongst these critical events is all that matters for the suffering humanity and the rightless peoples of the hyper-globalising world. As ‘uncle’ Marx wrote in 1850, profound social transformation occurs only when thinking humanity remains capable of suffering and t he suffering humanity begins to think.

http://www.flonnet.com/stories/20100702271302500.htm