Flawed process

Posted in ENVIRONMENT by NNLRJ INDIA on June 15, 2010


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.

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