LAW RESOURCE INDIA

Legal paradox

Posted in ENVIRONMENT by NNLRJ INDIA on June 15, 2010

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

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