LAW RESOURCE INDIA

Pro-active judiciary can ensure justice to victims: Ex-CJI

Posted in ENVIRONMENT, ENVIRONMETAL ACCIDENTS by NNLRJ INDIA on June 17, 2010

BY JUSTICE J S VERMA , IN THE TIMES OF INDIA

The June 7 verdict on Bhopal has led to widespread shock. But instead of thrashing about one’s hands in anguish, there is need to light up the path of resolution. Former Chief Justice of India J S Verma gives his concrete suggestions on the way ahead.

The Bhopal gas tragedy was the worst preventable industrial disaster, and also an egregious violation of human rights of thousands. A settled principle of human rights jurisprudence requires “reparation” as the appropriate response to victims of gross violation of human rights.

The main forms of “reparation” are: restitution, compensation, rehabilitation, and guarantee of non-repetition. Duty to prosecute perpetrators is included in reparation; impunity is in conflict with this principle. A pro-active approach by the judiciary can ensure justice to the victims. Article 32 is the “soul” of the Constitution and article 142 is the additional plenary power given to the Supreme Court “for doing complete justice in any cause or matter”.

A more appropriate cause for discharge of the constitutional obligation is difficult to visualize. The established remedy of a “curative” petition under article 32 in the SC to set aside its own erroneous judgment is derived from it.

So, how best to do complete justice to the victims?

Criminal Liability: The trial court could not award a larger punishment under Section 304A, IPC (death caused by rash or negligent act). The charge under Section 304 Pt II, IPC (culpable homicide) was reduced to Section 304A by the Ahmadi Bench in Keshub Mahindra, (1996) 6 SCC 129. Some relevant extracts of findings and reasons (paras 20 and 22), are:

“Assuming that it was a defective plant and it was dealing with a very toxic and dangerous substance, the mere act of storing such a material by the accused in tank no. 610 could not even prima facie suggest that the accused concerned thereby had knowledge that they were likely to cause death of human beings it could not be even prima facie suggested…that by operating the plant on that fateful night, they had the knowledge that by this very act itself they were likely to cause death of a human being.”

The want of ingredient of knowledge that the act was likely to cause death was the reason for reducing the charge from Section 304 Pt II to Section 304A, IPC. Brief reference to the then existing law is relevant.

The SC in Oleum Gas Leak case, (1987) 1 SCC 395, held: “Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or dangerous activity resulting, for example, in escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortuous principle of strict liability under the rule in Ryland v Fletcher.”

The India law is, thus, stricter on the point. The criminal liability determined even under the less stringent English law in these circumstances amounts to manslaughter (culpable homicide).

In [1943]1 All ER 365(HL) the House of Lords held: “Where the act which a person is engaged in performing is unlawful, and if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently he causes the death of that person by that act, then he is guilty of manslaughter. It makes it plain (a) that an accused is guilty of manslaughter if it is proved that he intentionally did an act which was unlawful and dangerous and that, the act inadvertently caused death, and (b) that it is unnecessary to prove that the accused knew that the acts were unlawful or dangerous. Cases of manslaughter may amount to little more than pure inadvertence and sometimes to less than murder.”

The underlying principle, that killing by gross negligence is constructive manslaughter under English law was reiterated by the House of Lords in [1976]2 All ER 365 (HL), to hold that a defendant can properly be convicted of manslaughter even if he did not foresee that his act might cause harm to another. Further in [2003]4 All ER 295 (CA) it was held that a person will be criminally liable for involuntary manslaughter, if the act results in death, even if the victim has consented to take such a risk engaged in some joint unlawful activity.

Thus, it is difficult to support the view taken in the above 1996 judgment, by the Ahmadi Bench; that too at the preliminary stage of framing charge when interference is rare. Conviction for a lesser offence than the charge framed is anyway permissible.

http://timesofindia.indiatimes.com/india/Pro-active-judiciary-can-ensure-justice-to-victims-Ex-CJI/articleshow/6056810.cms

One Response

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  1. Venkatesh P. Dalwai said, on June 17, 2010 at 09:08

    Pro-active judiciary can nver function in vacumm and the investigation agency ought to have defended its chargesheet before SC in 1996.Now after 14 years of silence, every one is raising hue and cry about legality of order of SC. The Govt was aware that conviction under 304A will result in punishment for 2 years only. This Question ought to have started 14 years back to set rights the charge sheet by seeking further investigation. Now every one is expressing their own opinions about what should have been done. Surprisingly Former CJI Ahamadi in TV told that how could owner of the car be punished for mistake of driver. Such out of context mind and approach had resulted in 1996 ruling. Lets not repeat same mistake.


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