‘If I were to live my life all over again, I would not have taken up the Bhopal case’
IN THE SUNDAY INDIAN EXPRESS
Coomi Kapoor : Tell us something about your new book, Before Memory Fades: An Autobiography.
It took me a long time to write it. The trouble is, if you project yourself too much, it sounds a little odd because no one wants to know how great you are. So you have to be a little wary. If you have spent more than 60 years in a profession—I have spent 69—it is time to write something because everyone keeps telling that you should write something. My book has just come out and people are still reading it. Most of the criticism is about Bhopal (Nariman represented Union Carbide in the Bhopal gas leak case).
Maneesh Chhibber: Can you take us through your days in the Bar. How have you seen the judiciary evolving?
We all look back and say, “Oh, those were great days and all the judges were much better than the judges of today”. But I think each generation has a new stock of lawyers and judges. When I first came to the Bar, law colleges were pretty hopeless. And that is why we revered our part-time professors like Justice Y V Chandrachud and Nani Palkhivala. They were outstanding people who made us love the law more than getting to know it. One great thing about our time was, if you prepared well, the judge would go out of his way to help you. And this was all before writ petitions came into the picture. Writ petitions are a bizarre way of proceeding and today we have a whole plethora of writs. In our days, you had to go through the grind of a civil procedure court, a suit that had to have a cause of action. Today, most young people at the Bar prefer writs. But the young people of today are much, much more brighter than we were because they are exposed to so many things.
Ritu Sarin : What do you think of the tenability of getting Warren Anderson extradited to India?
That’s a political decision. I came into the Bhopal case in 1986. Warren Anderson came after the event and left in a few days. Whether he got a safe passage or not is controversial. I have never met him but he certainly did not intend to murder the victims and that is why he came. That is all I can say about him.
Ritu Sarin: You say it was a political decision. Should it have been a political decision, if it was so?
Extradition always is. The problem was that Anderson apparently—and I am surprised that the Government of India has no record of this or at least they say they don’t—said he would like to come (to India). It was a huge disaster. No one knew what had happened. So, the government probably asked him to come. He must have said, “Will you guarantee me a safe passage?” and they must have guaranteed him. You must understand that it is a very traumatic experience for not only Bhopal but for all of India. I did defend (Union Carbide) in the civil litigation. The difference between the two sides was US$ 150 million. The government wanted US $500 million and Union Carbide was ready to pay $350 million. The court fixed it at $470 million. But I still remember that when the case came to the Supreme Court, the judges, including Justice Venkatachaliah, kept persisting that this case must be settled. Ultimately, it was settled but it was again reopened. The reopened case was also partially allowed—the criminal case was not permitted to be settled, the civil case was settled—and it has never been the same since.
Coomi Kapoor: Yesterday, a news channel said you regretted taking part in the Bhopal case.
If I were to live my life all over again, I probably would not have taken up this case at all. But when I took it, I thought it was ‘a’ case. It was not any case because a tragedy of this dimension is not ‘a’ case. That’s something that I did not realise in my enthusiasm. I don’t want to take shelter behind the saying that lawyers cannot refuse a case. I could certainly have refused it.
Coomi Kapoor : So would you say that Prof Upendra Baxi had a point when he said that this is not a mere accident, this is a sort of genocide?
I don’t know whether you can call it a genocide. I know he says that but it has not been established that it was a genocide. A large number of people died. That’s very clear but whether Union Carbide was responsible or not responsible never got established at all because the civil litigation came to an end. And for about 14 years after that charge under Section 302 Part II was dropped, nobody said anything because perhaps people were under the impression that people who are so called responsible, the officials etc, will all be sentenced to long terms of imprisonment. No one told them that the magistrate could never have sentenced them to more than two years. He had no power so you can’t blame the magistrate either.
Ritu Sarin: What is the legal tenability of filing a curative petition now?
Somebody has missed looking at Section 3 of the Code of Criminal Procedure which says that if a group of people is tried, convicted and sentenced for an offence which entails an imprisonment of, say, two years, then while that conviction and sentencing is in force, you cannot again try the same group of people for an offence with a higher punishment. That is a section in the CrPC since 1898. So what is the use of this curative petition? These people cannot be charged again. Perhaps Anderson can be but not the people who have already been tried—Anderson was never tried because he jumped bail.
Maneesh ChHibber : You recently said you were dissatisfied with the Supreme Court collegium system. But, in a way, you were responsible for the system being put in place.
I absolutely regret it. This is one chapter in my book about the case I won but which I wish I had lost.
Utkarsh Anand: Does the collegium need a re-look?
Definitely. I am completely against the Supreme Court collegium. It detracts from the otherwise great merit of our judges. So it detracts from their merits if they have to do something that is extra curricular. Ultimately, it is a matter of assessment of the Chief Justice.
Tannu Sharma: You had suggested the appointment of something like an ombudsman to look into complaints against judges, at least in the higher judiciary.
Yes, for taking measures “short of removal”, as it’s known in the US. If a High Court judge or a Supreme Court judge does something wrong, you can’t do a thing. You can only impeach him. But the “short of removal” measure means you reprimand the judge, you engage in some disciplinary action against the judge. That was the bill that was proposed in Parliament but ultimately, the members of the committee dropped it because they felt that it might affect the independence of the judiciary.
Maneesh Chhibber : What is your opinion of a possible judicial oversight committee headed by the Vice President?
It is better (than the collegium system). Judges have no time for extra judicial things. Choosing a judge, finding out whether there is something against him or her is a cumbersome process. Today, it is a race (to be in the Supreme Court). Basically, it is because High Court judges retire at 62 while Supreme Court judges retire at 65. If the retirement age of High Court judges were raised, and if you have to ask a judge to come to Delhi to work in the Supreme Court, he would say, “Why should I come to Delhi? I will retire here at 65”.
Unni Rajen Shanker: What made you take such a firm decision on the Justice Dinakaran issue (he lent his weight to the movement against Justice Dinakaran being elevated to the SC)? Also, with the controversy still dragging on, what would be a logical end to the issue?
It was not handled well by the former Chief Justice (KG Balakrishnan). You have to do a little bit of persuasion to achieve what otherwise, under the present situation, may not be achievable. A judicial commission was sought to be recommended, apart from my suggestion of an ombudsman, but how the commission will work, I am not very sure. Dinakaran has been one of the most terrible experiences we have had, at least in my professional life. There have been all sorts of complaints (against him) from people of all walks of life.
Coomi Kapoor: What is your opinion of retired judges getting posts in commissions and inquiries?
It’s very wrong. Only few say goodbye after their retirement. A P Sen was one of them who did. Let them retire at 70 but when they retire, let them go.
Utkarsh Anand: Shouldn’t Justice A P Shah have been promoted to the Supreme Court?
I did say so publicly, in the presence of the Chief Justice of India that (Justice Shah) should have been taken but no other member of the Bar said it.
Tannu Sharma: How do we attract young talent to the Bench?
There is a new thing that is being experimented in the Delhi High Court. Young, bright people are being directly recruited into the judiciary, like it’s done in some parts of Europe. So you become a career judge; you don’t become an advocate. After going through a certain amount of training, they are promoted to the high court. So the person not only gets a chance but also has a security of tenure. That’s how younger people can come. Otherwise today what happens is that young, bright people are taken by corporates and offered astounding salaries. Now who would refuse that?
Mini Kapoor: Do we need norms for judges recusing themselves from cases?
Every judge, I believe, must recuse himself if he feels that it might compromise his views or position. The idea is very clear and precise: the confidence in justice is much more important than actually delivering a just decision. There was a recent infamous decision of a judge of the United States, Justice Antonin Scalia. He used to go duck shooting with Dick Cheney, Bush’s Vice President and the question was, should the judge who goes shooting with Cheney then decide his case? Someone raised a question and he wrote a 20-page order saying he should. And he took up the case and decided in favour of Cheney. That is when confidence in justice suffers.
Coomi Kapoor: You come from the Parsi community. Despite being such a small community, how come we see a lot of Parsis in top positions in the legal profession?
Not only in legal profession, in the medical field too. Next to being good Parsis, I think we are also good Indians. And you have to be a good Indian first before being a good Parsi or a good Hindu or a good Muslim.
Krishnadas Rajagopal: Which of the two would you prefer? One, a judge who has studied his case well and before coming to court, has already decided to dismiss it. The other, a judge who would listen to the lawyer but dismiss it in the end.
The other. That is also the second ranking judge in the Supreme Court. His approach is that he does not read too much. He just sees the facts and listens to what the advocate has to say and decides on that basis. So it all depends on your training, where you come from.
Maneesh ChHibber: Do you think PILs should be regulated?
I don’t think they should be regulated. There is a lot of good and bad in them. For example, just two days ago, a bench of justices directed all state governments to do something about these honour killings. So these are some of the good ways through which PILs are utilised.
Surabhi Agarwal: What are your views on decriminalisation of defamation?
It should be decriminalised because it is a great source of harassment to some people. Nothing is being done about it in India. You can be sure that Section 499 of the Indian Penal Code is not going away.
Tannu Sharma: What are your views on the entry of foreign lawyers?
In this global world, there is nothing wrong with people from other parts of the world coming here and practising. If you have all sorts of businesses coming in, I don’t see why people from abroad can’t practise in India. It’s just a bogey in our mind that they will come and take our jobs. Our lawyers are extremely competent, they have nothing to worry about.
Coomi Kapoor: You have been very close to The Indian Express and to its founder Ramnath Goenka. Tell us something about him for the younger generation.
He was one of the greatest fighters during the Emergency, along with CR Irani of The Statesman. He wouldn’t accept any dictation from the powers and that is what made the press in India a free press. During the Emergency, since he fell foul with the Indira Gandhi government, they started a series of prosecution cases against The Indian Express for non-compliance with petty company laws like not filing your report on time. And the magistrates were told not to exempt Goenka from court appearance. So the poor chap would be constantly on the flight from Bombay to Madras, Madras to Coimbatore defending all these cases. He was a tremendous fighter.
Transcribed by Hamari Jamatia