Bhopal gas leak: Former CJI offers legal opinion
Terming the Bhopal gas tragedy the worst preventable industrial disaster, and an egregious violation of human rights of thousands of people, former Chief Justice of India J S Verma has offered all help with his legal opinion as a concerned citizen in the case and emphasised that judiciary has a very important role to play in the issue. ‘What really is required to be done in a case like this is to identify the victims, to identify what were the remedies to which they were entitled at the time of the disaster and identify the violation of human rights,’ Justice Verma said at 4th annual Col Ajay Narain Mushran Memorial Lecture.
Highlighting that how important the role of Indian judiciary was in the case, Justice Verma said, ‘Judge Keenan, who heard the Bhopal case in New York District Court had the audacity to state that to hold the trial in an American court would be nothing short of subjecting India to ‘imperialism’, and imposing the ‘standards and values’ of an advanced country on a ‘developing nation.’ ‘Para 34 of the judgement reads: The court would decline to play such a role, for to deprive the Indian judiciary this opportunity to stand tall before the world and to pass judgement on behalf of its own people would be to revive a history of subservience and subjugation from which India has emerged,’ he said.
Charting some of the legal course which India could benefit from, he said the earlier order of the Supreme Court on the Bhopal incident may now be challenged on the grounds that it was a miscarriage of justice. Talking about curative petition, Justice Verma said, ‘The evolution of this remedy has proved that the Supreme Court is final but not infallible. He also outlined the basis of petition lay in Para 38 of the 1989 judgement in gas leak case which talked about undoing any injustice by procedures recognised by the law, one of which is curative petition evolved by the Supreme Court in Ashok Hura v Rupa Hura case.
‘A revision under Section 397 CrPC in HC against the judgement of the CJM on the grounds that the trial court should have committed the case to the Sessions Court under Section 323 CrPC for trial under Section 304 PT.II on the evidence adduced to prove the ingredient of knowledge found wanting at the stage of framing charge; An appeal also to the sessions court under Section 377 CrPC on the ground of inadequacy of sentence because of the lesser charge under Section 304A, IPC and failure to invoke Section 323 CrPC, as an abundant caution,’ he said. ‘An application in the trial court in the pending separated trial of Warren Anderson for alteration of the charge to Section 304 Pt.II, IPC invoking Section 216 CrPC for its collateral impact. Pursuing extradition is significant for this reason alone,’ the former Chief Justice of India commented.
On violation of human rights, Justice Verma said the United Nations General Assembly had adopted the basic principles and guidelines on April 19, 2005 from a victim-oriented perspective, wherein it clarifies the ‘existing scope of right to remedy of a victim of such a disaster’, which includes reparation, restitution, rehabilitation, satisfaction (in terms of compensation) and guarantee of non-repetition. He laid emphasis on the term ‘clarify’ to note that all the remedies mentioned above existed at the time of the disaster too and the guarantee of non-repetition is where the duty to clean the toxic waste still lying there comes up. Justice Verma added that these basic principles can be read into Article 19 (right to life) of the Indian Constitution by virtue of the Supreme Court judgement in Vishaka case wherein it has been said that international laws, not in conflict with the Indian laws, can be read into the latter.
Justice Verma also said that one of the laws that make our case even stronger and fixes the liability on the accused is the polluter pays principle (PPP).
PPP is a principle in international environmental law where the polluting parties are made liable to pay for the damages they cause to the natural environment. This will also bring in the aspect of dumping of toxic waste by Union Carbide much before the disaster. On the controversy of victims being asked to prove that they were affected in the disaster, Justice Verma said what greater proof is required than the diagnosis that the person is suffering from an ailment because of MIC. Recognising the obligation that lay on every Indian citizen, he said, ‘Anytime any lawyer fighting for the cause, I am very much there. It is an obligation on all of us to do whatever we can for the people of Bhopal.’ He also offered all the legal advice to advocate Vivek Tankha, who presented to represent the state of Madhya Pradesh in the case.