Conflicting signals


The Supreme Court judgment dismissing the curative petitions against its verdict in the Bhopal gas criminal case leaves observers nonplussed.

ON May 11, a Constitution Bench of the Supreme Court unanimously delivered a judgment that, perhaps, should never be considered a precedent. The Bench, comprising Chief Justice of India S.H. Kapadia and Justices Altamas Kabir, R.V. Raveendran, B. Sudershan Reddy and Aftab Alam, held that a judgment delivered by the Supreme Court could not bind a lower court and that no decision by any court, including the Supreme Court, could be read in a manner as to nullify the express provisions of an Act or the Code of Criminal Procedure (CrPC).

The judgment, according to several experts, is deeply flawed. The Bench delivered the judgment while dismissing curative petitions filed by the Central Bureau of Investigation (CBI) and others for recalling and setting aside the Supreme Court’s judgment in Keshub Mahindra vs State of Madhya Pradesh, delivered on September 13, 1996. In Keshub Mahindra, a two-judge Bench, comprising Justice A. Ahmadi and Justice S. Majmudar, had quashed the charge of culpable homicide under Section 304 (Part II) of the Indian Penal Code, framed by the sessions court, against nine Indian accused in the Bhopal gas disaster criminal case and had directed the trial court to frame charges against them under Section 304-A, IPC.

The three foreign accused – the then chief of the Union Carbide Corporation, Warren Anderson; UCC; and Union Carbide Eastern Inc. – were absconding and did not, like the Indian accused, appeal against the charge of culpable homicide framed by the trial court. The Madhya Pradesh High Court had upheld the charge of culpable homicide against the accused before they went in appeal in the Supreme Court.

Under Section 304 (Part II) of the IPC, whoever commits culpable homicide not amounting to murder shall be punished with imprisonment, which may extend to 10 years, or with fine or with both if the act is done with the knowledge that it is likely to cause death. Section 304-A, on the other hand, seeks to punish those causing the death of any person by doing any rash or negligent act not amounting to culpable homicide with imprisonment for a term that may extend to two years, or with fine, or with both.

More important, in Keshub Mahindra, the Supreme Court invoked its powers under Article 142 of the Constitution. This Article empowers the Supreme Court to pass such a decree or make such an order as is necessary for doing complete justice in any cause or matter pending before it, and such decrees or orders shall be enforceable throughout the country. In Keshub Mahindra, the court invoked this Article in order to avoid multiplicity of proceedings and to hold that the material led by the prosecution could only support charges under Section 304-A against the accused. It is fairly well settled that once a superior court holds that only Section 304-A of the IPC is applicable against the accused, Section 304 (Part II) will be inapplicable against the same accused in that case because the charge of negligence automatically excludes the charge of culpable homicide.

Surprisingly, the Supreme Court, in its May 11 judgment, did not deal with the question of how a decree or order made under Article 142 of the Constitution cannot be binding on a trial court. The curative petitions argued that because of the judgment in Keshub Mahindra, the trial court (Chief Judicial Magistrate, Bhopal) was barred from exercising its judicial power under Section 323 of the CrPC. This provision enables a magistrate to alter the charge of negligence by instituting the charge of culpable homicide against the accused and commit the case to the sessions court on the basis of evidence that comes on record during the trial.

But the trial court had observed that in view of the Supreme Court’s judgment in Keshub Mahindra, no court had the power to try the accused for an offence higher than the one under Section 304-A of the IPC. Accordingly, the Chief Judicial Magistrate, in his judgment delivered on June 7 last year, found eight of the Indian accused (one had expired during the trial period) guilty under Section 304-A and sentenced them to two years’ imprisonment.

Appeals have been filed in the sessions court with a prayer for the enhancement of the sentences against the accused on the grounds that the CJM erred in committing the trial of the case to the Sessions Court under Section 323 of the CrPC. These appeals, filed by the CBI and the State of Madhya Pradesh, are pending before the sessions court in Madhya Pradesh. Meanwhile, the CBI and others had filed the curative petitions in the Supreme Court in the hope of securing substantive justice for the victims and survivors of the disaster.

Patently flawed

Ironically, the Supreme Court’s holding in Keshub Mahindra was patently flawed as the CBI even in that case had argued that evidence on hand supported the charge of culpable homicide against the accused. But the May 11 judgment defends the Keshub Mahindra judgment to the hilt.

The Kapadia Bench observed: “In the 1996 judgment, this Court was at pains to make it absolutely clear that its findings were based on materials gathered in investigation and brought before the Court till that stage. At every place in the judgment where the Court records the finding or makes an observation in regard to the appropriate charge against the accused, it qualifies the finding or the observation by saying ‘on the materials produced by the prosecution for framing charge’. ‘At this stage’ is a kind of a constant refrain in that judgment.”

But those familiar with the Keshub Mahindra case in 1996 would aver that the Ahmadi-Majmudar Bench at that time simply and inexplicably ignored the materials cited by the CBI in support of the charge of culpable homicide. Therefore, its assertions that its “findings were based on materials gathered in investigation and brought before the Court till that stage” were not at all convincing, as they were contrary to facts.

In the curative petitions case, the Supreme Court was expected to examine the claims of the Ahmadi-Majmudar Bench for their veracity and set them aside, as they were contrary to facts. But the Kapadia Bench wrongly concluded that the 1996 judgment was not a fetter against the proper exercise of powers by a court under the CrPC and that the remedy for the curative petitioners lay in approaching the appellate/revisional courts to correct the magistrate who misread it.

The Supreme Court even felt vindicated by the arguments of the CBI and the State of Madhya Pradesh in the pending appeals before the Sessions Court in Madhya Pradesh. Observers are nonplussed that the apex court chose to rely on the arguments of a party in a pending case in a lower court, rather than independently examine the plea of the petitioners on merit.

‘Black day’

The Bhopal Group for Information and Action and other survivor organisations have expressed dismay over the judgment and called May 11 another black day for justice. They recalled that the Supreme Court, without conducting even one hearing, had dismissed the review petition filed by three survivor organisations against the Keshub Mahindra judgment in 1997. By its May 11 judgment, the Supreme Court heaped more injustice on the victims of the disaster, they said.

Legal researcher and commentator Usha Ramanathan, who has been closely following the Bhopal disaster litigation, put it succinctly: “The May 11 judgment shows that the Supreme Court lacked institutional memory with regard to what the Bhopal victims got out of the litigation. The option of curative petitions confers on the Supreme Court an extraordinary jurisdiction to correct its own past judgments. Yet, the court reaches an extraordinary conclusion and tells the lower court that it could violate its own order. It makes no sense. The court simply borrowed the formula suggested by the counsel for the accused. It should have either set aside the Keshub Mahindra judgment, or done nothing.”

The May 11 judgment also supports the view that the Supreme Court today sends discordant signals about the correct legal position. Recently, a two-judge Bench of the court led by Justice Markandey Katju passed strictures against a trial court judge for ignoring the Supreme Court’s ruling. The Kapadia Bench, however, thinks that there is nothing wrong if a lower court proceeds as if it is not bound by the Supreme Court’s ruling delivered earlier.

Collegium system: Amicus report says need to revisit 1993 verdict



Eighteen years after a ‘polarised’ nine-judge Bench delivered a majority verdict which led to the collegium system of appointment of judges, a senior lawyer’s report in the Supreme Court reproduces the misgivings felt by one of them about what happened in 1993. The report by senior advocate A K Ganguli, the Supreme Court’s own amicus curiae, uses the opening remarks of Justice M M Punchhi’s dissenting judgment in what is famously called the Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India) to convey that the majority verdict of 1993 was a bunch of “individual opinions” drafted by a majority over the summer vacations without prior consultations among the nine judges.

The verdict gave the Chief Justice of India primacy over the government on the appointment of judges to high courts and Supreme Court, and ultimately led to the setting up of the collegium system, now a controversial point for its alleged lack of transparency.Ganguli was appointed amicus by a Bench of Justices Deepak Verma and B S Chauhan in a petition filed by NGO Suraz India Trust, seeking “review” of the 1993 judgment.

After Attorney General G E Vahanvati, appearing for the government, also seconded Ganguli’s claim, the Bench referred the case to Chief Justice S H Kapadia on April 4, 2011 to choose on a larger Bench to re-visit the majority verdict. The Bench, in its order, said the case involved “very complicated legal issues”.“This nine-judge Bench sat from April 7, 1993 to hear this momentous matter concluding its hearing on May 11, 1993 close to the onset of the summer vacation. I entertained the belief that we all, after July 12, 1993, on re-opening of the court, if not earlier, would sit together and hold some meaningful meetings, having a free and frank discussion on each and every topic which engaged our attention, striving for an unanimous decision concerning mainly the institution of the CJI, relatable to this court,” Justice Punchhi narrates the turn of events.

Justice Punchhi, who went on to become the Chief Justice of India in 1998, goes on to say that he was however “overtaken” when he received a draft opinion dated June 14, 1993 authoured by Justice J S Verma, who represented four other judges of the Bench, thus forming a majority.“The hopes for a free and frank discussion vanished,” Justice Punchhi said as he explained how the rest of the Bench wrote separate judgments till September 9, 1993 without any further consultations. “No meaningful meeting thereafter was possible as views by that time seems to have been polarised,” Ganguli quotes Justice Punchhi to point out that it is time to re-visit a judgment delivered in such a divided manner.

A final decision on the issue may be made after the court starts its session after this year’s summer vacation.

Mending the Food Security Act

New National Advisory Council(NAC)of India: So...
Image via Wikipedia


The National Advisory Council has proposed a framework for the National Food Security Act. But its potential could be wasted by a flawed approach to the PDS.

Two years have passed since the Central government announced that a draft National Food Security Act (NFSA) would be posted on the Food Ministry’s website “very soon.” After prolonged deliberations, a detailed framework for this Act has recently been proposed by the National Advisory Council (NAC), and a draft is on the anvil. This is a “compromise draft” of sorts, heavily influenced by the government’s own concerns and priorities.

The NAC framework includes important provisions relating, for instance, to child nutrition, reform of the public distribution system (PDS), and redress of grievances. It has the potential to put all food-related schemes on a new footing, in a rights framework. However, this potential is in danger of being wasted by a flawed approach to the PDS.

In this approach, the PDS rests on a three-way division of the population, among “priority,” “general” and “excluded” households. (This article focusses on rural areas.) Priority households, covering at least 46 per cent of the rural population at the all-India level, are to get 35 kg of grain a month at “Antyodaya prices” (Rs. 3 a kg for rice, Rs. 2 for wheat and Re. 1 for millets). General households will get 20 kg at no more than half of the Minimum Support Price. And excluded households, which account for 10 per cent of the rural population, will get nothing.

This framework is problematic. First, it hinges on a lasting division of the population into three groups, without any clarity as to how the groups are to be identified. In the absence of any obvious alternative, the NAC is effectively falling back on the Below Poverty Line census to identify priority groups. This is a major setback — the NAC’s entire work began with a virtually unanimous rejection of BPL-based targeting for the PDS. Exclusion errors in earlier BPL censuses were very large, and the next BPL census is unlikely to fare much better, judging from the pilot survey.

Second, since identification criteria are left to the Central government, with some discretion for State governments, nobody has guaranteed PDS entitlements under the Act, except for a few ultra-marginalised groups (such as the so-called Primitive Tribal Groups) which have a right of “automatic inclusion” in the priority list. Other households have no legal entitlement to be included in the priority list or, for that matter, in the general list. Therefore, they have no guaranteed PDS entitlements at all. This undermines the basic purpose of the Act.

Third, the transition from the current Above Poverty Line-Below Poverty Line framework to the NAC framework is likely to be disruptive. There are at least three major sources of disruption: the creation of an “excluded” category; the transition to a new BPL list; and the switch from household to per capita entitlements. Each of these changes entails a loss of entitlements for significant numbers of households. Meanwhile, the entitlements of other households will be enhanced. Can we expect this transition to happen without major tensions, or even to be completed at all?

Fourth, the NAC framework fails to “de-link” PDS entitlements from official poverty estimates, and to prevent a rapid shrinkage of PDS coverage over time. It is well understood by now that official poverty lines in India are abysmally low, and that undernutrition is not confined to households below the “poverty line.” In the NAC framework, 46 per cent coverage of priority groups in rural areas corresponds to the proportion of the population below the “Tendulkar poverty line,” plus a margin of 10 per cent for targeting errors. This is significantly higher than the current BPL coverage of about 33 per cent. But except for ruling out any reduction of PDS entitlements before the end of the 12th Five Year Plan (which is only a few years from now), nothing in the draft NFSA prevents the government from reducing PDS coverage in tandem with official poverty estimates over the years.

Fifth, the idea of a universal PDS in the poorest 200 districts was dropped from the NAC framework (after being agreed and placed on record). This was an important idea, because any targeting process here is likely to lead to massive delays, fraud, and exclusion errors. In many of these districts, the local administration has little credibility. Large numbers of poor households are outside the BPL list, and are likely to remain excluded from the proposed “priority” list. Further, targeting is pointless in areas where an overwhelming majority of the population is vulnerable to food insecurity. Launching a universal PDS in these districts would have addressed a large part of the food insecurity problem in rural India in one go, at a small extra cost.

Sixth, the NAC abandoned another important idea as it went along: the automatic inclusion of all Scheduled Caste and Scheduled Tribe (SC/ST) households in the priority list — unless they come within the standard exclusion criteria. This will be a major protection against exclusion errors, and a well-justified form of positive discrimination in favour of SC/ST families. But the idea was dropped, on the grounds that it is difficult to reconcile with pre-specified “caps” on the coverage of priority groups at the State level based on poverty estimates. Punjab, for instance, has a low poverty ratio but a high proportion of SC/STs in the population — there is no obvious way to handle this.

In short, the NAC framework not only perpetuates the flaws of BPL targeting but also institutionalises artificial social divisions under the law. It is not difficult to imagine the Act being used as a foothold to extend these divisions to other domains.

The obvious alternative, a universal PDS, is a ‘no-no’ for the Central government. Is there another way to repair, or at least contain, the damage? I believe there is. Before coming to that, let me mention an interesting finding of recent BPL identification studies (by Reetika Khera, Sabina Alkire, and Himanshu, and others). These analyses, mainly based on the 2004-05 data from the National Sample Survey or the 2005-06 data from the National Family Health Survey, suggest that about 25 to 30 per cent of households in rural India meet simple, transparent and verifiable “exclusion criteria,” such as having a government job, owning a motorised vehicle, or living in a multi-storied pucca house.

This suggests a simple but far-reaching modification of the NAC framework: expand the excluded category, but extend “priority” entitlements (35 kg of grain at Antyodaya prices) to all other households. With an exclusion ratio of, say, 30 per cent, the foodgrain requirements will be the same as in the current NAC framework. The financial cost will be a little higher (because all entitled households will pay Antyodaya prices), but the extra cost will be a small fraction of the total food subsidy.

In this “quasi-universal” framework, every rural household will be entitled, by law, to 35 kg of grain a month at Antyodaya prices, unless it comes within the well-defined “exclusion criteria.” Everyone will be clear about their legal entitlements. The burden of proof, so to speak, will fall on the government to exclude a household, and poor households will be well protected from exclusion errors. State governments will be free to move even closer to universalisation, if they wish, by waiving some exclusion criteria and contributing additional resources to the PDS (as many States are already doing). Automatic inclusion of SC/STs (unless they come within the exclusion criteria) will be built in. PDS entitlements will be de-linked from the APL-BPL rigmarole, and from poverty estimates. And while some social division will remain, it will be “at the top,” without undermining solidarity among disadvantaged groups.

Two further modifications of the NAC framework will round up this proposal quite nicely. First, the idea of a universal PDS in the poorest 200 districts could easily be reinstated, by waiving exclusion criteria in these districts for an initial period of, say, 20 years. Second, the Act could be gradually extended to the whole country, over a period of, say, three years, starting with the poorest 200 districts. This will make it easier to meet the additional foodgrain requirements in a phased manner.

This approach is not perfect, but it seems much preferable to the confused, impractical and divisive framework that has emerged from the NAC (or rather, from protracted discussions between the NAC and the government). It will be easy to adapt the current NFSA draft to this approach, while retaining the valuable work that has been done by the NAC on other aspects of the draft. This small modification could make a big difference.

(The author is a Visiting Professor at the University of Allahabad. The views expressed here are his own.)