Note: Injustice done in the name of law and legal propriety is one of the worst kinds of harm done to the present and future victims. Law is subservient to the needs of the corporation. Corporation is beyond the control of judicial system. Be it Union Carbide Corporation (UCC) or the inheritor its assets and liabilities, Dow Chemicals, it is quite clear that neither the democratic legal system in US nor in India can govern it. It is beyond governmentality. These corporations are bigger than democratically elected governments and have made all instruments of government including the justice system subordinate to its needs. The multinational corporations are invincible.
In his working paper "UNSETTLING TRUTHS, UNTOLD TALES" Justice S Muralidhar (currently with Delhi High Court) is quite right "the fundamental assumptions about the working of the Indian legal system, projected in the court of Judge Keenan in New York way back in 1985, were seriously flawed. It is clear now that UCC’s expert witness in those proceedings, Nani Palkhivala, was glaringly wrong when he insincerely stated on affidavit that “There is no doubt that the Indian judicial system can fairly and satisfactorily handle the Bhopal litigation.”
Palkhivala had submitted that “To say that the Bar in India is ill-equipped to deal with the Bhopal cases is a slanderous reflection on the legal profession in India, unredeemable by the plea of truth.” Palkhivala was wrong.
But Prof. Marc Galanter remains quite right in saying, “At its best, the Indian legal system’s treatment of civil claims is slow and cumbrous… Complex and innovative litigation beyond the experience of lawyers and judges, involving many parties, vast amounts of evidence, the need for judicial rulings on many points for procedure, evidence, liability and damages, would multiply the possibilities of delay.”
Judge not, that ye be not judged. Justice A.M. Ahmadi, Justice Ranganath Mishra and others in their tradition are also facing judgement. Its not about "us" (judges) and "them" (victims), its about whether or not "us" safeguards the supreme interest of artificial persons or natural persons.
ToxicsWatch Alliance (TWA)
Apex Court to Dismisses Curative Petition in Bhopal's Industrial Disaster Case
The Supreme Court delivered its judgment on the Central Bureau of Investigation (CBI)'s curative petition in the Bhopal Gas case today. The bench headed by the Chief Justice SH Kapadia passed its verdict over the petition seeking to recall the apex court's 14-year-old judgment that had diluted the charges against the accused who were prosecuted just for the offence of being negligent.
The Court refused to alter its 1996 judgement diluting charges in the Bhopal gas disaster case but left it open to the Sessions Court there to consider restoring stringent charges against the accused, who had got punishment under lighter provisions.
Holding that the 1996 judgement that diluted charges against the accused was "not binding", the apex court dismissed a curative petition filed by the CBI saying it was based on a "wrong and fallacious plea" and filed after a lapse of 14 years.
"In our view, on the basis of the material on record, it is wrong to assume that the 1996 judgement is a fetter against proper exercise of powers by a court of competent jurisdiction under the relevant provisions of the Code," a five-judge Constitution Bench headed by Chief Justice S H Kapadia said.
The court said the 1996 verdict was not "binding" on the trial court which failed to appreciate the correct legal provision for trying the accused under the stringent provision in the tragedy that killed over 15,000 people and maimed several thousands to the leak of deadly methyl isocyanate (MIC) gas in December, 1984.
In its nine-page judgement, which has come under attack from campaigners for sterner punishment to the accused, the Bench said curative petitions of CBI and the Madhya Pradesh government were not only based on the "wrong and fallacious" plea but were filed after a lapse of 14 years without satisfactory explanation.
"No satisfactory explanation is given to file such curative petitions after about 14 years from the 1996 judgement of the Supreme Court," the Bench, also comprising justices Altamas Kabir, R V Raveendran, B Sudershan Reddy and Aftab Alam said.
The June 7, 2010 verdict of the Chief Judicial Magistrate, Bhopal, awarding two years' imprisonment to the accused including the then Chairman of the Union Carbide India Keshub Mahindra had sparked a nationwide outrage following which the government decided to file a curative petition against the lighter punishment for those responsible for the gas tragedy.
The apex court today said both CBI and the Madhya Pradesh government had adopted a correct legal premise in approaching the Sessions Court with the criminal revision petition for restoration of stringent charge of culpable homicide not amounting to murder under section 304 (part II) of the IPC which attracts maximum punishment of 10 years jail term.
The Bench noted that the 1996 judgement diluting the charges to section 304 A for negligence was based on the evidence presented before it at that relevant time and it was wrong to assume that it was binding on the trial court when additional facts and material were forthcoming.
Besides Mahindra, the others who got lighter punishment included UCIL erstwhile Managing Director Vijay Gokhale, its Vice President Kishore Kamdar, Works Manager J N Mukund, Production Manager S P Choudhary, Plant Superintendent K V Shetty and Production Assistant S I Quereshi.
The Bench held that the assumption of CBI was "wrong" and "without any basis" that as long as the 1996 judgement stands "the Sessions court would feel helpless in framing any higher charges against the accused" and did not have power to prosecute the accused for an offence higher than the one under Section 304A of IPC.
"It stems from a complete misapprehension in regard to the binding nature of the 1996 judgement. No decision by any court, this Court not excluded, can be read in a manner as to nullify the express provisions of an Act or the Code and the 1996 judgement never intended to do so.”
The apex court said: "In the 1996 judgement, 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."
The court made it clear that if the Magistrate's Court failed to appreciate the correct legal provision for trying the accused under the stringent provision, it can be corrected by the Sessions court before which the revision petitions have been filed by the CBI and the Madhya Pradesh government.
"If according to the curative petitioner, the learned Magistrate failed to appreciate the correct legal position and misread the decision of September 13, 1996 as tying his hands from exercising the power under Section 323 or under Section 216 of the Code of Criminal Procedure, it can certainly be corrected by the appellate/revisional court," the Bench said.
"It is clear to us that in the criminal revisions filed by the CBI and the State of Madhya Pradesh the legal position is correctly stated. But the curative petitions are based on a plea that is wrong and fallacious," it said.
"In fact, the revision petitions though belatedly filed by Madhya Pradesh and the CBI which are still pending) have asserted this position in the grounds of revision," the bench noted.
While dismissing the curative petition, the Bench said: "Nothing stated above shall be construed as expression of any view or opinion on the merits of the matters pending before the Sessions Judge, Bhopal."
In 1996, a two-judge Bench of the apex court, headed by the then Chief Justice A H Ahmadi had diluted the charges against the accused from Section 304 (Part II) of the IPC providing for a maximum of ten years imprisonment to Section 304 A that deals with rash and negligence act with a maximum punishment of two years.
The trial court in Bhopal on June 7, 2010 had convicted and awarded two years imprisonment to the accused.
The apex court had on August 31 last decided to re-examine its own judgement that led to lighter punishment of two years imprisonment for all the seven convicts.
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