SC did the right thing in the Bhopal curative petition

by Shekhar Hattangadi

It’s a measure of the slapdash approach of news reporters and headline writers that most of the print and electronic media skimmed the surface atmospherics of the Supreme Court order on the curative petition - CBI v Keshub Mahindra & Ors - last Thursday. The media concluded rather hastily that an obstinate court had refused to overturn a 1996 Supreme Court judgment, and had thus ruled against more stringent penalties for the corporate executives convicted for the world’s worst industrial disaster: the 1984 Bhopal gas-leak tragedy.

[caption id=“attachment_9597” align=“alignleft” width=“380” caption=“It must be stated that the media - whose reports the victims and their supporters have reacted to with such alacrity - are largely mistaken.AFP Photo”] [/caption]

It’s also a measure of the unquestioning reliance of “civil society” on the credibility of the mainstream media and its pronouncements that the breast-beating among the human rights activists began right away. “Today will go down as another black day for justice,” said a statement released by activist groups fighting for the rights of the survivors. “The Supreme Court today has heaped yet more injustice on the Bhopal victims.”

With all due sympathy and respect for the victims and their supporters, it must be stated however that the media - whose reports they have reacted to with such alacrity - are largely mistaken, and that the five-judge bench, headed by Chief Justice SH Kapadia, could scarcely have come up with a more clear-headed and legally sound judgment.

First of all, what was the curative petition filed by the CBI - and dismissed by Kapadia’s bench - seeking to cure? It sought to recall a 1996 judgment of the same court (although from a different bench) that had quashed charges framed against the accused corporate executives under Section 304 (Part II) of the Indian Penal Code, and that had directed the trial court in Bhopal to instead frame charges under the less severe Section 304A of IPC. Furthermore, the petition claims that the judgment’s categorical finding that there was no material for a charge under Section 304 (II) effectively barred the magistrates of the lower (trial and sessions) courts from altering the charge as they deemed fit.

For the uninitiated, the sections and their varying implications need to be elucidated. Divided conceptually into two parts, Section 304 (Punishment for culpable homicide not amounting to murder) reads: “Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death…” (Part I).

But the Section deals not only with the “intention” of causing death, but with acts done with the “knowledge” that it is like to cause death. The second part of the Section thus reads: “…or with imprisonment of either description for a term 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, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” (Part II)

Section 304A (Causing death by negligence) reads: “Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

The above italicised portions of the statute hold the key to understanding their impact on a charge-sheet. Section 304 (I) presumes that the accused perpetrated the death-causing act intentionally, and prescribes a maximum penalty of life imprisonment. Section 304 (II) discounts intention but presumes knowledge of the likelihood of the act causing death, and prescribes a maximum penalty of 10 simple or rigorous years in prison. Section 304A presumes mere negligence with neither intention nor knowledge, and prescribes the more lenient penalty of a maximum of two years of simple or rigorous prison term.

From all accounts of the manner in which the Bhopal gas tragedy unfolded, the accused executives would find themselves under the pale of Section 304 (II). Nobody has insinuated that they actually intended to cause death to thousands and untold misery to several lakh victims, but their approval - tacit or otherwise - of less than adequate safeguards where the poisonous methyl isocyanate gas was stored, would make them vicariously culpable at least of knowledge of the likely consequences of a lapse, if not of vile intention.

This legal position of the CBI petition has not aroused debate. In fact, even the Kapadia judgment acknowledges its correctness. Then why did it not find favour with his bench? Two simple reasons: Laches and Alternative Remedy.

Laches, the legal term for unexplained and unjustified delay, proves fatal for most petitions. Courts, as a rule, take strong exception to delivering justice to laggards. This approach stands enshrined in the ancient Latin maxim Vigilantibus non dormientibus aequitas subvenit, translated as “equity aids the vigilant, not those who sleep on their rights.” Although, to be fair to the truly aggrieved in the Bhopal case, three activist organisations did submit applications to file a review petition against the 1996 judgment which were dismissed in March 1997, the real villain here is the CBI itself, with the state of Madhya Pradesh running a close second. The ire of the protestors needs to be directed against these worthies.

Come to think of it, both the prosecuting agencies with prime locus standi to raise objections and press for a review stand guilty of an act worse than simple inaction or laches. As Kapadia’s judgment notes, the CBI and the Madhya Pradesh state administration not only raised no objection or file a review petition against the 1996 judgment under the available constitutional provision (Article 137), but instead they proceeded for the next 14 years - no less - to prosecute the accused under Section 304A. Only after the public outcry against the slap-on-the-wrist convictions under the lesser charge turned serious and inconvenient in mid-2010, did they wake up to the virtues of a curative petition and file it almost as a perfunctory after-thought!

Kapadia’s other reason for rejecting the CBI petition stems from the availability of an alternative legal remedy. His bench’s judgment takes great pains to emphasise that the Supreme Court’s 1996 judgment had provided an inbuilt escape clause, so to speak, which undermined its own binding power and qualified all its observations and findings with the caveat that they were based on materials gathered in investigation and produced by the prosecution at the stage of framing charge. Implicit in this caveat is the leeway that the charge-sheet could be altered on discovery and production of further incriminating evidence.

It is wrong to assume that the 1996 judgment imposes any fetter against the proper exercise of the powers of a competent court, Kapadia points out, adding that if, according to the curative petitioner, the trial court magistrate misread the 1996 decision as tying his hands from altering the charge and/or ordering a retrial, it can certainly be corrected by the appellate or revisional court -meaning, in this case, the sessions court.

Therefore, far from posing a stumbling block on the way to justice for the Bhopal victims, the latest judgment emanating from the country’s apex court has in fact cleared the decks of a perceived procedural impediment. If I were a victim or an activist, I’d be cautiously optimistic on seeing a faint light at the end of the legal tunnel. It’s time now to negotiate the tortuous tunnel itself.

Shekhar Hattangadi is a lawyer, law professor, maverick film-maker and media freelancer. After three decades as a journalist, he took up law and now attempts to influence public policy in India through PILs.