Supreme Court ditches Bhopal survivors once again
Posted May 20, 2011on:
It did not come as much of a surprise that the Supreme Court dismissed the curative petition seeking restoration of Section 304 of Indian Penal
Code (punishment 10 years’ imprisonment) against the Indian bosses who managed the Union Carbide pesticides factory at the time of the gas leak disaster which killed thousands and incapacitated lakhs in Bhopal over a quarter century ago. The Section was changed to 304-A (punishment two years’ imprisonment) by then Chief Justice A M Ahmadi for which he was suitably rewarded by the US Corporation after his retirement from the Supreme Court of India.
The curative petition was considered doomed from the day one. It was drafted by attorney general G E Vahanvati who behaves more like an agent of the Union Carbide/Dow Chemical than the legal representative of the government elected by and representing the people of India. Vahanvati’s dishonest intentions had become manifest when the Supreme Court Registry returned it pointing out infirmities in the petition. Would anyone believe that Vahanvati did not know how to draft a petition correctly? His apparent objective was to fritter away a few months in moving the Supreme Court against Union Carbide/Dow chemical and he did succeed in that. He gained time for the American Corporation; he had shown no urgency in drafting the petition at the fist instance, the Supreme Court Registry took its own time in scrutinising it and pointing out the deficiencies in the hon’ble attorney general’s draft, then again a few months in submitting the petition after correcting it.
One, at the same time, cannot feel inspired by the judgement handed down by Chief Justice S H Kapadia on behalf of the five-judge constitution bench which also comprised Justices Altamas Kabir, R V Raveendran, B Sudershan Reddy, and Aftab Alam. The main reason given by the bench for dismissing the curative petition was that it was filed 14 years after the Ahmadi judgement without any additional grounds.
A petition seeking a review of the 1996 judgement was filed in the Supreme Court soon after the judgement was delivered. The review petition was filed by voluntary organisations working closely among those affected by the 1984 gas leak tragedy. It was, of course, dismissed at the time. With its observation that 14 years were taken in challenging the 1996 judgement, the constitution bench has evidently believed that the CBI is the only true representative of the people and gas victims and that the revision petition filed by the gas victims’ organisations did not merit consideration. What a perverted thinking!
Still more importantly, in the course of the hearing of the curative petition, Justice Kapadia had observed in the context of the 1996 judgement that “such orders are normally not passed by this court” as this was the jurisdiction of the trial court.
Justice Kapadia then asked Harish Salve, counsel for Keshub Mahindra (main accused), what if in 1996 the Supreme Court had passed the direction that the seven accused be tried under the stringent offence of culpable homicide not amounting to murder. Salve’s’ reply was that this would have been open to challenge that the apex court was usurping the jurisdiction of the trial court. Chief Justice Kapadia said: “That is what my brother (Justice Alam) is saying that this court should not have ventured to the extent of saying (directing) the framing of charges under Section 304A (less stringent offence of causing death due to negligence)” against Mahindra and six others.
Chief Justice Kapadia and his colleagues on the bench had thus accepted that the 1996 judgement did not only amount to heaping injustice on the lakhs of families shattered by the 1984 MiC gas leak but was also “not normal” as through it the Supreme Court had usurped the jurisdiction of the trial court. It would remain a mystery what prevented the constitution bench from reversing the order which the Chief Justice had himself admitted “not normally passed by this court”.
Many see a silver lining in the observation of the bench that the trial court had erred in interpreting the 1996 judgement of the Supreme Court and not taking into consideration the additional evidence produced before it for enhanced sentence to the seven accused. It said that if the trial court had failed in this respect, the appellate court could make the amends. One does not know whether to laugh or weep at this observation!
The top judges of the Supreme Court constituting the constitution bench would not disturb the 1996 judgement even though they were convinced that it was not normal, they expected small fry in the lower judiciary to ignore the Supreme Court judgement and go against the bosses of the Union Carbide who have been dictating terms to the top politicians and bureaucrats and also to a section of the judiciary all these years.
The Chief Justice and his colleagues may not be aware that Chief Judicial Magistrate (CJM) Mohan P Tiwari, who had delivered the judgement in Bhopal on June 7 last year, had treated the Union Carbide bosses not as the accused but as if his (CJM’s) whole life and livelihood depended on their goodwill.
See Hon’ble accused,Sir!