Judiciary – Legal Drift

Insight to Bhopal Gas Tragedy: A case lost before trial

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Almost everyone around the globe is aware of the catastrophe that happened in Bhopal but there are a very few people who actually know what were the legal lacunae involved in the Bhopal case. The battle was lost before the trial and the victims were betrayed at every step of legal proceedings.

The Battle in United States

At that time Indian Law had no provision of punitive damages to effectively deal with the Bhopal Gas Tragedy. The Government of India through an act appointed itself the sole representative of the victims for any legal course with Union Carbide with regard to compensation. The act empowered the government with the exclusive rights to represent and act on behalf of the survivors/victims of the gas leak. The corollary was that the victims could not seek legal redress of their own.

Consequently, the Government decided to approach the U.S. District Court to seek justice. The government justified its stand mainly on three grounds:-

The US courts could grant higher compensation as compared to the one likely to be granted by the Indian Courts. It believed that the parent multinational company Union Carbide could be tried effectively in US. The Indian Courts were incompetent to handle mass tort litigation.

Ironically the government ignored the operating principle in US according to which a suit could be maintainable in an American Court only in cases where the damages or injuries occur on American Soil, to American residents or the dependents of American residents. Alternatively, if the prosecution would have proved a design defect in the plant, the suit could have been entertained by the American Courts. But since it was established that the gas leak happened because of poor maintenance, the parent company was not held liable in the US courts.

US Court’s Decision

The US court ruled that UCIL was a separate entity, owned, managed and operated exclusively by Indian citizens in India. Carbide was ordered to submit to the jurisdiction of Indian Courts; nevertheless it could dispute the verdict rendered by the Indian Courts before its domicile courts. Initially the government of India had filled a suit claiming 3 billion Dollars which could have been achieved only through attachment of UCC’s assets in the US.

The Indian Mistakes

A significant order was passed by Justice Deo of Bhopal District court which directed UCC to pay Rs. 350 crores as interim relief. The order being interim could not be decreed. And without a decree UC could and did refuse to pay it.

On February 14, 1989 the Supreme Court directed Union Carbide to pay up US $ 470 million in “full and final settlement” of all claims, rights, and liabilities arising out of the disaster in 1984. The victims and legal heirs of the dead, were not informed before this settlement took place.

None of the courts ever directed UCC to reveal any epidemiological information that it had. It refused to render any toxicological information as it formed an integral part of its “trade secrets”. It denied that the gases released during the disaster could cause any adverse health effects in the victims. Moreover, UCC was never ordered to clear the toxic material present on the disaster site which it could have been under the “polluter pays” principle evolved in Oleum Gas Leak Case.

The SC refused to consider UCC liability as unquestionable and absolute. The principle of absolute liability was never evoked by the SC. According to this theory where an enterprise is engaged in a hazardous or inherently dangerous activity and an accident in such an operation results in the escape of a toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident, and such liability is not subject to any of the exceptions under the rule of strict liability.

SECTION 304 TO 304(A)

Originally the charge sheet was filed under Section 304 of IPC i.e. culpable homicide not amounting to murder specially paragraph 2 which deals with the accused having the knowledge that the act would cause death. The charge sheet clearly stated that the UCC plant in Bhopal was deficient in safety and design measures. It further stated that the management was aware of these defects and their probable consequences but it failed to inform the district administration. In 1996 the two judge SC bench held that the charges under Section 304 were not made out and the accused could only be charged under Section 304(A) for causing death by rash or negligent act. Justice Ahmadi while delivering the judgment observed,

“Even assuming that it was a defective plant and it was dealing with a very toxic and hazardous substance like MIC the mere act of storing such a material by the accused … could not even prima facie suggest that the concerned accused thereby had knowledge that they were likely to cause the death of human beings.”

Hence the diluted charges ensured that accused could now be awarded merely a maximum punishment of 2 years and not 10 years.

How was the UCC benefited?

The long trial benefited UCC in various ways. First of all, the fear of length prompted the government to enter into a swift settlement. Secondly, the adverse public pressure on the government also evaded with time. Lastly, UCC saved interest on the sum it finally had to pay.

Are we still left with a remedy?

1. A curative writ petition must be filed under article 32 r/w 142 of the Constitution to set aside the 1996 judgment; seeking the relief of a fresh trial under Section 304 Pt 2 of IPC.

2. An appeal to the sessions court under Section 377 of CrPc on ground of inadequacy of sentence because of lesser charge under Section 304 A IPC can also be filed.

3. Pursuing Extradition is significant for the effective trial of Warren Anderson.

4. Civil Liability of both the government and the UCC needs to be re-addressed. Cleaning of the affected area, proper medical treatment of the victims and distribution of compensation are some of the vital steps that need to be taken.

Conclusion

Bhopal Gas Tragedy is aptly referred to as the night that never ended. The long legal battle benefited none but the accused. The victims were continuously victimized by the fluctuating judgments rendered in the country. The media, bar, bench, authorities, central and state governments all failed to effectively fulfill their responsibilities.

“The greatest disaster in India was not on day of Bhopal Gas Tragedy but on the occasion, when we failed to protect our own countrymen and decided to sell the living dead to a multinational for some dollars.”

Judiciary Social Issues

Selling their bodies killing their souls: Plight of widows in Vrindavan and Mathura

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Sati as a practice was not invented by Ancient Indian texts but by the greed of people. Most of the contemporary historians believe that the practice of Sati was encouraged to deprive the widows from the property of their deceased husbands. Family members (usually the surviving brothers of the deceased) cloaked their desires under the shadow of religion. Hinduism was used as a weapon to rightly ask for the lives of innocent widowed women. The women under societal pressure were made to self immolate themselves. This served twin purposes; the family was no longer entitled to maintain the widow and her sacrifice ensured that the share of her deceased husband would revert to the surviving members.

It is a privilege to state; the evil practice of Sati is no longer practiced in India. But at the same time it is a shame to admit that the condition of Hindu widows has turned worse with time. Even today most of the widows in the country are abounded from their houses. They have no place to go. They are unable to maintain themselves and thus are forced to take refuge under the Vidhwa ashrams.

Most of the ashrams in the country are situated in the holy cities of Vindravan and Mathura. It is estimated that Vrindavan has more than 4,000 temples and ashrams with about 2,957 widows living in them. The widows seek shelter in the ashrams for various reasons most of them being abounded or sexually abused by their family members believe that holy places like these would help them to attain salvation and would bring them nearer to god. Many regard Vrindavan as the only place where they can live and die peacefully with the protection of all mighty.

Unfortunately these ashrams do not have much to offer. Majority of the widows are seen begging on the streets or soliciting for earning their livelihood. Ashrams encourage practices of prostitution and sexual abuse to gauge funds and finance. The young widows are often supplied to rich customers by the ashram itself in lieu of a heavy sum. The ashrams are scattered with diseases like tuberculosis, STD’s and dysentery. There is inadequate number of toilets in most of the places. There is lack of proper sewage system and non-availability of running water in these places. The widows are forced to live in an unhygienic and unhealthy environment. They are unaware of the widow pension and health schemes and hardly take benefit of it. Recently issued report by National Commission for Women states that 80% of them are illiterate whereas 60% of them are above 60 years of age. Most of these old widows (even those who are unable to walk properly) have to climb stairs to reach their rooms. Some of them are too old to even cook for themselves. They are forced to sleep on pieces of jute sacks. They are neither supplied with blankets nor hot water in winters. Moreover there is no institutional support for cremation of the dead bodies. The necessities in today’s life are a luxury for these unfortunate ones.

The PIL filed by advocate Mr. Ravindra Bana in the Supreme Court in November 2008 had brought the grievances of this marginalized section in limelight. Supreme Court had issued directions to NCW for conducting a survey in this regard. After much delay NCW has finally released its report on the plight of these widows. It is disheartening that in spite of various initiatives by the government hardly any benefit is availed by these women. The report said “As per records of the district welfare office, 2,819 women received old age pension and 892 widow pensions. However, among the 225 randomly interviewed women 68 per cent were found without pensions and 58 per cent without ration cards.”

The Sevadasi system (service done to the rich and powerful pilgrims are seen as a form of piety) prevalent in these institutions, further encourage practices of trafficking and prostitution. Under this system, the widows are supposed to offer every service to please the owners of Dharamshalas and Bhajan Ashrams in which sex is also included. The Bhajan ashrams offer these widows to earn Rs 3 to 4 a day and some meagre ration, if they assemble in the bhajan ashrams to sing bhajans (devotional songs) in mornings and evenings. The food, shelter and clothing of these destitute women depend on the mercy of these ashrams and some courteous travellers.

Most of the widows who reach these Bhajan ashrams belong to West Bengal and Bangladesh. The government of U.P. and W.B. have failed to take any collaborative steps to improve the situation of these widows. The widow pension granted by U.P. government is Rs.1, 800 a year, or Rs.150 a month. Although on records it seems that this meagre amount is serving its purpose, in reality it is not. The shelter homes built by the government have only provided limited relief to them. The government has turned a blind eye towards the illegal practices observed in these ashrams. Deepa Mehta who directed ‘Water’, the film which through a fictional story depicted the miseries of the widows living in these ashrams had to face opposition from all sections of the society. The close nexus between politics and religious bigots has always proved dreadful. If the government actively opposes the practices in Vrindavan, it would face opposition from both public and religious leaders. Most of the widows being uneducated become vulnerable. The victims are scared to raise their voices against the Dharamshalas and Bhajan Ashrams as they know they have no other place to go. It is very important that the widows are made aware of their legal and constitutional rights. The pensions must be increased and should duly reach the beneficiaries. Some part of the tourism revenue earned from Mathura and Vrindavan must be utilized for the upliftment of these widows. The welfare legislations like Hindu Succession (Amendment 2005) Act and Maintenance and Welfare of Parents and Senior Citizens Act, 2007 have definitely ensured that widows are not deprived of their husband’s property. But unfortunately these widows are found unaffected by the legal developments around the country. They must be provided with vocational training. Psychological and medical help must be made available to them. Medical facilities and hygienic conditions must be ensured in these ashrams. The number of government shelter homes must be increased. Above all citizens must be made aware of the injustices done to this vulnerable section. A public pressure can indeed bring considerable changes in these places. I seriously think by selling the bodies of these pious women, the ashrams are killing their souls and somewhere I hold everyone of us responsible for this injustice.

Judiciary Media Social Issues

Does justice look this monstrous?

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Whatever little bit of respect I had for some of the ‘mainstream’ media, is shrouded in agitation today. Almost every channel from one of the acclaimed ‘world-democracy’ flashed the news of ‘ Kasab sentenced to death – justice served’. It is of great misfortune that common brains are being fed with such contaminated views and disdain prevails in our thoughts and comprehensions. I do not want to get into the legal implications of the trial or the verdict and nor the sentence is of much of sensation as almost everyone knew the outcome of the trial. But the larger question seems to be that would we ever be able to see justice beyond injustices and retribution? While I agree that law enforcement has to fulfill its responsibilities to protect the citizens of a country, at the same time I think the civil society of a ‘democratic nation’ should deconstruct the given rhetoric that is made to believe as absolute legal truth and should shed light on the unseen and untold and at least attempt to free the incarcerated notions of justice.

Can justice be this monstrous? I do not think so. There are two debates, the former is the carnage instigated by the so called ‘terrorists’ on 26/11 in Mumbai and the latter is the debate on how to find solutions and solidify the concept of justice for the ones who suffered and the ones who will suffer. However, the enraged, disillusioned and infected brains seem to have sacrificed the latter over the politics of the former. I have to admit that I have no relationship with the person in question, but have huge stakes in how the concept of justice is formed and reformed through misdeeds of individual’s predatory acts. However, if we go beyond the individuals, we will be able to explore the bouts of mistrust, agony and contingent injustices that exist in systems and social spaces in which these individuals are socialized, poised and monopolized.

There is no doubt that we live in the times of increased contentions and violence among diverging agendas and politics, but we are tempted to victimize the victim rather than curbing the agenda and politics that create and recreate violence and culminate the end of humanity. I can never reconcile the two, that by sentencing a young victim, we will scare anyone else who would plan to do the same. Ironically, the same argument can be used by the fathers of terror to attract more young voices in avenge. Indeed, some of our experiences in Afghanistan reveal that militants have been able to gin up support from youth when the youth were emotionally provoked after seeing the injustices and violence of the government systems and their allies.

I could not believe to hear Haroon Hamid of the DAWN Media Group replying to an audience question on NDTV show (6th May 2010) with Barkha Dutt that ‘terrorism is created in Afghanistan and Pakistan is a victim of it as well as India’. I wondered what happened to the media ethics of the news channels that he run, if nothing else matters to him including the truth. He didn’t even try to unravel the systematic, political and social space that gave birth to discontent and violence transformed into terrorism through the weapons of the same system in Pakistan and the region rather than indulging into a merely political blame game. While the political agendas of some groups and factions entail creating terror and monopolize on religious and nationalistic sentiments of masses, there is an enabling environment that embraced and accepts the invitation and both the agenda and the enabling environment have a symmetrical relationship with the terror and violence that we see in Afghanistan, India and Pakistan. Let’s also not forget and not trivialize the dynamics of social spaces in which we live and see others live, that foster reprisal and revolt by witnessing chronic poverty, famine and increased gaps between different members of the same society. The fragmentation of social spaces within the feudal society as a creation of the capitalist market paradigm that embodies injustice and tremendous rage among youth that not only created Kasab but hundreds of Kasabs in the making. However, for sure any struggles to absolve the process would be trying to rupture the status quo, something that the gatekeepers of the feudal society and their political agenda’s will not allow or approve of and we will be getting used to death sentence of one after another and would have accepted that justice is rendered. Unfortunately, the emerging trajectories do suggest that in quest of conformity with the popular imagination of our ‘independent’ media, we will not be able to recognize the just face of justice anymore but will seek satisfaction in more resentment, discontent and retribution.

Judiciary Legal Mirror Politics

Will the quality of justice improve by the creation of National Judicial Service?

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National Judicial Service has been one of the most political-legal contentious issues in the judicial history of India. The debate has continued for years. On one hand the law ministry and the legislature intends to introduce the National Judicial Service in the country where as on the other hand the judiciary intends to postpone the same.

Why do judges oppose the commission of All India Judicial Service?

There are four basic ways of judicial appointments:-

1. By political institutions (Partially practiced in Italy and South Korea)

2. By judges themselves (Japan, Iraq and India)

3. By non-judge members (Brazil and Most American States)

4. Through Election (Some American States like Washington)

Presently in India, the appointment of district judges is done by the governor on consultation with High Court Judges by the purview Article 233(1) of the Indian Constitution. The Chief Justice of a High Court is consulted by the President before the appointment of any High Court Judge. These appointments are highly politicized and partial in many respects. The lower judiciary is under the dominance and control of the High Court. The district judges have to please the Chief Justice for their promotion as a High Court Judge. The commencement of Indian Judicial Service would surely decrease the power of High Court judges with reference to appointment and recruitment of judges.

When did it start?

The clause related to All India Judicial Service was incorporated in Article 312 (which deals with ALL INDIA SERVICES) by the 42nd Amendment, 1976. The clause specifically provides that Parliament in national interest may create judicial service for one or more states on request of the council of states. The provision clearly states that any post subordinate to district judge would not be included in the All India Judicial Service.

The creation of National Judicial Service is objected on three grounds:-

1. Impairment of Independence of Judiciary

2. Lack of regional language proficiency would affect the delivery of justice.

3. It would be deterrent to the interest of those who have already entered the service.

All the three contentions do not hold water. Appointments and recruitment would not affect the independence of judiciary rather it would ensure the autonomy of lower judiciary. Secondly, it is suggested that the issue of inadequate language knowledge can be easily addressed with proper allotment of states or study of multiple languages can be included as a part of judge-training. Lastly, since it is suggested that only 25% of judges in each state would be drawn from the All-India cadre; the same would not be detrimental to those already in service.

National Judicial System vis-a-vis Civil Services

The judiciary is not considered a lucrative career by most of the lawyers. The profession fails to attract a large number of competent lawyers. This adversely affects the quality of justice in the courts, which further results in delay of justice. In 2009 there were about 53,000 cases pending in SC, 40 lakh with High Courts and about 2.7 Crore in lower courts. The two main reasons for this high pendency of cases are High vacancy in courts and low judges-to-population ratio. In India the current judge-population ratio is 12.5 per million people where as in U.S. it is 114 per million. Presently 23% of sanctioned strength of the Supreme Court, 26% High Courts and 18% of Lower Courts is vacant.

Each year about 200,000 youngsters compete through an examination to enter services like I.A.S or I.P.S. The candidates are selected on merits and competency for a rigorous training of two years. If a similar system is also incorporated in the judicial services, well-qualified and competent lawyers could be attracted to the posts of judges. It would not only increase the judge-population ratio but would also improve the quality of justice.