The issue of extradition

The Committee on Government Assurances indicts the Central government for its apathy in the matter of obtaining the extradition of the former chairman of the Union Carbide Corporation, Warren Anderson, to India in connection with the Bhopal gas disaster case.

in New Delhi

THE issue of the extradition of Warren Anderson, former Chairman of the Union Carbide Corporation (UCC), to India has come to the fore again. He has been proclaimed an absconder by the Bhopal District Court in connection with the criminal case pending against him with regard to the 1984 Bhopal gas disaster. Since May 1992, the government has claimed repeatedly in the Lok Sabha in response to queries by members, that the matter was under examination. A 16-member Lok Sabha Committee on Government Assurances, whose role it is to examine why any assurances given on the floor of Parliament on important issues remain unfulfilled, has found that the government was either not serious enough in pursuing the case or too reluctant to proceed against the chief accused.

The committee, chaired by Telugu Desam Party (TDP) MP S. Venugopal, examined representatives of the Central Bureau of Investigation (CBI), which has been prosecuting the case, and the Ministries of External Affairs, Law and Justice to find out why the MEA has not even filed a request with the United States government for Anderson's extradition. In its 12th report, which was presented to the Lok Sabha on February 27, it pointed out that assurances given on the floor of the House by Ministers ought to be implemented within three months.

The case was entrusted to the CBI on December 9, 1984. The CBI filed its charge-sheet against 12 accused, including Anderson, in the Bhopal court on December 1, 1987. Anderson had been arrested and released on bail by the Madhya Pradesh Police in Bhopal on December 7, 1984. The committee said that the State government could not have taken a unilateral decision on his arrest and release, and that both the Central and State governments were equally responsible for the drama of his arrest and release. If the decision of the government to release him on bail was made in good faith, he had belied that faith by ignoring several summons issued by the Bhopal court for his appearance, the committee felt.

Although the Chief Judicial Magistrate, Bhopal, had on April 10, 1992, issued a non-bailable warrant of arrest in order to arrange extradition proceedings against Anderson, the CBI forwarded the case to the MEA only on September 23, 1993. The MEA took another year to place the matter before a Committee of Secretaries. On February 9, 1995, the Committee of Secretaries decided that the CBI would transfer all documents concerning the case against Anderson to the MEA, which would then examine whether the extradition proceedings were sustainable under the provisions of the Indo-U.S. Extradition Treaty. The parliamentary committee found that the government was bogged down by administrative procedures and the legal complexities of the case.

In 1995, the MEA sought the advice of the Ministry of Law and Justice with regard to the issue of criminal liability of Anderson, who was not present in India at the time of the tragedy. The Law Ministry advised the MEA that it was a secondary issue and that the committal of the accused for trial under the provisions of the Treaty would be justified. However, it felt that the documents and evidence provided by the CBI were not sufficient to establish criminal liability.

The CBI informed the MEA on September 29, 1996, that the matter pertaining to his extradition needed to be re-examined in the light of a judgment delivered by the Supreme Court in the Keshub Mahindra case on September 13, 1996. As the report shows, it was the CBI - and not the MEA as the CBI had claimed earlier - which first suggested that the extradition be sought under Section 304A of the Indian Penal Code (causing of death by rash or negligent acts, not amounting to culpable homicide) instead of 304 (Part-II) of the IPC (involving a non-bailable offence which could hold him guilty of culpable homicide, punishable with imprisonment for a term which may extend to 10 years, or with fine or with both). In July 1998, Attorney-General Soli Sorabjee - in his opinion tendered to the MEA - concurred with this view. (Frontline, January 18, 2002)

Following his advice, the CBI decided to move the Bhopal court on May 23, 2002, to amend the charge-sheet against Anderson, so that the request for his extradition could be limited to Section 304A. The CBI took this decision under the flawed assumption that the Supreme Court's judgment in the Keshub Mahindra case applied to Anderson. The judgment had permitted substitution of charges of culpable homicide against the nine Indians accused of rash and negligent act. The Bhopal court rejected the CBI's application on August 28, 2002, on the grounds that Anderson had been absenting himself from the beginning of the trial. (Frontline, October 25, 2002)

The committee noted that the delayed reaction of the government to the Supreme Court ruling of September 1996 and to the July 1998 advice of the Attorney-General showed that the government was either too diffident or cautious with regard to the course of action to be taken and, therefore, preferred to wait and watch for developments to unfold or was too complacent to notice the urgency of the matter.

The parliamentary committee deplored the fact that the government took nearly three years to obtain the legal opinion of the U.S. law firm, as advised by the Attorney-General in July 1998. The firm's opinion was obtained on April 4, 2001. "This clearly speaks of lackadaisical approach of the government in this case,'' the committee found.

The report reveals how the firm, Verner Liipfert, was chosen by the government. The MEA has stated that the Indian Embassy in Washington first approached the U.S. Department of Justice for advice, but the Department declined to recommend any specific legal firm that specialised in extradition cases. In view of the sensitivity of the case and the need for confidentiality, the Embassy decided to seek the opinion of its law firm, "reported to be one of the most well reputed and highly regarded law firms in the U.S.A''. The firm enlisted the services of a legal expert, Martin Mendelsohn, who had earlier worked in the Department of Justice and had extensive experience in handling extradition cases.

The firm was paid $15,000 for its services, but the question is whether it met the terms of reference given to it by the government, to seek its opinion on Anderson's extradition under the provisions of the Treaty and U.S. national laws, taking into account the material forwarded by the CBI. The report reveals that the firm sought specific information on whether there were any legally mandated safety requirements that were not being followed by the Union Carbide India Limited plant and on who was legally responsible for implementing the safety recommendations made in 1982.

The CBI replied through the Indian Embassy, explaining that the legally mandated safety requirements were not followed in the Bhopal plant during the relevant period. The CBI held that as Chairman of UCC, which had provided the design, know-how and safety measures, and under the strict control of whose experts the plant was commissioned, Anderson was responsible for the implementation of the safety requirements. The CBI pointed out that as a 50.9 per cent shareholder, UCC was exercising full control over the functioning of the plant. But in spite of such control, UCC and UCIL took no steps to rectify certain defects that had occurred in 1984 (prior to the disaster) or change the design.

In its opinion the U.S. law firm stated that under U.S. law, in order for the accused to be convicted of manslaughter he must have had actual notice or knowledge of the cause of the disaster and should have refused to remedy it. Secondly, it said that there must be a factual basis that rises to the level of probable cause to believe that Anderson committed a crime comparable to "causing death by negligence'' in this case of manslaughter. Then it concluded that from the material available there was no evidence that established the necessary factual link between Anderson and the cause of the explosion and gas leak; nor was there evidence that the deaths were the result of any act committed by Anderson.

Ignoring the specific instances of Anderson's culpability as cited by the CBI, the firm added that there was no published precedent for extraditing a corporate official on manslaughter charges, arising solely from his or her position in a corporation. Then it added a caveat, irrelevant to the legal aspects of the case: the U.S. Secretary of State is empowered in any case to decline extradition based on diplomatic or humanitarian concerns.

To many observers, the idea of seeking the advice of a private law firm in an extradition matter makes no sense: it has never happened earlier, and one cannot think of any other country making a similar request to an Indian law firm in such a matter. And the government's decision to exclude the extradition of UCC and the Union Carbide Eastern (UCE), Hong Kong, the other two accused entities, from its request shows that it had ignored the question of corporate criminality.

The parliamentary committee has recommended that the CBI should renew its request to the U.S. authorities to take up the matter relating to a letters rogatory issued on July 6, 1988. This was issued by the Chief Magistrate, Bhopal, to the U.S. administration seeking permission for the CBI to inspect safety systems installed at the methyl isocyanate (MIC) unit of the UCC's pesticide plant situated in West Virginia, U.S. The CBI has so far not shown any interest in this. The committee urged the government to strengthen the evidence and request the U.S. government to extradite Anderson. It also advised participation by the Central government and the Madhya Pradesh government in the law suit being pursued in an American court by the survivors seeking compensation for the environmental pollution that was caused in Bhopal.

In the background of the policies of liberalisation and globalisation under which transnational corporations and foreign companies are being invited to set up units in the country, the committee wanted the government to send a message to the world that offences of the type committed by UCC in Bhopal would not be allowed to be repeated. For this, it urged the government to come up with a plan of action along with an appropriate piece of legislation. The Lok Sabha Speaker is duty-bound to forward this report to the Prime Minister and the Parliamentary Affairs Minister seeking an Action Taken Report (ATR) in a month's time. The ATR would then have to be placed before the parliamentary committee for its consideration.

Perhaps the lack of such participation by the State and Central governments resulted in the rejection of their civil suit on March 19 by the Federal District Judge in New York, John F. Keenan.