Elusive extradition

Published : Oct 08, 2004 00:00 IST

The U.S. government's rejection of India's request to extradite Warren Anderson, former Chairman of Union Carbide Corporation, does not seem to be based on strong legal grounds.

in New Delhi

THE yet-to-begin trial in the Bhopal District Court of Warren Anderson, former Chairman of the Union Carbide Corporation (UCC), for culpable homicide in causing the 1984 Bhopal gas disaster received a huge setback when the U.S. government rejected in June the Indian government's request to extradite him. The decision has raised questions about the U.S.' compliance with the letter and spirit of the Indo-U.S. Extradition Treaty and the Indian government's seriousness in pursuing its extradition request.

Anderson was arrested and released on bail by the Madhya Pradesh police in Bhopal on December 7, 1984, four days after the disaster. Since then, he has been ignoring the Bhopal court's summons. The Central Bureau of Investigation (CBI), which was entrusted with the case on December 9, 1984, filed a charge-sheet against 12 accused, including Anderson, in the Bhopal court on December 1, 1987. The Chief Judicial Magistrate (CJM), Bhopal, issued a non-bailable arrest warrant against Anderson on April 10, 1992, so the extradition proceedings could be initiated.

In October 2002, the CJM issued a fresh arrest warrant against him, after rejecting the CBI's plea to dilute the charge against Anderson from culpable homicide (which would invite imprisonment up to 10 years if convicted) to that of rash and negligent act (up to two years' imprisonment if convicted) in accordance with a similar redress provided by the Supreme Court to an accused, an Indian, in the case.

The CBI, left with no option, forwarded the request to extradite him to the Ministry of External Affairs (MEA). The government, which has all along been avoiding any attempt to seek his extradition under flawed legal advice, finally forwarded the request to the U.S. Departments of State and Justice in May 2003 through the Indian Embassy in Washington. This, after a Parliamentary Committee on Government Assurances indicted the government for the inordinate delay in seeking Anderson's extradition.

On July 2 the MEA conveyed the U.S.' decision to the CBI thus: "The Government of the U.S. has carefully considered the Government of India's extradition request for Warren Anderson and has concluded that the request of the Government of India cannot be executed, as it does not meet the requirements of Articles 2(1) and 9(3) of the Extradition Treaty." E. Ahmed, Minister of State for External Affairs, confirmed this in a written submission to the Lok Sabha on August 18. He denied that the U.S. has refused to extradite Anderson because of his age, as he is more than 80 years old. "Age bears no restriction regarding any person's extradition," he told the House in response to a supplementary question from Rajesh Kumar Manjhi, a member of the Rashtriya Janata Dal. Ahmed also said that the government was currently taking no action regarding Anderson's extradition, which suggests that it has no intention of challenging the U.S. decision.

Article 2(1) of the Treaty says: "An offence shall be an extraditable offence if it is punishable under the laws in both contracting states by deprivation of liberty, including imprisonment, for a period of more than one year or by a more severe penalty."

Article 9(3) says: "A request for extradition of a person who is sought for prosecution shall also be supported by: a) a copy of the warrant or order of arrest, issued by a Judge or other competent authority; b) a copy of the charging document, if any; and c) such information as would justify the committal to trial of person if the offence had been committed in the Requested State."

To test the U.S.' claim regarding Article 2(1), it is necessary to know whether the offence Anderson is charged with in India is punishable in the U.S. for a period of more than one year. Experts say that manslaughter - an offence under the U.S. law, which is equivalent to the offence of culpable homicide that Anderson is charged with under the Indian Penal Code - is in fact punishable with more than one year imprisonment in nearly all jurisdictions in the U.S. Manslaughter is defined as the unlawful killing of a human being without malice or premeditation, either express or implied and as distinguished from murder, which requires malicious intent. Although the federal nature of the U.S. legal system means that there are different sentences for manslaughter under the laws of each State as well as a separate sentence provided for under the federal statute, the offence is clearly punishable with more than one year imprisonment under all those laws.

Article 9(3) of the Treaty has three requirements: copy of arrest warrant, copy of charge-sheet, and "such information" as would justify the committal to trial, if the offence was committed in the U.S. One may assume that the Indian government would have had no difficulty in complying with the first two requirements, and would have most certainly annexed copies of the arrest warrant and the charge-sheet with its extradition request. But what "information" would justify Anderson's trial in the U.S., had the offence been committed there?

Article 9(3) deals with both procedural requirements (inclusion of appropriate charging documents, warrant of arrest, and so on) as well as the more substantive question of what is called "probable cause" under the U.S. law. Experts say it is not easy to define the requirement of "probable cause" under the criminal law of the U.S. since the concept has been elaborated and re-elaborated by close to 200 years of jurisprudence. The Black's Law Dictionary defines the concept of probable cause as "an apparent state of facts found to exist upon reasonable inquiry which would induce a reasonably intelligent and prudent person to believe, in a criminal case, that the accused had committed the crime charged". In other words, the term "probable cause" means something more than mere suspicion but less than the quantum of evidence required for conviction on the offence in question.

There is still no basis to suggest that the U.S. has denied the extradition request on the grounds of an absence of probable cause. It may be premature to reach any conclusion about this substantive issue in the absence of disclosure of the exact grounds of denial of extradition. However, experts point out that the Indian government has a fair chance of challenging the U.S. decision in the U.S. Supreme Court, if indeed the State Department based its denial on substantive issues.

The Parliamentary Committee on Government Assurances during the term of the 13th Lok Sabha revealed in its 12th report the opinion of the U.S. law firm, M/s Verner Liipfert, whom the MEA first approached for advice on the feasibility of extraditing Anderson. The firm sought to know whether there were legally mandated safety requirements that were not followed by the Bhopal plant before the disaster. Secondly, it wanted to know who was legally responsible for implementing the safety recommendations made in 1982 by a team of experts of UCC who had conducted a survey of the Bhopal plant. The Indian government provided the firm with detailed answers explaining how the stated safety requirements were not complied with, before the disaster. The government also pointed out that there were reasons to believe that Anderson was personally aware of the safety precautions in place in the UCC plant in West Virginia, and that he did not ensure that safety measures of the same standard were enforced in the plant in Bhopal. In spite of this, the firm concluded that there was no evidence to establish the necessary factual link between Anderson and the gas leak incident in Bhopal.

Soli J. Sorabjee, then Attorney-General, concurred with this view and dissuaded the government from making the extradition request to the U.S. Sorabjee opined that although it was not impossible to furnish the "missing evidentiary links" such as the extent to which Anderson had decision-making control over the safety and design issues of Union Carbide India Limited, and whether he refused to correct the hazard, he was not sanguine about securing such evidence, considering the time and the effort that it would involve. Sorabjee, however, believed that the U.S. would find policy reasons not to surrender Anderson to the Indian government. These are humanitarian concerns such as his age, and the inordinate delay in the Indian government's decision to seek extradition. The U.S. decision shows that these were indeed not the grounds for the rejection of the extradition request.

The U.S. must reveal in detail the specific reasons for rejecting the extradition request if it wants to show that it does not have contempt for the rule of law and the democratic institutions in India. The Indian government, too, must seek specific answers from the U.S., and if necessary, convince it about the merits of its request, in order to avoid the criticism within the country that it did not pursue the case with the diligence it deserved.

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