Flight from justice

Basing its judgment on the specious legal opinion that it has received, the Indian government appears reluctant to seek the extradition of the fugitives in the case relating to the 1984 gas leak disaster in Bhopal.

THE Indian government's refusal to help the survivors of the Bhopal gas tragedy in their legal battle against the multinational company, Union Carbide Corporation (UCC), in the United States Court of Appeals for the Second Circuit raised questions about its motives (Frontline, January 4, 2002). The survivors' organisations wanted the Indian government to state before the Appeals Court that it endorsed their complaint seeking redress for "crimes against humanity" against the UCC and its former Chairman, Warren Anderson, who are avoiding criminal prosecution in India.

The government's failure to act stems partly from an incorrect reading of the Supreme Court's 1991 decision giving final approval to the 1989 settlement under which the court sanctioned a $470-million compensation package to the victims. In its 1991 decision, the Supreme Court severed the criminal charges from the civil claims, but allowed the civil settlement to stand "undisturbed" only on certain conditions, which included the criminal prosecution of the fugitives. In any case, claims or rights arising from criminal liability, according to this decision, are outside the scope of the settlement, and the government could have backed the survivors' complaint in the Appeals Court, without the risk of inviting legal infirmities.

However, what appears to have forced the government's hands is the apprehension that such a step would have exposed its failure to seek the extradition of the UCC and Anderson all these years, and brought it under pressure to initiate such proceedings now. The government might now hesitate to take such a step, perhaps because it does not want to embarrass the U.S., in the context of growing India-U.S. proximity after September 11.

Post-September 11, the Indian government unilaterally volunteered assistance to the United States in seeking justice against terrorists. No similar offer of assistance to ensure criminal prosecution of the UCC and Anderson in India was forthcoming from the U.S. all these years.

Indeed, as one looks at the course of the trial in the criminal case against the UCC and Anderson at the Bhopal District Court, the facts expose the nonchalance of the Indian government and the Central Bureau of Investigation (CBI) in seeking their prosecution. The CBI filed its charge-sheet in the Court of the Chief Judicial Magistrate (JCM), Bhopal against the UCC and Anderson on December 1, 1987. Anderson was charged with several offences under the Indian Penal Code, including Section 304 (Part-II), which could hold him guilty of culpable homicide not amounting to murder, which is punishable with imprisonment for a term which may extend to 10 years, or with fine, or with both. This is a non-bailable offence.

Summons were issued to Anderson by the CJM on May 16 and July 16, 1988 and were served on Anderson through the Interpol on September 24, 1988. When he failed to appear in Court, the CJM on February 9, 1989 declared Anderson a proclaimed absconder and directed him to be present in court on March 31, 1989. The criminal case was dropped following the settlement recorded in the Supreme Court's order in February 1989. In October 1991, the Supreme Court revived the criminal proceedings while disposing of the review petitions.

Following this, the CJM in December 1991 directed Anderson to be present in the court on February 1, 1992. The court gave him one more opportunity to present himself on March 27, 1992. On that day, the CJM noted that the only means for the state to ensure the presence of Anderson was to move for extradition and accordingly issued a non-bailable arrest warrant against him on April 10, 1992. Since then, however, the government and the CBI have not moved to seek his extradition.

In February 1994, the Ministry of External Affairs (MEA) informed the CBI that the matter had been referred to a Committee of Secretaries, and that its decision was awaited. In September 1996, the MEA decided to refer the matter to the Attorney-General (A.G.).

The MEA's move to refer the matter to the A.G. stems from the CBI's flawed reading of the Supreme Court's judgment in State vs.Keshub Mahindra & Others in September 1996. The Supreme Court, while disposing of the appeal from the Indian accused against the Madhya Pradesh High Court's order confirming the framing of charges by the Additional District Judge, Bhopal, quashed the charges framed against them under sections including Section 304-Part II of the IPC. It held that the material on record could only sustain a prima facie case under Section 304-A which covers causing of death by rash or negligent acts, not amounting to culpable homicide.

This judgment - albeit a result of the CBI's failure to present all the evidence it possessed against the Indian accused - did not apply to Anderson, who was not among the petitioners who challenged the trial court's order framing charges. Thus Anderson's trial for offences under Section 304 -Part II was not modified by the Supreme Court, and it remained distinct from the trial of the Indian accused. However, the CBI, in an affidavit to the CJM, Bhopal, in November 1996 stated that the issue of Anderson's extradition was being re-examined in the light of the Supreme Court's judgment in Keshub Mahindra.

The CBI's flawed understanding of this judgment seems to have influenced the Attorney-General Soli Sorabjee, who tendered his opinion to the government in July 1998. The government sought his opinion on whether a request by the Indian government to the U.S. government for the extradition of Anderson would be consistent with the requirements of the Extradition Treaty between India and the U.S. In an opinion he gave in July 1998, Sorabjee wrote that the Supreme Court's reasoning in Keshub Mahindra would apply to Anderson. "In these circumstances, it is clear that any extradition request for Anderson will have to be limited to Section 304-A of the IPC," he suggested. Sorabjee gave the opinion that this offence is covered by the offence of manslaughter referred to in Article 3 of the Indo-U.S. Extradition Treaty. Supreme Court advocate S. Muralidhar, however, is of the view that while Section 304-Part II is comparable to the offence of manslaughter in the U.S., Section 304-A is not so.

Sorabjee explained in his opinion that it was necessary to provide sufficient evidence to warrant a criminal trial of Anderson. He wrote: "The evidence should be to the effect that Anderson had knowledge of the design defects in the plant (at Bhopal) and violation of safety precautions. If strict proof is, in fact, a requirement of American law for purposes of determining whether there is probable cause to believe that Anderson was in any way responsible for the disaster, in my view the evidence obtained by the CBI so far would not meet such a high standard of proof." Sorabjee's second opinion, based on legal advice obtained from a U.S. Attorney (see box), was given to the government on August 6, 2001. Sorabjee's assessment that it would involve a considerable amount of time and effort to furnish the "missing evidentiary links" has surprised activists and survivors' organisations, who aver that prima facie evidence against Anderson is readily available, but that the CBI is reluctant to pursue it.

The CBI, for instance, has not even pursued the letters rogatory in the criminal investigation for discovery and inspection of the UCC's plant in the U.S. for purposes of comparison of safety standards. The inspection was to be conducted in mid-February 1989, and this was brought to the knowledge of the Supreme Court, before it delivered its judgment in the review case in 1991. The Indian government had alleged that the 1989 settlement which extinguished the criminal charges was intended to circumvent that inspection. The Supreme Court did not agree with this allegation; but when it reinstated the criminal charges, it was expected that the CBI would pursue the letters rogatory. Instead, however, the CBI told the Bhopal District Court that such a step should be ruled out since it would result in unnecessary delays in the trial.

Sorabjee's concurrence with the opinion of the U.S. attorneys that the U.S. State Department would find the delay in seeking extradition and Anderson's advanced age as weighty and relevant considerations in refusing India's request for extradition, has also caused dismay. Observers point out that it is the Government of India's inaction which caused this delay in the first place. Moreover, if the offence under Section 304-Part II is sustainable against Anderson, this is not subject to the law of limitation, says advocate Muralidhar.

If Anderson's age is a weighty consideration for denying the extradition request by India, it would lead to ridiculous inferences. Every fugitive or accused, it would appear, could remain underground till he or she turns 80 and then qualify for immunity from prosecution.

Sorabjee referred to the case of the former Chilean dictator, Gen. Augusto Pinochet (see interview) who returned to Chile a free man in March 2000 after British Home Secretary Jack Straw announced that he was too ill to stand trial in Spain on charges of torture. That decision was a result of a 16-month long legal battle that Gen. Pinochet had waged in British courts to avoid having to stand trial in Spain for human rights abuses committed during his rule in Chile. Straw so decided after a team of doctors found that Gen. Pinochet had suffered extensive brain damage and would not be mentally capable of meaningful participation in a trial. The Pinochet case can hardly be a precedent for Anderson, who is healthy enough to plead his case before the Appeals Court in the U.S., which has now asked the U.S. District Court for the Southern District of New York to hear again the plaintiffs' complaint against him.

The Indian Government's move to seek legal opinion from the U.S. Attorneys regarding Anderson's extradition is a clear sign of its lack of interest in the matter. Did the government seek similar legal opinion from the A.G. or from the attorneys of the country from where the extradition of a fugitive is sought in other cases - for example, in the matter of extradition of Ottavio Quattrocchi from Malaysia in the Bofors payoffs case, ask survivors of the tragedy.

While the government is dragging its feet on the matter of extradition of Anderson, the CBI has almost given up its right to seek criminal prosecution of the UCC and Union Carbide Eastern (UCE), Hong Kong. In its reply to the Bhopal District Court in October 1996, the CBI held that the UCC did not appear in the court and therefore the property of the UCC was attached by the court. The UCE, the CBI claimed, was closed and therefore, the question of issue of warrant of arrest in the name of such company did not arise. The survivors' organisations had sought the issue of non-bailable warrants against the UCC and UCE by the District Court as a consequence of their continued non-appearance before the court, so that extradition proceedings in regard to them could be initiated. On February 1, 1992, the District Court had proclaimed Anderson, the UCC and UCE as absconders for non-appearance in the criminal case. But the CBI told the District Court that there was no merit in the demand for the issue of non-bailable warrants against the UCC and the UCE officials, in order to facilitate their extradition.

The survivors' organisations have petitioned the District Court on September 7, 2001 to issue summons to the Dow Chemical Company of the U.S., which has bought up the UCC, to appear before the court as one of the accused. The CBI's lack of interest can be gauged from its recent application in the District Court, seeking its directions to verify the merger of Dow Chemicals with the UCC, as claimed by the survivors' attorney in the U.S. It is obvious that the CBI needs no such direction from the court to do so, but it has not revealed what it intends to do after the so-called verification.

As Sorabjee's statement (in the accompanying interview) reveals, there is very little appreciation for the view that corporate crime has a remedy under Indian laws. Section 305 of Code of Criminal Procedure (CrPC) spells out the procedure when a corporation or registered society is an accused, and states who could represent the accused corporation in a trial. By enacting this section, Parliament filled a lacuna in the old Code which did not provide for any representation when societies and other body corporate were accused in criminal cases. The CBI is not even prepared to make an effort to invoke this section against the UCC. Advocate Muralidhar points out that corporations cannot enjoy immunity from prosecution merely through a change in their personalities. He laments that in India there is not even an acknowledgement of the principle that criminal liability of such corporations is enforceable.

Contrary to what Sorabjee has stated, Dow Chemicals, which has bought over the UCC, must assume all liabilities, civil and criminal, of the UCC under U.S. law, which governs Dow's purchase of the UCC. Observers say that the Indian government could, in addition to the UCC and Anderson, make Dow the principal accused in the criminal case pending in the District Court in Bhopal. Dow does business in India, so the Indian government does not even have to appear before a foreign court to achieve this result. The government could simply request or direct Dow to assume liability for the criminal cases pending against the UCC.

Criminal charges pending against the UCC under the CrPC allow a fine or penalty to be levied against a corporate defendant, if found guilty. the proceeds of such fines can be used as a monetary or compensatory restitution to the Bhopal victims under Section 357 CrPC. Such a restitution would not only be immensely helpful in terms of providing the economic, medical and social rehabilitation needed by the survivors, but it would constitute moral vindication of their stand. Criminal prosecution of the UCC is essential to deter other multinational corporations from playing havoc with the lives of Indian people - as the UCC has done. Will the CBI and the Indian government display the requisite will to pursue it?