'Extradition request could have been pursued'

Print edition : January 05, 2002

Interview with Attorney-General Soli J. Sorabjee.

Attorney-General Soli J. Sorabjee is in the midst of a storm, having advised the Indian government against seeking the extradition of the former Chairman of the Union Carbide Corporation (UCC), Warren Anderson, from the United States in connection with his trial in the Bhopal gas leak disaster case. Sorabjee had defended the cause of the gas victims before the 1989 settlement was reached under the Supreme Court's supervision, clinching the measly $470 million package as compensation. Later, as Attorney-General, he supported a review by the court of the 1989 settlement, and succeeded in persuading it to reinstate the criminal charges sought to be extinguished by the settlement. As Attorney-General to the A.B. Vajpayee-led National Democratic Alliance (NDA) government, Sorabjee's role in discouraging the government from seeking Anderson's extradition has disappointed the survivors of the tragedy. Sorabjee probably feels it is futile to seek the UCC's criminal prosecution or extradition after the Bhopal District Court proclaimed it absconder and attached its property.

V. Venkatesan managed to get his responses to some of the issues raised by his opinion. Excerpts from the interview:

How do you explain your advice to the Government that the extradition proceedings against Warren Anderson are not likely to succeed and therefore the same may not be pursued?

First of all, the question was whether the alleged offence was extraditable. The offence of causing death by rash or negligent act under Section 304-A of IPC (Indian Penal Code) would be comparable to the offence of manslaughter under the law of the United States and would prima facie be covered under Article 3 of the Extradition Treaty between India and the U.S. On this, there is agreement between us and the legal opinion in the U.S., as obtained by the government.

Then there are the missing evidentiary links that need to be supplemented. Even if the Government of India manages to furnish these links, the delay in seeking Anderson's extradition would be a very relevant factor in the proceedings and the U.S. could refuse his extradition to India on this ground. Consequently, his age is equally an important factor, and this raises humanitarian concerns. For instance, the extradition of former Chilean dictator Augusto Pinochet from the United Kingdom to Spain was declined by the U.K. mainly because of his advanced age. Similar human rights consideration by the U.S. government could stop Anderson's extradition to India.

MOHD. YOUSUF

But why did it take the Indian government so long to examine whether the extradition of Anderson was feasible?

I do not know. Maybe they could not get the evidence to show that Anderson had knowledge of the cause of the gas leak prior to its occurrence, that he had decision-making control over UCIL's (Union Carbide India Limited) safety and design issues, and whether he refused to correct the hazard. If the victims had any such evidence, they could have given it to the CBI (Central Bureau of Investigation). It would be futile to seek someone's extradition without first obtaining some prima facie evidence that he may be guilty.

By suggesting that the U.S. State Department would probably find policy reasons not to surrender Anderson to the Indian government, are you not ruling out any scope for extradition? How can evidentiary links be furnished unless the UCC allows access to its records in the U.S.?

I don't know whether anyone sought such access and whether it was denied. But my opinion does not prevent the Government of India from going ahead with the extradition proceedings, if it wants to. Maybe I could have stopped saying that proceedings for his extradition are not likely to succeed. I need not have said that the same may not be pursued. That might have satisfied the victims.

(Sorabjee later gave the following written note explaining his stand: "Counsel give opinion on the basis of the factual instructions and material contained in the Statement of Case for Opinion. My opinion did not prohibit the government from pursuing the extradition request. I did not opine that it would be illegal or impermissible to do so. After considering all factors, my view was that extradition request was not likely to succeed and may not, and should not, be pursued. The Ministry (of External Affairs) could have sent a Supplementary Case for Opinion whether an attempt at extradition could be made in order to satisfy the victims. No such thing was done.)

Your opinion suggests that the Supreme Court's reasoning in the Keshub Mahindra case, justifying the use of Section 304-A rather than Section 304-Part II of IPC, applies to Anderson also. That ruling applies only to the Indian accused, who had appealed against the Madhya Pradesh High Court's order confirming the framing of charges against them by the District Court. Anderson did not challenge the framing of charges by the Bhopal District Court, and he did not appeal against the High Court order either. He still faces charges under Section 304-Part II in the District Court. They have not been modified by the Supreme Court.

Maybe, you are correct.

Why can the CBI not substitute or name Dow Chemicals in place of or in addition to UCC as the principal accused in the criminal case pending in the Bhopal District Court?

In the criminal case, if a corporation no longer exists, it is the end of the matter. You cannot substitute one with another. Just because Dow has bought over UCC, Anderson's guilt does not disappear. Substitution is possible in a civil, and not in a criminal, case.

Would you agree with the view that UCC did not comply with the terms and conditions of the Supreme Court's order in the review case in 1991, by refusing to answer the criminal charges against it in the Bhopal District Court?

The Bhopal District Court has already proclaimed them absconders and attached their property in India.

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