Diluting guilt

The CBI has been persuaded to file an application before the Chief Judicial Magistrate, Bhopal, for the dropping of the charge of culpable homicide against the former chairman of the UCC, Warren Anderson, in the Bhopal gas disaster case.

THE former chairman of the Union Carbide Corporation (UCC), Warren Anderson, is a fugitive now living in the United States, avoiding criminal prosecution in India in the Bhopal gas disaster case. He was the chairman of the company when the disaster, which killed or maimed thousands of people, took place in 1984. The Central Bureau of Investigation (CBI) had filed a charge-sheet in the Court of the Chief Judicial Magistrate (CJM), Bhopal against UCC and Anderson on December 1, 1987. Anderson was charged with several offences under the provisions of the Indian Penal Code, including Section 304 (Part-II). Under this section, whoever commits culpable homicide shall be punished with imprisonment for a term which may extend to 10 years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death. The CJM issued a non-bailable arrest warrant against Anderson on March 27, 1992 so that the Central government could seek his extradition through the CBI and ensure his presence during trial.

The charge against Anderson under Section 304(II) of the IPC is significant because the CBI had initially found substantial evidence to suggest that Anderson as the chairman of UCC knew that the poor safety measures at UCC's Bhopal plant could cause a disaster. The CBI had charged 12 accused, including Anderson, with offences under this section in 1987 before the CJM, Bhopal. Of these, Anderson did not appear before the court; nor were UCC and Union Carbide Eastern Inc., Hong Kong represented at the trial. (The two corporate bodies have since ceased to exist.) The remaining nine accused, all of Indian origin, appeared before the court and secured bail. The Ninth Additional Sessions Judge, Bhopal, framed charges against all of them under Section 304(II), and other sections of the IPC, in April 1993. The nine accused Indians challenged this order first in the Madhya Pradesh High Court in Jabalpur; when the High Court dismissed their appeal in August 1995, they moved the Supreme Court and obtained relief.

The Supreme Court, in its order delivered on September 13, 1996, quashed the charge under Section 304(II) of the IPC against the nine accused and held that on the basis of available evidence, only Section 304A of the IPC could be invoked against them. This section holds that causing death by negligence does not amount to culpable homicide and that it attracts punishment for a term which may extend to two years, or with fine, or with both. The trial of the nine under this diluted charge is proceeding at snail's pace before the CJM, Bhopal. However, the charges under Section 304(II) of the IPC against Anderson, UCC, and UCE have not been quashed; the apex court declared them absconders.

This is because these three foreign accused did not challenge the 1993 order of the Ninth Additional Sessions Judge, Bhopal, who framed charges against them under Section 304(II). The Supreme Court, in its September 1996 judgment, recognised that the trial of the criminal case against these three accused had to be "segregated and split up as they were absconding". Therefore the Supreme Court did not consider at all the charges against these three foreign accused, while delivering its judgment.

The Supreme Court's 1996 judgment in Keshub Mahindra vs State of Madhya Pradesh was flawed because it was based on surmises. The CBI, for some reason, did not submit to the court the clinching evidence it had against the nine accused. Nor did it file a review petition before the Supreme Court. A petition filed by organisations representing the survivors of the Bhopal gas tragedy, seeking a review of this judgment, was dismissed by the Supreme Court without considering its merits.

The petition had set out the nature of the evidence, which was crucial to the case. Listing several documents, it argued that the accused knew that a potential gas leak at UCC could cause the death of not just workers in the factory but thousands of people living in the vicinity. In particular, the petition referred to a video film made by Granada Television of the United Kingdom, which examined in detail the inadequacy of the safety precautions at UCC's Bhopal plant and compared them with the safety systems installed at its methyl isocyanate (MIC) plant in West Virginia, U.S.

In any case, it could be easily surmised that the foreign accused would have had more knowledge about the disaster potential of the Bhopal plant than the Indian officials in Bhopal had because of the former's access to information regarding MIC, the gas that caused the tragedy, which UCC had refused to share with others. The CBI opposed the survivors' plea to visit UCC's headquarters in the U.S. to compare the safety standards practised in UCC plants in Bhopal and in the U.S., on the grounds that it would further delay the trial. Had the CBI undertaken such an exercise during its investigation, it would have found enough evidence to establish the complicity of the foreign accused in the tragedy.

PUT in this context, the suggestion that the case of the foreign accused could be considered on a par with the Indian accused whose charges were unreasonably diluted by the Supreme Court is preposterous. Ironically, this suggestion has not been made by the fugitive foreign accused themselves. It was Attorney-General Soli Sorabjee who tendered such an opinion on August 6, 2001 to the Ministry of External Affairs (MEA), on whether extradition proceedings against Anderson are legally sustainable under the Indo-American Extradition Treaty. Sorabjee assumed that Anderson was probably guilty of causing death by a rash or negligent act, which comes under the ambit of Section 304A of the IPC, which he claimed would be comparable to the offence of manslaughter under U.S. laws. Sorabjee based his claim on the basis of a note given by the U.S. administration to the Government of India, which pointed out that Article 3 of the Extradition Treaty covered the offence of causing death by a rash or negligent act.

In an interview given to Frontline (January 18, 2002), Sorabjee had said that it may be correct to say that the Supreme Court's judgment in Keshub Mahindra justifying the use of Section 304A rather than Section 304(II) of the IPC against the Indian accused did not apply to Anderson. Yet, in his first opinion on the issue, tendered to the MEA on July 31, 1998, Sorabjee had said that "the same reasoning" (which was the basis of the Supreme Court's judgment in Keshub Mahindra would apply to Anderson also; he had concluded that any extradition request for Anderson would have to be limited to Section 304A of the IPC. Sorabjee's opinion of 1998 also reveals that the CBI believed that a safety report on the Bhopal plant, prepared by some engineers of UCC in 1982, was known to Anderson. However, Sorabjee, rather unconvincingly, dissuaded the Union government from going ahead with extradition proceedings against Anderson.

Sorabjee's 2001 opinion has probably convinced the Government of India that it would be advisable to remove this irritant in Indo-U.S. relationship, especially post-September 11, by legally jettisoning the extradition proceedings against Anderson. This, it has discovered perhaps belatedly, would not be possible unless the charge against Anderson is legally diluted from 'culpable homicide' to 'rash and negligent act', as the U.S. would then not have to consider the offence serious enough for extradition.

As the organisations working for the cause of the survivors had petitioned the CJM, Bhopal, to direct the Centre to expedite extradition proceedings against Anderson, the Centre was under pressure to act. The Centre has, therefore, asked the CBI to move an application before the CJM, Bhopal, to seek an amended Warrant of Arrest against Anderson under Section 304A of the IPC, as the earlier Warrant was under Section 304(II).

The CBI moved the application on May 24 this year. The CJM, Bhopal, is set to hear arguments on the merits of the petition in July. However, many incongruities in the CBI's action have come to the fore. The CBI, for instance, has to explain why it took six years to realise that the reasoning behind the Keshub Mahindra judgment could apply to Anderson. Secondly, it has to explain the very rationale of its new application.

What does the CBI gain by diluting the charge against Anderson? Is the CBI confident that it could extradite Anderson under the amended Warrant of Arrest? Or, does it suggest that seeking his extradition has so far not been possible because the Warrant of Arrest against him was under the charge of culpable homicide and not rash and negligent act? And why should the CBI move an application favouring Anderson when the latter is still a fugitive in the eyes of Indian law? These questions await answers.