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A rap for the CBI

Published : Oct 25, 2002 00:00 IST

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The Chief Judicial Magistrate, Bhopal, rejects the CBI's plea to dilute the criminal charges against the fugitive former Union Carbide Corporation chairman Warren Anderson from culpable homicide to criminal negligence, for his role in the 1984 Bhopal gas tragedy.

IT is now more than a month since the Chief Judicial Magistrate, Bhopal, Rameshwarji Kote, on August 28, rejected the Central Bureau of Investigation's (CBI) application to recall the warrant of arrest issued against former Union Carbide Corporation (UCC) chairman Warren Anderson under Section 304-II of the Indian Penal Code (culpable homicide) and to replace it with a fresh warrant of arrest under Section 304-A (criminal negligence). As the criminal cases against the accused for causing the 1984 gas tragedy in Bhopal come up for the next hearing in the Bhopal district court on October 17, all eyes are on the CBI, which is yet to take the first logical step in compliance with the CJM's order. Despite an announcement by CBI Director P.C. Sharma that the agency would move the authorities for Anderson's and UCC's (its criminal liability now inherited by Dow Chemicals, which fully owns it) extradition following the CJM's order, the CBI's inaction on this front all these years is inexplicable.

Judge Kote had said in his landmark order that the three foreign accused in the criminal case Warren Anderson, UCC and the Union Carbide Eastern (UCE) Inc., Hong Kong were not present or represented in the court when it issued charge-sheets against them on December 1, 1987. Subsequently, they were declared absconders and arrest warrants were issued against them under various sections of the IPC. While the nine Indian accused saw the charges against them being diluted from culpable homicide to criminal negligence, as per the Supreme Court's judgment in the Keshub Mahindra case on September 13, 1996, Warren Anderson did not submit himself to the trial court's summons from the beginning. Nor did he seek dilution of charges against him as framed by the trial court, the Judge said.

The Judge held that the Supreme Court's September 13, 1996 judgment makes it clear that it applies only to those accused who appealed against the Madhya Pradesh High Court's order upholding the charge of culpable homicide framed by the trial court. He felt that there was no need to recall the earlier arrest warrant against Anderson, issued under Section 304-II of the IPC, and replace it with a warrant issued under Section 304-A of the IPC. He directed the CBI to expedite the extradition proceedings against Anderson and intimate the court.

THE CBI, in its application to the trial court filed on May 24 this year (Frontline, July 19), sought the applicability of the Supreme Court's judgment in the Keshub Mahindra case to Anderson without explaining why. It argued that Anderson should face trial on the charge of criminal negligence, and sought a fresh non-bailable warrant of arrest against him for the purpose of his extradition. "The earlier non-bailable warrant was issued under Section 304-II of the IPC (along with other relevant Sections of the IPC), which is not relevant now in the light of the order of the Supreme Court," it concluded in its application.

The CBI also revealed that the Ministry of External Affairs (MEA) by its communication dated March 20, 2002, wanted an amended warrant of arrest under Section 304-A of the IPC for the extradition of Anderson. The MEA's reasons for the same were not known because the CBI did not enclose a copy of the communication with its application.

The CJM, Bhopal, had, on the basis of the petition filed by the Bhopal Gas Peedith Sangharsh Sahayog Samiti and others on September 7, 2001, directed the CBI to furnish details of the steps taken by the government to extradite Anderson. The MEA's communication to the CBI followed the CBI's clarifications, submitted to the MEA on April 4, 2001, on some points raised by an American Attorney relating to the evidence against Anderson.

The American attorney was consulted on the advice of Attorney-General Soli Sorabjee. In his opinion tendered to the MEA, Sorabjee mentioned that to assess whether the evidence on record was sufficient to meet the probable cause standard applicable in the U.S., advice should be obtained from a competent American attorney. The CBI made available to the MEA, on February 20, 2000, a revised note on whether the evidence on record was sufficient to meet the probable cause standard applicable in the U.S. The MEA then referred the matter to the Indian Embassy in the U.S. to obtain the opinion of an American Attorney. The Attorney-General, on the basis of this opinion, advised the Centre that its efforts to extradite Anderson might not succeed (Frontline, January 18).

AS the sequence of events show, the CBI did not take independent steps to seek Anderson's extradition. The MEA, instead of taking steps to start the process of extradition by filing a request before the U.S. government, and subsequently in a U.S. court, sought the advice of an American Attorney, and neither the MEA nor the CBI bothered to reveal to the trial court the opinion of this Attorney, which apparently was the basis for the CBI's application to dilute charges against Anderson. The trial court's August 28 order is as much an indictment of the CBI's failure to seek the timely extradition and arrest of Anderson as per its earlier warrant, as its disapproval of the CBI's blatantly flawed reasoning to apply to Anderson the Supreme Court's 1996 judgment in the Keshub Mahindra Case.

As the reply of the intervener-organisations to the CBI's May 24, 2002, application to the CJM reveals, the request by the Government of India for Anderson's extradition would be governed by the Treaty of Extradition between India and the U.S., which was notified on April 1, 1996. Article 3 of this treaty lists out the categories for which extradition shall be reciprocally granted. While manslaughter, which is the equivalent of the offence of culpable homicide not amounting to murder, is listed as item No.2, the offence of the commission of a rash and negligent act as described under Section 304-A of the IPC or its equivalent in U.S. laws finds no mention. In other words, the offence under Section 304-A of the IPC is not one for which a request for extradition under the treaty governing India and the U.S. can be either made or granted.

In their reply, the intervener-organisations alleged that the CBI was fully aware of this legal position and had made this application only with a view to defeating the earlier orders of the trial court directing the CBI to take steps to extradite Anderson and ensure his production before the court to face trial for the offence punishable under Section 304-II of the IPC. The case against Anderson, UCC and the UCE has been separated from the case against the rest of the accused, and continues to be registered as such before the trial court, they pointed out.

More important, they revealed in their reply that there is sufficient material available to bring home charges against each of the absconding accused in relation to the offence of culpable homicide not amounting to murder. While ample evidence in this regard is available with the CBI, in paragraph 25 of the charge- sheet it filed before the trial court on December 1, 1987, the CBI stated that "some further investigation still remains to be done, which is proposed to be continued after submission of this charge-sheet". One such piece of investigation concerns the inspection of the UCC plant at West Virginia in the U.S.

The CJM's August 28 order exposes the CBI's hypocrisy in the matter of pursuing the extradition of Anderson. The CBI had on April 9, 2002, asserted before the CJM in response to its September 7, 2001, direction to it that it was taking steps to extradite Anderson. However, within a month, the CBI filed an application seeking a fresh non-bailable warrant of arrest for a drastically diluted charge against Anderson, under which charge a person would be non-extraditable under the Indo-U.S. Extradition Treaty.

Union Minister of State for Home I.D. Swamy said on a programme telecast by a private television channel that the government was bound by the CJM's order. That would probably mean that the government will continue to sit on Anderson's extradition as it has been doing all these years.

Meanwhile, Greenpeace, the international environment activist NGO, claimed that one of its campaigners in the U.S., Carey Harrell, had visited Warren Anderson at his luxury home in Bridgehampton, Long Island, New York, and served him with a "citizen's arrest warrant". Anderson refused to comment on the 1984 gas disaster or his refusal to appear before the courts in India to the visiting activist.

Will the CBI and the Union government show the requisite resolve to comply with the CJM's order in letter and spirit?

(This story was published in the print edition of Frontline magazine dated Oct 25, 2002.)

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