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Some Thoughts On UCC Gas Tragedy Bhopal : Why 3828 x 2 Years Of Separate Sentencing Was Not Provided

By Yash Thomas Mannully & V N Haridas

12 July, 2010
Countercurrents.org

The recent decision of the CJM's Court, Bhopal has raised serious criticism against the sentence provided to the culprits of the UCC gas tragedy at Bhopal and the Indian judiciary has been at the receiving end as a result of the fierce criticism for not providing proper sentencing to the culprits of the worst industrial disasters the world has ever seen. But a close analysis of the developments after the UCC gas tragedy at Bhopal highlights the failure of all organs of the Indian government and also of the civil society which also includes the fourth pillar of democracy, the media. For long the hardships faced by the survivors of the gas tragedy and those living at the vicinity of the abandoned UCC factory at Bhopal were not given any importance by the Indian civil society at large, at the same time the role played by a number of committed persons as well as NGOs who has withstood the challenges to secure JUSTICE, social, economic and political is remarkable.

The main criticism against the decision of CJM's court at Bhopal was that only two years of sentence was provided due to the dilution of criminal charges to section 304 A of the Indian Penal Code by the Supreme Court through its 1996 decision on the Special Leave Petition filed by the present convicted persons. But even the initial charges without dilution i.e, IPC section 304 second part was permitted by the Supreme Court the sentence would be a mere 10 years for the death of 3828 persons (as per Supreme Court's 1996 decision) and for the injury of thousands of people.

Then why the media as well as a part of the civil society blaming the Indian judiciary for the negligible sentence for a catastrophic industrial disaster like Bhopal ? Is it due to ineffectiveness of the Indian justice system to render substantial criminal justice as result of the lack of statutory provisions? Or is justice for an average Indian means Winston Churchill's quotation about the conduct of Russia , i.e., it is a riddle, wrapped in a mystery, inside an enigma.

What we put forward certain fundamental questions which have arised to us while going the discussion related to decision of the CJM's Court, Bhopal .

1)  Why a single charge was filed by the investigating agency against the accused before the CJM's Court, Bhopal for the death of about 3828 people while death of each person constituted a separate offence?

2)  What happens if separate private complaints are filed under the Criminal Procedure Code?

In this aspect it becomes relevant to refer to the recent judgement dated 06-05-2010 of the Sessions Court for Greater Mumbai in SC 175/ 2009 (State of Maharastra v. M.A.M.A. Kasab). In the decision consisting of 1588 pages, the Session's Court has meticulously highlighted the role of the accused in committing the alleged offence based on prosecution evidence which was proved beyond reasonable doubt. The general principles of criminal law as followed in a common law jurisdiction like India provides for the prosecution to prove beyond reasonable doubt the commission of the crime by the accused. In the decision by Justice A.M. Ahmedi and Justice S.B. Majmudar in Keshub Mahindra v. State of M.P (1996 Supp.(6) SCR 287) the first of the four charges against accused no.2 Keshub Mahindra as framed by the trial judge is as follows;

“Firstly: That on or about the night intervening 2nd and 3rd December,
1984 at Bhopal, the Capital of M.P. co-accused persons S/Shri Kishore
Kamdar/J, Mukund/R.B. Roy Choudhary/S.B. Choudhary/K.V. Setty and S.I. Qureshi committed culpable homicide not amounting to murder by causing death of 3828 or more human beings by allowing the highly toxic gas known by the name of MIC to escape from tank No. 6l0 of A.P. Division plant of UCIL knowing that it was likely to cause deaths and you sharing this common knowlege with them did not do anything to avoid the said escape of gas thus you thereby committed on each courts an offence punishable under Sec. 304 (II) R/W Sec. 35 of the IPC and within the cognizance of the Court of Session.”

It is still a mystery why the investigating agency and the court which framed criminal charges as well as the higher courts concentrated on a rounding off the number of deaths to charge as a single offence while it was possible to treat each death as separate offences. One of the cardinal rules of criminal law is that the charge against the accused should be specific and in this aspect the initial charge says “death of 3828 or more” human beings. Since these authors were not able to verify the exact text of the CJM's court's decision there are doubt whether the trial court has taken it granted that 3828 or more human beings died due to the gas leakage and the prosecution has proved beyond reasonable doubt that the death of 3828 or more human beings was caused by highly toxic gas from UCIL plant. The decision of the CJM's Court, Bhopal has provided liability to the accused person and if the offence charged were separate corresponding o each death, then the court with regard to sentencing have the option to provide 2 years of sentence each for 3828 deaths that can be undergone either jointly or separately.

In order to provide substantial justice to the victims of corporate crimes there needs innovative ideas so that the culprits will not go unpunished and it is not the deficiency of the existing legal framework but the inability of those who are part of the existing framework to use the legal effectively to render substantial justice.

 

Yash Thomas Mannully graduated in law in 2003 from Mahatma Gandhi University and has taken LL.M. Degree from Cochin University (2005) and Wales University (2008). He has obtained diploma in International Nuclear Law from International School of Nuclear Law at the University of Montpellier (2008). Currently practicing as an advocate before the High Court of Kerala, India and is also in the Guest Lecture panel for teaching International Trade Law at Cochin University of Science and Technology. Area of specialisation includes Nuclear Law, Constitutional Law and Environmental Law. He has published a number of articles in the area of nuclear law in India. He can be reached at [email protected]

V N Haridas graduated in law in 2007 from Mahatma Gandhi University and has taken LL.M. Degree from Southampton University, London. He is currently practicing as a lawyer before the High Court of Kerala. The Specialisation areas include constitutional law, nuclear law, maritime law and environment law. He can be reached as [email protected] .