Comment on the decision of the Chief Judicial
Magistrate, Bhopal dated 7th June, 2010 and the
If the Supreme Court of India can be berated till date for
sanctifying a settlement perceived to be inadequate (a settlement
brought about by 5 Judges of the Court in 1989), then it is
somewhat unrealistic to expect a Judicial Magistrate to go against
the tide. To that extent the Judgment of 7th June 2010
holding all the accused persons (right from the plant operator to
the Chairman of the company) as uniformly guilty to the maximum
extent permissible in law, for causing death by negligence, is but
on expected lines.
From a legal point of view, however the Judgment lacks logic or
precedent. It takes an unfathomed leap into the realm of criminal
liability. It essentially ignores well settled law that there is no
concept of vicarious liability in criminal law (except where so
expressly provided) and that the prosecution must prove
recklessness or negligence on the part of each of the accused
related to the accident for an offence under Section 304 A of the
Indian Penal Code to be made out. To my mind there should have been
a distinction between the Chairman and Managing Director on the one
hand and the Vice President in charge of the concerned division on
the other. Further individual culpability must have been
established. Instead the Magistrate has based the conviction
entirely on "deemed knowledge" of the accused of the
alleged shortcomings in the plant / its operations. This seems
unduly harsh considering the size and operations of Carbide India -
(it had 14 factories in the country with a wide variety of products
If a Chairman or a Managing Director of a large company can be
deemed to be criminally liable for all that may go wrong in the
company (without the need to establish recklessness, negligence or
a causal link), it would become impossible to find a person of
standing or caliber willing to hold such position. Criminal
liability cannot be equated with civil liability.
It may not be out of place to dwell a little on the extra legal
dimensions of this case. One of the tragedies of the Bhopal Gas
leak disaster is the politicization of the case and the failure of
the Government to bring the hard issues and facts home to the
people of the country. A single pointed hype against the company
(an American multinational) did not help and the Government simply
succumbed to the media and NGO campaign. Now a decision has been
taken (at the highest level) to revisit the 1989 settlement the
Government had solemnly signed off on. The Government has also
decided to petition for reopening the subsequent 1996 Judgment of
the Supreme Court which reduced the criminal charge from culpable
homicide to causing death by negligence.
Two things come to mind – first of course the
unfortunate signal this will send off that the Indian State can go
back on its solemn sovereign agreement, duly signed settled and
sanctified by the highest Court of the land for over two decades.
The second is that if the Supreme Court were indeed to be convinced
to reverse its subsequent 1996 decision and the accused are to be
tried for the graver offence of culpable homicide, it would mean
setting the clock back by many years. This is for the reason that a
case of culpable homicide is triable exclusively by the Sessions
Court (and not by the Judicial Magistrate). Further Section 300 of
the Code of Civil Procedure provides that once a conviction is in
force, the accused cannot be tried again for another offence on the
same facts. Hence whatever has been achieved so far (after a hard
to explain delay of 25 years) would be rendered to naught and the
matter would have to start afresh before the Sessions Court. The
fact that this will achieve the result of opposite of what is being
professed is being neither discussed nor debated.
What is needed and indeed expected from any State (which would
like to be counted amongst the nations boasting of the Rule of Law)
is to take a firm and dispassionate view of matters. If the Sate
cannot do so even 25 years after the incident it is but a sad
reflection of the ground realities and political compulsions of the
One hopes of course that the courts when approached would not
allow the Rule of Law to be replaced by sentimental passions.
Note: The author represented Union Carbide in the
litigation till the settlement stage in the Supreme Court of
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