India: Union Carbide Bhopal Gas Leak Case

Last Updated: 20 July 2010
Article by Sumeet Kachwaha

Comment on the decision of the Chief Judicial Magistrate, Bhopal dated 7th June, 2010 and the subsequent events:

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 and divisions).

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 country.

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 India.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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