Opinion - Op-Ed   

Judges and judgments: a correctional inquest

— PHOTO: PTI

TOO POOR TO CRY: A woman holding a photograph of her son Sajid, who died in the 1984 Union Carbide disaster.

Fali S. Nariman, one of India's finest contemporary lawyers and jurists, made many points with a bearing on the Bhopal case in his autobiography, When Memory Fades (2010), and he did it with grace and power. He has since said in an instructive and educative interview (Op-Ed page, The Hindu, June 28, 2010) that had all the facts relating to the Bhopal tragedy that are now known were with him then, he would not have accepted the brief for those who were responsible for it.

One poignant issue, one that is to my mind rather important, was however found to have been omitted in the interview. In the case relating to the tragedy, apparently accepting Mr. Nariman's submission, the settlement provided that no more cases of civil brutality or criminal culpability would be entertained by any Indian court against Union Carbide India Limited.

The company thus received an extraordinary absolution from all the cases. This divinely universal exoneration, that virtually stifled the voices of the mass of victims, was not social justice but carnage jurisprudence.

That proposition is void. The Union Carbide facility to produce a lethal gas was installed in India without due safety tests or experimental checks. It was a U.S. corporation and a multinational that was involved, and it could walk through to India as if the country was a mere dollar colony. The catastrophic leakage was the biggest industrial disaster in history. A Bhopal tragedy of Hiroshima magnitude — I call it a ‘Bhoposhima' calamity caused by ‘gasassination.' According to some estimates, around 20,000 people died in the tragedy.

In the first place, the government was grossly negligent in permitting the installation of the unit. A mega-criminal case came up, involving charges under Section 304 of the Indian Penal Code. But a pachydermic court, at the level of the Supreme Court, without care or conscience reduced the gravity of the offences to those involving Section 304A of the IPC. The accused corporate, UCIL, and Warren Anderson, its Chairman, were not prosecuted. When the Chairman came on a visit soon after the tragedy, he was promptly given bail and he went home.

O, the pity of it. How frivolous was the prosecution that ended in lesser officials of the company being sentenced to two years' rigorous imprisonment. A Himalayan offence ended in a molehill sentence. The state — which is also a suspect in the bargain — settled the case under its unknown unlimited power of patria potestas — no more future cases, no more cases from the same catastrophe. The shocking settlement made a mockery of the Indian Penal Code. No real compensation has been paid yet. The law is not merely an ass, but verily a barbarian in this instance. Social justice and economic justice in the Constitution would seem to have become frivolous phrases in this context.

Thinking of the massacre in Bhopal and the heartless authorities, I wept. In a Muslim minority population that was too poor and pathetic even to cry, and that was innocent of any crime, breathed the air not knowing that it was poisonous. The effects of the corporate crime trespassed even into the countryside, where guiltless people slept. By neglect lethal gas leaked out into space where humble humans were fast asleep. Also hit were animals and plants.

Then followed a sinister scene the like of which no eye had seen, no heart had conceived, no human tongue could adequately tell, no great painter in gory horror could paint. Bhopal was too poor to adequately project the pathetic scene to attract compassion. After all, the dead ones were Indians and the killers were rich, white corporates. Yankee air is innocent of grave crime!

The police laid charges of homicide, for Indian khaki sometimes has a heart. Anderson was charged. But the Supreme Court seemed to be above sensitivity.

The Indian Republic has a bosom of rock-and-brick, and so it settled for compensation for cadavers whose actual count nobody had. The thousands of brown corpses did not seem to matter, and some measly compensation received from Union Carbide was used to build a five-star hospital for the rich.

This is a crime. Parliament should awake and arise for the women, men and children who died in their sleep and continue to bear the effects of the gas. Twenty-six years later, an Indian court has handed out a soft sentence. Is this social justice? Have the judicative system and the robed brethren forgotten to keep their heart in the face of the ‘Bhopalicide'? This is the outrageous obituary of Indian justice. It is not swaraj justice, it is jocose. This is Hamlet without the Prince of Denmark. For Anderson remains free.

Union Carbide and its successor-entities, we greet you. We are but a dollar colony. Our justice is dilatory vis-a-vis your system. So we came to the United States. A great lawyer and a great judge told your court unblushingly how our Gandhian court is weak and you are powerful. That is a chapter of shame. When the poor die and the rich corporation has no accountability, the judiciary's vision missed murder and thought it was some simple crime.

Where is the patriotic mission and national passion when the accused is from the U.S? You are nuclear and we need your aid. Let the northern and southern blocs call you by any name. A de novo case needs to be initiated against the corporate culprits of Bhopal. What is at stake is India's honour, independence, humanism and judicial integrity. It should be a do-or-die battle for truth and justice. You accused, be you ever so high, our law is above you. Indian law is no longer British common law but Indian constitutional law made by ‘We, the People of India' and spelt out in the Preamble. India is a democratic republic. It is socialist, secular and democratic, and governed by constitutional preambular principles. The Preamble to the Constitution speaks of social and economic justice and human rights, which prevail over the Common Law of the Law Lords, or corporate domination.

India's paramount public law has its basic principles founded in the Preamble — justice, social, economic and political. Then there are Part III, IV and V A. Judges of the highest court seemed to have missed this vision and mission. Do they forget at times the grand tryst with destiny that India made as it became free? The swaraj pledge was to “wipe every tear from every eye.” The high bench sitting in a grand edifice on the national capital's Curzon Road with egalitarian jurisdiction governs the rule of law. But this fundamental principle and doctrine seemed to have been missed in deciding the Bhopal case. Let us win back the independence of Indian jurisprudence.

I hold the judges of the higher and subordinate courts in high esteem and as some of the finest citizens of the country. They are brethren of integrity, from munsiff to magistrate to the supremo, able, independent, persons of character. And some of them are sublime. But there are some who are not so at all — although they are few and far between. As a class, the judiciary constitutes a noble elite sector of public servants.

My critical observations are limited to those scarce nocents. I salute the judiciary generally and am proud to belong to the judicature. But the noxious and nocent elements must be isolated and censured to preserve the fair name of the judicature. This sort of criticism is correctional and dignified and meant to cleanse the class as a whole eliminating the vicious section. There is a caste system, a sacrilege that spoils the divinity, the dignity and integrity of the judicative fraternity.

In the Union Carbide case, a strong Bench headed by Chief Justice R.S. Pathak and including Justice A.M. Ahmadi gave a gaffe of a decision. It was a fundamental contradiction of Indian law but based on an undisputed principle of Victorian vintage common law. It seemed to ignore the fate of the thousands killed. Justice M.N. Venkatachaliah quoted Charlsworth and Percy on Negligence (1990, Eighth Edition, Para 443) in his judgment thus: “Indeed, that this is the position in common law cannot be disputed. In an action for negligence, damages must be and are assessed once and for all at the trial of such an issue. Even if it is found later that the damage suffered was much greater than was originally supposed, no further action could be brought. It is well settled rule of law that damages resulting from one and the same cause of action must be assessed and recovered once and for all. Two actions, therefore, will not lie against the same defendant for personal injury sustained in the same accident.”

That proposition is valid in Westminster, but is contrary to India's constitutional Preamble and the interest of the poor Indian.

The dangerous legal precedent that would seem to have validated massive injustice without remedy, deserves demise. A larger Bench of the Supreme Court should act on this.

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