“Issue is under appeal before HC…by filing this petition what message is the Centre trying to send?”

The curative petition filed by the Central Bureau of Investigation for enhancement of punishment to the accused in the Bhopal gas tragedy case was misconceived and bad in law, argued senior counsel Harish Salve in the Supreme Court on Tuesday.

Appearing for the main accused Keshub Mahindra, Mr. Salve submitted before a Constitution Bench of Chief Justice S.H. Kapadia, Justices Altamas Kabir, R.V. Raveendran, B. Sudershan Reddy and Aftab Alam that “what CBI says is not the law.”

He said that after the Supreme Court had passed a well-considered judgment in 1996 (removing the charge of culpable homicide not amounting to murder), “if you are not satisfied with the judgment, curative petition is not a solution. In criminal cases, the matter must end there. Anything contrary to the criminal procedure will be violative of Article 21 of the Constitution [right to life and personal liberty].”

Mr. Salve said whether 5,000 persons had died or only one person had died in the incident, the same procedure should be followed, otherwise cracks would develop in the criminal justice delivery system.

“You cannot bend the law. Unless there was an irremediable situation, curative petition is not the answer. Here the matter is under appeal before the High Court. By filing this petition what is the message the Union of India is trying to send,” he asked.

Mr. Salve told the Bench: “Is it necessary for the court to go into the curative petition because of the enormity of the incident? If you set aside the 1996 judgment, there would be a de novo trial and charges have to be framed afresh.”

Earlier continuing his submissions, Attorney-General G.E. Vahanvati reiterated that a curative petition could be entertained if there was patent injustice or miscarriage of justice. He said: “To perpetuate an error is no virtue. To correct it is a compulsion of judicial conscience.”

He said: “The September 13, 1996 judgment has caused manifest irremediable injustice. A horrendous crime was committed and the maximum punishment capable of being imposed under IPC Section 304 A (causing death by negligence) are grossly disproportionate to each other.”

The AG said: “Since criminal law serves a social function, it is important that the social message of the judgment be borne in mind. The case involves the worst industrial disaster in human history, corporate crime, corporate responsibility and the running of a plant in a manner that was palpably dangerous and unsafe for those in the neighbourhood.”

“Vitiated by flaws”

Mr. Vahanvati said the 1996 judgment should be set aside not because it was wrong or that it had applied a wrong test, rather it was completely vitiated by fundamental flaws which went to the root of the matter. He said the approach with regard to the material on record in relation to whether there was prima facie evidence for sustaining the charge under IPC Section 304 Part II (culpable homicide not amounting to murder) was entirely flawed on various aspects. He squarely blamed the accused for running such an unsafe plant which resulted in the colossal tragedy. The quantum of punishment must be proportionate to the gravity of the crime, he argued.

Additional Solicitor General Vivek Tanka, appearing for the Madhya Pradesh government, said: “In the event a retrial is ordered, the State with the CBI would set up a special court and hearing would take place on a day-to-day basis. Whatever needs to be done, the State would do its best and delay is not an issue at all.”

Arguments will continue on Wednesday.