“The proceedings in the U.S. for extradition of Warren Anderson, former Chairman of Union Carbide Corporation, are not likely to succeed and, therefore, the same may not be pursued.”
This is what the former Attorney-General of India, Soli Sorabjee, told the Vajpayee government in August 2001 on the question whether extradition proceedings are legally sustainable under the Indo-American Extradition Treaty. This opinion was accepted and the government did not pursue the matter further.
In his August 6, 2001 letter, Mr. Sorabjee referred to his earlier opinion, dated July 31, 1998, that causing death by a rash or negligent act (Section 304-A of the Indian Penal Code) would be comparable to ‘manslaughter' under the U.S. law and would prima facie be covered under Article 3 of the Extradition Treaty.
As regards whether available evidence against Mr. Anderson would meet the evidentiary standard of “probable cause” required under the U.S. law, Mr. Sorabjee had suggested that as the issue involved was one of U.S. law, legal advice be obtained from competent U.S. Attorneys. Thereafter, legal opinion was obtained through the Indian Embassy from M/s Verner, Lipfert, Bernhard, McPherson and Hand, Chartered, the letter said.
Mr. Sorabjee said: “According to the said opinion, manslaughter and ‘causing death by negligence' would be found comparable by a U.S. court. Thereafter, the said opinion addresses the question whether, on the available evidence, the Indian government can satisfy the probable cause requirements necessary for the magistrate to issue a certificate of extraditability.
“After a detailed analysis of the evidence and case law, the conclusion reached is as follows: There are missing evidentiary links that need to be supplemented, such as the actual cause of the [December 3-4, 1984] gas leak [in the Union Carbide plant in Bhopal]; Mr. Anderson's knowledge of the cause of the gas leak prior to its occurrence; the extent to which Mr. Anderson had decision-making control over UCIL's safety and design issues, and whether Mr. Anderson refused to correct the hazard.”
Mr. Sorabjee said: “Although the Indian government does not have to show that Mr. Anderson will be convicted of criminal negligence, U.S. law requires evidence linking him directly to the cause of the gas leak. Without this type of evidence, it is our opinion, a U.S. court will not find probable cause on the charge of ‘causing death by negligence' or its equivalent, manslaughter.
“According to the opinion of the U.S. Attorneys, the State Department would likely find policy reasons not to surrender Mr. Anderson to the Indian government. The reasons are humanitarian concerns, such as Mr. Anderson's age, said to be 81 years old, and health, and [the] length of time that has elapsed, almost 17 years, between the event and the Indian government's decision to make a formal request for his extradition. These are weighty and relevant considerations for the State Department for refusing our request for extradition. I am inclined to agree with the opinion of the U.S. Attorneys on this aspect. All things considered, in my opinion, proceedings in the USA for extradition of Mr. Warren Anderson are not likely to succeed and, therefore, the same may not be pursued.”
Mr. Sorabjee in an interview to Frontline at that time explained his stand thus: “Counsel give opinion on the basis of the factual instructions and material contained in the Statement of Case for Opinion. My opinion did not prohibit the government from pursuing the extradition request. I did not opine that it would be illegal or impermissible to do so. After considering all factors, my view was that [the] extradition request was not likely to succeed and may not, and should not, be pursued. The Ministry [of External Affairs] could have sent a Supplementary Case for Opinion whether an attempt at extradition could be made in order to satisfy the victims. No such thing was done.”
